United States v. Castro

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Clovis H. CASTRO, Sergeant
United States Army, Appellant
No. 21-0017
Crim. App. No. 20190408
Argued March 10, 2021—Decided May 19, 2021
Military Judge: Daniel G. Brookhart
For Appellant: Captain David D. Hamstra (argued); Colonel
Michael C. Friess, Lieutenant Colonel Angela D. Swilley,
Major Christian E. DeLuke, and Captain Paul T. Shirk (on
brief).
For Appellee: Captain Anthony A. Contrada (argued); Colo-
nel Steven P. Haight, Lieutenant Colonel Wayne H. Wil-
liams, and Major Brett A. Cramer (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges OHLSON,
SPARKS, and HARDY, joined. Judge HARDY filed a sep-
arate concurring opinion.
_______________

Judge MAGGS delivered the opinion of the Court.
At a special court-martial, Appellant pleaded guilty to one
specification of disobeying a lawful general regulation and
one specification of larceny in violation of Articles 92 and 121
of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 892, 921 (2018). The specification of larceny alleged that
Appellant stole gasoline from the General Services
Administration (GSA). On appeal to the United States Army
Court of Criminal Appeals (ACCA), Appellant argued that his
plea to this specification was improvident because the GSA
did not own the gasoline that he was charged with stealing.
United States v. Castro, No. ARMY 2019408, 2020 LEXIS 282,
at *1–2, 2020 WL 5039253, at *1 (A. Ct. Crim. App. Aug. 25,
2020) (unpublished). The ACCA rejected this argument,
 United States v. Castro, No. 21-0017/AR
Opinion of the Court

relying on our decisions in United States v. Williams, 75 M.J.
129 (C.A.A.F. 2016), and United States v. Cimball Sharpton,
73 M.J. 299 (C.A.A.F. 2014). 2020 CCA LEXIS 282, at *4–8,
2020 WL 5039253, at *2–3. Having reviewed the issue,1 we
agree with the ACCA and affirm its judgment.
I. Background

Pursuant to a pretrial agreement, Appellant pleaded
guilty to a specification alleging a violation of Article 121,
UCMJ:
In that Sergeant Clovis H. Castro, U.S. Army, did,
at or near Fort Lee, Virginia, at or near Petersburg,
Virginia [and other listed locations] on one or more
occasions, between on or about 29 January 2018, and
on or about 18 August 2018, steal gas of a value less
than $500, the property of the General Services Ad-
ministration.
According to the parties’ detailed stipulation of fact, the
GSA is a federal agency that leases vehicles to Army units.
For each vehicle leased, the GSA issues a “fuel card” that can
be used to pay for fuel for the vehicle and to perform minor
maintenance, such as oil changes, on the vehicle. Appellant
obtained access to GSA fuel cards and, without authority,
used them to fill his personal vehicle with gasoline at various
gas stations. The parties further stipulated that “purchase of
fuel with a GSA fuel card required GSA to pay the cost of the
fuel to the vendor.” Accordingly, the GSA paid the gas sta-
tions directly for the fuel that Appellant purchased.
The parties also stipulated:
The Accused admits that the fuel was the property of
the General Services Administration. The Accused
admits that the value of the fuel he stole from GSA
did not exceed $500 for any single transaction and
that the fuel was of some value. The Accused admits
that at all times he had the intent to permanently de-
prive the General Services Administration of the fuel.
The Accused admits that at no time did he have au-
thorization to spend GSA funds to purchase fuel for

1 The assigned issue is: “Whether the military judge abused his
discretion in accepting Appellant’s guilty plea to Specification 1 of
Charge II (‘steal gas, of a value less than $500, the property of the
General Services Administration’).”

