UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               LIND, KRAUSS, and PENLAND
                                  Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Specialist HENRY L. WILLIAMS III
                            United States Army, Appellant

                                      ARMY 20130284

                 Headquarters, XVIII Airborne Corps and Fort Bragg
                   Tara A. Osborn, Military Judge (arraignment)
                     David H. Robertson, Military Judge (trial)
                   Colonel Paul S. Wilson, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain
Michael J. Millios, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain Rachel T. Brant, JA (on brief).


                                       28 August 2014

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

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

PENLAND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of failure to go to his appointed place of duty, disobedience of
a superior commissioned officer, disobedience of a noncommissioned officer (two
specifications), false official statement, wrongful use of marijuana, larceny (three
specifications), housebreaking (two specifications), and bigamy in violation of
Articles 86, 90, 91, 107, 112a, 121, 130, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 886, 890, 891, 907, 912a, 930, 934 (2006). The
military judge convicted appellant, contrary to his pleas, of two specifications of
larceny in violation of Article 121, UCMJ. The military judge sentenced appellant
to a bad-conduct discharge and confinement for eighteen months. In accordance
with a pretrial agreement, the convening authority approved only so much of the
sentence as provided for a bad-conduct discharge and fifteen months of confinement.
WILLIAMS — ARMY 20130284

The convening authority also credited appellant with 123 days against the sentence
to confinement.

       Appellant raises one assignment of error arguing that the evidence to support
his contested larceny convictions is legally insufficient because the government
“improperly alleged that the victims were the individual account holders.” We
disagree and hold the evidence is both factually and legally sufficient to support his
convictions of larceny. Appellant also personally raises matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), including an allegation that the
military judge erred by asking a sentencing witness about the “slow pace of justice”
in appellant’s case and its effect on good order and discipline. We hold that the
military judge’s improper line of questioning rises to the level of plain error,
however, we are confident we can reassess the sentence to cure any prejudice.
Appellant’s remaining assertions pursuant to Grostefon are without merit.

                    FACTUAL AND LEGAL SUFFICIENCY
                 OF SPECIFICATIONS 1 AND 2 of CHARGE VI

                         Facts and Procedural Background

      On numerous occasions and without authority to do so, appellant wrongfully
used other soldiers’ debit card information in order to obtain goods and services for
himself and others.

      Appellant was charged with, inter alia, multiple specifications of larceny.
Specifications 1 and 2 of Charge VI, to which he pleaded not guilty, alleged
respectively:

             In that [appellant], did, at or near Fort Bragg, North
             Carolina, on divers occasions, between on or about
             26 December 2011 and on or about 4 February 2012, steal
             money, of a value of more than $500, the property of
             Private First Class [(PFC) BI].

             In that [appellant], did, at or near Contingency Operating
             Site Warrior, Iraq, on divers occasions, between on or
             about 30 June 2011 and on or about 7 July 2011, steal
             money, of a value of more than $500, the property of
             Specialist [(SPC) JA].

                             Specification 1 of Charge VI

      From December of 2011 through early February of 2012, PFC BI was
appellant’s barracks roommate at Fort Bragg. Private First Class BI was also



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WILLIAMS — ARMY 20130284

assigned to appellant’s unit. He maintained a checking account with Boulder Valley
Credit Union. In early February 2012, a fraud agency employed by the credit union
contacted PFC BI to report that multiple, apparently fraudulent charges had posted
to his checking account, causing it to be overdrawn. Private First Class BI reviewed
his credit union statement and identified multiple unauthorized charges totaling
$3067.70; this figure included two charges to Verizon Wireless for $2260. He tried
to contact merchants who had submitted charges to his credit union and ultimately
obtained a food purchase receipt, which bore PFC BI’s debit card information and
appellant’s name as the customer.

      Appellant testified at trial, offering on direct examination an explanation for
his unauthorized use of PFC BI’s debit card information. After admitting that he
wrongfully obtained the information, appellant testified that he would use it to order
food for his children. After asserting that the unauthorized food charges totaled less
than $500, appellant turned to the unauthorized charges from Verizon Wireless.

             DC: Can you explain the Verizon bill because your name
             is on that account and [PFC BI’s] debit card is linked to
             your account with your name on it; can you explain that?

             ACC: I never -- I never had a Verizon account. I had a
             TracFone. I had -- when I got the -- I got my wife a
             Verizon phone, but her credit is messed up so I had to put
             it under my name; and after I found out that she was
             having an affair, I pretty much, like, closed the account. I
             stopped paying bills, stopped making payments on it, but
             when I got sent to -- when I -- after we had the argument
             and the first sergeant put me in the barracks program and I
             wasn’t able to go to the house -- or go back to the house
             and, like, tear up the card -- well the piece of paper that I
             wrote the card information from ----

             DC: Let me back up for a second.         You’re saying the
             piece of paper with the ----

             ACC: Uh-huh [affirmative response].

