UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                          MULLIGAN, FEBBO, and SCHASBERGER
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                            Specialist LONNIE L. LOVETT
                            United States Army, Appellant

                                      ARMY 20170674

                  Headquarters, 1st Infantry Division and Fort Riley
                  Jason J. Elmore and Robert Shuck, Military Judges
                 Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate


For Appellant: Major Todd W. Simpson, JA; Major Brian J. Sullivan, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Major Hannah E. Kaufman, JA;
Lieutenant Colonel Teresa T. Phelps, JA (on brief).


                                       25 January 2019

                                  ---------------------------------
                                  MEMORANDUM OPINION
                                  ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .

SCHASBERGER, Judge:

       Appellant pleaded guilty to stealing checks from the U.S. mail. The
specification to which appellant pleaded guilty alleged the checks were “property of
the United States.” Appellant now argues his plea was improvident because the
forty-eight checks he stole from the U.S. mail—and then fraudulently endorsed and
deposited in his personal checking account—were never “property of the United
States” for the purposes of Article 121, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 921.

       After careful consideration, we conclude the United States had a temporary
possessory interest in the checks while those checks were under government custody
and control in the U.S. mail. This possessory interest is sufficient to render the
stolen checks “property of the United States” for the purposes of Article 121, UCMJ.
We therefore find appellant was provident to the offense of larceny.
LOVETT—ARMY 20170674

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of larceny, one specification of
wrongfully taking the mail, and one specification of wrongfully opening the mail, in
violation of Articles 121 and 134, UCMJ. The military judge found the three
specifications constituted an unreasonable multiplication of charges for sentencing
purposes, and merged them accordingly. The military judge then sentenced
appellant to a bad-conduct discharge, twelve months of confinement, and a reduction
to the grade of E-1. The convening authority approved the sentence as adjudged.

                                  BACKGROUND

        After appellant suffered a heart attack, he could not serve as a field
artilleryman. Instead, he began the process of being medically separated from the
Army. Appellant was assigned duties as a mail clerk while undergoing his medical
evaluation board and waiting for his medical retirement.

       Appellant’s unit deployed, leaving appellant as one of the rear detachment
mail clerks. Over several months, while acting as a mail clerk, appellant intercepted
forty-seven pieces of mail containing checks. He took those envelopes from the
mail room, opened the letters, removed the checks, forged endorsements, and
deposited the checks into his Navy Federal Credit Union account. The total face
value of the forty-seven checks appellant took in this way was $9,449.88. Appellant
also took a blank check from a box of checks he found among unclaimed mail, made
the check out to himself in the amount of $300, and deposited it.

       Appellant’s misconduct was discovered and the government charged him with
the three specifications listed above. The Specification of Charge I initially read:

      In that Specialist Lonnie L. Lovett, U.S. Army did at or near Fort
      Riley, Kansas, on divers occasions between on or about 12 July 2016
      and on or about 17 January 2017, steal approximately forty-eight
      checks, military property, of a value of about $9,449.88, the property of
      the United States government.

       After arraignment, appellant entered into a pretrial agreement with the
convening authority, wherein appellant agreed to plead guilty to all charges and
specifications. Prior to the commencement of trial, the military judge held a
conference with counsel from both sides under Rule for Courts-Martial (R.C.M.)
802. At trial, the military judge put on the record a synopsis of what was discussed.
One of the issues covered in the R.C.M. 802 session was the nature of the property.
Prior to the entry of appellant’s plea, the government moved to amend the
Specification of Charge I. First, the government moved to increase the value of the
stolen checks from $9,449.88 to $9,749.88. Second, the government moved to strike
the words “military property” from the specification. The defense did not object to
either change.


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LOVETT—ARMY 20170674

       During the providence inquiry, the military judge asked if appellant took the
check “from the possession of the U.S. government.” Appellant answered “Yes,
sir.” Appellant also entered into a stipulation of fact, which, in relevant part, states,
“[t]he accused agrees that the definition of government property, encompasses cash,
checks and other securities within mail-matter transiting the US [sic] Postal System
on a military installation and remain military property until delivered to their
intended recipient.”

                              LAW AND DISCUSSION

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A guilty
plea will only be set aside if we find a substantial basis in law or fact to question the
plea. Id. (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). This
court applies the “substantial basis” test by determining whether the record raises a
substantial question about the factual basis of appellant’s guilty plea or the law
underpinning the plea. Id. See also UCMJ art. 45(a); R.C.M. 910(e).

       Our superior court has explained, “Article 121, UCMJ, proscribes the
wrongful taking, obtaining, or withholding, from the possession of the owner or of
any other person, money or an article of value of any kind with intent to
permanently deprive.” United States v. Simpson, 77 M.J. 279, 282 (C.A.A.F. 2018)
(emphasis added). To prevail on a charge of larceny, the government must prove
“the accused wrongfully obtained money or goods from a person or entity with a
superior possessory interest.” Id. (quoting United States v. Williams, 75 M.J. 129,
132 (C.A.A.F. 2016) (internal quotation marks, alteration marks, and further
citations omitted).