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Opinion of the Court

his personal vehicle. The Accused had no lawful pur-
pose or excuse for stealing the fuel, and could have
avoided doing so if he wanted.
(Emphasis added.)
Before accepting Appellant’s guilty plea, the military
judge asked Appellant to describe how GSA fuel cards are
used. Appellant explained:
[Y]ou would swipe it in the slot of the fuel pump, sort
of like you would do a regular credit card or debit
card. Once you do that, it will prompt you [with] sev-
eral questions. The first question it will prompt you
[with] is to give them the number in the front of the
card that’s associated to the vehicle, the second
question, would prompt you to put a mileage, and
the final question, would be to select the fuel type.
The military judge informed Appellant that the “owner” of
the gasoline referred to “any person, or entity who at the time
of the obtaining or taking has a greater right to possession
than you did in light of all the conflicting interests” and that
“[p]roperty belongs to a person or entity having greater right
to possession than you.”2 The military judge then specifically
questioned Appellant about the ownership of the gasoline.
The inquiry went as follows:
MJ: So you understood that [the GSA] would be re-
sponsible for paying for the fuel as the credit card
holder?
ACC: Yes, Your Honor.
MJ: So, would you agree then that whatever you
purchased with that card, that GSA card, that GSA
would personally own that?
ACC: Yes, Your Honor.
MJ: So you agree and admit that as soon as the
transaction was complete you ran the card through
and you put those numbers in that fuel belonged to
the GSA?
ACC: Yes, Your Honor.

2 Appellant did not challenge this definition of ownership at
trial and does not question it on appeal. See United States v. Turner,
27 M.J. 217, 221 (C.M.A. 1988) (defining ownership for the purpose
of a larceny offense as a “superior right to possession”).

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Opinion of the Court

....
MJ: So, do you agree and admit that by inputting
that code associate[ed] with the card, and the mile-
age and putting that gasoline in your vehicle; you
thereby stole the gasoline belonging to the GSA?
ACC: Yes, Your Honor.
In addition, Appellant confirmed that he “intended to keep
and use the gasoline” that he had stolen.
The military judge accepted the guilty plea. On appeal, the
ACCA affirmed. Castro, 2020 LEXIS 282, at *8, 2020 WL
5039253, at *3.
II. Standard of Review

During a guilty plea inquiry, the military judge must de-
termine “whether there is an adequate basis in law and fact
to support the plea before accepting it.” United States v. Ina-
binette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citing United States
v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). This Court reviews
“[a] military judge’s decision to accept a guilty plea for an
abuse of discretion.” Id. (internal quotation marks omitted)
(citation omitted). In so doing, this Court applies “the sub-
stantial basis test, looking at whether there is something in
the record of trial, with regard to the factual basis or the law,
that would raise a substantial question regarding the appel-
lant’s guilty plea.” Id. In reviewing the parties’ arguments, we
must accept all of the facts in the parties’ stipulation as true.
See United States v. Nance, 67 M.J. 362, 363 (C.A.A.F. 2009).
“Unless properly withdrawn or ordered stricken from the rec-
ord, a stipulation of fact that has been accepted is binding on
the court-martial and may not be contradicted by the parties
thereto.” Rule for Courts-Martial (R.C.M.) 811(e).
III. Discussion

Article 121(a)(1), UCMJ, defines the offense of larceny as
follows:
(a) Any person subject to this chapter who wrong-
fully takes, obtains, or withholds, by any means,
from the possession of the owner or of any other per-
son any money, personal property, or article of value
of any kind—

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Opinion of the Court

(1) with intent permanently to deprive or de-
fraud 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, steals
that property and is guilty of larceny . . . .
As quoted above, the specification in this case alleged that
Appellant violated Article 121, UCMJ, in that he “did . . . steal
gas of a value less than $500, the property of the General Ser-
vices Administration.” Based on Cimball Sharpton, Williams,
and the stipulated facts, we agree with the ACCA that Appel-
lant has not shown a substantial basis in law and fact for
questioning the military judge’s acceptance of his guilty plea.
A. Cimball Sharpton, Williams, and the Stipulated Facts
In Cimball Sharpton, a private bank issued a “General
Purchase Card” to the appellant pursuant to a contract with
the Air Force. 73 M.J. at 299. The appellant had the authority
to use the card only to buy medical supplies for the Air Force.
Id. The appellant, however, used the card without authoriza-
tion to purchase items for her own personal use. Id. at 300.
The bank paid the merchants for these purchases and then
charged the Air Force. Id. The Air Force paid the bank, de-
spite the fraudulent nature of the charges, because the Air
Force had agreed not to dispute charges stemming from the
cardholder’s misuse of the card. Id. at 301 & n.2. The appel-
lant was charged with, and found guilty of, “steal[ing] money,
military property, of a value greater than $500.00, the prop-
erty of the United States Air Force” in violation of Article 121,
UCMJ. Id. at 300. On appeal, the appellant contended that
the specification was improper because it charged the Air
Force as the victim of the fraud. Id. at 301. This Court disa-
greed, explaining: “The Air Force suffered the financial loss
in this case. Therefore, the Government was correct in charg-
ing larceny from the Air Force. Since the Air Force was a
proper victim, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. at 302.
In Williams, this Court subsequently clarified two points
about its reasoning in Cimball Sharpton. First, the Court ex-
plained that the Air Force was not the victim of the larceny
in the case merely because the Air Force had “suffered the

