Opinion Analysis: Reemphasizing that the victim of a larceny is the entity from whom the property was obtained, in United States v. Simpson
CAAF decided the certified Army case of United States v. Simpson, 77 M.J. 279, No. 17-0329/AR (CAAFlog case page) (link to slip op.), on Monday, March 19, 2018. Answering the certified issue in the negative, CAAF reemphasizes that the victim of a larceny under Article 121 is the person or entity from whom the accused obtained the goods or money at issue, and not merely any person who suffered a loss or consequence as a result of the accused’s actions. Nevertheless, CAAF reverses the Army CCA’s decision, finding that the appellant’s guilty plea to conspiracy to commit larceny may stand and that a conviction of attempted larceny (as a lesser included offense of larceny) may also be affirmed.
Judge Ryan writes for a unanimous court.
Sergeant (E-5) Simpson, in cahoots with his civilian girlfriend, initiated fraudulent electronic transfers from a corporate bank account used by Credit First National Association (CFNA). The account itself was held by JPMorgan Chase bank, and the frauds were accomplished by using the account’s information for electronic payments for Simpson’s bills. Simpson also conspired with another Soldier to use the CFNA account to pay the other Soldier’s bills. Simpson’s frauds amounted to over $30,000, and he ultimately pleaded guilty to one specification of larceny on divers occasions, and one specification of conspiracy to commit larceny, in violation of Articles 121 and 81, and was sentenced to confinement for two months, reduction to E-4, and a bad-conduct discharge.
On appeal, however, Simpson challenged his pleas on the basis that they identified CFNA as the victim when JPMorgan was the actual victim. A three-judge panel of the Army CCA agreed (in a 2-1 decision) and reversed both pleas. The Judge Advocate General of the Army then certified a single issue to CAAF:
Whether the Army Court of Criminal Appeals erred by finding a substantial basis in law and fact to question Appellant’s plea in light of the Supreme Court decision in United States v. Shaw, 137 S.Ct. 462 (2016), and the Court of Appeals for the Armed Forces decision in United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014).
In today’s opinion Judge Ryan explains that the answer to the certified question is no, but the Army CCA’s decision to reverse both convictions was mostly wrong for other reasons.
For Simpson’s guilty plea to larceny from CFNA (and not JPMorgan), Judge Ryan twice mentions an important fact:
As the Government conceded at argument, Appellee obtained nothing from CFNA.
Slip op. at 4.
As Government counsel conceded at argument, Appellee obtained nothing from CFNA, and as a matter of law CFNA, therefore, could not be the object of the larceny.
Slip op. at 7 (emphasis in original).
Judge Ryan then explains why neither Shaw nor Cimball-Sharpton (CAAFlog case page) support a different result. Cimball Sharpton:
was an unusual case involving an agreement between the Air Force and the bank issuing a government credit card and an agency relationship between the appellant and the Air Force. . . .
Unfortunately, we used language describing the Air Force as a “victim” and as the entity who “suffered the financial loss,” rather than explaining how goods and funds were obtained from it. Cimball Sharpton, 73 M.J. at 301−02. We clarified our holding in Williams [(CAAFlog case page)] by explaining that under Article 121, UCMJ, the government should generally charge as the object of the larceny, the person or entity from whom the accused obtained the goods or money at issue, rather than any person who suffered a loss or consequence as a result of the defendant’s actions. Williams, 75 M.J. at 132−34 (citing Cimball Sharpton, 73 M.J. at 301−02).
Slip op. at 6. As for Shaw, it is rejected in a footnote that explains that:
Although, Shaw, in dicta, suggests that the customer may retain a possessory interest in money contained in a bank account, it did not purport to overrule Burton v. United States, 196 U.S. 283, 302 (1905), which clearly held the bank owns the deposits in an account and is not an agent of the depositor unless there were “stipulations to the contrary.” Id. at 301 (citation omitted) (internal quotation marks omitted). There are no such stipulations extant in the record here, and Shaw is not otherwise relevant for purposes of deciding this case.
Slip op. at 5, n.3.
The observation that Simpson obtained nothing from CFNA means that “the ACCA was correct in holding that the military judge abused his discretion in failing to reject Appellee’s guilty plea and entering a finding of guilty as to the larceny specification.” Slip op. at 8. Accordingly, that conviction is set aside (and the CCA’s opinion is affirmed in this part).
The conspiracy conviction, however, is not similarly flawed, because:
Here, the providence inquiry and the stipulation of fact show an agreement between Appellee and Sgt. Ramos to use funds from the CFNA account in order to pay personal debts. Appellee performed overt acts in furtherance of the conspiracy such as arranging for Sgt. Ramos to receive the account information. The fact that the funds were actually obtained from J. P. Morgan is of no moment.
Slip op. at 9 (citing United States v. Roeseler, 55 M.J. 286, 291 (C.A.A.F. 2001)). Accordingly, the conspiracy conviction is reinstated (and the CCA’s contrary holding reversed).
CAAF then turns to an issue not addressed by the CCA – whether Simpson’s guilty plea to larceny was adequate to support a conviction of a lesser offense. Yes it was, explains Judge Ryan:
the stipulation of fact and the military judge’s providence inquiry provide an adequate basis to affirm a finding of guilty to the lesser included offense of attempted larceny under Article 80, UCMJ, for similar reasons to those mentioned above. . . .
Appellee admitted to performing overt acts, namely obtaining and withholding property that he believed belonged to CFNA. These acts were done with the specific intent to commit a larceny by permanently depriving CFNA of the money at issue, and constituted more than mere preparation. Appellee did, in fact, commit and plead guilty to larceny— he was merely mistaken about who he was stealing from. . . . Appellee’s admissions during the providence inquiry, together with the stipulation of fact, establish all the elements of the lesser included offense of attempted larceny and we affirm a finding of guilty to that offense.
Slip op. at 9-10.
CAAF remands for reassessment of the sentence.
• ACCA opinion
• Appellant’s (Army Gov’t App. Div.) brief
• Appellee’s answer
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis