U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201500384
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UNITED STATES OF AMERICA
Appellee
v.
DANNY SOTO
Yeoman First Class (E-6), U.S. Navy
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Ian K. Thornhill, JAGC USN.
For Appellant: Commander Brian L. Mizer, JAGC, USN.
For Appellee: Lieutenant Commander Catheryne E. Pully, JAGC,
USN; Major Tracey L. Holtshirley, USMC.
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Decided 30 August 2016
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Before F ISCHER , 1 R UGH , and C AMPBELL , Appellate Military Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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PER CURIAM:
A military judge, sitting as a special court-martial, convicted the
appellant, pursuant to his pleas, of one specification of wrongful
appropriation and three specifications of larceny, in violation of Article 121,
Uniform Code of Military Justice, 10 U.S.C. § 921. The military judge
sentenced the appellant to confinement for six months, reduction to pay
1 Senior Judge Fischer participated in the decision of this case prior to detaching
from the court.
United States v. Soto, No. 201500384
grade E-3, and a bad-conduct discharge. The convening authority (CA)
approved the adjudged confinement and discharge.2
The appellant now claims that his pleas to two of the larceny
specifications alleging that he stole money from Navy Federal Credit Union
(NFCU) were improvident because witness testimony during sentencing
proceedings implied that NFCU did not ultimately “suffer[] the financial loss
in this case.”3 We disagree.
I. BACKGROUND
The appellant was stationed aboard the USS PINCKNEY (DDG 91). On
several occasions between 10 October 2014 and 18 November 2014, he
entered Master-at-Arms First Class (MA1) RS’s office, accessed a locked cash
box, and removed the ship’s First Class Petty Officer’s Association (FCPOA)’s
“Navy Cash” card.4 He then “went to the Navy Cash machine on the ship”
and used the machine to transfer money from the “chip” on the card to “the
strip on the [card].”5 The appellant later took the card to an NFCU
automated teller machine (ATM) on Naval Base San Diego, and withdrew
cash.6
On 4 November 2014, the appellant took a Navy Cash card belonging to
Yeoman Second Class (YN2) CE. The appellant repeated the aforementioned
transfer process, then later withdrew cash from the same NFCU ATM using
YN2 CE’s card on several occasions before ultimately throwing it away.7
In the providency inquiry, the military judge stated that a required
element for the two larceny specifications was that the “currency” which the
2
During the pendency of this appeal, the appellant was administratively
discharged from the Navy pursuant to a provision in the pretrial agreement.
Appellant’s Brief of 4 Feb 2016 at 6; Appellate Exhibit 5 at ¶ 16c. The appellant’s
prior “discharge through administrative channels” does “not affect the power of . . .
appellate tribunals to act on the findings and sentence” under Article 66(b)(1),
UCMJ. Steele v. Van Riper, 50 M.J. 89, 91-92 (C.A.A.F. 1999).
3 Appellant’s Brief at 6.
4 MA1 RS was responsible for the card as the FCPOA Treasurer and received a
“letter of indebtedness” for the money withdrawn by the appellant. Record at 93, 95.
The appellant was also a member of the FCPOA, but he had neither a legal right to
use the card, nor permission “from anyone with authority . . . to take it.” Id. at 43, 45.
5 Id. at 51.
6 Prosecution Exhibit 1 at ¶ 4.
7Record at 55-56. (“MJ: . . . . [T]ell me . . . how you got the cash with [YN2 CE’s]
card? ACC: I did the same thing, sir.”); PE 3 at 3 (“Q. Did you withdraw money from
any other ATM? A. No . . . .”).
