Larceny and Wrongful Appropriation. MCM, pt. IV, 46; UCMJ art. 121

Larceny

  1. test1 043 (Side 43)That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;
  2. That the property belonged to a certain person;
  3. That the property was of a certain value, or of some value; and
  4. 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.
  5. [If the property is alleged to be military property, add the following element:] That the property was military property.

Wrongful appropriation

  1. That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;
  2. That the property belonged to a certain person;
  3. That the property was of a certain value, or of some value; and
  4. That the taking, obtaining, or withholding by the accused was with the intent temporarily to deprive or defraud another person of the use and benefit of the property or temporarily to appropriate the property for the use of the accused or for any person other than the owner.

Types of Property Covered

  1. Must be tangible personal property. Article 121 lists the objects which can be the subject of larceny as “any money, personal property, or article of value of any kind.”
  2. Intangible items cannot be the subject of an Article 121 violation. United States v. Mervine , 26 M.J. 482 (C.M.A. 1988) (debt); United States v. Dunn , 27 M.J. 624 (A.F.C.M.R. 1988) (administrative costs).
  3. Article 121 does not cover theft of services. Theft of taxicab services, phone services, use and occupancy of government quarters, and use of a rental car cannot be the subject of larceny under Article 121. United States v. Abeyta , 12 M.J. 507 (A.C.M.R. 1981); United States v. Case , 37 C.M.R. 606 (A.B.R. 1966); United States v. Jones , 23 C.M.R. 818 (A.F.B.R. 1956); United States v. McCracker , 19 C.M.R. 876 (A.F.B.R. 1955).
  4. Theft of services may be prosecuted in any of the following ways: (1) under Article 134, UCMJ, as obtaining services under false pretenses or as dishonorably failing to pay just debts; (2) under 18 U.S.C. § 641 as assimilated into military lawby Article. 134(3), UCMJ, if the services taken are property of the United States; (3) as a violation of a state statute assimilated through 18 U.S.C. § 13. See United States v. Wright , 5 M.J. 106 (C.M.A. 1978), and United States v. Herndon , 36 C.M.R. 8 (C.M.A. 1965); see also United States v. Hitz , 12 M.J. 695 (N.M.C.M.R. 1981) (accused was properly charged with and convicted of unlawfully obtaining telephone services of the U.S. Navy in violation of UCMJ art. 134); United States v. Roane , 43 M.J. 93 (C.A.A.F. 1995); United States v. Green , 44 M.J. 631 (C.G. Ct. Crim. App. 1996) (obtaining services by false pretenses).
  5. Larceny can be used to cover credit card misuse. See generally United States v. Christy , 18 M.J. 688 (N.M.C.M.R. 1984).

Elements

test1 071 (Side 71)Element 1: That the accused wrongfully took, obtained, or withheld property (notservices) from another. The drafters intended to codify only common law larceny, larceny by false pretenses, and larceny by conversion. United States v. Mervine , 26 M.J. 482 (C.M.A. 1988); United States v. Tenney , 15 M.J. 779 (A.C.M.R. 1983); United States v. Herndon , 36 C.M.R. 8 (C.M.A. 1965); United States v. Dean , 33 M.J. 505 (A.F.C.M.R. 1991).

