Article 121 UCMJ Larceny and Wrongful Appropriation: An In-Depth Analysis

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Article 121 UCMJ addresses both larceny and wrongful appropriation, two critical components of military law. This blog post explores the intricacies of Article 121 UCMJ Larceny and Article 121 UCMJ Wrongful Appropriation, examining their elements, relevant case law, and implications for service members.

Segment 1: Understanding Article 121 UCMJ Larceny

What is Article 121 UCMJ Larceny?

Article 121 UCMJ Larceny is defined as the wrongful taking, obtaining, or withholding of property with the intent to permanently deprive or defraud another person of its use and benefit, or to permanently appropriate it for the use of the accused or another person. This offense differs from wrongful appropriation under the UCMJ, which involves a temporary deprivation of property.

Elements of Article 121 UCMJ Larceny

To convict someone of larceny under Article 121 UCMJ, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused wrongfully took, obtained, or withheld certain property from the possession of the owner or any other person.
2. The property belonged to a certain person.
3. The property was of a certain value, or of some value.
4. The taking, obtaining, or withholding by the accused was with the intent to permanently 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.

Case Law Interpretations

Various cases have helped shape the understanding of Article 121 UCMJ Larceny. These cases provide critical insights into how the law is applied and interpreted in different scenarios.

United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968) explains that if the accused’s accomplices were government agents, a conviction for larceny of government property cannot stand as no taking occurred.

United States v. Cosby, 14 M.J. 3 (C.M.A. 1982) confirms that the accused can be guilty of wrongful taking even if the property was released to them by competent authority.

United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002) states that 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.

Implications of Article 121 UCMJ Larceny

The punishment for Article 121 UCMJ Larceny can be severe and may include confinement, reduction in rank, forfeiture of pay, and a dishonorable discharge. The exact punishment depends on the value of the property stolen and the circumstances surrounding the offense.

Common Scenarios of Article 121 UCMJ Larceny

Theft of Military Property

One common scenario involves the theft of military property. For instance, a service member might steal equipment or supplies from their unit. This unauthorized taking intending to permanently deprive the military of its property constitutes Article 121 UCMJ Larceny.

In such cases, the prosecution must demonstrate that the accused took the property without authorization and intended to permanently deprive the owner of its use and benefit. The defense might argue that the property was not taken with intent to permanently deprive, but the unauthorized taking still fulfills the criteria for larceny under Article 121 UCMJ.

Embezzlement of Government Funds

Another example involves the embezzlement of government funds. If a service member diverts government funds for personal use with no intention of repayment, it constitutes Article 121 UCMJ Larceny. The key element is the intent to permanently deprive the government of its funds.

United States v. McFarland, 23 C.M.R. 266 (C.M.A. 1957) discusses embezzlement, requiring a fiduciary relationship and lawful holding. If a service member misappropriates funds they are entrusted with, this constitutes larceny.

Identity Theft and Fraud

Article 121 UCMJ Larceny can also occur through identity theft and fraud. For example, using another service member’s identity to obtain goods or money with the intent to permanently deprive them of their property falls under larceny. This form of theft involves deception and the wrongful acquisition of another’s property.

Defending Against Article 121 UCMJ Larceny Charges

Defending against Article 121 UCMJ Larceny charges involves challenging the prosecution’s evidence on the accused’s intent and the wrongful taking of property. Common defense strategies include:

Lack of Criminal Intent

The defense might argue that the accused did not have the criminal intent required for Article 121 UCMJ Larceny. This could involve demonstrating that the accused believed they had permission to take the property or that the taking was a result of a misunderstanding.

Authorization

The defense may present evidence that the accused had authorization, either explicit or implied, to take the property.

Return of Property

While returning the property does not negate Article 121 UCMJ Larceny, the defense might argue that the return mitigates the severity of the offense and should be considered in sentencing.

Mistaken Belief

The accused might argue that they mistakenly believed the property was theirs to take, negating the wrongful element of the larceny.

Segment 2: Understanding Article 121 UCMJ Wrongful Appropriation

What is Article 121 UCMJ Wrongful Appropriation?

Article 121 UCMJ Wrongful Appropriation is defined as the unauthorized taking or withholding of property belonging to another with the intent to temporarily deprive the owner of its use and benefit, or to appropriate it for the use of the accused or another person. Unlike larceny, which requires an intent to permanently deprive the owner of the property, wrongful appropriation under Article 121 UCMJ involves a temporary deprivation. This distinction is crucial in determining the nature and severity of the offense.