2
United States v. Soto, No. 201500384
appellant “took” must have “actually belonged to the Navy Federal Credit
Union.”8 Regarding the larcenies committed using the FCPOA’s card, the
appellant told the military judge that “the bank” was “out the money.”9 The
appellant also agreed the bank was “out the money” from the larcenies he
committed using YN2 CE’s card.10
During sentencing proceedings, YN2 CE mentioned filing fraud claims
with NFCU and “Chase Bank as well,” but agreed that her account had been
credited for the money withdrawn by the appellant.11 MA1 RS testified that
he had issues with the FCPOA’s NFCU account,12 but also stated that Navy
Cash, and not NFCU, had paid back the money to the FCPOA.13 MA1 RS also
stated that the money the appellant had paid in restitution was being paid to
the “U.S. Navy Treasury.”14 In sentencing argument, trial defense counsel
remarked that appellant “is paying back a debt to a bank.”15 The appellant
now argues the sentencing witness testimony implying that “Chase Bank,”
“Navy Cash,” and the “U.S. Treasury” were the actual larceny victims was
inconsistent with the his providence inquiry statements.
II. DISCUSSION
We review a military judge’s acceptance of a plea of guilty for an abuse of
discretion, reversing only if the record as a whole shows a substantial basis in
law or fact for questioning the guilty plea. United States v. Inabinette, 66 M.J.
320, 322 (C.A.A.F. 2008). “If after findings but before the sentence is
announced the accused makes a statement to the court-martial, in testimony
or otherwise, or presents evidence which is inconsistent with a plea of guilty
8 Id. at 39.
9Id. at 53-54 (“MJ: . . . [H]ave you learned whether or not the association itself is
out this money or the bank is out the money? Do you understand that question? ACC:
Yes, sir. The bank. MJ: . . . . [I]s it your understanding that the bank recognized this
as wrongful conduct and credited back the money to the association? ACC: Yes, sir.”).
10Id. at 56-57 (“MJ: . . . . I'm asking if you know whether the credit union
recognized this as fraudulent conduct and credited the $1,600 back to [YN2 CE’s]
account. . . . Who’s out the money at this point? ACC: The bank, sir.”).
11Id. at 87, 89 (“Q. You got that money back and they haven't–the bank hasn't
recouped that money from you, have they? A. No, ma’am .”).
12Id. at 94 (“A. Everything got frozen; all of our money . . . our Navy Federal
account, and our Navy Cash Card.”).
Id. at 98 (“Q. Okay . . . . they gave you the full $4,140 back recently? A. Navy
13
Cash? Q. Is it Navy Cash or Navy Federal Credit Union? A. Navy Cash . . . yes.”)
14 Id. at 99.
15 Id. at 149.
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United States v. Soto, No. 201500384
on which a finding is based, the military judge shall inquire into the
providence of the plea.” RULE FOR COURTS-MARTIAL 910(h)(2), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). The military judge may
consider information in the stipulation of fact to resolve inconsistencies in the
inquiry. United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014). We “must
find ‘a substantial conflict between the plea and the [appellant’s] statements
or other evidence’ in order to set aside a guilty plea. The ‘mere possibility’ of a
conflict is not sufficient.” United States v. Watson, 71 M.J. 54, 58 (C.A.A.F.
2012) (quoting United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996)).
The appellant claims that his plea can only be provident if, in addition to
demonstrating that NFCU owned the ATM, the military judge’s inquiry also
confirmed that NFCU ultimately “suffered the financial loss in this case.”16
This claim does not follow because “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.” United States v. Williams, 75
M.J. 129, 130 (C.A.A.F. 2016) (citing United States v. Lubasky, 68 M.J. 260,
263 (C.A.A.F. 2010) (additional citation omitted). Indeed, the “relevant
question in determining the person to name in a larceny specification is” not
who ultimately lost the money, but rather “whom did the accused steal the . .
. money from?” Id. at 132.
Here, the appellant admitted to using Navy Cash cards belonging to the
FCPOA and YN2 CE to withdraw cash from NFCU’s ATM,17 for each and
every card transaction that is the basis of the disputed larceny specifications.
The appellant further admitted that NFCU possessed a superior right to the
cash than him. Whether NFCU ultimately lost money from the appellant’s
larceny, or if someone else reimbursed NFCU or the victims, does not raise a
substantial question of fact as to whether the larceny was from NFCU.
III. CONCLUSION
The findings and sentence as approved by the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
16 Appellant’s Brief at 6.
17 PE 1 at ¶ 4; Record at 56-57.
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