  1. Wrongful taking. Requires dominion, control, and asportation. See generally United States v. Carter , 24 M.J. 280 (C.M.A. 1987); United States v. Smith , 33 M.J. 527 (A.F.C.M.R. 1991), aff’d, 35 M.J. 138 (C.M.A. 1992); United States v. Pacheco , 56 M.J. 1 (C.A.A.F. 2001) (stealing war trophies). The taking, obtaining or withholding is wrongful if done without the knowing consent of the owner or other lawful authority. MCM, pt. IV, 46c(1)(d).
    1. United States v. Sneed , 38 C.M.R. 249 (C.M.A. 1968). Where accused’s accomplices were government agents, larceny of government property could not stand as no taking ever occurred, i.e. , articles were never out of government control. See United States v. Cosby , 14 M.J. 3 (C.M.A. 1982) (accused can be guilty of wrongful taking even though property was released to him by competent authority); see also United States v. Cassey , 34 C.M.R. 338 (C.M.A. 1964) (OSI authorized accomplices to proceed with delivery of government property and then apprehended accused after delivery as he attempted to leave base).
    2. Asportation. (a) Larceny by taking continues as long as asportation of the property continues. 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. An accused’s actions in joining an ongoing conspiracy to steal a duffel bag before two co-conspirators completed asportation of the property was legally sufficient to sustain convictions of conspiracy to commit larceny and larceny. United States v. Whitten , 56 M.J. 234 (C.A.A.F. 2002). (b) Larceny continues as long as the asportation continues. United States v. Escobar , 7 M.J. 197 (C.M.A. 1979) (considering duration of larceny/asportation in context of establishing court-martial jurisdiction; accused stole jacket off post and carried it onto post, thus providing court- martial jurisdiction over the offense); see also United States v. Henry , 18 M.J. 773 (N.M.C.M.R. 1984) (accused’s mistaken claim-of-right defense negated during asportation phase) aff’d in part, rev’d in part on multiplicity grounds, 21 M.J. 172 (C.M.A. 1985). (c) Because the crime of larceny continues through the asportation phase, anyone who knowingly assists in the actual movement of the stolen property is a principal in the larceny. No distinction is made whether the continuation of the asportation by one other than the actual taker was prearranged or the result of decisions made on the spur of the moment. United States v. Escobar , 7 M.J. 197 (C.M.A. 1979). (d) Person who participates in on-going larceny may simply be an accessory after the fact, not a principal, depending upon the purpose of his participation. If participant’s motive is to secure the fruits of the crime, the aider becomes a participant in the larceny and is chargeable with larceny; but if his motive is to assist the perpetrator to escape detection and punishment, he is properly charged as an accessory after the fact. United States v. Manuel , 8 M.J. 823 (A.F.C.M.R. 1979). (e) Larceny complete when soldier having custody over items moved them to another part of central issue facility with felonious intent. As such, when accused received the property it was already stolen and his actions did not make him a principal to larceny but rather only a receiver of stolen property under Article 134. United States v. Henderson , 9 M.J. 845 (A.C.M.R. 1980). (f) The assistance need not be prearranged. United States v. Cannon , 29 M.J. 549 (A.C.M.R. 1989). See generally TJAGSA Practice Note, Larceny and Proving Asportation , Army Law., Feb. 1990, at 67 (discusses Cannon ). (g) Asportation was ongoing when the accused helped the perpetrator of a larceny; therefore, the accused is guilty of larceny as an aider or abettor. United States v. Keen , 31 M.J. 1108 (N.M.C.M.R. 1989). See generally TJAGSA Practice Note, Aiding and Abetting Larceny , Army Law., Nov. 1990, at 40 (discussing Keen ).
    3. Lost property. Taking an unexpired credit card found on a public sidewalk was larceny of lost property by wrongful taking since the card contained a clue as to the identity of the owner. United States v. Wiederkehr , 33 M.J. 539 (A.F.C.M.R. 1991); but see United States v. Meeks , 32 M.J. 1033 (A.F.C.M.R. 1991) (keeping a t-shirt found mixed in with accused’s laundry where there was no clue as to the owner was not a larceny).
    4. Electronic transfers as a “taking.” (a) United States v. Meng , 43 M.J. 801 (A.F. Ct. Crim. App. 1995), rev. denied , 44 M.J. 47 (C.A.A.F. 1996) (data entries made by accused in his computerized finance records to pay himself more BAS than he was eligible for was larceny). (b) Where accused never took, obtained, withheld, or possessed the fees, guilty pleas to so much of larceny specifications as pertained to credit card and automatic teller machine (ATM) processing fees were legally improvident. United States v. Sanchez , 54 M.J. 874 (A. Ct. Crim. App. 2001) (court notes in dicta that the appellant would have been provident to obtaining services under false pretenses as to the bank processing fees).
  2. test1 054 (Side 54)Obtaining by false pretenses. A false pretense is a false representation of past or existing fact, which may include a person’s power, authority or intention. Although the pretense need not be the sole cause inducing the owner to part with the property, it must be an effective and intentional cause of the obtaining. MCM, pt. IV, 46c(1)(e).
    1. Debit Card and ATM Transactions. United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010) (accused obtained access to account by false pretenses, representing that he would use the funds only for the purposes victim authorized; evidence was legally sufficient to support a larceny).
    2. In loan application, false promises to repay may support larceny by false pretenses. United States v. Cummins , 26 C.M.R. 449 (C.M.A. 1958).
    3. Knowledge of fraud not imputed between government agents. United States v. Williams , 3 M.J. 555 (A.C.M.R. 1977), rev’d on other grounds , 4 M.J. 336 (1978).
    4. Insurance fraud larceny not complete until accused cashed settlement check. United States v. Seivers , 8 M.J. 63 (C.M.A. 1979), aff’d, 9 M.J. 397 (C.M.A. 1980).
    5. Sham marriage to obtain monetary benefits may support larceny by false pretenses. United States v. Bolden , 28 M.J. 127 (C.M.A. 1989).
    6. Obtaining services by false pretenses (long-distance telephone services) is charged under Article 134. United States v. Flowerday , 28 M.J. 705 (A.F.C.M.R. 1989); United States v. Perkins , 56 M.J. 825 (A. Ct. Crim. App. 2001).
    7. False pretenses and unauthorized pay/allowances. (a) When Congress authorized basic allowance for housing for service members with “dependents,” it did not intend to include a person linked to a service member only by a sham marriage. A marriage, as intended by Congress, is an undertaking by two parties to establish a life together and assume certain duties and obligations. A marriage entered into solely for the purpose of obtaining government benefits is a sham marriage and not entitled to BAH. United States v. Phillips , 52 M.J. 268 (C.A.A.F. 2000). (b) A false pretense may exist by one’s silence or by a failure to correct a known misrepresentation. The accused obtained use of government quarters at Fort Stewart, Georgia between 4 November 1994 and 14 January 1998 by misrepresenting that he was married, when in fact he was divorced. Even though he made no affirmative misrepresentation, his silence when his divorce became final and subsequent failure to correct a known misrepresentation constituted false representation sufficient to establish that he wrongfully obtained services under false pretenses, an Article 134 offense. The court specifically analogized obtaining services by false