This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Henry L. Williams III, Specialist
United States Army, Appellant
No. 15-0140
Crim. App. No. 20130284
Decided February 23, 2016
Military Judges: Tara A. Osborn and David H. Robertson
For Appellant: Lieutenant Colonel Charles D. Lozano,
Major Aaron R. Inkenbrandt, Captain J. David Hammond,
and Captain Heather L. Tregle (on brief); Colonel Kevin
Boyle, Major Amy E. Nieman, and Captain Michael J.
Millios.
For Appellee: Major A. G. Courie III, Major Daniel D.
Derner, and Captain Timothy C. Donahue (on brief).
Judge RYAN delivered the opinion of the Court, in
which Chief Judge ERDMANN, Judges STUCKY and
OHLSON, and Senior Judge LAMBERTH, joined.
_______________
Judge RYAN delivered the opinion of the Court. 1
Appellant was convicted, pursuant to his pleas, of failure
to go to his appointed place of duty, disobedience of a
superior commissioned officer, two specifications of
disobedience of a noncommissioned officer, making a false
official statement, wrongful use of marijuana, three
specifications of larceny, two specifications of
housebreaking, and bigamy in violation of Articles 86, 90,
91, 107, 112a, 121, 130, and 134, Uniform Code of Military
1 Senior Judge Royce C. Lamberth, of the United States
District Court for the District of Columbia, sat by designation,
pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 942(f) (2012).
United States v. Williams, No. 15-0140/AR
Opinion of the Court
Justice (UCMJ), 10 U.S.C. §§ 886, 890, 891, 907, 912a, 921,
930, 934 (2006). Appellant was convicted, contrary to his
pleas, of two specifications of larceny in violation of Article
121, UCMJ, and was sentenced to a bad-conduct discharge
and confinement for eighteen months. Pursuant to a pretrial
agreement, the convening authority approved only the bad-
conduct discharge and fifteen months of confinement. The
convening authority also credited Appellant with 123 days
against the sentence.
The United States Army Court of Criminal Appeals
(ACCA) affirmed the findings and sentence. We granted
Appellant’s petition to review the following issue:
Whether Appellant committed larcenies of the
property of two soldiers by using their debit card
information without authority. See United States v.
Lubasky, 68 M.J. 260 (C.A.A.F. 2010).
Contrary to the premise underlying the ACCA’s holding,
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. Lubasky, 68 M.J. at 263 (citing Manual for
Courts-Martial, United States, Analysis of Punitive Articles
app. 23 at A23–16 (2008 ed.) [hereinafter Drafters’
Analysis]). As the Government concedes, Appellant did not
steal anything from Private First Class (PFC) Irvine or
Specialist (SPC) Aldrich. Appellant’s convictions for
Specifications 1 and 2 of Charge VI, Article 121, UCMJ, are
set aside, and these specifications are dismissed.
I. FACTS
Appellant lived with PFC Benjamin P. Irvine from
December 2011 to February 2012 at Fort Bragg, North
Carolina. In February 2012, a fraud agency notified PFC
Irvine that there were suspicious purchases on his checking
account with the Boulder Valley Credit Union (BVCU),
including a charge from Verizon Wireless for $2,269.51,
charges from various food vendors, and charges from the
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Opinion of the Court
online sex and dating website Adult FriendFinder. 2 The
charges totaled $3,067.70. Appellant was listed as the
purchaser of the food on a Pizza Hut receipt, and he later
testified that he had written down PFC Irvine’s debit card
number and mistakenly used it to complete all of the
purchases, except for the one to Verizon Wireless, which
Appellant claimed his wife made. Once PFC Irvine notified
BVCU of the fraudulent charges, BVCU provided PFC
Irvine with provisional credit, but also charged him $33 in
overdraft fees.
