The "Simpsons" Game, "Donuts" and Larceny

This post examines a recent opinion from the U.S. Navy-Marine Corps Court of Criminal Appeals:  U.S. v. Stevens, 2015 WL 6935915.  The court begins by explaining that a military judge 

sitting as a specialcourt-martial convicted [Stevens], pursuant to his pleas, of two specifications of attempted larceny and 12 specifications of larceny or wrongful appropriation in violation of Articles 80 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 921. The military judge sentenced the appellant to 30 days' confinement, reduction to pay grade E–1, and a bad-conduct discharge (BCD). The convening authority (CA) approved the sentence as adjudged but, pursuant to a pretrial agreement, suspended all confinement.

U.S. v. Stevens, supra.

Stevens raised “two assignments of error” in his appeal, one of which was that “his pleas of guilty” to two aspects of “Charge 1” were “improvident because the factual basis as to the actual victim was not established” and the other of which was that the “staff judge advocate’s “recommendation (SJAR) and court-martial order (CMO) failed to reflect that the military judge merged Specifications 1 and 2 of Charge I.”  U.S. v. Stevens, supra.

The Court of Criminal Appeals’ opinion also examined another issue.  As the court explained, `[a]fter initial review, we specified an additional issue: whether the `electronic media’ alleged in numerous specifications are `property’ cognizable under Article 121” of the Uniform Code of Military Justice. U.S. v. Stevens, supra.  The court also prefaced its analysis of this issue by explaining that

[w]e find they are not; thus, the pleas to those specifications were improvident. This moots [Stevens’] first [assignment of error]. We address his second [assignment of error] below.

U.S. v. Stevens, supra. 

The Court of Criminal Appeals then explained how, and why, the case arose:

[Stevens] was an instructor at the Logistics Operations School, Camp Lejeune, North Carolina. When not teaching, he and his co-workers worked out of an `instructor bullpen’——a shared workspace consisting of cubicles. On several occasions, while fellow instructors were teaching classes or otherwise away from their cubicles, [Stevens] took credit or debit cards out of their wallets without their permission. He copied the account numbers, expiration dates, and security codes, then returned the cards to the owners' wallets. This formed the basis for Charge I, Specifications 1–2 and 9–11 wrongful appropriation of the cards.

[He] then used the information to make online purchases of what the Government styled `electronic media.’ The `media’ included an audiobook and music downloaded to his iPhone, video games to his Sony PlayStation, and two `Boatloads of 2400 donuts’ for use as virtual currency in a smart phone game based on the television show `The Simpsons.’ He tried to make two further purchases which the merchant declined. Based on these transactions, Specifications 3–8 and 12–13 of Charge I allege that the appellant stole electronic media from Sony (in two instances) and Apple iTunes (in the remainder) and the two specifications of Charge II allege he attempted to steal electronic media from Apple iTunes.

[Stevens] pleaded guilty to both charges and all specifications. After merging Specifications 1 and 2 of Charge I, the military judge found him guilty of both Charges and all specifications.

U.S. v. Stevens, supra. 

The Court of Criminal Appeals began its analysis of the merger of the two specifications by explaining that the

military judge rightly merged Specifications 1 and 2 of Charge I, which distinctly alleged wrongful appropriation of a credit card and a debit card from the same victim at the same time. The SJAR and CMO failed to reflect this. [Stevens], who did not object to this error in the SJAR, now avers it prejudiced him because an accurate accounting of the findings in the SJAR could have persuaded the CA to adopt the recommendation of the military judge and suspend the BCD.

We disagree. When assessing prejudice for post-trial error in SJARs and CMOs, courts only require that the appellant make `some colorable showing of possible prejudice.’ United States v. Chatman, 46 M.J. 321 (U.S. Court of Appeals for the Armed Forces 1997). We find that [Stevens’ has not met even this low threshold.

The merged specifications themselves--which are detailed on the CMO--make clear they alleged wrongful appropriation from the same victim at the same location on the same date. The CMO also indicates that the CA considered the record of trial, which makes plain that [Stevens] wrongfully appropriated credit and debit cards from three different fellow staff noncommissioned officers on four separate occasions and used the information to purchase hundreds of dollars' worth of electronic media.

