United States v. Simpson ( 2018 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellant
v.
Randy L. SIMPSON Jr., Sergeant
United States Army, Appellee
No. 17-0329
Crim. App. No. 20140126
Argued November 29, 2017—March 19, 2018
Military Judges: Jeffery Lippert and David L. Conn
For Appellant: Captain Marc B. Sawyer (argued); Colonel
Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
Major Michael E. Korte, Captain Tara O’Brien Goble, and
Captain Austin L. Fenwick (on brief).
For Appellee: Captain Joshua B. Fix (argued); Colonel
Mary J. Bradley, Lieutenant Colonel Christopher D. Carri-
er, and Captain Ryan T. Yoder (on brief); Captain Steven J.
Dray.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
SPARKS, and Senior Judge EFFRON, joined.
_______________
Judge RYAN delivered the opinion of the Court.
Appellee was convicted, pursuant to his pleas, of one
specification of larceny and one specification of conspiracy to
commit larceny of property owned by Credit First National
Association (CFNA) in violation of Articles 81 and 121, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 921
(2012). Appellee was sentenced to two months of confine-
ment, a reduction to the grade of E-4, and a bad-conduct dis-
charge. The convening authority approved the sentence as
adjudged.
The United States Army Court of Criminal Appeals
(ACCA) summarily affirmed the findings and sentence.
United States v. Simpson (Simpson I), No. ARMY 20140126
(A. Ct. Crim. App. Dec. 18, 2015) (per curiam) (unpublished).
We granted Appellee’s petition on the following issue:
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
WHETHER THE MILITARY JUDGE ABUSED
HIS DISCRETION IN ACCEPTING THE GUILTY
PLEA TO THE SPECIFICATION OF
ADDITIONAL CHARGE I BY FAILING TO
ESTABLISH A SUFFICIENT FACTUAL BASIS
THAT CFNA WAS THE LARCENY VICTIM.
United States v. Simpson (Simpson II), 75 M.J. 370
(C.A.A.F. June 10, 2016) (summary disposition). We vacated
the decision and remanded for the ACCA to consider the
granted issue in light of United States v. Williams, 75 M.J.
129 (C.A.A.F. 2016). 75 M.J. at 370. On remand, the ACCA
set aside Appellee’s guilty plea and sentence, finding that
there was a substantial basis in law and fact to question the
plea because CFNA was not the correct object of the larceny
under Williams. United States v. Simpson (Simpson III), No.
ARMY 20140126, 2017 CCA LEXIS 132, at *9−10, 2017 WL
825286, at *4 (A. Ct. Crim. App. Mar. 1, 2017) (un-
published).
The Judge Advocate General of the Army (TJAG) then
certified the following issue pursuant to Article 67(a)(2),
UCMJ, 10 U.S.C. § 867(a)(2) (2012):
WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED BY FINDING A
SUBSTANTIAL BASIS IN LAW AND FACT TO
QUESTION APPELLANT’S PLEA IN LIGHT OF
THE SUPREME COURT DECISION IN UNITED
STATES v. SHAW, 137 S. CT. 462 (2016), AND
THE COURT OF APPEALS FOR THE ARMED
FORCES DECISION IN UNITED STATES v.
CIMBALL[]SHARPTON, 73 M.J. 299 (C.A.A.F.
2014).
We answer the certified issue in the negative to the ex-
tent that there was a substantial basis in law and fact to
question Appellee’s plea to the larceny specification in light
of Williams, which clarified United States v. Cimball Sharp-
ton, 73 M.J. 299 (C.A.A.F. 2014), United States v. Lubasky,
68 M.J. 260 (C.A.A.F. 2010), and the stipulation of fact in
this case. 1 However, Appellee’s guilty plea to the conspiracy
1 Nonetheless, for reasons explained infra at p. __ (9–10),
based on the stipulation of fact and the military judge’s providence
inquiry, we approve a finding of guilty to the lesser included of-
fense of attempted larceny under Article 80, UCMJ, 10 U.S.C.
2
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
to commit larceny specification was not affected by this er-
ror, and the ACCA erred when it found a substantial basis to
question Appellee’s plea to this offense.
I.
The underlying facts of this case arise from a long-
standing and complex scheme involving numerous transfers
paid by J. P. Morgan Chase (J. P. Morgan) to various credi-
tors of Appellee as reflected on CFNA’s “zero-balance” ac-
count. However, we need not delve into the details of this
scheme because our inquiry is focused on the object of the
larceny.