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Opinion of the Court

financial loss.” 75 M.J. at 134 (internal quotation marks omit-
ted) (citation omitted). “More accurately,” this Court ex-
plained, the Cimball Sharpton opinion “should have stated
that the Air Force was an appropriate person to allege in the
larceny specification because [the Air Force] was an entity
from whom the appellant wrongfully obtained goods or
money.” Id. Second, the Court observed that the Cimball
Sharpton opinion primarily had considered whether the Air
Force was the victim of the larceny and therefore did not focus
on “what was stolen.” Id. at 134 n.6. Addressing the issue of
what was stolen, the Court in Williams explained:
While there is precedent supporting the theory, un-
der a legal sufficiency analysis, that what the appel-
lant 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.
Id. (emphasis added).
In this case, as described above, 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. We
accept Appellant’s stipulation as true pursuant to R.C.M.
811(e). In so doing, we recognize that “ownership” of property
is not purely a question of fact because ownership ultimately
depends upon legal principles. We nonetheless believe that
the military judge properly accepted the stipulation of the
GSA’s ownership of the fuel based on numerous precedents of
this Court that have relied on stipulations of ownership in
larceny cases. See, e.g., United States v. Simpson, 77 M.J. 279,
282 (C.A.A.F. 2018) (relying on a stipulation that money sto-
len through fraudulent credit card use belonged to a bank);
United States v. Aleman, 62 M.J. 281, 282 (C.A.A.F. 2006) (re-
lying on a stipulation that property stolen was military prop-
erty); United States v. Jones, 35 M.J. 143, 144 (C.M.A. 1992)
(relying on a stipulation that an automobile wrongfully ap-
propriated belonged to another soldier). These decisions, in
our view, reflect the practical reality that most facts regard-
ing 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

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treated as facts susceptible to stipulation. See United States
v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (holding that
whether one person or another person owns property is a mat-
ter of proof which the accused may contest at trial and waives
when pleading guilty).
Taken together Cimball Sharpton, Williams, and the stip-
ulation established that it was proper for the specification to
identify the GSA as the victim of the larceny because its fuel
was stolen. In the words of Williams, the GSA “was an entity
from whom the appellant wrongfully obtained goods,” which
in this case was the fuel that he purchased and withheld. 75
M.J. at 134. The stipulation of the facts established the ele-
ments of this specification because Appellant admitted that
the fuel belonged to the GSA and he intentionally kept it for
himself.3 We thus see no substantial basis in law or fact for

3 This case is distinguishable from Simpson, 77 M.J. at 279, our
most recent case addressing the proper victim of an electronic
transactions larceny. In Simpson, the appellee participated in a
complex scheme involving numerous financial transfers paid by
J.P. Morgan Chase to various creditors of the appellee as reflected
on a “zero-balance” account of the Credit First National Association
(CFNA). Id. at 281. Charged with larceny from CFNA, the appellee
pleaded guilty. Id. However, this Court found that his plea was im-
provident because he did not steal anything from CFNA. Id. at 283–
84. This Court held that:
The stipulation of fact in this case does not reflect
the requirements of our case law. The Govern-
ment, in this case, entered into a stipulation of fact
that set up a matter inconsistent with the larceny
specification alleging that the money stolen by Ap-
pellee belonged to CFNA. The stipulation clearly
demonstrates that Appellee obtained the money
from J.P. Morgan.
Id. The appellee had wrongfully obtained funds from the bank, not
CFNA because the parties stipulated that “[a]t the end of each busi-
ness day CFNA would ‘zero[] out’ the account by transferring funds
to J.P. Morgan to cover the expenditures made to the appellee’s
creditors by J.P. Morgan—returning the account to a balance of
zero.” Id. at 282 (second alteration in original). The government
even conceded at argument that the appellee obtained nothing from
CFNA. Id. Here, unlike in Simpson, the stipulation did not raise a
matter inconsistent with the guilty plea.