       Appellant relies on Williams and Simpson to argue that he did not take
property from the United States because “appellant obtained $9,749.88 not from the
government, but from his bank.” 1 Were appellant charged with larceny by means of
an electronic transfer of funds—as was the case in Simpson and Williams—he would
be correct. In this case, however, appellant was charged with the theft of the checks
themselves. He was not charged with larceny of the funds he eventually obtained by
depositing the checks.

1
  Appellant’s argument has much initial appeal. So much, in fact, that the
government conceded this issue on brief. We ordinarily accept such concessions,
and we always appreciate such candor. In this case, however, we do not accept the
concession because we assess appellant’s argument—and the government’s
acceptance thereof—turn on a misunderstanding of what appellant was charged with
stealing. Appellant was not charged with stealing $9,749.88 from a bank. Appellant
was charged with stealing forty-eight checks from the United States.




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LOVETT—ARMY 20170674

      Because appellant relies on the theory that the United States had no
possessory interest in the funds appellant eventually received after depositing the
checks, it is essentially uncontested that the checks themselves were in the
possession of the United States and appellant took the checks from the possession of
the United States.

       Even if we treat appellant’s argument as a claim the United States had no
possessory interest in the checks themselves, appellant’s claim fails. A possessory
interest includes, “[t]he present right to control property, including the right to
exclude others, by a person who is not necessarily the owner.” Possessory Interest,
Black’s Law Dictionary, (9th ed. 2009). This is precisely the relationship between
the United States and items deposited in the U.S. mail. The Second Circuit has
explained that when a person deposits items into the mail that person is, “voluntarily
relinquishing custody and control over them for the indefinite period (at least a
couple of days) required for forwarding and delivery.” United States v. Place, 660
F.2d 44, 52 (2d Cir. 1981). Such items are in the “lawful custody” of postal agents
until delivery. Id. The United States exercises custody and control over items in the
mail and exercises its right to exclude all others from such items until delivery. See,
e.g., 18 U.S.C. § 1702 (prohibiting unauthorized persons from taking in the mail).
Thus, the United States had a possessory interest in the mailed checks while they
were in transit.

       Nothing in appellant’s providence inquiry leads us to believe he was
improvident to taking forty-eight checks from the possession of the United States.
Similarly, nothing leads us to believe appellant was improvident to the fact the
United States had a possessory interest in the checks when appellant took them.
Appellant was likewise fully provident to taking the checks with the intent to
permanently deprive the United States of such property, to which it had a superior—
albeit temporary—possessory interest as opposed to appellant. The only remaining
question is whether appellant was also provident to the value of the property he
stole.

      Appellant claims, “[i]f the checks were government property, they were not
worth $9,749.88 to the government.” Long ago, however, our superior court’s
predecessor held, for the purposes of Article 121, the value of a check that has been
completed by its drawer, is the face value on the check. United States v. Windham,
36 C.M.R. 21, 23 (C.M.A. 1965). By contrast, the value of a blank check is
nominal. United States v. Frost, 46 C.M.R. 233, 236 (C.M.A. 1973); United States
v. Harvey 2 M.J. 856, 857 (A.C.M.R. 1976).

      The government’s original specification, alleging appellant stole forty-eight
checks valued at $9,449.88 reflected the correct value of the stolen checks at the
time appellant stole them. Although appellant later fraudulently completed one
blank check and thereby acquired an additional $300 from his bank, the check’s



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LOVETT—ARMY 20170674

value was merely nominal at the time he took it from the possession of the United
States. Again, appellant was convicted of stealing checks, not the funds appellant
later acquired by fraudulently depositing the checks. 2

                                   CONCLUSION

      We affirm only so much of the finding of guilty of The Specification of
Charge I as finds that appellant: “did at or near Fort Riley, Kansas, on divers
occasions between on or about 12 July 2016 and on or about 17 January 2017, steal
approximately forty-eight checks, of a value of about $9,449.88, the property of the
United States government.”

      The remaining findings of guilty and the sentence are AFFIRMED. 3

      Senior Judge MULLIGAN and Judge FEBBO concur.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.    H. SQUIRES,
                                                        SQUIRES, JR.
                                                                  JR.
                                       Clerk
                                       Clerk of
                                              of Court
                                                 Court




2
  Whether the United States had any right to negotiate the checks is irrelevant to
whether it had a possessory interest in them. Possessory interest is not synonymous
with ownership. A bailee will frequently lack the lawful authority to sell or
otherwise dispose of bailed property, but that does not change the valuation of the
property or the identity of the party from whom the property is taken if a thief steals
from the bailee.
3
  In reassessing the sentence we are satisfied that the sentence adjudged on the
charges and specifications as affirmed by this court would have been at least a bad-
conduct discharge, confinement for twelve months, and a reduction to the grade of
E-1. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). The gravamen of appellant’s
misconduct was taking and opening the mail, and depriving the recipients of
receiving the checks. Further, the military judge merged the three specifications as
an unreasonable multiplication of charges for sentencing purposes.




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