United States v. Schaper

OPINION OF THE COURT YOUNG, Senior Judge: A military judge convicted appellant of dishonorably failing to pay debts, pursuant to his pleas, and larceny, contrary to his pleas. Articles 134 and 121, UCMJ, 10 U.S.C. §§ 934, 921 (1988). The military judge sentenced appellant to a bad-conduct discharge, confinement for 7 months, and reduction to E-3. The convening authority disapproved the conviction for dishonorably failing to pay debts, but approved the sentence as adjudged. Appellant asserts the evidence is factually and legally insufficient to support his conviction of larceny. We disagree and affirm. I. Facts The prosecution’s evidence consisted of a stipulation of fact and documents which were incorporated by reference therein. On 13 March 1992, appellant “freely and willingly” applied for a Citicorp Diners Club card through the Diners Club Government Card Program. The purpose of the program is to eliminate the need for cash advances and provide a means of expense accounting for Air Force members who frequently travel on official business. Although apparently based on a contract between the United States Government and Citicorp, the actual Diners Club agreement was between Citicorp and appellant. By signing the application form, he agreed to be bound by the terms and conditions of the Diners Club Government Card Program Employee Card Account Agreement accompanying the card and acknowledged that the card was to be used only for official government business. Before applying for the card, appellant certified that he had read, understood, and agreed to abide by the provisions of the Employee Card Account Agreement. That agreement states that the Diners Club card and account were “not to be used for personal purposes and may only be used in connection with official United States Government business.” Appellant also applied for a personal identification number (PIN) so he could use the card to make cash withdrawals from automated teller machines (ATM). To do so, he signed the application form, agreeing to be bound by the terms of the employee agreement. That agreement states, in part: The Government ATM Program is provided by Diners Club under the authority of my Agency. The Program may not be used for personal purposes and may only be used in connection with official United States Government business. ATM cash withdrawals must be authorized by a travel authorization and are subject to applicable regulations of my Agency with respect to travel advances. ____ ATM cash withdrawals must be authorized by my travel authorization, and I may not withdraw any amount which is in excess of any limitation upon withdrawals contained in such travel authorization. I understand that I may not obtain an ATM cash withdrawal for any purpose other than for official United States Government business and that no other person is permitted to use the Card or my Account for any reason. .... Obtaining an ATM cash withdrawal for any purpose other than for official travel is specifically prohibited. Air Force regulations provide that Air Force members can receive cash travel advances only incident to a travel authorization for official Government travel. On 16 occasions between 22 December 1992 and 15 February 1993, appellant used this Diners Club card and PIN to withdraw a total of $4,110 from ATM machines for purposes other than official United States Government business—to cover bad checks he had written, to buy Christmas presents, and [739] to pay for liquor and shooting pool. On 4 March 1993, when confronted by his first sergeant about the use of his Diners Club card, appellant denied that he had ever used the card or had given his card or PIN to anyone else to use and admitted he had not been on government official travel. Appellant made similar representations to Diners Club in an affidavit he prepared with the assistance of the first sergeant. Appellant was not charged for these false statements. Appellant was aware that charges made on his Diners Club were his own personal financial responsibility, not those of the government. II. Standards of Review Under Article 66(c), UCMJ, 10 U.S.C.A. § 866(c), this Court has a duty to determine both the legal and factual sufficiency of the evidence. The test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable fact-finder could have found all the essential elements beyond a reasonable doubt. The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, we are personally convinced of appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324 (C.M.A.1987). III. Discussion To prove larceny, the prosecution must show that the accused wrongfully took, obtained, or withheld the property of another with the intent permanently to appropriate it to his own use and benefit or to deprive the owner of its use or benefit. Article 121, UCMJ; Manual for Courts-Martial, United States, 198k (MCM), Part IV, ¶ 46; see United States v. Antonelli, 35 M.J. 122, 127 (C.M.A.1992). The prosecution proceeded on a theory of larceny by false pretenses (wrongfully obtaining) and the military judge adopted findings of fact and conclusions of law based on that theory. A false pretense is a false representation of past or existing fact. In addition to other kinds of facts, the fact falsely represented by a person may be that person’s or another’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, Part IV, ¶ 46c(l)(e). “[T]he false pretense may be made by means of any act, word, symbol, or token. The pretense must be in fact false when made and when the property is obtained, and it must be knowingly false in the sense that it is made without a belief in its truth.” Id. The false representation may be implied from unwritten and unspoken conduct. Wayne R. La-Fave & Austin W. Scott Jr., Criminal Law 656 (1972); see 3 Charles E. Toreia, Wharton’s Criminal Law § 426 (14th ed.1980). A false pretense may also occur through the failure to correct a representation previously made which is no longer true. The individual’s “silence at the moment, with full knowledge of what is happening, is the equivalent of a repetition of the statement at the very moment of acquisition.” Rollin M. Perkins, Perkins on Evidence 311 (2d ed.1969); see United States v. Dean, 33 M.J. 505, 510 (A.F.C.M.R.1991). It is of no consequence that the representations are made to a machine as opposed to a human representative of the person relinquishing title to the property. See United States v. Flowerday, 28 M.J. 705 (A.F.C.M.R.1989) (by directly dialing long distance calls on another’s telephone, accused “was implicitly representing to the telephone company that he was the owner or a duly authorized user of that instrument and, further, that he or the owner intended to pay for the service”). In making withdrawals from the ATMs with the Diners Club card issued under the Government Employee Program, appellant made three implicit representations: (1) that he was authorized to use the particular Diners Club card he inserted into the ATMs to withdraw funds; (2) that he was authorized by a travel authorization to withdraw that amount of money from the ATMs; and (3) that the ATM cash withdrawals were obtained for official Government business related to his official travel. The first representation was true. Unlike other military cases which discuss false pre [740] tenses, appellant had applied for and been granted this Diners Club card and was authorized to use it in ATMs. The prosecution’s proof on the second and third representations is legally and factually sufficient to show that appellant had not received a travel authorization and the ATM cash withdrawals were obtained for other than matters related to official government travel: (1) on 4 March 1993, appellant admitted, in written answers to his first sergeant’s questions, that he had not been on government official travel or TDY since the Diners Club card was issued to him on 13 March 1992; and (2) appellant confessed to the AFOSI that he used the ATM withdrawals for other than official government business—to pay off bad checks, to buy Christmas presents, to pay for liquor, and to pay for shooting pool. Appellant’s challenge to the legal sufficiency of the evidence is based on two separate theories: (1) he cannot be convicted of larceny for what is essentially a failure to pay a contractual obligation; and (2) the prosecution’s evidence failed to prove Diners Club would not have provided the money absent the misrepresentation. We will examine each of these assertions. It is settled law that “a debt or the amount thereof is not the proper subject of a larceny under Article 121.” United States v. Mervine, 26 M.J. 482, 483-84 (C.M.A.1988). “The taking, obtaining or withholding must be of specific property. A debtor does not withhold specific property from the possession of a creditor by failing or refusing to pay a debt, for the relationship of debtor and creditor does not give the creditor a possessory right in any specific money or other property of the debtor.” Mervine, 26 M.J. at 484 (quoting MCM, Part IV, ¶ 46c(l)(b) (emphasis added). Mervine was convicted of attempted larceny of money from the Navy Exchange. He had purchased some electronic equipment under the deferred payment plan from the Navy Exchange in Naples, Italy. After his assignment to Diego Garcia, he failed to make payments to the Navy Exchange, altered a postal money order receipt to reflect his payment of the debt, and sent the Exchange the altered receipt and a letter stating he had paid the debt. The Court of Military Appeals held that Mervine could not be convicted of attempted larceny. The object of a larceny, under Article 121, UCMJ, must be a tangible res, which a lawfully contracted debt is not. When appellant inserted the Diners Club card into the ATM, he did not have a preexisting debt with Citicorp which he was attempting to avoid by false representations. Instead, he wrongfully obtained money, a tangible res, by making material misrepresentations to Citicorp through the ATM. The fact that appellant had a previous contractual relationship with Citicorp authorizing him to withdraw money from ATMs under limited circumstances does not preclude his conviction for larceny when his knowing misrepresentations as to his compliance with the terms of the contract effectively and intentionally induce Citicorp to part with its money. The offense of which appellant was convicted is not unlike that of larceny by check. An individual who makes and utters a check, drawn on his own account, knowing that the bank will not pay on presentment because of insufficient funds in his account may be charged with and convicted of larceny by false pretenses. See United States v. Marrelli, 4 U.S.C.M.A. 276, 15 C.M.R. 276 (1954). The individual who makes and utters the check makes two representations: (1) that he is authorized to use the specific account number on the check; and (2) that the account contains sufficient funds such that the check will be paid upon presentment. The false pretense is the implied representation that funds will be available to pay the check upon its presentment. We distinguish appellant’s ease from that of a person who unknowingly, or with the approval of the credit card company, exceeds the credit limit on his card. In those cases, there is no false pretense. We find appellant’s claim that the prosecution failed to prove Diners Club would not have provided appellant the money absent the misrepresentation is without merit. Although the preferable course would have been for the prosecution to present testimony from an officer of the credit card [741] company, in this case, the terms of the contract are sufficiently clear and unambiguous for a factfinder to conclude that the money would not have been provided absent the misrepresentation. Marrelli, 15 C.M.R. at 280 (“it was readily inferable that the accused knew the bank would not have paid the checks on presentment.”) The evidence was sufficient for a reasonable fact-finder to find appellant committed all the essential elements of the offense of larceny beyond a reasonable doubt. Furthermore, we ourselves are convinced beyond a reasonable doubt of appellant’s guilt of larceny. Appellant wrongfully obtained money from Citicorp Diners Club with the intent permanently to appropriate the same to his own use and benefit. IV. Conclusion The findings and sentence are correct in law and fact, and we find no errors prejudicial to appellant’s substantial rights. Accordingly, the findings and sentence are AFFIRMED.