Elements of Article 121 UCMJ Wrongful Appropriation

To secure a conviction for wrongful appropriation under Article 121 UCMJ, the prosecution must prove the following elements beyond a reasonable doubt:

1. The accused wrongfully took, obtained, or withheld certain property from the possession of the owner or any other person.
2. The property belonged to a certain person.
3. The property was of a certain value, or of some value.
4. The taking, obtaining, or withholding by the accused was with the intent to temporarily 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.

Case Law and Judicial Interpretations

Several landmark cases provide clarity on the application of Article 121 UCMJ Wrongful Appropriation.

United States v. Mervine, 26 M.J. 482 (C.M.A. 1988) highlighted the importance of the accused’s intent. The court ruled that wrongful appropriation occurs when the intent is to temporarily deprive the owner of the property. This case underscores the necessity of proving the temporary nature of the deprivation.

United States v. Tenney, 15 M.J. 779 (A.C.M.R. 1983) expanded on the understanding of Article 121 UCMJ Wrongful Appropriation by illustrating scenarios where the accused might have temporary control over the property without intending permanent deprivation. The court emphasized that wrongful appropriation includes scenarios where the accused uses the property for personal benefit without the owner’s consent, even if the intention is to return the property eventually.

Implications and Punishments

The punishment for Article 121 UCMJ Wrongful Appropriation is generally less severe than for larceny due to the temporary nature of the deprivation. However, the consequences can still be significant and may include confinement, reduction in rank
, forfeiture of pay, and a dishonorable discharge. The exact punishment depends on the value of the property appropriated and the circumstances surrounding the offense.

Common Scenarios of Article 121 UCMJ Wrongful Appropriation

Temporary Use of Military Property

One common scenario of Article 121 UCMJ Wrongful Appropriation involves the unauthorized use of military property. For instance, a service member might take a military vehicle for personal use without permission, intending to return it later. Although the property is eventually returned, the temporary deprivation constitutes wrongful appropriation.

In such cases, the prosecution must demonstrate that the accused took the property without authorization and intended to use it temporarily for personal benefit. The defense might argue that the property was returned and therefore no harm was done, but the temporary unauthorized use still fulfills the criteria for wrongful appropriation under Article 121 UCMJ.

Misuse of Government Funds

Another example involves the misuse of government funds. If a service member temporarily diverts government funds for personal use, intending to repay the amount later, it constitutes Article 121 UCMJ Wrongful Appropriation. The key element is the temporary nature of the deprivation and the intent to return the funds.

United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014) Senior Airman Cimball-Sharpton was convicted of wrongful appropriation after using a General Purchase Card (GPC) to make personal purchases. Although she intended to repay the amount, the temporary use of government funds for personal benefit met the criteria for wrongful appropriation. This case illustrates that the intention to repay or return the property does not absolve the accused of Article 121 UCMJ Wrongful Appropriation.

Unauthorized Borrowing from Fellow Service Members

Article 121 UCMJ Wrongful Appropriation can also occur between service members. For example, borrowing personal items such as electronics, vehicles, or money without explicit permission, even if there is an intention to return them, can constitute wrongful appropriation. The unauthorized temporary use of another’s property falls squarely under the definition provided by Article 121 UCMJ.

Defending Against Article 121 UCMJ Wrongful Appropriation Charges

Defending against Article 121 UCMJ Wrongful Appropriation charges involves challenging the prosecution’s evidence on the accused’s intent and the temporary nature of the deprivation. Common defense strategies include:

Lack of Criminal Intent

The defense might argue that the accused did not have the criminal intent required for Article 121 UCMJ Wrongful Appropriation. This could involve demonstrating that the accused believed they had permission to use the property or that the use was a result of a misunderstanding.

Authorization

The defense may present evidence that the accused had authorization, either explicit or implied, to use the property.

Return of Property

While returning the property does not negate Article 121 UCMJ Wrongful Appropriation, the defense might argue that the return mitigates the severity of the offense and should be considered in sentencing.

Mistaken Belief

The accused might argue that they mistakenly believed the property was theirs to use, negating the wrongful element of the appropriation.

Conclusion

Article 121 UCMJ Larceny and Article 121 UCMJ Wrongful Appropriation are serious offenses that address the unauthorized taking and use of property. While larceny involves an intent to permanently deprive the owner of their property, wrongful appropriation involves a temporary deprivation. Understanding the elements, case law, and potential defenses is essential for service members and legal practitioners navigating these charges. Proper legal representation is vital in ensuring that the rights of the accused are protected and that justice is served by military law.