The military judge submitted a letter to the CA. In it, he specifically pointed out these circumstances and recommended clemency in the form of suspending the BCD due to significant stressors in the appellant's life and an otherwise exemplary record. The CA, who had already given the appellant the benefit of a highly favorable pretrial agreement that suspended all confinement and forfeitures, declined to grant further clemency. Under these circumstances, we find no colorable showing of possible prejudice merely because the SJAR and CMO failed to note that five specifications of wrongful appropriation were merged into four.

The appellant is, nevertheless, entitled to have the CMO accurately reflect the results of the proceedings. U.S. v. Crumpley, 49 M.J. 538 (New Mexico Courtof Criminal Appeals 1998). We thus order corrective action below.

U.S. v. Stevens, supra. 

The court then took up the issue noted above, i.e., the “providence” of Stevens’ pleading guilty “to both charges and all specifications.” U.S. v. Stevens, supra.  It began by explaining that

[w]e review a military judge's decision to accept a guilty plea for an abuse of discretion. U.S. v. Inabinette, 66 M.J. 320 (U.S. Court of Appeals for the Armed Forces 2008). A military judge abuses his discretion if he accepts a guilty plea without an adequate factual basis to support it or if he does so based on an erroneous view of the law. U.S. v. Weeks, 71 M.J. 44 (U.S. Court of Appeals for the Armed Forces 2012). We review questions of law -- including whether `electronic media’ as alleged in this case constitute `property’ under Article 121 -- de novo. U.S. v. Weeks, supra.

U.S. v. Stevens, supra. 

The court went on to explain that Article 121 of the Uniform Code of Military Justice defines “larceny” as

`wrongfully tak[ing], obtain[ing], or withhold[ing], by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind ... with intent permanently to deprive or defraud 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. . . .’

In enacting Article 121, Congress consolidated three common-law offenses: larceny, embezzlement, and obtaining b yfalse pretenses -- `no more and no less.’ U.S. v. Antonelli, 35 M.J. 122 (U.S. Court of Military Appeals 1992). Thus, Article 121 `must be interpreted in light of the common-law meaning of those offenses.’ U.S. v. Mervine, 26 M.J. 482, 483 (U.S. Court of Military Appeals1988).

Common-law larceny requires `”the trespassory taking and carrying away of the personal property of another with intent to steal.”’ U.S. v. Mervine, supra (quoting ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 292 (3d ed.1982)). It also requires that `the object of the larceny be tangible and capable of being possessed.’ ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW, supra. (citing U.S. v. Abeyta, 12 M.J. 507 (U.S. Army Court of Military Review 1981) (`the terms “money, personal property, or article of value,” as used in Article 121, were not meant to encompass items not having a corporeal existence.’)) (emphasis added); see also U.S. v. Holley, 42 M.J. 779 (New Mexico Court of Criminal Appeals 1995).

We find no further guidance in military case law on whether electronic media as alleged here can be the object of larceny under Article 121.  But -- saddled with a statute anchored to common law developed before electronic media even existed -- we conclude that electronic media without corporeal form do not fall within the ambit of Article 121.

U.S. v. Stevens, supra. 

The Court of Criminal Appeals went on to point out that the property Stevens

obtained using others' money was intangible. The `donuts’ in the Simpsons game -- to pick the easiest example -- could not be picked up, touched, or carried away because they were not real. They were conceptual, merely entitling the person who paid the fee for them to additional game play. When the appellant obtained them through fraud, these `donuts’ existed and had value in the cyber world, but they had no corporeal existence in ours. Similarly, the music, audiobooks, and game software had no physical form, but instead represented the vendors' willingness to allow the items to be downloaded – copied -- for a fee.

The military judge (who is to be commended for sua sponte spotting and thoughtfully analyzing the issue of tangibility despite our differing with his legal conclusion) found that once the appellant downloaded the media to his device, `the properties convert from that of pure intangible data to that more akin to traditional corporeal tangible property.’ He then listed characteristics that he believed made the downloaded media similar to traditional tangible products, including that they `can be physically transported by the new owner once it is downloaded onto their respective electronic device.’

U.S. v. Stevens, supra. 

