CORE CRIMINAL LAW SUBJECTS: Crimes: Article 121 - Larceny and Wrongful Appropriation

2020 (October Term)

United States v. Castro, 81 M.J. 209 (in this case, the military judge did not abuse his discretion in accepting appellant’s guilty plea to stealing gas that was the property of GSA by using a GSA fuel card without authorization to purchase gas for his car, despite the fact that GSA never had physical possession of the fuel before it was stolen and that appellant was not acting as the GSA’s agent in purchasing the fuel; appellant stipulated that the GSA paid for and owned the fuel that he put into his car and he confirmed this fact during the providence inquiry; because GSA was the entity that paid for the fuel, it thus had an interest therein superior to that of appellant as required for it to qualify as the owner of the fuel at the time the fuel was appropriated by appellant for his personal use; withholding the fuel from a party with a superior possessory interest is sufficient to constitute larceny; furthermore, an agency relationship is therefore not always necessary for the payer to have a greater right to possess the purchased property; appellant stipulated facts that were legally possible and that were consistent with his guilty plea; accordingly, appellant failed to show a substantial basis in law and fact for questioning the military judge’s acceptance of his guilty plea).

(ownership of property is not purely a question of fact because ownership ultimately depends upon legal principles; however, the practical reality is that most facts regarding common transactions in property (e.g., whether someone bought goods, possessed goods, owned goods, or sold goods) have some legal component to them and yet are customarily treated as facts susceptible to stipulation). 

2018 (October Term)

United States v. Hale, 78 M.J. 268 (Article 121(a)(1), UCMJ, in relevant part, identifies larceny as wrongfully taking, obtaining, or withholding with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use).

(based on Article 2, UCMJ, and supporting case law, no authority existed at the time of the alleged larceny offenses in this case to extend military status to appellant while engaged in IDTs beyond the designated four-hour blocks of his IDT time; Article 2(a)(3) very clearly extends jurisdiction to members of a reserve component while on inactive-duty training; unlike other types of reserve duty, an IDT is not a tour but a block of time; specifically, it is a designated four-hour period of training, duty or instruction; the member performing the IDT is paid for and receives a point for that designated four-hour block of time; appellant was no exception; rather, he received pay and points solely for the IDT blocks he was authorized to complete). 

2017 (October Term)

United States v. Jones, 78 M.J. 37 (with respect to the offense of larceny, the value of the property taken, obtained, or withheld is not an element of the offense; however, larceny of property having a value of more than $500 carries a larger sentence than larceny of property having a lesser value). 

United States v. Simpson, 77 M.J. 279 (Article 121, UCMJ, proscribes the wrongful taking, obtaining, or withholding, from the possession of the owner or of any other person, money or an article of value of any kind with intent to permanently deprive; the government must allege that the accused wrongfully obtained money or goods from a person or entity with a superior possessory interest).

(when an accused engages in a wrongful credit, debit, or electronic transaction, this usually constitutes either a larceny of those goods from the merchant offering the goods or from the entity presenting the money; the general rule in such a case is that the money or goods are wrongfully obtained from the merchant or bank). 

(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 accused’s actions; for purposes of Article 121, UCMJ, it does not matter who suffered a loss or harm as a result of an accused’s actions; rather, the proper object of a larceny is the person or entity from whom the accused actually obtained the goods or money). 

(in this case, the accused’s plea of guilty to larceny was improvident where the stipulation of fact set up a matter inconsistent with his plea by stating he stole the funds from an account holder, rather than the proper owner of the funds, the bank; as is true in the usual case involving a credit larceny, the bank was the proper object, not the account holder; in addition, as the stipulation of fact reflected, the bank was the only entity that possessed funds at the time of the fraudulent transactions, and there were no funds in the zero-balance account holder’s account; the accused obtained nothing from the account holder, and as a matter of law, therefore, the account holder could not be the object of the larceny). 