pretenses (Article 134) with larceny by false pretenses (Article 121). United States v. Perkins , 56 M.J. 825 (A. Ct. Crim. App. 2001) (ACCA formally adopted the position already taken by NMCCA and AFCCA). (c) Procuring casual pay by misrepresentation or failing to inquire into legitimacy of casual pay does not amount to larceny by false pretenses. United States v. Johnson , 30 M.J. 930 (A.C.M.R. 1990). (d) United States v. Johnson , 39 M.J. 707 (N.M.C.M.R. 1993), aff’d , 40 M.J. 318 (C.M.A. 1993) (larceny of BAQ and VHA by false pretenses when accused divorced his wife, knew that he was under a duty to report his change in marital status, but remained silent and exploited government reliance on his previous statement of marital status in order to continue receiving pay). (e) United States v. Bulger , 41 M.J. 194 (C.M.A. 1994) (evidence that accused falsely declared his wife as a dependent and entered a false address for her in order to obtain increased BAQ and VHA allowances and had not paid support to her since their separation several years earlier, sufficiently established that accused misrepresented existing intention in applying for benefits to support larceny conviction of obtaining by false pretenses).
    8. Defrauding insurance company by killing insured or intentionally destroying property in order to collect insurance proceeds is larceny by false pretenses. United States v. Garner , 43 M.J. 435 (C.A.A.F. 1996).
    9. United States v. Fenner , 53 M.J. 666 (A.F. Ct. Crim. App. 2000) (sole lessee collected $225 from his 3 roommates for rent and utilities. After his roommates paid him one month, he told them that someone had stolen all the money, which was a lie. Each of the roommates agreed to pay an extra $75 per month for the next three months to replace the stolen money. The court affirmed the part of a specification that alleged larceny of $75 that one of the roommates paid the accused toward the supposedly stolen rent as the roommate paid the accused $75 under the false pretense that the money had been stolen).
  3. test1 035 (Side 35)Withholding. 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 acquired it lawfully or unlawfully. MCM, pt. IV, 46c(1)(b). This theory encompasses the common law offenses of embezzlement and conversion.
    1. United States v. Moreno , 23 M.J. 622 (A.F.C.M.R.), pet. denied , 24 M.J. 348 (C.M.A. 1986) (accused wrote checks against money erroneously deposited in his account; intent to steal (withholding) may be formed after the property is obtained).
    2. Embezzlement requires a fiduciary relationship and a lawful holding. United States v. Castillo , 18 M.J. 590 (N.M.C.M.R. 1984); see also United States v. McFarland , 23 C.M.R. 266 (C.M.A. 1957).
    3. Intent to permanently deprive must be concurrent with the taking/withholding. United States v. Sicley , 20 C.M.R. 118 (C.M.A. 1955).
    4. Wrongful conversion requires an accounting to the owner. United States v. Paulk , 32 C.M.R. 456 (C.M.A. 1963).
    5. United States v. Head , 6 M.J. 840 (N.C.M.R. 1979) (larceny by withholding when a victim mistook accused to be a robber and handed his wallet to the accused who, at that time, formed the intent and took money from the wallet. Though he abandoned the wallet, the accused was responsible for larceny of the sum he took).
    6. Neither a receiver of stolen property nor an accessory after the fact can be convicted of larceny on the theory that, with knowledge of the identity of the owner, he withheld the stolen property from the owner. United States v. Sanderson , CM 438057 (A.C.M.R. 29 Jun. 79) (unpub.); see also United States v. Jones , 33 C.M.R. 167 (C.M.A. 1963).
    7. United States v. Bilbo , 9 M.J. 800 (N.C.M.R. 1980). Accused who lawfully obtained loans from fellow Marines but then failed to repay those loans was found guilty of wrongful appropriation, not larceny. N.C.M.R. further held that the Article 134 offense of dishonorable failure to pay just debts was supported by the evidence.
    8. United States v. Hale , 28 M.J. 310 (C.M.A. 1989). Retention of rental car beyond period contemplated by rental contract constitutes wrongful appropriation (unless intent to permanently deprive the owner of the property can be proven).
    9. Withholding of unauthorized pay or allowances. These cases differ from the cases annotated above in which unauthorized pay and allowances are obtained by false pretenses. The withholding cases discussed here involve either government error or a change in the serviceman’s status, which effects his continued entitlement to the pay or allowance. The property is obtained lawfully.
      1. In the absence of a fiduciary duty to account, a withholding of funds otherwise lawfully obtained is not larcenous. United States v. Watkins , 32 M.J. 327 (A.C.M.R. 1990); United States v. Johnson , 39 M.J. 707 (N.M.C.M.R. 1993); but see United States v. Thomas , 36 M.J. 617 (A.C.M.R. 1992)(accused had a duty to inform government of change in circumstances, failing to do so he is guilty of larceny of funds); cf. United States v. Markley , 40 M.J. 581 (A.F.C.M.R. 1994) (failure of duty to report change in marital status effecting entitlement to allowances may support conviction for dereliction of duty); United States v. Antonelli , 43 M.J. 183 (C.A.A.F. 1995) (allowances, including BAQ and VHA, remain the property of the United States unless they are used for their statutory or regulatory purposes), aff’d, 45 M.J. 12 (C.A.A.F. 1996).
      2. Once service member realizes that he or she is erroneously receiving pay or allowances and forms the intent to steal that property, the service member has committed larceny even without an affirmative act of deception or a duty to account for the funds. United States v. Helms , 47 M.J. 1 (C.A.A.F. 1997) (unanimously resolving issue left open in United States v. Antonelli , 43 M.J. 183 (C.A.A.F. 1995), aff’d, 45 M.J. 12 (C.A.A.F. 1996)); United States v. Perkins , 56 M.J. 825 (Army Ct. Crim. App. 2001).
      3. United States v. Gray , 44 M.J. 585 (N-M. Ct. Crim. App. 1996) (accused’s silence after he discovered error of housing office and finance to continue his BAQ and VHA payments after government quarters were assigned was insufficient to support conviction for larceny by wrongful withholding absent any affirmative steps by accused to ensure that he would continue to be overpaid. Further, the accused fully expected the Navy to recoup overpayments eventually, without disciplinary action, as it had done in the past).
      4. United States v. Stadler , 44 M.J. 566 (A.F. Ct. Crim. App. 1996) (larceny of OHA and COLA allowances where accused continued to collect these allowances after his family returned to CONUS and he moved into government quarters), aff’d, 47 M.J. 206 (C.A.A.F. 1997).
      5. Evidence insufficient to establish that accused’s spouse had possessory or ownership rights to BAQ at w/dep rate and thus failed to establish that accused had stolen BAQ from his wife. United States v. Evans , 37 M.J. 468 (C.M.A. 1993).
      6. Excess BAQ was “military property of the United States.” United States v. Dailey , 37 M.J. 463 (C.M.A. 1993).
    10. Conversion. An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner’s rights. Black’s Law Dictionary (5th Ed. 1979).
      1. United States v. Cahn , 31 M.J. 729 (A.F.C.M.R. 1990). Accused was guilty of larceny by conversion when he retained an ATM card lended to him for withdrawing $20 as a loan, used the card to withdraw $500, and then destroyed it.
      2. United States v. Antonelli , 35 M.J. 122 (C.M.A. 1992). Conversion theory of larceny may apply to accused who receives BAQ and VHA allowances to support his dependents, but who does not actually provide support.