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Opinion of the Court

questioning Appellant’s guilty plea and the military judge did
not abuse his discretion by accepting Appellant’s guilty plea.
B. Appellant’s Counterarguments
Appellant makes three arguments to the contrary, all of
which lack merit. Appellant’s first argument is that his con-
duct is not punishable under Article 121, UCMJ, under any
of three traditional charging theories—larceny, obtaining by
false pretenses, and embezzlement—described in paragraph
46.c.(1)(a) of the Manual for Courts-Martial, United States
(2016 ed.) (MCM). Appellant asserts that he cannot be guilty
of either larceny or obtaining by false pretenses because Arti-
cle 121, UCMJ, requires a wrongful taking, obtaining, or
withholding to be “ ‘from the possession of the owner or of any
other person.’ ” He asserts these theories are unavailable be-
cause “the GSA never possessed the fuel appellant allegedly
stole.” He further argues that he could not have embezzled
the property because embezzlement can only occur when a
person takes possession of property in a lawful way. Appel-
lant argues that his “unlawful means of taking possession
precludes an embezzlement theory in this case.”
We disagree. Although the third-party vendors (rather
than the GSA) physically possessed the fuel immediately
prior to Appellant’s use of the fuel card, this fact does not ren-
der his guilty plea improvident. Possession by the GSA was
not required for Appellant’s conduct to constitute larceny un-
der Article 121, UCMJ, or the MCM. Instead, under the text
of the article, withholding the fuel from a party with a supe-
rior possessory interest was sufficient. In this case, although
Appellant did not take or obtain the fuel from the GSA’s pos-
session, he did withhold the fuel from its possession, and
withholding property is one of the ways of committing larceny
under Article 121, UCMJ. The MCM describes withholding as
follows:
A “withholding” may arise as a result of a failure to
return, account for, or deliver property to its owner
when a return, accounting, or delivery is due, even if
the owner has made no demand for the property, or
it may arise as a result of devoting property to a use
not authorized by its owner. Generally, this is so
whether the person withholding the property ac-
quired it lawfully or unlawfully.

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Opinion of the Court

MCM pt. IV, para. 46.c.(1)(b) (emphasis added).
In Williams, we relied on a withholding theory when we
explained that the appellant in Cimball Sharpton had
“stole[n] the particular items by exceeding her actual author-
ity and keeping the items that were in effect purchased by the
Air Force for herself.” 75 M.J. at 134 n.6 (emphasis added).
Similarly, in this case, Appellant stipulated or admitted that
the GSA owned the fuel, and that “at all times he had the
intent to permanently deprive the General Services Admin-
istration of the fuel.” Thus, in both this case and Cimball
Sharpton, the government paid for property that the accused
withheld and diverted to personal use without authorization.
We find this case and Cimball Sharpton indistinguishable in
this respect. Accordingly, Appellant’s argument does not pro-
vide a substantial basis in law or fact for questioning his
guilty plea.
Appellant’s second argument is that any larceny offense
would “require an agency relationship between appellant and
the GSA and there is none.” Appellant’s theory is that the
GSA could not own the fuel unless he, acting as the GSA’s
agent, bought the fuel for the GSA. Appellant asserts that he
did not act as the GSA’s agent because he had no authority to
use the card to purchase the fuel. Although Appellant
stipulated that the GSA owned the fuel, he now contends that
this stipulation was legally impossible. In Appellant’s view,
when he made an unauthorized purchase of the fuel, title to
the fuel transferred from the vendors directly to him and not
to the GSA.
We are also not convinced by this second argument. Even
if it is true that parties cannot stipulate facts that are legally
impossible,4 we disagree with Appellant’s assumption that

4 Our precedents have held that parties may stipulate facts that
are legally possible. See, e.g., Faircloth, 45 M.J. at 174. Appellant
has not cited, and we have not found, specific authority in our prec-
edents for the distinct proposition that parties may not stipulate
legally impossible facts. Some sources that are not directly on point
do lend support for it. See, e.g., 5C Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1368 (3d ed. 2004 &
Supp. 2021) (explaining that when a district court accepts the facts
in a pleading as true for the purpose of a motion for judgment on