2015 (September Term)

United States v. Williams, 75 M.J. 129 (an Article 121, UCMJ, conviction does not turn on identifying the victims, impact, and loss as those terms are commonly used and employed; rather, it requires, inter alia, that an appellant steal something from a person who owns it or has a greater possessory interest in it than the appellant).

(theft of services are, unlike goods, not tangible and capable of being possessed, and thus not the proper object of larceny under Article 121). 

(Article 121, UCMJ, sought to consolidate the various means of stealing — by larceny, false pretense, and embezzlement — under the single rubric of larceny; in one sense, the particular means of acquisition of the property became relatively unimportant; however, the person stolen remains important with the elemental requirement that the accused wrongfully obtain money or goods from a person or entity with a superior possessory interest). 

(the relevant question with respect to larceny in determining the person to name in a larceny specification is whom did the accused steal the goods or money from; and a person can refer both to a natural person and to a government, a corporation, an association, an organization, and an estate; such a person need not be a legal entity). 

(when an accused engages in a wrongful credit or debit transaction, he has usually stolen from the merchant offering the purchased goods or the entity presenting the money; that is, typically, when larceny is by means of a wrongful credit or debit transaction, the money or goods were wrongfully obtained from the merchant or bank, making them the person stolen from; the goods or money at issue belong to the merchant or banks, and the accused merely uses the credit or debit card, falsely representing himself as the cardholder, as a means to commit the larceny; while it is true that the credit or debit cardholder may also suffer a consequence — such as a bank fee or loss of access to funds in an account — the accused nonetheless did not obtain money or goods from the cardholder).

(in the usual case of a credit card or debit card larceny, the person who should be alleged in the specification is a person from whom something was obtained, whether it is goods or money). 

(alternative charging theories are available under Article 121, UCMJ, as long as the accused wrongfully obtained goods or money from someone with a superior possessory interest; such alternative theories are the exception and not the rule).

(in the usual case of debit card theft, an accused obtains nothing from the cardholder through an unauthorized use of the cards).  

(in this case, appellant’s actions constituted a garden-variety larceny by unauthorized use of debit card information, and the usual rule — that the person who was stolen from, or from whom larceny was attempted, was the merchant from whom the goods were obtained or the bank from whom money was obtained — applies; the account holders here did not own either the goods or the bank funds available to satisfy the debit card purchases).

(if a defendant did not steal from the person the government names in the larceny specification, the conviction is legally insufficient). 

2014 (September Term)

United States v. Murphy, 74 M.J. 302 (the MCM prescribes an increased maximum punishment for larceny of an explosive, irrespective of value). 

(the 5000 rounds of 5.56 millimeter ammunition that appellant stole are included in the definition of explosive provided in RCM 103(11); small arms ammunition constitutes an explosive and is included in RCM 103(11)). 

(because the 5000 rounds of 5.56 millimeter ammunition that appellant stole were included in the definition of explosive provided in RCM 103(11) and because appellant described all the facts necessary to establish his guilt to larceny of an explosive, a substantial basis in law or fact for questioning his guilty plea to larceny of an explosive did not exist). 

(during the providence inquiry, in defining the term explosives for the purpose of sentence enhancement in a larceny offense, a military judge should inform an accused of the definition provided in RCM 103(11) and the definitions provided in 18 USC § 232(5) and § 844(j), given that these statutes are explicitly incorporated into RCM 103(11). 

2013 (September Term)

United States v. Cimball Sharpton, 73 M.J. 299 (the victim in the case of credit card larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue). 

(the elements of the crime of larceny are: (a) that the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person; (b) that the property belonged to a certain person; (c) that the property was of a certain value or of some value; and (d) that the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person other than the owner; the term larceny encompasses and consolidates what in the past were separate crimes, i.e., larceny, larceny by trick, embezzlement, and obtaining property by false pretenses; any of the various types of larceny under Article 121 may be charged and proved under a specification alleging that the accused did steal the property in question). 

(wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense; such use to obtain goods is usually a larceny of those goods from the merchant offering them; however, alternative charging theories are also available). 

