Larceny and Wrongful Appropriation under Article 121, UCMJ

What is Larceny under Article 121, UCMJ?

  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 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 under Article 121, UCMJ?

  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.

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Types of Property Covered under Article 121, UCMJ?

  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.
  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.
  4. Larceny can be used to cover credit card misuse.

Element 1:

That the accused wrongfully took, obtained, or withheld property (not services) from another. The taking, obtaining or withholding is wrongful if done without the knowing consent of the owner or other lawful authority.

Asportation.

  • 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.
  • Larceny continues as long as the asportation continues.
  • 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.
  • 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.
  • 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.
  • The assistance need not be prearranged.
  • Asportation was ongoing when the accused helped the perpetrator of a larceny; therefore, the accused is guilty of larceny as an aider or abettor.

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.

Electronic transfers as a “taking.”

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.
  • In a loan application, false promises to repay may support larceny by false pretenses.
    Knowledge of fraud not imputed between government agents.
  • Insurance fraud larceny not complete until accused cashed settlement check.
  • Sham marriage to obtain monetary benefits may support larceny by false pretenses.
  • Obtaining services by false pretenses (long-distance telephone services) is charged under Article 134.

False pretenses and unauthorized pay/allowances.

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 B.A.H.

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 military court-martial specifically analogized obtaining services by false pretenses (Article 134) with larceny by false pretenses (Article 121).

Procuring casual pay by misrepresentation or failing to inquire into the legitimacy of casual pay does not amount to larceny by false pretenses. Evidence that the accused falsely declared his wife as a dependent and entered a false address for her in order to obtain increased B.A.Q. and V.H.A. allowances and had not paid support to her since their separation several years earlier, sufficiently established that the accused misrepresented existing intention in applying for benefits to support larceny conviction of obtaining by false pretenses). Defrauding an insurance companies by killing insured or intentionally destroying property in order to collect insurance proceeds is larceny by false pretenses.

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.

  • Embezzlement requires a fiduciary relationship and a lawful holding.
  • Intent to permanently deprive must be concurrent with the taking/withholding.
  • Wrongful conversion requires an accounting to the owner.
  • 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.

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.

  • In the absence of a fiduciary duty to account, a withholding of funds otherwise lawfully obtained is not larcenous.
  • 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.
  • Evidence insufficient to establish that accused’s spouse had possessory or ownership rights to B.A.Q. at w/dep rate and thus failed to establish that accused had stolen B.A.Q. from his wife.
  • Excess B.A.Q. was “military property of the United States.” United States v. Dailey, 37 M.J. 463 (C.M.A. 1993).

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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.

Element 2:

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

a) The “owner” is the person or entity with the superior right to possession.
b) Debts or the administrative costs associated with a larceny are not the proper subjects of a larceny.
c) Erroneous allegation of ownership not a fatal defect.
d) To be guilty of larceny, accused must take property from one having a superior possessory interest.

Element 3:

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

  • Legitimate (retail) market value at time and place of theft must be established.
  • Government item. Government price lists can be used to establish value.
  • 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.
  • Value tokens. Writings representing value may be considered to have the value which they represent, even though contingently, at the time of the theft.
  • Value of property must reasonably approximate the loss.

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Element 4:

That the taking, obtaining, or withholding by the accused was with the intent [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.

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.

Intent may be proved by circumstantial evidence.

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.

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