             DC:    ---- with [PFC BI’s] infor [sic] -- debit card
             information was at your house.

             ACC: Yes, sir.

             DC: How did it get there?




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WILLIAMS — ARMY 20130284

            ACC: I took it there while I walked home one day.

            DC: Where did you put it?

            ACC: In a -- in the second drawer, on the top shelf that I
            keep all my, like undergarments in, like shirt -- T-shirts
            and boxers.

            DC: In your bedroom?

            ACC: Yes, sir.

            DC: So, okay, go -- so you were -- I’m sorry. You were
            saying that you never had a Verizon account.

            ACC: No.

            DC: Your name was linked to your wife’s phone number.

            ACC: Yes.

            DC: So you were paying her account.

            ACC: Yes.

            DC:     Please explain, then, how those two payments
            totaling over two thousand dollars using [PFC BI’s] debit
            card were linked to the account under your name that was
            your wife’s phone number.

            ACC: She made the -- the purchase.

      The military judge convicted appellant of Specification 1 of Charge VI.

                           Specification 2 of Charge VI

       In the summer of 2011, appellant was deployed to Iraq with his unit. He
worked in close proximity to SPC JA, another soldier in appellant’s battalion.
Specialist JA maintained a BB&T bank account. He monitored his finances, in part,
by reviewing his account statements through the bank’s website. In early July 2011,
SPC JA noticed that two unauthorized charges, totaling $755.10, had been made to
the account.




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WILLIAMS — ARMY 20130284

       The unauthorized charges were associated with pending purchases from
ComputerGeeks.com. Without SPC JA’s knowledge or authorization, appellant had
used his debit card information in an attempt to obtain an Apple MacBook computer,
which ComputerGeeks.com offered for $509.99. Appellant had also used the debit
card information in an attempt to obtain an Apple iBook, offered for $199.99, for his
then-girlfriend, OW. ComputerGeeks.com flagged the two transactions as fraudulent
and never shipped either computer. ComputerGeeks.com suffered no financial loss.
Because the merchant did not fulfill appellant’s orders, BB&T provided no money to
the merchant. However, aware of the pending transactions, BB&T did render
unavailable to SPC JA the associated monetary amounts (including shipping and
handling costs). As a result, SPC JA temporarily lost $755.10, permanently lost $70
in bank overdraft fees, and did not have sufficient funds to make his monthly car
payment with his BB&T account.

       Specialist JA informed his supervisor of the unauthorized charges and was
advised to report them to law enforcement authorities. Appellant heard SPC JA’s
comments and subsequently approached him, claiming that he had accidentally used
his debit card information to make online purchases. Appellant repeated that claim
in his testimony at trial:

             DC: Can you explain what happened?

             ACC: My wife, she had -- well, she was my girlfriend at
             the time, but my wife now . . . she had gave -- I had called
             her over the phone before me and [SGT M] went out to do
             a mission.      I asked her to give me my credit card
             information, and I wrote it down in my green Leadership
             Book that I keep in the first drawer behind the desk that
             me and [SGT M] alternate from back and forth, but she
             was in a hospital and she was, like, bleeding
             uncontrollably, so she was like -- they had her on bed rest
             and she couldn’t, like, really do anything. She told me
             that she wanted -- she wanted me to purchase her a
             computer, so after me and [SGT M] came back from our --
             from our two missions that we had to do, I went online
             and I tried to find, like, the two cheapest computers. I
             ordered me one and I ordered her one. I got it sent to the
             house that her brother was staying at under her name, the
             one I purchased for her; the one that I purchased for me, I
             got it sent to -- sent to where I was stationed at in Iraq.

             DC: Explain the process; you said you ordered it online,
             correct?




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WILLIAMS — ARMY 20130284

             ACC: Yes, sir.

             DC: When you used the card, you used numbers that were
             in your Leadership Book, correct?

             ACC: Yes, sir.

             DC: And those turned out to be [SPC JA’s] numbers,
             correct?

             ACC: Yes, sir.

             DC: How did those numbers get into your book?

             ACC: The only thing I can think of is if he wrote them
             down hisself [sic], because I was never inside the office.
             Me and [SGT M], we was [sic] always out doing missions,
             installing phone lines.

      The military judge convicted appellant of Specification 2 of Charge VI.