The court also explained that

[b]ut while [Stevens] transferring the media to his devices may have given them a corporeal form, that only highlights that at the time [he] obtained the property, it was not in corporeal form. Common law larceny requires asportation -- a `carrying away.’ U.S. v. Mervine, supra. At the time [Stevens] `carried away’ the media, they were incorporeal. It is immaterial whether after the carrying away, they were transformed to corporeal form -- particularly when the corporeal property (the smart phone and the game console) belonged to the appellant.

Finally, there was no `trespassory taking,’ U.S. v. Mervine, supra, in this case because Sony and Apple never lost possession of the media. There were not 2400 fewer donuts on their shelves or one less copy of the song `Radioactive’ by Imagine Dragons in their physical inventory because of the taking.

Thus, [Stevens’] obtaining the electronic media alleged did not, as a matter of law, constitute larceny in its common-law sense under Article 121. To find otherwise constituted an abuse of discretion and rendered improvident [his] pleas to Specifications 3–8 and 12–13 of Charge I and Charge II and its two specifications.

U.S. v. Stevens, supra (emphasis in the original).

The Court of Criminal Appeals then explained that

[o]ur action on the findings requires us to determine whether we are able to reassess the sentence. We conclude we can.

Courts of Criminal Appeal have broad discretion to reassess sentences. U.S. v. Winckelmann, 73 M.J. 11, 15 (U.S. Court of Appeals for the Armed Forces 2013). But we may only do so if we can reliably and confidently determine that, absent the error, the sentence would have been at least of a certain magnitude. U.S. v. Buber, 62 M.J. 476, (U.S. Court of Appeals for the Armed Forces 2006); U.S. v. Harris, 53 M.J. 86 (U.S. Court of Appeals for the Armed Forces 2000). If we cannot do this, we must order a rehearing. U.S. v. Harris, supra.  A reassessed sentence must not only `be purged of prejudicial error[,]” but “also must be ‘appropriate’ for the offense involved.’ U.S. v. Sales, 22 M.J. 305 (U.S. Court of Military Appeals 1986).

U.S. v. Stevens, supra. 

The court explained that it applies

the totality of the circumstances of each case to make sentence reassessment determinations, guided by the following `illustrative, but not dispositive, points of analysis’:

 (1) Whether there has been a dramatic change in the penalty landscape or exposure.

(2) Whether sentencing was by members or a military judge alone. We are more likely to be certain of what sentence a military judge would have imposed as opposed to members.

(3) Whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, similarly, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses.

(4) Whether the remaining offenses are of the type with which appellate judges should have the experience and familiarity to reliably determine what sentence would have been imposed at trial.

U.S. v. Stevens, supra (quoting U.S. v. Winckelmann, 73 M.J. 11 (U.S. Court of Appeals for the Armed Forces 2013)).

The court then conducted the reassessment, explaining that with 

all these principles in mind, we find that we can reassess the sentence and do so to affirm only so much as provides for reduction to pay grade E–1 and a bad-conduct discharge. The punitive exposure has not changed dramatically. The maximum punishment for the affirmed findings includes confinement for nine months; reduction to pay grade E–1; forfeiture of two-thirds' pay per month for nine months; and, applying the escalator clause of RULE FOR COURTS–MARTIAL 1003(d)(3), MANUAL FORCOURTS–MARTIAL, UNITED STATES (2012 ed.), a BCD.

We recognize that dismissing ten larceny specifications -- leaving us with four affirmed wrongful appropriation specifications -- is a significant change to the overall sentencing landscape. But the remaining Winckelmann factors leave us convinced that the sentence as reassessed not only purges the error, but is appropriate.

First, sentencing was by military judge. Second, the remaining offenses -- wrongfully appropriating fellow Marines' debit and credit cards with a purpose to make fraudulent purchases -- capture the gravamen of the misconduct. Third, evidence about the appellant's use of the card information to buy entertainment media at the expense of his trusting fellow Marines and the impact that had on others would likely have remained admissible and relevant either as evidence of wrongfulness or as aggravation under [Rules for Court-Martial] 1001(b)(4). Finally, we have sufficient experience and familiarity with the remaining offenses to reliably determine what sentence would have been imposed at trial.

U.S. v. Stevens, supra.