Element 2: That the property described belonged to a person other than the accused.

  1. test1 021 (Side 21)The “owner” is the person or entity with the superior right to possession. MCM, pt. IV, 46c. See United States v. Evans , 37 M.J. 468 (C.M.A. 1993) (evidence insufficient to establish that accused’s spouse had possessory or other ownership right to BAQ and, thus, failed to establish that accused stole BAQ from his spouse); United States v. Cohen , 12 M.J. 573 (A.F.C.M.R. 1981) (even though the checks were intended for various banks and credit unions, the United States had possession of the checks while they were in the mail; thus the charge of larceny from the United States was proper); United States v. Jett , 14 M.J. 941 (A.C.M.R. 1982) (victim is anyone with a superior right of possession to the accused, regardless of who has title); United States v. Meadows , 14 M.J. 1002 (A.C.M.R. 1982) (can commit larceny or wrongful appropriation by taking military equipment from one unit to another); United States v. Leslie , 13 M.J. 170 (C.M.A. 1982) (United States had a possessory interest in C.O.D. funds that postal clerk stole instead of forwarding to senders of C.O.D. parcels; therefore, charge of larceny from the United States was proper); United States v. Lewis , 19 M.J. 623 (A.C.M.R. 1984) (government retains ownership in TDY advance).
  2. Debts or the administrative costs associated with a larceny are not the proper subjects of a larceny. United States v. Mervine , 26 M.J. 482 (C.M.A. 1988); United States v. Dunn , 27 M.J. 624 (A.F.C.M.R. 1988); TJAGSA Practice Note, Larceny of a Debt: United States v. Mervine Revisited , Army Law., Dec. 1988, at 29; TJAGSA Practice Note, L arceny of Administrative Costs: United States v. Dunn , Army Law., Mar. 1989, at 32.
  3. Erroneous allegation of ownership not a fatal defect. United States v. Craig , 24 C.M.R. 28 (C.M.A. 1957).
  4. To be guilty of larceny, accused must take property from one having a superior possessory interest. United States v. Faircloth , 45 M.J.172 (C.A.A.F. 1996) (accused forged endorsement in financing company’s behalf on insurance check issued to accused and financing company as co payees to auto damage; during providency, accused admitted financing company had superior possessory interest).

