United States v. Willard , 1998 CAAF LEXIS 42 ( 1998 )

Opinion of the Court

GIERKE, Judge:

A military judge sitting as a special court-martial convicted appellant, contrary to his pleas, of five specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The adjudged and approved sentence provides for a bad-conduct discharge and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed only so much of the findings of guilty as found that appellant committed wrongful appropriation as to each specification. The court reassessed and affirmed the sentence.

This Court granted review of the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDINGS THAT APPELLANT WAS GUILTY OF WRONGFUL APPROPRIATION WHERE APPELLANT WAS GRANTED A GENERAL POWER OF ATTORNEY.

We resolve this issue against appellant.

On January 15, 1995, Private First Class (PFC) Scott Clare deployed with his unit to Haiti. Before deploying, PFC Clare asked appellant, his roommate, if he would pay his bills and send him his leave and earnings statements (LES). Because PFC Clare’s on-post check writing privileges were suspended, he was required to pay his telephone bills, his Army and Air Force Exchange Service (AAFES) bills, and his Naval Exchange (NEX) bills in cash. He gave appellant a folder with detailed instructions, including the amounts and dates for payment. He notified his creditors that appellant would be paying his bills, and he gave appellant a general power of attorney.

PFC Clare testified that he initially wanted a special power of attorney, but he was advised that he needed to give appellant a general power of attorney. PFC Clare also gave appellant his automatic teller machine (ATM) card so that appellant could obtain cash to pay the bills. He told appellant to send him the ATM receipts and LESs so that he could balance his checkbook. PFC Clare also told appellant, “If you do, for some reason, happen to get low on cash, you know, and you need some money, you need cigarettes or something, go ahead and go into the account and take some money out as long as you send me the receipt and pay it back, so I know about it and I can balance my checkbook.” PFC Clare testified, “I didn’t tell him, you know, go out to the bars and go out and get blitzed on the money.”

In February 1995, PFC Clare wrote two checks for small amounts to a portable post exchange in Haiti. On February 28, 1995, both checks were dishonored for insufficient funds, and PFC Clare was notified of the dishonor. PFC Clare called his wife and asked her if she had withdrawn money from his account. She said that she had not. She investigated and then informed PFC Clare that someone else had withdrawn $1,050.00 from the account. PFC Clare was unable to contact appellant, but he contacted Specialist (SPC) Hoover, his other roommate, and told him that “a lot of money” was missing from his account. Specialist Hoover responded that “we only took out $302.00 out of the account to pay your bills.” PFC Clare then reported the missing money to a military police investigator in Haiti.

On March 21, 1995, appellant deposited $400.00 in PFC Clare’s account. On March 25, 1995, PFC Clare revoked the power of attorney. On the day PFC Clare returned from Haiti, he received two cashier’s checks for $325.00 each from appellant.

Appellant made no payments on PFC Clare’s bills. PFC Clare received no ATM withdrawal receipts from appellant while he was deployed in Haiti.

On March 30, 1995, a military police investigator interviewed appellant about his use of PFC Clare’s ATM card. Appellant admitted using PFC Clare’s money to buy alcohol and go to clubs. He admitted that he had not paid any of PFC Clare’s bills.

The military judge convicted appellant of larceny. At defense request, he recited on the record that he convicted appellant on a theory of “wrongful withholding with intent permanently to appropriate, which in essence was formerly known as the crime of embezzlement.” The Court of Criminal Appeals affirmed only the lesser-included offense of wrongful appropriation for each specification.

Appellant now contends that the evidence is legally insufficient to support his conviction of wrongful appropriation because his use of the money did not exceed the scope of his authority. He asserts that PFC Clare did not limit the amount of money he could borrow, did not specify the payment terms, and did not limit the uses to which any money borrowed could be devoted. Furthermore, he argues that there is no evidence that appellant failed to return, account for, or deliver the money to PFC Clare when it was due. Finally, he argues that there is no evidence of mens rea because appellant honestly believed he had PFC Clare’s consent to use the money.

The Government argues that there is sufficient evidence to support a conviction of wrongful appropriation under an embezzlement theory, because appellant converted the money to purposes well beyond the scope of the owner’s permission.

The test for determining whether the evidence is legally sufficient is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable fact-finder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 MJ 324 (CMA 1987), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

The first element of larceny under Article 121 is “[t]hat the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person.” Para. 46b(l)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.). Article 121 encompasses common-law larceny, false pretense, and embezzlement. Para. 46c(l)(a). The Manual further provides the following:

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.

Para. 46c(l)(b).

A power of attorney is not a license to embezzle. The power of attorney may convey apparent authority vis-a-vis an innocent third party, but it does not empower the grantee to exceed the terms of his or her actual authority. Of course, if there is a dispute about what actual authority was granted, the written power of attorney may be consulted to resolve that dispute. In this regard we agree with this analysis by the Supreme Court of New Jersey:

[A] power of attorney of course is not an instrument of gift. In itself, it is no more than the term, power of attorney, imports — an authorization to the attorney to act for the principal. Although as between the bank and the principal, the bank was relieved ... of a duty to inquire as to whether any withdrawal was in the agent’s interest rather than the principal’s, the instrument did not authorize the agent to make off with the principal’s money. In short, the instrument was the means whereby the agent was able to get his hands on the moneys, but when the moneys were thus obtained, the agent received them as agent for the principal, and the fraudulent appropriation of the moneys thus obtained to his own use constituted embezzlement.

State v. Kennedy, 61 N.J. 509, 296 A.2d 65, 66-67 (1972). Because appellant had a power of attorney, PFC Clare’s creditors had no duty to challenge appellant’s authority to pay PFC Clare’s bills; and the bank had no duty to challenge appellant’s authority to withdraw money from PFC Clare’s account; but still appellant had no license to embezzle the money.

Since appellant did not testify, the military judge had only PFC Clare’s description of his instructions to appellant. He testified that he expected appellant to pay the telephone bill, the AAFES bill, and the NEX bill. He gave appellant permission to borrow money from the account if he was “low on cash” and needed money for “cigarettes or something,” provided that appellant sent the withdrawal receipts to PFC Clare and repaid the money.

When appellant was confronted by a military police investigator after PFC Clare complained, he admitted that he paid none of the bills, sent no receipts, and spent over $1,000.00 on alcoholic beverages and clubs. Appellant made no effort to carry out PFC Clare’s instructions. He made no effort to account for the money. He did not begin to repay the money until March 21, 1995, after PFC Clare complained to SPC Hoover, PFC Clare’s wife called the unit and asked what had happened to her husband’s money, and PFC Clare reported the missing money to a military police investigator.

Appellant failed to comply with PFC Clare’s instruction to send him the ATM withdrawal receipts and repay any money borrowed from the account. He ignored the primary purpose of the power of attorney, which was to enable him to pay PFC Clare’s bills. Instead, he virtually depleted PFC Clare’s bank account to buy alcoholic beverages and frequent bars and clubs. On this record, “a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, supra.

The decision of the United States Army Court of Criminal Appeals is affirmed.

Chief Judge COX and Judges CRAWFORD and EFFRON concur.