(in this case, where appellant used a government purchase card issued by US Bank to make unauthorized purchases from several retail stores, neither the merchants nor US Bank suffered the financial loss resulting from appellant’s larceny; because the Air Force, through DFAS, paid US Bank for all of the unauthorized charges and US Bank paid the merchants, only the Air Force suffered the financial loss, and the government was correct in charging larceny from the Air Force, as the Air Force was the proper victim). 

United States v. Hines, 73 M.J. 119 (the formulation of a plan or scheme or the setting up of a mechanism which, when put into operation, will result in the taking or diversion of sums of money on a recurring basis, will produce but one crime; thus, under the circumstances of this case, each specification properly aggregated money wrongfully obtained on a recurring basis and alleged a larceny or wrongful appropriation of military property of a value greater than $500.00). 

(multiple article larceny is to be charged as a single larceny when a larceny of several articles is committed at substantially the same time and place and the articles belong to different persons).

(there can be a continuing larceny of an aggregated amount even though monthly amounts were not taken at substantially the same time and place; whether there were separate offenses each month or a single offense aggregating all months, turns on the specific factual circumstances of each case, and that inquiry focuses on the actor at or near the starting point of the illegal activity; facts important to this analysis include the state of mind or intent of the actor prior to and simultaneously with the first taking, and also, evidence of acts done by the accused, either in preparation for the several takings or as an integral part of the first taking, which facilitate the subsequent takings or in some way aid the accused in accomplishing them). 

(if all that can be attributed to an accused is an original intent to purloin and the evidence merely shows that this intent was acted on from time to time, the nature of the acts must be measured by the separate takings). 

(an accused’s wrongful receipt of basic allowance for housing payments over several months constituted one offense of wrongful appropriation for the total amount, rather than multiple offenses for the amount received in each instance, where all the payments resulted from his failure to apprise finance that he no longer had dependents, as he acknowledged he was obligated to do; it was that failure to act that provided the means by which he received money to which he was not entitled on a recurring basis of a total value over $500.00). 

(an accused’s wrongful receipt of basic allowance for housing and family separation allowance payments over several months constituted two offenses of larceny, rather than multiple offenses for the amount received in each instance, where all the payments resulted from the affirmative acts of completing military forms, which fraudulently stated he remained married to his ex-wife; there is no question that the submission of these forms was the mechanism for the taking or diversion of sums of money on a recurring basis of a total value over $500.00). 

(under the circumstances of this case, aggregation of the monthly amounts paid on a recurring basis into three specifications alleging a value over $500.00, where there were three distinct mechanisms by which money was wrongfully received at three different locations, was appropriate). 

United States v. Stefan, 69 M.J. 256 (one should not underestimate the seriousness of barracks’ larceny; from basic training onwards, servicemembers are taught to trust their fellow servicemembers with their life, and barracks’ theft substantially damages that trust).

United States v. Lubasky, 68 M.J. 260 (a servicemember commits larceny under Article 121(a)(1), UCMJ, when that person wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner). 

(as used in Article 121, UCMJ, the single term “larceny” encompasses and consolidates what in the past were separate crimes, i.e., larceny, larceny by trick, embezzlement, and obtaining property by false pretenses; because of this, the particular means of acquisition of the property became relatively unimportant).    

(wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining‑type larceny by false pretense; such use to obtain goods is usually a larceny of those goods from the merchant offering them).  

(under Article 121, UCMJ, larceny always requires that the accused wrongfully obtain money or goods of a certain value from a person or entity with a superior possessory interest). 

(appellant’s unauthorized use of credit cards to obtain cash advances and goods was a larceny against the credit card issuers and the business establishments where the goods were purchased, not against the cards’ owner). 