Element 3: That the property in question was of a value alleged, or of some value.

  1. Legitimate (retail) market value at time and place of theft must be established. United States v. Lewis, 13 M.J. 561 (A.F.C.M.R. 1982) (accused properly convicted of full value of item where he switched price tags and paid the lower price).
  2. Government item. Government price lists can be used to establish value. See M.R.E 803(17).
  3. Non-government item. Average retail selling price established by recent purchase price of like item, testimony of market expert, testimony of owner’s opinion as to value, etc.
  4. Value tokens. Writings representing value may be considered to have the value which they represent, even though contingently, at the time of the theft. MCM, pt. IV, 46c(1)(g)(iii). See United States v. Windham , 36 C.M.R. 21 (C.M.A. 1965); United States v. Riverasoto , 29 M.J. 594 (A.C.M.R. 1989) (drafted check—face value); United States v. Cook , 15 C.M.R. 622 (A.F.B.R. 1954) (gasoline coupons—face value); United States v. Frost , 46 C.M.R. 233 (C.M.A. 1973) (blank check—nominal value); see also United States v. Falcon , 16 M.J. 528 (A.C.M.R. 1983); United States v. Stewart , 1 M.J. 750 (A.C.M.R. 1973) (airline ticket—face value); United States v. Tucker , 29 C.M.R. 790 (A.B.R. 1960) (credit card—nominal value); United States v. Payne , 9 M.J. 681 (A.F.C.M.R. 1980) (accounts receivable—nominal value); United States v. Sowards , 5 M.J. 864 (A.F.C.M.R. 1978) (money orders—face value); but see United States v. McCollum , 13 M.J. 127 (C.M.A. 1982) (value can include what items might bring in illegal channels—“thieves value”).
  5. Value of property must reasonably approximate the loss. United States v. Eggleton , 47 C.M.R. 920 (C.M.A. 1973).
  6. In United States v. Batiste , 11 M.J. 791 (A.F.C.M.R. 981), the court held that urine, which was to be sent to the laboratory for testing, was an article of value for purposes of larceny prosecution and the immediate substitution by accused of a like quantity of urine did not diminish the offense of wrongful appropriation.