As a result of the above actions, Specification 1 of Charge
VI, alleged:
In that [Appellant], did, at or near Fort Bragg,
North Carolina, on divers occasions, between
on or about 26 December 2011 and on or about
4 February 2012, steal money, of a value of
more than $500.00, the property of Private
First Class (E-3) BI.
SPC John C. Aldrich worked with Appellant in the
summer of 2011 while they were both stationed in Iraq at
Contingency Operating Site Warrior. In July of that year,
SPC Aldrich noticed two unauthorized charges on his
checking account with BB&T Bank totaling $755.10. The
charges were related to attempted equipment purchases
from computergeeks.com. Computergeeks.com never shipped
the computer equipment because it flagged the purchases as
fraudulent.
2 While we are reversing this specification on the ground that
nothing was stolen from PFC Irvine, we clarify one point. To the
extent that the Government’s theory at trial involved theft of
services, such as those that Appellant may have purchased from
Verizon Wireless and the sex and dating website, these services
are, unlike goods, not “tangible and capable of being possessed,”
United States v. Mervine, 26 M.J. 482, 483 (C.M.A. 1988), and thus
not the proper object of larceny under Article 121, UCMJ. Manual
for Courts-Martial, United States pt. IV, para. 78.c. (2012 ed.)
(MCM) (contrasting the Article 134 offense of obtaining services
under false pretenses with larceny and wrongful appropriation,
which pertain to stealing money, personal property, or articles of
value).
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Opinion of the Court
Appellant used SPC Aldrich’s debit card information to
attempt to make the above purchases without authority,
though his defense was that his use was accidental. The
computers were never shipped, but BB&T Bank charged
him $70 in overdraft fees and put a hold on SPC Aldrich’s
account for $755.10, which caused SPC Aldrich to be unable
to make his car payment on time.
Consequently, Specification 1 of Charge VI, related to the
above actions, alleged:
In that [Appellant], did, at or near
Contingency Operating Site Warrior, Iraq, on
divers occasions, between on or about 30 June
2011 and or about 7 July 2011, steal money, of
a value of more than $500.00, the property of
Specialist (E-4) JA.
At trial, Appellant moved under Rule for Courts-Martial
(R.C.M.) 917 for a finding of not guilty due to insufficient
evidence to sustain a larceny conviction. Citing this Court’s
decision in Lubasky, Appellant argued that PFC Irvine and
SPC Aldrich were the “wrong victim[s]” of the larcenies, and
that the merchants or the banks should have been named as
the victims in the specifications. The military judge denied
the motion.
II. ACCA DECISION
On appeal, Appellant claimed, inter alia, that the
evidence of his larceny convictions was legally insufficient
because the two checking account holders, PFC Irvine and
SPC Aldrich, were not the “correct victims.” United States v.
Williams, No. ACM 20130284, 2014 CCA LEXIS 665, at *11,
2014 WL 7228945, at *4 (A. Ct. Crim. App. Aug. 28, 2014)
(unpublished). The ACCA held that the evidence was legally
sufficient. 2014 CCA LEXIS 665, at *11–14, 2014 WL
7228945, at *4–5. Citing MCM pt. IV, para. 46.c.(1)(h)(vi),
the ACCA recognized that larceny via the unauthorized use
of another’s debit card “is usually a larceny of those goods
from the merchant offering them.” Williams, 2014 CCA
LEXIS 665, at *12, 2014 WL 7228945, at *4. It nonetheless
determined that an alternative charging theory was
appropriate in this case because PFC Irvine and SPC
Aldrich were the “actual victims in this case. Appellant
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Opinion of the Court
caused the movement of [PFC Irvine’s and SPC Aldrich’s]
money from their control, intending to permanently deprive
them and actually depriving them of its use and benefit.”
2014 CCA LEXIS 665, at *13, 2014 WL 7228945, at *5
(citing United States v. Cimball Sharpton, 73 M.J. 299
(C.A.A.F. 2014)).
III. DISCUSSION
A.
