             UNITED STATES NAVY-MARINE CORPS
                COURT OF CRIMINAL APPEALS
                     WASHINGTON, D.C.

                                Before
             K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                       Appellate Military Judges

                    UNITED STATES OF AMERICA

                                 v.

                       MICHAEL D. STEVENS
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                         NMCCA 201400330
                     SPECIAL COURT-MARTIAL

Sentence Adjudged: 2 June 2014.
Military Judge: Maj N.A. Martz, USMC.
Convening Authority: Commanding Officer, Marine Corps Combat
Services Support Schools, Training Command, Camp Lejeune,
N.C.
Staff Judge Advocate's Recommendation: Capt M.G. Blackborow,
USMC.
For Appellant: CDR Ricardo A. Berry, JAGC, USN.
For Appellee: Maj Tracey L. Holtshirley, USMC.

                          10 November 2015

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                PUBLISHED OPINION OF THE COURT
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BRUBAKER, Senior Judge:

     A military judge sitting as a special court-martial convicted
the appellant, pursuant to his pleas, of two specifications of
attempted larceny and 12 specifications of larceny or wrongful
appropriation in violation of Articles 80 and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 880 and 921. The military judge
sentenced the appellant to 30 days’ confinement, reduction to pay
grade E-1, and a bad-conduct discharge (BCD). The convening
authority (CA) approved the sentence as adjudged but, pursuant to a
pretrial agreement, suspended all confinement.
     The appellant initially raised two assignments of error (AOE):
(1) that his pleas of guilty to Specifications 4-8, 12, and 13 of
Charge I were improvident because the factual basis as to the
actual victim was not established; and (2) that the staff judge
advocate’s recommendation (SJAR) and court-martial order (CMO)
failed to reflect that the military judge merged Specifications 1
and 2 of Charge I.

     After initial review, we specified an additional issue:
whether the “electronic media” alleged in numerous specifications
are “property” cognizable under Article 121, UCMJ. We find they
are not; thus, the pleas to those specifications were improvident.
This moots the appellant’s first AOE. We address his second AOE
below.

                             Background

     The appellant was an instructor at the Logistics Operations
School, Camp Lejeune, North Carolina. When not teaching, he and
his co-workers worked out of an “instructor bullpen”1——a shared
workspace consisting of cubicles. On several occasions, while
fellow instructors were teaching classes or otherwise away from
their cubicles, the appellant took credit or debit cards out of
their wallets without their permission. He copied the account
numbers, expiration dates, and security codes, then returned the
cards to the owners’ wallets. This formed the basis for Charge I,
Specifications 1-2 and 9-11——wrongful appropriation of the cards.

     The appellant then used the information to make online
purchases of what the Government styled “electronic media.”2 The
“media” included an audiobook and music downloaded to his iPhone,
video games to his Sony PlayStation, and two “Boatloads of 2400
donuts” for use as virtual currency in a smart phone game based on
the television show “The Simpsons.” He tried to make two further
purchases which the merchant declined. Based on these
transactions, Specifications 3-8 and 12-13 of Charge I allege that
the appellant stole electronic media from Sony (in two instances)
and Apple iTunes (in the remainder) and the two specifications of
Charge II allege he attempted to steal electronic media from Apple
iTunes.

     The appellant pleaded guilty to both charges and all
specifications. After merging Specifications 1 and 2 of Charge I,


1
    Record at 69.
2
    Charge Sheet.

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the military judge found him guilty of both Charges and all
specifications.

                               Analysis

I.   Providence of Pleas

     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 military judge abuses his discretion
if he accepts a guilty plea without an adequate factual basis to
support it or if he does so based on an erroneous view of the law.
United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012). We review
questions of law——including whether “electronic media” as alleged
in this case constitute “property” under Article 121——de novo. Id.

     Article 121, UCMJ, defines larceny as:

     wrongfully tak[ing], obtain[ing], or withhold[ing], by
     any means, from the possession of the owner or of any
     other person any money, personal property, or article
     of value of any kind . . . with intent permanently to
     deprive or defraud another person of the use and
     benefit of property or to appropriate it to his own
     use or the use of any person other than the owner . .
     . .

     In enacting Article 121, Congress consolidated three common-
law offenses: larceny, embezzlement, and obtaining by false
pretenses——“no more and no less.” United States v. Antonelli, 35
M.J. 122, 124 (C.M.A. 1992). Thus, Article 121 “must be
interpreted in light of the common-law meaning of those offenses.”
United States v. Mervine, 26 M.J. 482, 483 (C.M.A. 1988). Common-
law larceny requires “‘the trespassory taking and carrying away of
the personal property of another with intent to steal.’” Id.
(quoting ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 292 (3d ed.
1982)). It also requires that “the object of the larceny be
tangible and capable of being possessed.” Id. (citing United States
v. Abeyta, 12 M.J. 507, 508 (A.C.M.R. 1981) (“the terms ‘money,
personal property, or article of value,’ as used in Article 121,
were not meant to encompass items not having a corporeal
existence.”)) (emphasis added); see also United States v. Holley,
42 M.J. 779, 781 (N.M.Ct.Crim.App. 1995).

