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

2013 (September Term)

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). 

2010 (September Term)

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).

2009 (September Term)

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).


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).


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).


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).

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