“The test for legal sufficiency is whether, considering the
evidence in the light most favorable to the prosecution, a
reasonable factfinder could have found all the essential
elements beyond a reasonable doubt.” Lubasky, 68 M.J. at
263 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The elements of larceny are, in relevant part:
(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;
…; and
(d) That the taking … by the accused was
with the intent permanently to deprive …
another person of the use and benefit of the
property ….
MCM pt. IV, para. 46.b.(1) (2012 ed.). 3
As discussed at length in both Lubasky and Cimball
Sharpton, Article 121, UCMJ, sought to consolidate the
various means of stealing — by larceny, false pretense, and
embezzlement — under the single rubric of “larceny.”
Lubasky, 68 M.J. at 263; Cimball Sharpton, 73 M.J. at 301;
MCM pt. IV, para. 46.c.(1)(a). In one sense, then, ‘“the
particular means of acquisition of the property became
relatively unimportant.’” Lubasky, 68 M.J. at 263 (quoting
United States v. Aldridge, 2 C.M.A. 330, 331–32, 8 C.M.R.
130, 131–32 (1953)). While this remains the case, the person
stolen from is important, and it is evident to this Court that
3 The relevant portions of the 2008 and 2012 editions of the
MCM are identical.
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charging authorities and lower courts continue to flounder
and misstep when it comes to the elemental requirement
“that the accused wrongfully obtain money or goods … from
a person or entity with a superior possessory interest.” Id.
(emphasis added) (citing Drafters’ Analysis app. 23 at A23-
16 (2008 ed.)); see, e.g., United States v. Gaskill, 73 M.J. 207
(C.A.A.F. 2014) (per curiam) (summary disposition); United
States v. Endsley, 74 M.J. 216 (C.A.A.F. 2015) (summary
disposition). 4 The relevant question in determining the
person 5 to name in a larceny specification is whom did the
accused steal the goods or money from?
The MCM is instructive on this point. When an accused
engages in a wrongful “credit [or] debit” transaction, she has
“usually” stolen from the merchant offering the purchased
goods or “the entity presenting the money.” MCM pt. IV,
para. 46.c.(1)(i)(vi). 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, see Burton
v. United States, 196 U.S. 283, 302 (1905), and the
defendant merely uses the credit or debit card, falsely
representing herself as the cardholder, as a means to
commit the larceny. See, e.g., United States v. Sierra, 62
M.J. 539, 542 (A. Ct. Crim. App. 2005), aff’d, 64 M.J. 179
(C.A.A.F. 2006). 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 defendant
nonetheless did not obtain money or goods from the
cardholder.
By way of example, in Lubasky, with respect to the
specifications involving the appellant’s use of the widow
4 As noted infra pp. 9–10, we don’t doubt this is attributable in
part to the unfortunate choice of language used to explain this
Court’s decision in Cimball Sharpton.
5 As explained in the MCM, “[p]erson” 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.” MCM pt. IV, para. 46.c.(1)(c)(iv).
6
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Opinion of the Court
Shirley’s credit cards, we found the convictions legally
insufficient because the “[a]ppellant did not obtain anything
from Shirley. Rather, he obtained those things from other
entities. For these reasons, the proper subject of the credit-
card-transaction larcenies in this case was not Shirley.”
Lubasky, 68 M.J. at 263. Shirley, the account holder, simply
did not own the goods that the appellant obtained from the
merchants or the funds the card-issuing bank used to pay
for them. Id. The appellant obtained nothing from Shirley
when he used her credit cards. Thus, despite the fact that
Shirley was, intuitively, likely inconvenienced and, by any
definition, a “victim,” nothing was stolen from her in these
specifications, and she was the wrong person to name in
them. Id.
We reiterate, 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. Id. (citing Drafter’s
Analysis app. 23 at A23–16 (2008 ed.)).
B.