     We find no further guidance in military case law on whether
electronic media as alleged here can be the object of larceny under
Article 121. But——saddled with a statute anchored to common law

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developed before electronic media even existed——we conclude that
electronic media without corporeal form do not fall within the
ambit of Article 121.

     The property the appellant obtained using others’ money was
intangible. The “donuts” in the Simpsons game——to pick the easiest
example——could not be picked up, touched, or carried away because
they were not real. They were conceptual, merely entitling the
person who paid the fee for them to additional game play. When the
appellant obtained them through fraud, these “donuts” existed and
had value in the cyber world, but they had no corporeal existence
in ours. Similarly, the music, audiobooks, and game software had
no physical form, but instead represented the vendors’ willingness
to allow the items to be downloaded——copied——for a fee.

     The military judge (who is to be commended for sua sponte
spotting and thoughtfully analyzing the issue of tangibility
despite our differing with his legal conclusion) found that once
the appellant downloaded the media to his device, “the properties
convert from that of pure intangible data to that more akin to
traditional corporeal tangible property.”3 He then listed
characteristics that he believed made the downloaded media similar
to traditional tangible products, including that they “can be
physically transported by the new owner once it is downloaded onto
their respective electronic device.”4

     But while the appellant transferring the media to his devices
may have given them a corporeal form, that only highlights that at
the time the appellant obtained the property, it was not in
corporeal form. Common law larceny requires asportation——a
“carrying away.” Mervine, 26 M.J. at 483. At the time the
appellant “carried away” the media, they were incorporeal. It is
immaterial whether after the carrying away, they were transformed
to corporeal form——particularly when the corporeal property (the
smart phone and the game console) belonged to the appellant.

     Finally, there was no “trespassory taking,” id., in this case
because Sony and Apple never lost possession of the media. There
were not 2400 fewer donuts on their shelves or one less copy of the
song “Radioactive” by Imagine Dragons in their physical inventory
because of the taking.5

3
    Record at 21.
4
    Id.
5
  See ARTICLE: THE PROTECTION OF DIGITAL INFORMATION AND PREVENTION OF ITS
UNAUTHORIZED ACCESS AND USE IN CRIMINAL LAW, 28 J. Marshall J. Computer & Info.

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     Thus, the appellant’s obtaining of the electronic media
alleged did not, as a matter of law, constitute larceny in its
common-law sense under Article 121. To find otherwise constituted
an abuse of discretion and rendered improvident the appellant’s
pleas to Specifications 3-8 and 12-13 of Charge I and Charge II and
its two specifications.6

II.   SJAR and CMO Error

     The military judge rightly merged Specifications 1 and 2 of
Charge I, which distinctly alleged wrongful appropriation of a
credit card and a debit card from the same victim at the same time.
The SJAR and CMO failed to reflect this. The appellant, who did
not object to this error in the SJAR, now avers it prejudiced him
because an accurate accounting of the findings in the SJAR could
have persuaded the CA to adopt the recommendation of the military
judge and suspend the BCD.

     We disagree. When assessing prejudice for post-trial error in
SJARs and CMOs, courts only require that the appellant make “some
colorable showing of possible prejudice.” United States v.
Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997). We find that the
appellant has not met even this low threshold. The merged
specifications themselves——which are detailed on the CMO——make
clear they alleged wrongful appropriation from the same victim at
the same location on the same date. The CMO also indicates that
the CA considered the record of trial, which makes plain that the
appellant wrongfully appropriated credit and debit cards from three
different fellow staff noncommissioned officers on four separate

L. 523, 532-533 (“Traditional theft statutes also required that the defendant
intend to permanently deprive the other party of the property. Copying a
[computer] program or data does not meet this standard because the original owner
is not permanently deprived of the program or data, but merely loses some control
of the property.”) (Endnote omitted).
6
  Federal civil courts have also struggled to define “property” in an
increasingly electronic world. See, e.g., Dowling v. United States, 473 U.S. 207
(1985) (finding that bootleg copies of Elvis Presley recordings, absent a
physical taking, do not constitute “goods, wares, [or] merchandise” under the
National Stolen Property Act (NSPA)); United States v. Brown, 925 F.2d 1301, 1308
(10th Cir. 1991) (applying Dowling to hold that a computer program without
corporeal form is not property cognizable by the NSPA). To address burgeoning
computer-related criminal activity, Congress in 1984 enacted the Computer Fraud
and Abuse Act (CFAA), 18 U.S. Code § 1030, and has amended it a number of times
since. Congress has enacted a panoply of other statutes addressing crimes in the
electronic age, such as 15 U.S. Code § 1644, which prohibits fraudulent use of
credit cards. Military law would greatly benefit from similar statutory
modernization. Meantime, while the Government in this case may have been able to
look to Federal law by analogy or incorporation under Article 134, its reliance
on common-law larceny for the taking of intangible goods was misplaced.

