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.