Appellee and the Government entered into a pretrial
agreement (PTA), in which Appellee agreed, inter alia, to
enter a plea of guilty to a single specification of larceny (on
divers occasions) and a single specification of conspiracy to
commit larceny. As part of the PTA, Appellee and the Gov-
ernment entered into a stipulation of fact. 2
The parties stipulated to the following elements of lar-
ceny as applied to Appellee’s case:
i. That between 29 September 2009 and 16 August
2010, on divers occasions, at or near Joint Base
Lewis-McChord, Washington, [Appellee] wrongfully
obtained certain property, that is, money, from the
possession [of] Credit First National Association, by
using their account information to transfer money
from their account into accounts that [Appellee]
owned or was responsible for;
ii. That the property belonged to Credit First Na-
tional Association;
iii. That the property was of a value of greater than
$500.00; and
iv. That [Appellee] obtained the property with the
intent to permanently deprive Credit First Nation-
al Association of the use and benefit of the proper-
§ 880 (2012). See Manual for Courts-Martial, United States pt. IV,
para. 46.d.(1)(b) (2012 ed.) (MCM); Article 59(b), UCMJ, 10 U.S.C.
§ 859(b) (2012).
2 Such a stipulation, if 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).
3
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
ty, in that [Appellee] obtained the money for [his]
own personal use and enjoyment by paying [his]
bills and purchasing things [he] wanted.
Emphasis added. MCM pt. IV, para. 46.b.(1).
In the stipulation, the parties acknowledged that the
CFNA account was not a conventional bank account, but ra-
ther a “zero-balance” account, which functioned like an ordi-
nary credit card. The CFNA account contained no actual
funds, but rather reflected amounts J. P. Morgan paid to
third-parties on CFNA’s behalf. At the end of each business
day, CFNA would “zero[] out” the account by transferring
funds to J. P. Morgan to cover the expenditures made to Ap-
pellee’s creditors by J. P. Morgan—returning the account to
a balance of zero. As the Government conceded at argument,
Appellee obtained nothing from CFNA.
In regard to the conspiracy specification, the parties
stipulated that Appellee entered into an agreement with
Sergeant (E-5) Richard Ramos where Appellee would ar-
range for Sgt. Ramos to receive the CFNA bank account in-
formation and Sgt. Ramos could then, in turn, pay off his
personal debts by charging them to the CFNA account.
Based on the stipulation of fact and Appellee’s testimony
at the providence inquiry, the military judge determined
that Appellee’s plea was provident, accepted the guilty plea,
and entered findings of guilty.
II.
We review a military judge’s acceptance of a guilty plea
for an abuse of discretion and questions of law arising from
the guilty plea de novo. United States v. Inabinette, 66 M.J.
320, 322 (C.A.A.F. 2008). In the event that an accused sets
up a matter inconsistent with their plea of guilty, the mili-
tary judge must resolve the inconsistency or reject the plea.
United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (cit-
ing United States v. Hines, 73 M.J. 119, 124 (C.A.A.F.
2014)); Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2012). “A
military judge abuses this discretion if he fails to obtain
from the accused an adequate factual basis to support the
plea—an area in which we afford significant deference.”
United States v. Nance, 67 M.J. 362, 365 (C.A.A.F. 2009) (ci-
tation omitted) (internal quotation marks omitted); United
4
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253
(1969); R.C.M. 910(e). A ruling based on an erroneous view
of the law is also an abuse of discretion. United States v.
Passut, 73 M.J. 27 (C.A.A.F. 2014) (citation omitted). This
Court will not set aside an accused’s guilty plea on appeal
unless there is a substantial basis in law or fact for question-
ing the plea. Inabinette, 66 M.J. at 322; see also United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
A.
Article 121, UCMJ, proscribes the wrongful taking, ob-
taining, or withholding, from the possession of the owner or
of any other person, money or an article of value of any kind
with intent to permanently deprive. The government must
allege that the accused “ ‘wrongfully obtain[ed] money or
goods … from a person or entity with a superior possessory
interest.’ ” Williams, 75 M.J. at 132 (quoting Lubasky, 68
M.J. at 263); MCM, Analysis of Punitive Articles app. 23 at
A23–17 (2012 ed.).
When an accused engages in a wrongful “credit, debit, or
electronic transaction,” this usually constitutes either “a lar-
ceny of those goods from the entity from the merchant offer-
ing [the goods]” or “from the entity presenting the money.”
MCM pt. IV, para. 46.c.(1)(i)(vi); Williams, 75 M.J. at 132;
Cimball Sharpton, 73 M.J. at 301; see also United States v.
Endsley, 74 M.J. 216, 216 (C.A.A.F. 2015) (summary disposi-
tion); United States v. Gaskill, 73 M.J. 207, 207 (C.A.A.F.