(evidence that appellant was granted access to an elderly account holder’s checking account after representing that he would use the funds in the account to help pay her bills and expenses, and that he thereafter entered into unauthorized ATM and other debit transactions from the account for his own purposes, was legally sufficient to support a conviction of larceny from the elderly account holder; even assuming that appellant was a joint owner of the account, the evidence supports a conclusion that he obtained access to the account as a joint owner by false pretenses -- representing to the elderly account holder that he would use her funds in the manner she authorized -- with the actual intent to use the funds for his own purposes instead; in using false pretenses to obtain access to the account in this manner, appellant committed larceny against elderly account holder; moreover, whatever apparent legal authority appellant possessed to use the checking account funds, it was properly limited in scope by the elderly account holder’s beneficiary status and appellant’s fiduciary role; in other words, while adding appellant to the account vested him with the authority to retrieve funds from it, his authority to make various uses of those funds was limited to making necessary purchases for the elderly account holder, not purchasing things for himself). 

(two legal interests may coexist in the same property and the invasion of either may sustain a larceny prosecution). 

(a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance:  under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person). 

(the question whether a variance to the ownership of property in a charged larceny specification was fatal would be one an appellate court could answer if the factfinder had made findings by exceptions and substitutions; as noted in RCM 918, exceptions and substitutions may be made by the factfinder at the findings portion of the trial; but nothing in either the UCMJ or the RCMs suggests that, at the appellate level, crossing out the alleged property owner in a larceny specification and inserting the name of some other owner is permissible; RCM 918 does not grant an appellate court the authority to make that change; while Article 59(b), UCMJ, provides an appellate court with the power to approve or affirm so much of a finding as includes an LIO where the evidence as to the greater offense is not legally sufficient, that provision does not provide authority for the proposition that larceny from one entity is an LIO of larceny from another entity). 

United States v. Whitten, 56 MJ 234 (the crime of larceny by taking continues as long as asportation of the property continues; factually, the original asportation continues as long as the perpetrator is not satisfied with the location of the goods and causes the flow of their movement to continue relatively uninterrupted).

(viewed under the standard for assessing legal sufficiency of the evidence, Court finds legally sufficient evidence to find appellant guilty of conspiracy to commit larceny and larceny where: (1) R and M formed an agreement, manifested by their conduct, to steal a duffel bag; (2) appellant joined the ongoing conspiracy to steal the duffel bag; (3) several overt acts in furtherance of the conspiracy were committed after appellant joined the conspiracy; and (4) appellant aided and abetted the larceny before asportation of the stolen property was complete).

2001

United States v. Binegar, 55 MJ 1 (an honest mistake of fact as to a soldier’s entitlement or authorization to take property is a defense to a charge of larceny under Article 121, UCMJ, one element of which is the specific intent to steal).

(a military superior’s permission to his subordinate to dispose of government property to other servicemembers is not the type of fact which is unrelated to a specific intent of the subordinate to steal from the Government; therefore, any mistake of fact must only be honest to provide a defense).

(military judge’s instructional error informing the members that appellant’s mistake must have been both honest and reasonable, rather than only honest in order to provide a defense to larceny was materially prejudicial where: (1) the instruction placed a lesser burden on the government to prove appellant’s guilt because it could secure his conviction by disproving either the honesty or the reasonableness of the mistake; (2) trial counsel exploited the erroneous instruction in his findings argument; and (3) the government presented a substantial case on the unreasonableness of appellant’s conduct, creating a reasonable possibility that the members resolved this case against appellant on this basis.

United States v. Pacheco, 56 MJ 1 (evidence was legally sufficient to show the wrongfulness of appellant’s taking or withholding of a weapon, as well as his intent permanently to deprive the owner of the use and benefit of the weapon, where that evidence revealed that appellant did not return the pistol or inform the authorities of its taking after being informed that the taking of weapons was not permitted and that all weapons had to be returned prior to a shakedown).

2000

United States v. Reed, 54 MJ 37 (viewing evidence as a whole, Court finds evidence of larceny and false official statements legally sufficient where the evidence showed that appellant stole a modem and then engaged in an elaborate cover-up after the modem was discovered to be missing).

1999

United States v. Russell, 50 MJ 99 (appellant’s guilty plea admission that stolen items were military property used by Air Force, even though items were never actually turned over to the government, provided sufficient basis in record to support guilty plea to larceny of military property).