Element 4: That the taking, obtaining, or withholding by the accused was with theintent [permanently/temporarily] to deprive or defraud another person of the use and benefit of the property or [permanently/temporarily] to appropriate the property for the use of the accused or for any other person other than the owner.

  1. test1 086 (Side 86)Concurrence of intent and wrongful act. The wrongful taking, obtaining or withholding must be accompanied by the intent to steal or wrongfully appropriate the property. Although a person gets property by a taking or obtaining which was not wrongful or which was without a concurrent intent to steal, a larceny is nevertheless committed if an intent to steal is formed after the taking or obtaining and the property is wrongfully withheld with that intent. MCM, pt. IV, 46c(1)(f)(i).
  2. Intent may be proved by circumstantial evidence. United States v. Zaiss , 42 M.J. 586 (Army Ct. Crim. App. 1995) (intent to steal may be inferred when accused secretly takes property, hides it, and denies knowing anything about it).
  3. Wrongful appropriation of government property requires a specific intent to deprive the government or a unit thereof of more than mere possession of its property. United States v. McGowan , 41 M.J. 406 (C.A.A.F. 1995). Taking military equipment for maintenance does not constitute wrongful appropriation. United States v. Taylor , 44 C.M.R. 274 (C.M.A. 1972). Similarly, the incidental use of a government vehicle for private purposes does not constitute misappropriation, provided the vehicle is also used for authorized purposes without diversion or deviation. United States v. Lutgert , 40 C.M.R. 94 (C.M.A. 1969).
  4. Mere borrowing without consent is not always an offense. United States v. Harville , 14 M.J. 270 (C.M.A. 1982); United States v. Thomas , 34 C.M.R. 3 (C.M.A. 1963) (borrowing clothes from barracks occupant can be defense to wrongful appropriation).
  5. There may be a limited right of self-help to seize another’s property in order to satisfy a debt or acquire security for it, if there is a prior agreement between the parties providing for such recourse, or if the soldier takes property honestly believing he has a superior claim of right to that specific property. United States v. Jackson , 50 M.J. 868 (Army Ct. Crim. App. 1999), aff’d, 53 M.J. 220 (C.A.A.F. 2000); United States v. Gunter , 42 M.J. 292 (C.A.A.F. 1995); United States v. Smith , 14 M.J. 68 (C.M.A. 1982).
    1. Self-help is not justified where the debt is uncertain; and the value of the property taken must reasonably approximate the loss. United States v. Cunningham , 14 M.J. 539 (A.C.M.R. 1982), rev’d and remanded on other grounds, 15 M.J. 282 (C.M.A. 1983); United States v. Kelley , 39 M.J. 1011 (A.C.M.R. 1994); see also United States v. Eggleton , 47 M.R. 920 (C.M.A. 1973).
    2. Honest mistake of fact by accused that he was entitled to receive property may be a defense to larceny. United States v. Turner , 27 M.J. 217 (C.M.A. 1988).
    3. “Claim of Right.” A defense exists for a soldier who takes property from another honestly believing that he has a superior claim of right to that specific property. United States v. Gunter , 42 M.J. 292 (1995); United States v. Jackson , 50 M.J. 868 (Army Ct. Crim. App. 1999) (engagement ring and exercise bike given to fiancé).
    4. No right of retrieval is recognized for contraband. United States v. Petrie , 1 M.J. 333 (C.M.A. 1976).
    5. No right of accused to unilaterally elevate himself to position of secured creditor by grabbing at will chattels belonging to service member. United States v. Martin , 37 M.J. 546 (N.M.C.M.R. 1993)(taking of ring from service member who owed money as security for debt was wrongful taking).
  6. Motive does not negate intent. For example, if the accused took an item as a joke or to teach the owner a lesson about security, the taking is nonetheless wrongful if, viewed objectively, harm was caused ( i.e. , the owner is permanently or temporarily deprived of the use or benefit of the property). MCM, pt. IV, 46c(1)(f)(iii); United States v. Kastner , 17 M.J. 11 (C.M.A. 1983); United States v. Johnson , 17 M.J. 140 (C.M.A. 1984).
  7. An accused that believes property to be abandoned lacks the mens rea required for larceny. United States v. Malone , 14 M.J. 563 (N.M.C.M.R. 1982); see also MCM, pt. IV, 46c(1)(h)(i); see also United States v. Turner , 27 M.J. 217 (C.M.A. 1988); United States v. Jones , 26 M.J. 1009 (A.C.M.R. 1988).
  8. Intent to pay for, replace, or return property is not a defense. MCM, pt. IV, 46c(1)(f)(iii)A)(B); see United States v. Brown , 30 M.J. 693 (A.C.M.R. 1990); United States v. Woodson , 52 M.J. 688 (C.G. Ct. Crim. App. 2000). But see United States v. Boddie , 49 M.J. 310 (C.A.A.F. 1998) (in dicta, the CAAF states that an intent to pay for property may be a defense if there is “a substantial ability to do so”).
  9. Intent to pay for, replace, or return money or a negotiable instrument having no special value above its face value, with the intent to return an equivalent amount, is a defense to larceny. United States v. Hegel , 52 M.J. 778 (C.G. Ct. Crim. App. 2000) (accused stole CityBank Visa card and used it, but because the accused claimed he intended to pay the bill in full when due, the plea of guilty to larceny of funds from CityBank was improvident).
  10. Overdraft protection may negate intent to steal in cases of larceny by false pretenses involving bad checks. United States v. McCanless , 29 M.J. 985 (A.F.C.M.R. 1990); see United States v. McNeil , 30 M.J. 648 (N.M.C.M.R. 1990); see generally TJAGSA Practice Note, Overdraft Protection and Economic Crimes , Army Law., Jul. 1990, at 45.
  11. Where transfer of possession occurred prior to act of accused, no wrongful taking or withholding has occurred. United States v. Hughes , 45 M.J. 137 (C.A.A.F. 1996)(accused merely placed lock on his assigned wall locker which contained property belonging to another soldier that was stored there without the permission of the accused).