2014) (summary disposition). In Lubasky, Cimball Sharpton,
and recently again in Williams, we repeated that the general
rule in such a case is that the money or goods are wrongfully
obtained from the merchant or bank. 3 Burton, 196 U.S. at
3 In Shaw v. United States, the Supreme Court reiterated that
a bank ordinarily owns the funds in its accounts. 137 S. Ct. 462,
466 (2016). Although, Shaw, in dicta, suggests that the customer
may retain a possessory interest in money contained in a bank
account, it did not purport to overrule Burton v. United States, 196
U.S. 283, 302 (1905), which clearly held the bank owns the depos-
its in an account and is not an agent of the depositor unless there
were “stipulations to the contrary.” Id. at 301 (citation omitted)
(internal quotation marks omitted). There are no such stipulations
extant in the record here, and Shaw is not otherwise relevant for
purposes of deciding this case. The federal bank fraud statute it
5
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
302; see also 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
(“[T]he account holder has neither title to nor possession of
the money in his or her debit account … [therefore] the ac-
count holder cannot be the ‘owner’ in a credit or debit card
larceny case.”).
Therefore, in Lubasky, we agreed that claims that the
appellant obtained anything from Mrs. Shirley were legally
insufficient with respect to the credit card transactions, be-
cause the appellant obtained the goods at issue from the
merchant that provided them and the funds from the bank
that issued the credit card. 68 M.J. at 263−64.
Cimball Sharpton was an unusual case involving an
agreement between the Air Force and the bank issuing a
government credit card and an agency relationship between
the appellant and the Air Force. 73 M.J. at 299−302. We
concluded that an alternative charging theory was appropri-
ate in this case, and, due to the agency relationship, it was
legally sufficient to allege that the appellant had obtained
the goods and money from the Air Force. Id.; Williams, 75
M.J. at 133−34 (citing Cimball Sharpton, 73 M.J. at
299−302).
Unfortunately, we used language describing the Air
Force as a “victim” and as the entity who “suffered the fi-
nancial loss,” rather than explaining how goods and funds
were obtained from it. Cimball Sharpton, 73 M.J. at 301−02.
We clarified our holding in Williams by explaining that un-
der Article 121, UCMJ, 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, ra-
ther than any person who suffered a loss or consequence as a
result of the defendant’s actions. Williams, 75 M.J. at
132−34 (citing Cimball Sharpton, 73 M.J. at 301−02).
In Williams, the appellant unlawfully obtained funds
from two checking accounts held at a bank. As a matter of
analyzed, 18 U.S.C. § 1344, unlike Article 121, UCMJ, does not
require pleading from whom the property is obtained. Compare 18
U.S.C. § 1344(1), with Article 121, UCMJ.
6
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
law the money was owned by the bank, id. at 134, the appel-
lant obtained nothing from the account holders, and we ap-
plied the general rule, and held that charges were legally
insufficient because the banks should have been listed as the
object of the larcenies in the specification. Id. We declined to
apply an alternate charging theory because “no agency rela-
tionships, no joint accounts, and no contracts” existed. Id.
The stipulation of fact in this case does not reflect the re-
quirements of our case law. The Government, in this case,
entered into a stipulation of fact that set up a matter incon-
sistent with the larceny specification alleging that the mon-
ey stolen by Appellee belonged to CFNA. The stipulation
clearly demonstrates that Appellee obtained the money from
J. P. Morgan. Appellee did admit he stole funds that be-
longed to CFNA. However, this admission is clearly errone-
ous as a matter of law. Simpson III, 2017 CCA LEXIS 132 at
*9−10, 2017 WL 825286 at *4. Based on the stipulation,
CFNA had an account with J. P. Morgan, the bank. As is
true in the usual case involving a credit larceny, the bank
was the proper object, not the account holder. Williams, 75
M.J. at 134. Further, as the stipulation of fact reflects, J. P.
Morgan was the only entity that possessed funds at the time
of the fraudulent transactions, and as described in the stipu-
lation of fact, there were no funds in the CFNA account itself
when Appellee made claims against it. As Government
counsel conceded at argument, Appellee obtained nothing
from CFNA, and as a matter of law CFNA, therefore, could
not be the object of the larceny.
Nor does the stipulation of fact support an alternate
charging theory. Like in Williams, “there were no agency re-
lationships, no joint accounts, and no contracts” reflected in
the stipulation of fact linking Appellee, CFNA, and J. P.
Morgan in a manner that supports the argument that Appel-
lee obtained anything from CFNA. As we clarified in Wil-
liams, for purposes of Article 121, UCMJ, it does not matter
who suffered a “loss” or “harm” as a result of Appellee’s ac-
tions—rather the proper object of a larceny is the “person or
entity from whom the accused actually obtained the goods or
money.” 75 M.J. at 134 (emphasis added). J. P. Morgan, not
CFNA, was the entity presenting the funds—and the stipu-
lation and charge sheet should have reflected that or the
7
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
military judge should have inquired further to flesh out any
basis for an alternative charging theory.
