United States v. Fairley

DECISION HODGSON, Chief Judge: The issue before us is whether the theft of an automatic teller machine (ATM) card and its subsequent use to withdraw money from the owner’s bank account are separate offenses for punishment. Two panels of this court, in reviewing virtually identical facts, have arrived at different conclusions regarding this issue. In United States v. Pulliam, 17 M.J. 1066 (A.F.C.M.R.1984), a three judge panel viewed the theft of an ATM card “as a preamble to the two ... larcenies.” It considered the offenses, although occurring at different times and places as flowing from “a single impulse or intent.” The ATM card and the personal identification number (PIN) that was taken at the same time provided the opportunity for the unauthorized cash withdrawals. Accordingly, it held the larceny of the ATM card as multiplicious with the later theft of monies. Some 15 months later, in United States v. Jobes, 20 M.J. 506 (A.F.C.M.R.1985), pet. denied 21 M.J. 102 (C.M.A.1985), a different three judge panel, facing an identical factual situation, came to a contrary holding. They reasoned that “the time and circumstances surrounding the offenses afforded the accused a reasonable opportunity to reflect on his actions and choose to refrain from committing additional crimes.” Thus, the panel concluded there was no “single impulse or intent,” as the offenses arose from separate acts and could be punished separately. These two decisions, based on almost identical circumstances but arriving at different holdings as to the separateness of the offenses for punishment, leave the law in this area unclear. This leads to uncertainty by the trial bench, the bar and those administering military justice. There is no discernible difference between the facts before us today and those in the decisions discussed. Here, the record disclosed that on 3 January 1988, the appellant found a wallet containing the ATM card and PIN of another servieemember. Later that same day, the lapsed time is not stated, he withdrew $200.00 from the victim’s credit union account using the latter’s ATM card and PIN. He repeated the operation the next day and withdrew $40.00. Appellate courts should always be guided by the “force of better reasoning” when faced with conflicting holdings on the same issue. United States v. Carter, 25 M.J. 471 (C.M.A.1988). Using this concept as our pole star we find the analysis and conclusion of Judge Carparelli in Jobes to be persuasive and in harmony with the decisions of the Court of Military Appeals [584] on multiplicity. See United States v. Baker, 14 M.J. 361 (C.M.A.1983); United States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971). Accordingly, applying the Jobes rationale to the facts before us, we conclude that the larceny of the ATM card and the subsequent thefts of monies using that card were not multiplicious for sentencing. United States v. Jobes, supra; United States v. Aquino, 20 M.J. 712 (A.C.M.R.1985); see also United States v. Abendschein, 19 M.J. 619 (A.C.M.R.1984). To the extent that United States v. Pulliam, supra, conflicts with this opinion, it is overruled. The findings of guilty and the sentence are AFFIRMED. Senior Judges, FORAY and KASTL, Judges, HOLTE, MICHALSKI, BLOMMERS and MURDOCK, concur.