Multiplicity

  1. test1 103 (Side 103)When a larceny of several articles is committed at substantially the same time and place, it is a single larceny, even though the articles belong to different persons. MCM, pt. IV, 46c(1)(h)(ii); United States v. Warner , 33 M.J. 522 (A.F.C.M.R. 1991); United States v. Ruiz , 30 M.J. 867 (N.M.C.M.R. 1990); United States v. Huggins , 12 M.J. 657 (A.C.M.R. 1981), aff’d in part, rev’d in part on multiplicity grounds, 17 M.J. 345 (C.M.A. 1984); United States v. Gutierrez , 42 C.M.R. 521 (A.C.M.R. 1970); United States v. Miller , 2000 A.A.F. LEXIS 207 (Feb. 24, 2000) (contemporaneous theft of two differentvictims’ checks, which the accused found in one victim’s drawer, constituted a single larceny); United States v. LePresti , 52 M.J. 644 (N-M. Ct. Crim. App. 1999).
  2. United States v. Florence , 5 C.M.R. 48 (C.M.A. 1952). Without evidence to justify joining larcenies into one specification and thereby increasing the penalty, the Government should have charged separately.
  3. United States v. Gillingham , 1 M.J. 1193 (N.C.M.R. 1976). Theft of calculator from one office was not multiplicious with theft of second calculator, moments later, from adjoining office.
  4. United States v. Alvarez , 5 M.J. 762 (A.C.M.R. 1978). Housebreaking and larceny in the same transaction were not multiplicious.
  5. United States v. Burney , 44 C.M.R. 125 (C.M.A. 1971). Larceny and wrongful appropriation of a truck to transport stolen goods were not multiplicious.
  6. United States v. Harrison , 4 M.J. 332 (C.M.A. 1978). Six larcenies and six facilitating false official statements were not multiplicious for sentencing purposes.

Divisible Property

United States v. Pardue , 35 C.M.R. 455 (C.M.A. 1965). Wherethe accused is charged only with larceny of an automobile, he may not be found not guilty of wrongful appropriation of the automobile but guilty of larceny of an essential part ( i.e. , the tires). See also United States v. Jones , 13 M.J. 761 (A.F.C.M.R. 1982).