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occasions and used the information to purchase hundreds of dollars’
worth of electronic media.

     The military judge submitted a letter to the CA. In it, he
specifically pointed out these circumstances and recommended
clemency in the form of suspending the BCD due to significant
stressors in the appellant’s life and an otherwise exemplary
record. The CA, who had already given the appellant the benefit of
a highly favorable pretrial agreement that suspended all
confinement and forfeitures, declined to grant further clemency.
Under these circumstances, we find no colorable showing of possible
prejudice merely because the SJAR and CMO failed to note that five
specifications of wrongful appropriation were merged into four.

     The appellant is, nevertheless, entitled to have the CMO
accurately reflect the results of the proceedings. United States
v. Crumpley, 49 M.J. 538, 539 (N.M.Ct.Crim.App. 1998). We thus
order corrective action below.

III. Sentence Reassessment

     Our action on the findings requires us to determine whether we
are able to reassess the sentence. We conclude we can.

     Courts of Criminal Appeal have broad discretion to reassess
sentences. United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F.
2013). But we may only do so if we can reliably and confidently
determine that, absent the error, the sentence would have been at
least of a certain magnitude. United States v. Buber, 62 M.J. 476,
479 (C.A.A.F. 2006); United States v. Harris, 53 M.J. 86, 88
(C.A.A.F. 2000). If we cannot do this, we must order a rehearing.
Harris, 53 M.J. at 88. A reassessed sentence must not only “be
purged of prejudicial error[,]” but “also must be ‘appropriate’ for
the offense involved.” United States v. Sales, 22 M.J. 305, 308
(C.M.A. 1986).

     We apply the totality of the circumstances of each case to
make sentence reassessment determinations, guided by the
following “illustrative, but not dispositive, points of
analysis”:

    (1) Whether there has been a dramatic change in the
    penalty landscape or exposure.

    (2) Whether sentencing was by members or a military
    judge alone. We are more likely to be certain of what


                                 6
     sentence a military judge would have imposed as
     opposed to members.

     (3) Whether the nature of the remaining offenses
     capture the gravamen of criminal conduct included
     within the original offenses and, similarly, whether
     significant or aggravating circumstances addressed at
     the court-martial remain admissible and relevant to
     the remaining offenses.

     (4) Whether the remaining offenses are of the type
     with which appellate judges should have the experience
     and familiarity to reliably determine what sentence
     would have been imposed at trial.

Winckelmann, 73 M.J. at 15-16.

      With all these principles in mind, we find that we can
reassess the sentence and do so to affirm only so much as provides
for reduction to pay grade E-1 and a bad-conduct discharge. The
punitive exposure has not changed dramatically. The maximum
punishment for the affirmed findings includes confinement for nine
months; reduction to pay grade E-1; forfeiture of two-thirds’ pay
per month for nine months; and, applying the escalator clause of
RULE FOR COURTS-MARTIAL 1003(d)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), a BCD.

     We recognize that dismissing ten larceny specifications——
leaving us with four affirmed wrongful appropriation
specifications——is a significant change to the overall sentencing
landscape. But the remaining Winckelmann factors leave us
convinced that the sentence as reassessed not only purges the
error, but is appropriate. First, sentencing was by military
judge. Second, the remaining offenses——wrongfully appropriating
fellow Marines’ debit and credit cards with a purpose to make
fraudulent purchases——capture the gravamen of the misconduct.
Third, evidence about the appellant’s use of the card information
to buy entertainment media at the expense of his trusting fellow
Marines and the impact that had on others would likely have
remained admissible and relevant either as evidence of wrongfulness
or as aggravation under R.C.M. 1001(b)(4). Finally, we have
sufficient experience and familiarity with the remaining offenses
to reliably determine what sentence would have been imposed at
trial.




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                             Conclusion

     The findings of guilty to Specifications 3-8 and 12-13 of
Charge I and to Charge II and both of its specifications are set
aside. The remaining findings of guilty are affirmed.
Specifications 3-8 and 12-13 of Charge I and Charge II and both of
its specifications are dismissed. Only so much of the sentence as
provides for reduction to pay grade E-1 and a bad-conduct discharge
is affirmed. The supplemental CMO shall correctly reflect that the
military judge merged Specifications 1 and 2 of Charge I.

    Judge HOLIFIELD and Judge MARKS concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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