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Opinion of the Court

the only legally possible way for the GSA to have had a
greater right than Appellant to possess the fuel would be for
the Appellant to buy the fuel for the GSA as the GSA’s agent.
For example, in Cimball Sharpton, we held that the Air Force
could properly be named as the object of larceny because it
had an obligation to make payments on all charges associated
with a general purchase card, including unauthorized pur-
chases. 73 M.J. at 300. As we explained in Williams, “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 [gas card] by the appellant would
wrongfully induce payment by the Air Force.” 75 M.J. at 134.
An agency relationship is therefore not always necessary for
the payer to have a greater right to possess the purchased
property.5
Because Appellant has not shown that the facts he stipu-
lated are legally impossible, his second argument fails. In
Faircloth, the appellant pleaded guilty to larceny in a case
involving a check made payable to him and a copayee, Ford
Motor Credit Corporation (FMCC). 45 M.J. at 173. The appel-
lant admitted that he forged the indorsement of a representa-
tive of FMCC to obtain payment of the check, even though
“FMCC was supposed to receive all the money and that he
was not entitled to any of it.” Id. On appeal, the accused ques-
tioned the legal basis for his admission. Id. This Court, how-
ever, rejected the challenge, reasoning:
As a matter of law, it was possible for FMCC to have
a superior possessory interest in the proceeds. As a

the pleadings, the court does not accept “legally impossible facts” as
true); see also Simpson, 77 M.J. at 283–84 (explaining that the fact
that the appellee obtained nothing from an entity meant as a mat-
ter of law that entity could not be the victim of the larceny and the
appellee’s guilty plea to larceny from that entity was improvident).
5 We address here only the argument that Appellant has made,
namely, that his stipulation of fact was legally impossible because
an agency relationship was required. It suffices to conclude that
this general assertion is incorrect. If Appellant has not shown that
the facts are legally impossible, then under R.C.M. 811(e) we must
accept the facts as true without obliging the parties to demonstrate
why they are true.

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matter of fact, Faircloth admitted that FMCC had a
superior possessory interest, and he explained in
considerable detail, couched in a layman’s terms, the
factual predicate for FMCC’s superior possessory in-
terest. Faircloth said nothing inconsistent with a
guilty plea. Accordingly, there was no legal or fac-
tual basis to overturn his plea.
Id. at 174 (emphasis added). The same reasoning is true in
the present case. Appellant stipulated facts that are legally
possible and that are consistent with his guilty plea.
In addition, Appellant’s second argument contradicts
what this Court said in Williams about the Air Force’s own-
ership of the goods at issue in Cimball Sharpton. Even though
the appellant in Cimball Sharpton did not have the authority
to make the purchases for the Air Force, the Air Force none-
theless owned the goods.6 Williams, 75 M.J. at 134 n.6. Ac-
cordingly, Appellant’s second argument does not provide a
substantial basis in law or fact for questioning his guilty plea.
Appellant’s third argument is that even if both of the first
two arguments fail, the military judge still abused his discre-
tion because “he never explored the nature and extent of [an]
agency relationship in the providence inquiry.” We also disa-
gree with this contention. As we have just explained, Appel-
lant’s liability did not depend on the existence of an agency
relationship. The military judge therefore did not have to ex-
plore the nature of a potential agency relationship in the prov-
idence inquiry. In addition, our review of the record confirms
that the military judge properly explained the elements of lar-
ceny to Appellant and questioned him about these elements.
Appellant stipulated and admitted that the GSA owned the
fuel and that he intended to keep the fuel for himself. There
is no requirement “that any witness be called or any inde-
pendent evidence be produced to establish the factual predi-
cate for the plea.” United States v. Davenport, 9 M.J. 364, 367
(C.M.A. 1980). The factual predicate is sufficiently estab-
lished if “the factual circumstances as revealed by the accused

6 Recognizing this obstacle to his argument, Appellant asked us
at oral argument to overrule this aspect of Williams, asserting that
it is wrong. We believe that this Court’s statement in Williams was
correct, and we decline to overrule it.