Because he did not do so, the military judge failed to ob-
tain from the accused an adequate basis in law and fact to
support the plea of guilty to the larceny specification as
charged. Thus, the ACCA was correct in holding that the
military judge abused his discretion in failing to reject Ap-
pellee’s guilty plea and entering a finding of guilty as to the
larceny specification. The military judge’s finding of guilty
with regard to Additional Charge I, alleging that Appellee
committed larceny against CFNA is set aside. 4
B.
The ACCA erred, however, in setting aside Appellee’s
conspiracy conviction on the same grounds as the larceny
conviction. Conspiracy, an inchoate offense, is proscribed
under Article 81, UCMJ. United States v. Anzalone, 43 M.J.
322, 323 (C.A.A.F. 1995). The President has listed two ele-
ments for this offense:
(1) That the accused entered into an agreement
with one or more persons to commit an offense un-
der the [UCMJ]; and
(2) That while the agreement continued to exist,
and while the accused remained a party to the
agreement, the accused or at least one of the co-
conspirators performed an overt act for the purpose
of bringing out the object of the conspiracy.
MCM pt. IV, para. 5.b.
Conspiracy punishes the agreement to commit a crime,
United States v. Crusoe, 3 C.M.A. 793, 796, 14 C.M.R. 211,
214 (1954); Anzalone, 43 M.J. at 324, and factual impossibil-
ity is no defense to conspiracy. United States v. Roeseler, 55
M.J. 286, 291 (C.A.A.F. 2001) (citing United States v.
Valigura, 54 M.J. 187, 189 (C.A.A.F. 2000)); see MCM pt. IV,
para. 5.c.(7). In such cases, an accused “should be treated in
accordance with the facts as he or she supposed them to be.”
Roeseler, 55 M.J. at 291 (citing United States v. Thomas, 13
C.M.A. 278, 286, 32 C.M.R. 278, 286 (1962) (affirming con-
4 But see infra Section II.C.
8
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
victions for attempted rape and conspiracy to rape a dead
person)).
Here, the providence inquiry and the stipulation of fact
show an agreement between Appellee and Sgt. Ramos to use
funds from the CFNA account in order to pay personal
debts. Appellee performed overt acts in furtherance of the
conspiracy such as arranging for Sgt. Ramos to receive the
account information. The fact that the funds were actually
obtained from J. P. Morgan is of no moment. Roeseler, 55
M.J. at 291. There is no substantial basis in law or fact to
question Appellee’s guilty plea to the conspiracy to commit
larceny specification.
C.
An attempt, like a conspiracy, is an inchoate offense.
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003).
Thus, while not addressed by the ACCA, we conclude that
the stipulation of fact and the military judge’s providence
inquiry provide an adequate basis to affirm a finding of
guilty to the lesser included offense of attempted larceny
under Article 80, UCMJ, for similar reasons to those men-
tioned above. See MCM pt. IV, para. 46.d.(1)(b); Article
59(b), UCMJ (“Any reviewing authority with the power to
approve or affirm a finding of guilty may approve or affirm,
instead, so much of the finding as includes a lesser included
offense.”).
Appellee admitted to performing overt acts, namely ob-
taining and withholding property that he believed belonged
to CFNA. These acts were done with the specific intent to
commit a larceny by permanently depriving CFNA of the
money at issue, and constituted more than mere prepara-
tion. Appellee did, in fact, commit and plead guilty to lar-
ceny—he was merely mistaken about who he was stealing
from. See MCM pt. IV, para. 4.c.(3) (“A person who purposely
engages in conduct which would constitute the offense if the
attendant circumstances were as that person believed them
to be is guilty of an attempt.”); see also Roeseler, 55 M.J. at
291 (citing Thomas, 13 C.M.A. at 286–87, 32 C.M.R. at 286–
87, 290). Appellee’s admissions during the providence in-
quiry, together with the stipulation of fact, establish all the
elements of the lesser included offense of attempted larceny
9
United States v. Simpson, No. 17-0329/AR
Opinion of the Court
and we affirm a finding of guilty to that offense. See Article
59(b), UCMJ; see also United States v. Mitchell, 66 M.J. 176,
180 (C.A.A.F. 2008).
III.
The decision of the United States Army Court of Crimi-
nal Appeals is affirmed in part and reversed in part. For
Additional Charge I, alleging larceny, the finding of guilty
by the military judge is set aside as to the larceny itself but
we affirm a finding of guilty to the lesser included offense of
attempted larceny. For Additional Charge II, alleging a con-
spiracy to commit larceny, the finding of guilty by the mili-
tary judge is affirmed. The record is returned to the Judge
Advocate General of the Army for remand to the Court of
Criminal Appeals for reassessment of the sentence in light of
the affirmed findings.
10