Permissive Inferences

  1. Inference of wrongfulness arising out of possession of recently stolen property. If the facts establish that property was wrongfully taken from the possession of the owner and that shortly thereafter the property was discovered in the knowing, conscious, exclusive, and unexplained possession of the accused, the fact-finder at trial may infer that the accused took the property. United States v. Pasha , 24 M.J. 87 (C.M.A. 1987); United States v. Hairston , 26 C.M.R. 334 (C.M.A. 1958); United States v. Morton , 15 M.J. 850 (A.F.C.M.R. 1983).
  2. Passing cash register without offering to pay for an item concealed in the accused’s pocket creates a permissive inference of intent to steal. United States v. Wynn , 23 M.J. 726 (A.F.C.M.R. 1986), sentence vacated and remanded by, 26 M.J. 232 (C.M.A. 1988).
  3. A power of attorney is not a license to embezzle. United States v. Willard , 48 M.J. 147 (1998).

Variance

  1. Because the identity of the victim is not an essential element of either larceny or wrongful appropriation, a variance in establishing ownership of the item taken will not always be fatal to the government’s case. United States v. Craig , 24 M.R. 28 (C.M.A. 1957) (variance regarding victim in larceny case notprejudicial error); United States v. Davis , 31 C.M.R. 486 (C.G.B.R. 1962) (identity of victim of wrongful appropriation not an essential element); United States v. Roberto , 31 C.M.R. 349 (A.B.R. 1961) (variance as to ownership of funds in larceny case not fatal).
  2. Variance in the date of the larceny may be fatal when the theory of larceny also changes. United States v. Wray , 17 M.J. 735 (C.M.A. 1984) (change of dates and theory from taking to taking and withholding was fatal variance).

Larceny of Mail Matter

Theft of misaddressed mail is included within the offenses of stealing mail under Article 134. MCM, pt. IV, 93; UCMJ art. 134; United States v. Fox , 50 M.J. 444 (C.A.A.F. 1999).

Credit Card/Automatic Teller Machine Offenses

  1. test1 032 (Side 32)“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.” See 2008 MCM, pt. IV, 46.c(1)(h)(vi).
  2. United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010). The accused, under the guise of assisting the elderly victim with her finances, used her credit cards, ATM cards, and debit cards, for his own benefit.
    1. Credit card transactions. Under the facts of the case, the unauthorized use of credit cards to obtain cash advances and unspecified goods of a certain value, was not a larceny from the cardholder herself. In using the credit cards in this case, the accused did not obtain anything from the cardholder, but instead obtained items of value from other entities. As such, the court concluded that the proper subject of the credit-card-transaction larcenies in this case was not the cardholder.
    2. Debit/ATM Transactions. The accused obtained access to the victim’s account by false pretenses, representing that he would use the funds only for the purposes she authorized. Any authority he had to access the victim’s funds was limited by his “beneficiary status and [the accused’s] fiduciary role.” Although he had access to the account, his authority to use funds from the account was limited to purchasing items for the cardholder’s benefit. Therefore, the evidence was legally sufficient to show that the accused wrongfully obtained money from her with the intent to permanently deprive her of it.
  3. Any theory under Article 134 or Article 121 can support a conviction for credit card offenses. United States v. Christy , 18 M.J. 688 (N.M.C.M.R. 1984).
  4. Larceny of another soldier’s ATM card and the use of the card to make withdrawals are separate crimes and are separately punishable. United States v. Garner , 28 M.J. 634 (A.F.C.M.R. 1989); United States v. Abendschein , 19 M.J. 619 (A.C.M.R. 1984); United States v. Jobes , 20 M.J. 506 (A.F.C.M.R. 1985).
  5. Withdrawals from several different accounts using one banking machine are separate crimes. United States v. Aquino , 20 M.J. 712 (A.C.M.R. 1985).
  6. Defense contention that bank consented to withdrawals by not programming ATM to prevent withdrawals from accounts having insufficient funds was rejected. United States v. Buswell , 22 M.J. 617 (A.C.M.R. 1986).
  7. Misuse of Gov’t travel card.
    1. Dereliction of duty. Article 92(3). United States v. Long , 46 M.J. 783 (Army Ct. Crim. App. 1997).
    2. Violation of general regulation. Article 92(1). United States v. Hughey , 46 M.J. 152 (1997) (Air Force base regulation restricting use of government charge cards and establishing payment requirements was lawful general regulation).

Military Property As An Aggravating Factor For Larceny. See supra discussion of military property under Article 108, ch. 3, XX).  See Captain David O. Anglin, Service Discrediting: Misuse, Abuse, and Fraud in the Government Purchase Card Program, Army Law., August 2004, at 1.

defraud another person

military property