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Opinion of the Court

himself objectively support that plea.” Id. Accordingly, Appel-
lant’s third argument does not provide a substantial basis in
law and fact for questioning his guilty plea.
IV. Conclusion

The assigned issue is answered in the negative. The judg-
ment of the United States Army Court of Criminal Appeals is
affirmed.

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Judge HARDY, concurring.
Appellant pleaded guilty to the charged offense and the
majority opinion, which I join in full, rightly holds that the
military judge did not abuse his discretion by accepting Ap-
pellant’s plea. The record makes clear that both the Govern-
ment and Appellant thought Appellant was guilty of larceny,
and the Court rightly affirms the military judge’s conclusion
that there was “an adequate basis in law and fact” to accept
Appellant’s plea. United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008).1 I write separately only to voice my under-
standing that this case is not intended to undermine the guid-
ance that this Court has previously given about charging lar-
cenies involving electronic transactions.
This Court’s recent precedents advise that the best way to
charge a larceny involving an electronic transaction is to
“name the person or entity from whom the accused actually
obtained the goods or money” as the object of the larceny.
United States v. Williams, 75 M.J. 129, 134 (C.A.A.F. 2016).
We most recently reiterated this point in United States v.
Simpson, where the Court stated, “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 conse-
quence as a result of the defendant’s actions.” 77 M.J. 279,
283 (C.A.A.F. 2018) (citing Williams, 75 M.J. at 132–34 (citing
United States v. Cimball Sharpton, 73 M.J. 299, 301–02
(C.A.A.F. 2014))). Under these precedents, the Government
would have been well advised to have named the various gas
stations from which Appellant improperly purchased gasoline
as the object of Appellant’s larceny.
Nevertheless, this Court has also held that—at least in
certain circumstances—that is not the only way to charge lar-
cenies involving electronic forms of payment. In Cimball
Sharpton, we recognized an alternative charging theory in
which the entity issuing the electronic payment card (the Air
Force in that case) could be the proper entity to allege in the

1 Indeed, Appellant’s counsel readily conceded at oral argument
that Appellant “did steal fuel, there is no doubt about it.” Recording
of Oral Argument at 06:08, United States v. Castro, No. 21-0017
(C.A.A.F. Mar. 10, 2021).
 United States v. Castro, No. 21-0017/AR
Judge HARDY, concurring

larceny specification instead of the merchant from which the
accused obtained the stolen property. Cimball Sharpton, 73
M.J. at 301–02. As the majority explains, however, part of the
reason why the Air Force properly could be named as the ob-
ject of the larceny in Cimball Sharpton was that it had a bind-
ing contractual obligation to make payments on all charges
associated with a general purchase card, even if the charges
were made without authorization. Id. at 300. As we explained
in Williams, “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 au-
thority, and that any wrongful use of the [gas card] by the
appellant would wrongfully induce payment by the Air
Force.” 75 M.J. at 134.
In this case, Appellant stipulated that the Army was
required to pay for the unauthorized charges he made on the
gas card, but I have reservations as to whether that was
actually true. Unlike in Cimball Sharpton, there is no
evidence in the record of any contract or government policy
that would have obligated GSA or the Army to pay for any
and all unauthorized or fraudulent charges. To the contrary,
the publicly available GSA master contract that governs the
use of GSA fuel cards expressly states that GSA “shall not be
liable for any unauthorized use including unauthorized
transactions.”2 But neither that contract nor any other
evidence about the government’s obligations with respect to
the gas cards appears in the record, and we can hardly fault
the military judge for accepting Appellant’s uncontradicted
pleas to the contrary.
Here, Appellant pleaded guilty and stipulated to the un-
derlying facts that established his guilt. As such, I see no
abuse of discretion in the military judge’s decision to accept
Appellant’s plea. But, while there is no basis for upsetting the
guilty plea in this case, the Government should understand
that it is not at all clear that the evidence proffered in this
case would be legally sufficient to support the alternative

2 GSA SmartPay, GSA SmartPay 3 Master Contract, Terms and
Conditions – rev Mod PS-14 § C.3.3.13 Liability, available at
https://smartpay.gsa.gov/content/gsa-smartpay-3-master-contract
(last visited 5/14/2021).

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Judge HARDY, concurring

charging theory for larcenies involving electronic transac-
tions in a future case.

3