“Alternative charging theories are also available,” as long
as “the accused wrongfully obtained goods or money” from
someone “with a superior possessory interest.” Drafters’
Analysis app. 23 at A23–17 (2012 ed.). Such alternative
theories are the exception, and not, as the ACCA assumed,
the rule. Again, Lubasky is instructive as to when such
alternative theories are warranted, since in the usual case of
debit card theft, an accused obtains nothing from the
cardholder through an unauthorized use of the cards. See
generally, Benjamin M. Owens-Filice, “Where’s the Money
Lebowski?” – Charging Credit and Debit Card Larcenies
Under Article 121, UCMJ, Army Law., Nov. 2014, at 9
(explaining why cardholders do not own the money in the
related account). Lubasky was not, however, the “usual case”
when it came to the larceny specifications involving the
Union Planters Bank (UPB) checking account.
What made Lubasky different with respect to the UPB
checking account was the appellant’s status as a joint
account holder, which he obtained by misrepresenting to
Shirley and the bank representative that he would only
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Opinion of the Court
make withdrawals for her benefit, intending all the while to
make withdrawals for his own benefit. Lubasky, 68 M.J. at
262–63, 265. While we disliked regressing to fixation upon a
particular theory of theft, given the purpose of creating
Article 121, UCMJ, in the first instance, MCM pt. IV, para.
46.c.(1)(a), it was apparent the person from whom Lubasky
stole was Shirley by becoming a joint account holder under
false pretenses, removing money purportedly for her benefit
by virtue of those false pretenses, and keeping it for himself.
Lubasky, 68 M.J. at 263–64. It was the fiduciary account
relationship obtained through fraud, combined with
Lubasky’s joint account holder status, that made an
“alternative charging theory” not only available but viable
and necessary with respect to the UPB checking account
funds. See id. at 264 n.4 (citing Leffew v. Mayes, 685 S.W.2d
288, 291 (Tenn. Ct. App. 1984)); State v. Lavigne, 57 A.3d
332, 339–40 (Conn. 2012) (holding that “in the case of a joint
holder who has not herself contributed any of the funds to
the joint account in which she claims an ownership interest,
the factual question is whether the other joint holder and
sole contributor of the funds, by creation of the joint account,
intended to effect an immediate, inter vivos transfer or gift
of the funds to the noncontributing joint holder”).
Cimball Sharpton was another case where the appellant
challenged the legal sufficiency of the evidence on the
grounds that the wrong “person” was alleged in the
specification. Cimball Sharpton, 73 M.J. at 300–01. The
question in that case was not whether an alternative object
of the larceny could be alleged, but rather whether the Air
Force was precluded from being the person charged in the
specification because the appellant obtained nothing from it.
See id. at 301–02.
In Cimball Sharpton, the Air Force issued the appellant
a General Purchase Card (GPC) in her name to purchase
medical supplies for the Air Force. Id. at 299. The Air Force
was the account holder; the appellant was its agent. Id. at
299–300. While the agency agreement between the appellant
and the Air Force was that the card could only be used for
government purchases of medical supplies, id. at 299, there
was an additional factual twist: the issuing bank, U.S. Bank,
had an agreement with the Air Force that charges “that
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Opinion of the Court
involve misuse or abuse by the cardholder are not disputable
with the Bank…. and the government is obligated to make
payment for the transaction.” Id. at 301 n.2.
The appellant, while aware of the limits on her
authority, exceeded that authority and misused the GPC to
purchase items for herself. Id. at 299–300. By doing so, she
induced the Air Force to make payments to U.S. Bank. Id. at
300. Indeed, she stipulated that the Defense Finance
Accounting Service (DFAS) paid for all charges with
appropriated funds. Id. In the usual case under the MCM,
the thefts would have been charged as larceny from the
merchants from whom the goods were obtained or from U.S.