In conclusion, Article 121 UCMJ Larceny and Article 121 UCMJ Wrongful Appropriation are complex aspects of military justice that require a thorough understanding. By examining the elements, case law, and practical implications, this blog post aims to provide a comprehensive overview of larceny and wrongful appropriation and their significance in maintaining discipline and order within the military.

Relevant Case Law

For further reading and deeper understanding, refer to these cases:

United States v. Castro, 81 M.J. 209

United States v. Hale, 78 M.J. 268

United States v. Jones, 78 M.J. 37

United States v. Simpson, 77 M.J. 279

United States v. Williams, 75 M.J. 129

United States v. Murphy, 74 M.J. 302

United States v. Cimball Sharpton, 73 M.J. 299

United States v. Hines, 73 M.J. 119

United States v. Stefan, 69 M.J. 256

United States v. Lubasky, 68 M.J. 260

United States v. Whitten, 56 M.J. 234

United States v. Binegar, 55 M.J. 1

United States v. Pacheco, 56 M.J. 1

United States v. Reed, 54 M.J. 37

United States v. Russell, 50 M.J. 99

Larceny and Wrongful Appropriation under Article 121 UCMJ

What is Larceny under Article 121 UCMJ? Manual for Courts-Martial, United States (2024 ed.)

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.

What is Wrongful appropriation under Article 121 UCMJ? Manual for Courts-Martial, United States (2024 ed.)

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.

Types of Property Covered under Article 121, UCMJ?

1. Must be tangible personal property. Article 121 lists the objects that 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 rental car use 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 the property is asported. 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 the 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 between the continuation of the asportation by one other than the actual taker, which was prearranged, and the result of decisions made on the spur of the moment.
• A person who participates in ongoing larceny may be an accessory after the fact, not a principal, depending upon the purpose of his participation. If the participant’s motive is to secure the fruits of the crime, the aider becomes a participant in the larceny and is chargeable with larceny. Still, if his motive is to assist the perpetrator in escaping detection and punishment, he is properly charged as an accessory after the fact.
• Larceny was complete when a soldier having custody over items moved them to another part of the central issue facility with felonious intent. As such, when the 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, including a person’s power, authority or intention.
• Although the pretense need not be the sole reason inducing the owner to part with the property, it must be an effective and intentional reason for obtaining it.
• In a loan application, false promises to repay may support theft by false pretenses.
  Knowledge of fraud not imputed between government agents.
• Insurance fraud larceny is not complete until the accused cashed the settlement check.
• A sham marriage to obtain monetary benefits may support larceny by false pretenses.
• Obtaining services by pretenses (long-distance telephone services) is charged under Article 134.

Larceny and Wrongful Appropriation: 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 to obtain government benefits is a sham marriage and not entitled to B.A.H.

A false pretense may exist through silence or 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 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 pretenses).

Defrauding insurance companies by killing the insured or intentionally destroying property to collect insurance proceeds is larceny by false pretenses.

Withholding and Larceny and Wrongful Appropriation

A “withholding” may arise as a result of a failure to return, account for, or deliver the 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, 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 owner’s identity, he withheld the stolen property from the owner.

Withholding of unauthorized pay or allowances and Larceny and Wrongful Appropriation

These cases differ from those annotated above in which pretenses obtain unauthorized pay and allowances. The withholding cases discussed here involve either government error or a change in the serviceman’s status, which impacts his continued entitlement to the pay or allowance. The property is obtained lawfully.

• Without a fiduciary duty to account, withholding otherwise lawfully obtained funds is not larceny.
• Once a 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 duty to account for the funds.
• Evidence was insufficient to establish that the accused’s spouse had possessory or ownership rights to B.A.Q. at w/dep rate and thus failed to establish that the 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).

Conversion and Larceny and Wrongful Appropriation

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, the 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 must be established at the time and place of theft.
• Government item. Government price lists can be used to establish value.
• Non-government item. Average retail selling price is established by the recent purchase price of the like item, the testimony of a market expert, the testimony of the owner’s opinion on value, etc.
• Value tokens. Writings representing value may be considered to have the value they represent, even though contingently, at the time of the theft.
• The value of the property must reasonably approximate the loss.

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.

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 that was not wrongful or 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.