                                  Law & Discussion

       In performing our duty under Article 66, UCMJ, we conduct a de novo review
of legal and factual sufficiency. United States v. Gilchrist, 61 M.J. 785, 793 (Army
Ct. Crim. App. 2005) (citing United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002)). The test for factual sufficiency is “whether, after weighing the
evidence of record and making allowances for not having personally observed the
witnesses, [this court is] convinced of appellant’s guilt beyond a reasonable doubt.”
Gilchrist, 61 M.J. at 793 (citing United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987)). The test for legal sufficiency is whether, considering the evidence “in the
light most favorable to the [g]overnment, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)).

        In addition to the evidence introduced by the government at trial, appellant’s
testimony convinces us of the factual and legal sufficiency of the larceny
convictions at issue. His own words at trial eliminate any doubt that he intended to
permanently deprive PFC BI and SPC JA of over $500 each. See generally United
States v. Pleasant, 71 M.J. 709, 712 (Army Ct. Crim. App. 2012) (“When an accused
testifies on his own behalf, he does so at his own peril, risking that he might fill in
gaps or provide affirmative evidence contributing to or resulting in his conviction.”).
Faced with incredible testimony from an accused, the finder of fact may exercise:



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WILLIAMS — ARMY 20130284

             [T]he right, not only to take such statements into
             consideration, in connection with all the other
             circumstances of the case, in determining whether or not
             defendant’s conduct had been satisfactorily explained by
             him upon the theory of his innocence, but also to regard
             false statements in explanation or defense, made or
             procured to be made, as in themselves tending to show
             guilt. The destruction, suppression, or fabrication of
             evidence undoubtedly gives rise to a presumption of guilt,
             to be dealt with by the [finder of fact].

Id. at 712-13 (quoting Wilson v. United States, 162 U.S. 613, 620-21 (1896)).

       Appellant posited the following with respect to Specification 1 of Charge VI:
he took home the piece of paper containing PFC BI’s debit card information and
placed it in his underwear drawer; OW used PFC BI’s information to make the
larger, unauthorized charges associated with a Verizon Wireless account bearing
appellant’s name; and, appellant specifically remembered that OW informed him of
her actions while he drank alcohol and smoked marijuana. Turning to Specification
2 of Charge VI, despite SPC JA’s testifying that he never provided appellant with
his debit card information, appellant offered that: SPC JA may have mistakenly
written his debit card information in appellant’s notebook without his knowledge;
and, some time afterward, appellant mistakenly used that information to purchase
computers online for OW and himself. Taken alone, any of these events is doubtful.
Taken together and coupled with the government’s evidence at trial, they are
patently absurd and affirmatively establish his guilt.

      We now turn to appellant’s argument that PFC BI and SPC JA were not
“correct victims” of the contested larceny specifications. Article 121, UCMJ,
prohibits larceny in the following manner:

             (a) Any person subject to this chapter who wrongfully
             takes, obtains, or withholds, 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—

             (1) 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, steals that property and is guilty of larceny[.]

Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM],
pt. IV, ¶ 46.a(a)(1).




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WILLIAMS — ARMY 20130284

       Electronic commerce and the related increased possibility of larceny by
identity-theft have perhaps prompted the following 2002 amendment to the Manual
for Courts-Martial: “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.” MCM, pt. IV, ¶ 46.c(1)(h)(vi). The Drafter’s Analysis includes the
proviso that “[a]lternative charging theories are also available . . . . The key under
Article 121 is that the accused wrongfully obtained goods or money from a person or
entity with a superior possessory interest.” MCM, UCMJ art. 121 analysis at
A23-15–A23-16 (internal citations omitted).

       Our superior court has clearly affirmed both of these principles. See United
States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014); United States v. Lubasky,
68 M.J. 260 (C.A.A.F. 2010). In Cimball Sharpton, CAAF considered a larceny by
credit card and held that an alternative charging theory—naming a victim other than
the merchant or bank—was viable. 73 M.J. at 301-02. In Lubasky, CAAF stated:
“Under Article 121, UCMJ, larceny always requires that the accused wrongfully
obtain money or goods of a certain value from a person or entity with a superior
possessory interest.” 68 M.J. at 263 (emphasis added). The CAAF also recently
reaffirmed that the “victim of the larceny is the person or entity suffering the
financial loss or deprived of the use or benefit of the property at issue.” Cimball
Sharpton, 73 M.J. at 299 (citing Lubasky, 68 M.J. at 263-64).