Bank, which held the GPC account. Id. at 301 (citing MCM
pt. IV, para. 46.c.(1)(h)(vi). What made the Air Force an
object of the larceny was not that it was the only one who
“suffered the financial loss.” See Cimball Sharpton, 73 M.J.
at 299, 301–02. It is irrelevant, for purposes of larceny, that
a merchant is later paid for goods that are wrongfully
obtained or a bank repaid for moneys expended to those
merchants. Id. at 301–02; see also MCM pt. IV, para.
46.c.(1)(f)(iii)(C). Rather, it was the Air Force’s agreement
with U.S. Bank that it would pay all charges that raised the
issue of whether the appellant’s actions could also be theft
from the Air Force. In effect, the agreement between the Air
Force and U.S. Bank meant that U.S. Bank (and hence the
merchants) would honor any charges made either with
apparent or actual authority, and that any wrongful use of
the GPC by the appellant would wrongfully induce payment
by the Air Force.
Unfortunately, the language we used focused on the Air
Force as “the victim,” and the one who “suffered the
financial loss.” Cimball Sharpton, 73 M.J. at 299, 301–02.
More accurately, it should have stated that the Air Force
was an appropriate person to allege in the larceny
specification because it was an entity from whom the
appellant wrongfully obtained goods or money. 6 See MCM
6 The issue granted in Cimball Sharpton focused on whether
the larceny could be from the Air Force, not on what was stolen,
and not on whether only the Air Force was stolen from. While
there is precedent supporting the theory, under a legal sufficiency
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Opinion of the Court
pt. IV, para. 46.c.(1)(i)(vi). The appellant — the Air Force’s
agent — exceeded her authority and abused her role as an
agent by either obtaining money from the Air Force by
wrongfully inducing it to pay funds to U.S. Bank as if the
charges were, in fact, authorized purchases, or by wrongfully
obtaining goods from the Air Force by keeping goods that
she purchased without authority but that, in fact, belonged
to the Air Force. See Cimball Sharpton, 73 M.J. at 300. Once
again, Cimball Sharpton was not the usual case. To the
extent it can be read to suggest that in a larceny
specification the government may name as the object of the
larceny any person who suffered a loss or experienced other
harm, we clarify that the government should instead name
the person or entity from whom the accused actually
obtained the goods or money.
C.
The instant case is not an unusual case — there were no
agency relationships, no joint accounts, and no contracts.
Our unfortunate choice of language in Cimball Sharpton
does not change the law, and we urge the Government to
cleave to the rule set forth in the MCM in the “usual case.”
See MCM pt. IV, para. 46.c.(1)(h)(vi). This is such a 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, in the case
of computergeeks.com, 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.
While it is both intuitively and objectively true that PFC
Irvine and SPC Aldrich were “victims” and “suffered the
financial loss[es],” see Cimball Sharpton, 73 M.J. at 299,
analysis, that what the appellant stole from the Air Force was
money, see United States v. Ragins, 11 M.J. 42, 46 (C.M.A. 1981),
it seems the better charging theory would have been that she stole
the particular items by exceeding her actual authority and
keeping the items that were in effect purchased by the Air Force
for herself.
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Opinion of the Court
301–02, because of Appellant, he neither took nor obtained
nor withheld anything from them. Though he was the but-
for cause of their financial problems, that does not constitute
larceny from them. If a defendant did not steal from the
person the government names in the larceny specification,
the conviction is legally insufficient. See Lubasky, 68 M.J. at
263, 265.
IV. JUDGMENT
The decision of the United States Army Court of
Criminal Appeals is reversed as to Specifications 1 and 2 of
Charge VI and the sentence. The findings of guilty as to
Specifications 1 and 2 of Charge VI are set aside, and those
specifications are dismissed. The remaining findings of
guilty are affirmed. The record of trial is returned to the
Judge Advocate General of the Army for remand to the
Court of Criminal Appeals for reassessment of the sentence,
or for a rehearing on sentence, if necessary.
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