United States v. Specialist ZACHARY F. CONWAY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist ZACHARY F. CONWAY
United States Army, Appellant
ARMY 20120708
Headquarters, 82d Airborne Division (Rear) (Provisional) (pretrial)
Headquarters, 82d Airborne Division (post-trial)
Tara A. Osborn, Military Judge
Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain
Aaron R. Inkenbrandt, JA (on brief); Colonel Kevin Boyle, JA; Lieutenant Colonel
Charles D. Lozano, JA; Captain Aaron R. Inkenbrandt, JA (on reply brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Daniel H. Karna, JA (on brief).
21 November 2014
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of absence without leave, four
specifications of larceny, four specifications of wrongful appropriation, and one
specification of forgery, in violation of Articles 86, 121, and 123, Uniform Code of
Military Justice, 10 U.S.C. §§ 886, 921, 923 (2006) [hereinafter UCMJ],
respectively. The military judge sentenced appellant to a dishonorable discharge,
confinement for forty-eight months, and reduction to the grade of E-1. The
convening authority approved a bad-conduct discharge, confinement for thirteen
months, and reduction to the grade of E-1.
This case is before us for review pursuant to Article 66, UCMJ. Of
appellant’s three assignments of error, two warrant discussion, but only one warrants
CONWAY–ARMY 20120708
relief. Appellant’s personal submissions made pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) do not warrant relief.
BACKGROUND
On multiple occasions, appellant wrongfully appropriated another soldier’s
debit card, issued by TCF Bank. He used the card to make several unauthorized
purchases from the Army Air Force Exchange Service on Fort Bragg, North
Carolina. Each time he used the card, appellant signed an electronic pad falsely
indicating that he was an authorized user of the card. After making purchases,
appellant returned the card to ensure that the rightful owner did not know that
appellant had taken the card from his wallet.
During the providence inquiry, appellant admitted that he stole from a fellow
Soldier’s TCF Bank savings account and that account showed a loss of over $14,000
caused by appellant’s unlawful use of the debit card. 1 Appellant expressly stated
that TCF Bank had possession of the U.S. currency before he forged the signatures
and took the money. Additionally, appellant agreed that the U.S. currency belonged
to TCF Bank, and that when appellant made the unauthorized transactions, the U.S.
currency came from TCF Bank. Appellant was separately convicted, among other
offenses, of wrongfully appropriating the Soldier’s card and wallet on numerous
occasions and forgery for falsely signing the electronic pad.
LAW AND DISCUSSION
Article 45, UCMJ, requires the plea to be rejected if the accused sets up a
“matter inconsistent with the plea, or if it appears that he has entered the plea of
guilty improvidently or through lack of understanding of its meaning and effect
. . . .” A military judge must both explain the elements of an offense and elicit a
factual basis to support each element of the offense. United States v. Jordan, 57
M.J. 236, 238 (C.A.A.F. 2002). “We review a military judge’s decision to accept a
guilty plea for an abuse of discretion and questions of law arising from the guilty
plea de novo. In doing so, we apply the substantial basis test, looking at whether
there is something in the record of trial, with regard to the factual basis or the law,
that would raise a substantial question regarding the appellant’s guilty plea.” United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
1
Although appellant chose to use the credit function, since he did not know the
personal identification number, he agreed with the military judge that the debit card
functioned like an ATM card in that it transferred currency from TCF Bank to him to
pay for merchandise he ultimately received from the merchant.
2
CONWAY–ARMY 20120708
a. Proper Victim of the Larceny
Appellant argues that the military judge abused her discretion in accepting
guilty pleas to larceny of property of TCF Bank when those larcenies involved the
unauthorized use of the victim’s TCF Bank issued debit card under false pretenses.
Essentially, appellant argues that the larcenies at issue were obtaining-type larcenies
of retail goods of a merchant by false pretenses. See Manual for Courts-Martial,
United States (2008 ed.) [hereinafter MCM], pt. IV, ¶ 46.c.(1)(h)(vi) (“Wrongfully
engaging in a credit, debit, or electronic transaction to obtain goods or money is an
obtaining-type larceny by false pretense. Such use to obtain goods is usually a
larceny of those goods from the merchant offering them.”). However, “alternative
charging theories remain available if warranted by the facts.” United States v.
Lubasky, 68 M.J. 260, 264 (C.A.A.F. 2010) (citation omitted).
Here, the government proceeded upon a valid alternative charging theory
because TCF Bank suffered a financial loss. Appellant explicitly acknowledged TCF
Bank had possession of the U.S. currency and that the U.S. currency also belonged
to TCF Bank. Appellant further acknowledged that the U.S. currency came from
TCF Bank when he made his unauthorized transactions. These factual admissions
create a sufficient factual predicate to appellant’s guilty plea. Put more simply, the
clear inference from appellant’s admissions is that TCF Bank suffered a financial
loss, and thus was a proper victim in this case. 2 Cf. United States v. Cimball
Sharpton, 73 M.J. 299, 301 (C.A.A.F. 2014) (“We view this as a case where such an
alternative charging theory should apply, given that it was neither the merchants nor
U.S. Bank but the Air Force who suffered the financial loss resulting from
[a]ppellant's larceny.”); United States v. Endsley, __ M.J. ___, 2014 CCA LEXIS
786 (Army Ct. Crim. App. 17 Oct. 2014).
b. Inconsistent Dates
Appellant argues – and the government concedes – that the military judge
abused her discretion by failing to resolve the inconsistency between appellant’s
plea of guilty to Specifications 3 and 4 of Charge II and the stipulation of fact.
Simply put, the stipulation of fact expressly states that appellant engaged in criminal
conduct in December 2010 and, “after a few months break,” appellant started taking
the debit card “again in March 2011.” (emphasis added). The problem is that
Specifications 3 and 4 of Charge II allege criminal conduct in January 2011.
Further, the military judge’s colloquy with appellant did not clarify this ambiguity
2
We may draw reasonable inferences from the record when reviewing the
providence of guilty pleas. See United States v. Hardeman, 59 M.J. 389, 391
(C.A.A.F. 2004) (“In this case the record of trial includes the colloquy between
[a]ppellant and the military judge and a stipulation of fact, as well as any inferences
reasonably drawn from the record.”).
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CONWAY–ARMY 20120708
regarding “a few months break.” While the government’s concession is generous, it
is not unreasonable.
CONCLUSION
Upon consideration of the entire record, the findings of guilty of
Specifications 3 and 4 of Charge II are set aside. The remaining findings of guilty
are AFFIRMED. We have determined that we can reassess the sentence based upon
the factors announced in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013). We first find no dramatic change in the sentencing landscape. Second,
appellant was sentenced by a military judge alone. Third, appellant remains
convicted of the gravamen of his criminal conduct. Fourth, we have experience with
the remaining offenses to determine reliably what sentence would have been
imposed at trial. Accordingly, the sentence is AFFIRMED
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk
ClerkofofCourt
Court
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