United States v. Private E2 DASHARRA L. LEUELU

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 DASHARRA L. LEUELU
United States Army, Appellant
ARMY 20170481
Headquarters, I Corps and Joint Base Lewis-McChord
Timothy Hayes, Jr., Military Judge
Colonel Steven C. Henricks, Staff Judge Advocate
For Appellant: Major Todd W. Simpson, JA; Captain Matthew D. Bernstein, JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.4, no response filed.
23 May 2018
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SUMMARY DISPOSITION
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Per Curiam:
A special court-martial composed of a military judge sitting alone, convicted
appellant, pursuant to her pleas, of one specification of failing to repair, two
specifications of absence without leave, one specification of violating an order to
take a urinalysis test, one specification of wrongful use of controlled substances, and
one specification of larceny, in violation of Articles 86, 92, 112a, and 121, Uniform
Code of Military Justice, 10 U.S.C. §§ 886, 892, 912a, and 921 (2016) [UCMJ]. The
military judge sentenced appellant to be discharged from the Army with a bad-
conduct discharge, to be confined for 150 days, to forfeit $1,000 per month for five
months, and to be reduced to the grade of E-1. The convening authority approved
the sentence as adjudged.
Appellant submitted this case on its merits. In conducting our review under
Article 66(c), UCMJ, we find one matter which requires relief. Our concern stems
from how the government elected to charge the larceny specification.
LEUELU—ARMY 20170481
BACKGROUND
While at Fort Sam Houston, Texas, appellant copied information from her
bunkmate’s debit card. The debit card had been issued by Bank of America. In
early December 2016, over a period of 10 days, appellant used that debit card
information to commit twelve separate fraudulent transactions.
The fraudulent transactions included: (1) $10.89 to Spotify; (2) $9.00 to
Priceline.com; (3) $267.70 to American Norwalk; (4) $373.60 to Frontier Denver
(airline tickets); (5) $13.25 to iTunes.com; (6) $396.34 to NFLshop.com (retail); (7)
$4.98 to Boingo Wireless; (8) $29.95 to Boingo Wireless; (9) $47.97 to Spaghetti
(retail); (10) $60 to Frontier Denver (baggage fees); (11) a $440.99 cash transfer “to
Western Union;” and (12) a $1,200 transfer to appellant’s own bank account.
LAW AND ANALYSIS
The twelve transactions represent thefts of services (e.g. Spotify,
Priceline.com, and baggage fees); thefts of goods (e.g. retail items from
NFLshop.com); and thefts of currency. However, contrary to the guidance contained
in the Manual for Courts-Martial, United States (2016 ed.) [MCM], pt. IV, ¶
46.c.(1)(i)(vi), the government charged all the thefts as thefts of “currency,” of a
value greater than $500, on divers occasions, from Bank of America.
The charging decision created two problems. First, of the twelve transactions,
only one was of a value greater than $500. That is, appellant only stole something
worth over $500 (whether it be a service, a good, or cash) once, not on “divers
occasions.” Second, of the twelve transactions, only two were thefts of currency,
and in only one of those did appellant clearly obtain something from Bank of
America. 1
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The stipulation of fact states that appellant transferred $440.99 “to Western
Union,” as a “cash transfer.” The record does not adequately show appellant
obtained this $440.99 from Bank of America and not from Western Union.
“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 money
or a negotiable instrument . . . is usually a larceny of money from the entity
presenting the money or a negotiable instrument.” MCM pt. IV, ¶ 46.c.(1)(i)(vi).
See also United States v. Williams, 75 M.J. 129, 132 (C.A.A.F. 2016). The facts of
the record before us are too scant to determine that the usual rule does not apply and
that appellant obtained $440.99 from Bank of America and not from Western Union.
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LEUELU—ARMY 20170481
The parties appeared to view each theft as a theft of money from the account
associated with the debit card. Thus, when the accused charged $10.89 to the
account for “Spotify” (presumably for a music service), the parties viewed this as a
theft of currency from Bank of America, not as a theft of services from Spotify.
Under this rubric, thefts of services (normally punished under Article 134, UCMJ)
were converted into thefts of currency (punishable under Article 121, UCMJ) and the
charge misidentified the parties from whom the objects of the thefts were obtained.
To be sure, the government’s charging decision worked markedly in
appellant’s favor. Instead of twelve theft specifications, she faced only one. To get
the benefit of the deal, appellant even stipulated that “Bank of America had
ownership over the property that the accused took.” However, we find the
stipulation to cause more problems than it solves. Bank of America never had
ownership of the goods appellant took (the plane ticket, the NFLshop retail items,
etc.) let alone the services. With the exception of the $1,200 transfer to the
appellant’s bank account, appellant did not “obtain” currency from Bank of America.
See United States v. Simpson, 77 M.J. 279, 282-83 (C.A.A.F. 2017); United States v.
Williams, 75 M.J. 129, 132 (C.A.A.F. 2016).
Without needing to resolve specifically whether the issue here is a partial
failure to state an offense, a violation of United States v. Care, 18 U.S.C.M.A. 535,
40 C.M.R. 247 (1969), or both, we find appellant’s admissions during the Care
inquiry and the stipulation of fact are consistent with the charged offense only to the
extent that we will approve a guilty finding to larceny of currency more than $500
on one occasion. See UCMJ, art. 66(c).
CONCLUSION
The court affirms only so much of the finding of guilty of The Specification
of Charge I as finds appellant did, at or near Fort Sam Houston, Texas, on or about
12 December 2016, steal currency, of a value greater than $500.00, the property of
Bank of America. The remaining findings of guilty are AFFIRMED.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that, based on
the entire record and appellant’s course of conduct, the military judge would have
imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.
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LEUELU—ARMY 20170481
Senior Judge MULLIGAN and Judge FEBBO concur.
FOR THE
FOR THE COURT:
COURT:
JOHN P. TAITT
JOHNDeputy
Chief P. TAITT
Clerk of Court
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