       Appellant now argues that in Specifications 1 and 2 of Charge VI, “the
unauthorized use of the debit card information was a common ‘obtaining-type
larceny by false pretense’ where the property owner would be either the bank or
merchants depending upon who suffered the loss.” (Emphasis added). We partially
agree to the extent that appellant draws our focus to the person or entity who suffers
the loss in a larceny. We disagree with appellant that the banks or merchants were
the only potential victims of appellant’s misconduct. Indeed, PFC BI and SPC JA
were actual victims in this case. Appellant caused the movement of their money
from their control, intending to permanently deprive them and actually depriving
them of its use and benefit. Like in Cimball Sharpton, we hold that under the facts
of this case, alternative charging theories were available and PFC BI and SPC JA
were properly described as victims in the contested larceny specifications.

                     IMPROPER SENTENCING EVIDENCE

                              Procedural Background

      During sentencing, trial counsel attempted to establish that appellant’s
misconduct adversely affected good order and discipline in his unit. Captain (CPT)
JF, appellant’s company commander, testified and after a series of objections
regarding the proper scope of his testimony, the military judge correctly instructed



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WILLIAMS — ARMY 20130284

assistant trial counsel to “limit [his] questions to the direct impact of the accused’s
misconduct on the unit” or a victim. The following exchange occurred immediately
after the military judge’s specific guidance:

             ATC:     [CPT JF], what type of impact, if any, did
             [appellant’s] misconduct have on the efficiency,
             discipline, and mission of your unit?

             CPT JF: Well, it was -- I mean, it was a huge impact on
             the morale and welfare of our soldiers, you know, as
             hearsay and rumors amongst soldiers was spread about
             different charges that [appellant] faced.   You know,
             soldiers were upset, mad; their morale was pissed off as
             they, you know, received company grades or counselings
             for minor infractions ----

             ADC: Objection, Your Honor.

             MJ: Basis?

             ADC: Improper aggravation evidence; there’s -- he’s
             getting into discussions about what was chosen and not
             chosen to do as per administrative actions or other
             burdens, whether it was to this individual soldier or
             soldiers that are not even present or charged in this court-
             martial.

             MJ: Government?

             ATC: Your Honor, [CPT JF], if allowed to continue, will
             testify how the other soldiers perceived what was going on
             with [appellant] and how that adversely impacted the unit;
             how his misconduct and what was going forward with that
             impacted his ability to maintain good order and discipline
             in his unit.

             MJ: Government, I’ll allow you some latitude in this area.
             Objection’s overruled.

             CPT JF: Okay. Well besides the soldiers being upset that
             he wasn’t receiving a punishment and they had, there was
             even threatening against him, especially when the barracks
             incidents happened; that they wanted to take into his [sic]
             own hands because they felt justice wasn’t being served to



                                           9
WILLIAMS — ARMY 20130284

             him fast enough. When it came to -- our unit was
             extremely busy with a lot of missions at the time. When it
             came -- I had to bring NCOs out to escort him around to
             make ----

             ADC: Objection, Your Honor.

             MJ: Basis?

             ADC: Improper aggravation evidence; he’s going into the
             administrative burden.

             MJ: Government?

             ATC: Your Honor, this goes to the efficiency of the
             command, which is one of the proper parts of the unit that
             can be affected by the accused’s misconduct.

             MJ: Objection sustained.

      Before allowing the defense counsel to cross-examine CPT JF, the military
judge had the following exchange with the witness:

             MJ: [CPT JF], you talked about the impact on the unit
             about the other soldiers observing what they felt was the
             slow pace of justice and wanting to take matters into their
             own hands. What do you base that observation on?

             CPT JF: Yes, sir. I mean, rumors and hearsay had gotten
             to me that they were threatening beating him down.

             MJ: And how was that transmitted to you?

             CPT JF: Through NCO channels, like, “Hey, sir. These
             soldiers want to beat him up.”

       Trial defense counsel did not object to the military judge’s questions, and the
military judge did not explain his purpose for asking them. Captain JF was the only
witness who testified about impact on the unit.

                                  Law & Discussion

      With no objection to either the military judge’s improper questioning or the
witness’s answer, we apply a plain error analysis. See United States v. Eslinger,



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WILLIAMS — ARMY 20130284

70 M.J. 193, 197-98 (C.A.A.F. 2011). Appellant bears the burden of demonstrating
that: “(1) there was error; (2) the error was plain, clear, or obvious, and (3) the error
materially prejudiced one of his substantial rights.” United States v. Fisher, 67 M.J.
617, 620 (Army Ct. Crim. App. 2009); see also United States v Powell, 49 M.J. 460,
463-65 (C.A.A.F. 1998).

       The military judge’s question and the witness’s answer went beyond well-
established limits on evidence in aggravation. See Rule for Courts-Martial
1001(b)(4). Such evidence about soldiers’ desire “to take matters into their hands”
because of “the slow pace of justice” as negatively impacting good order and
discipline in a unit is exactly the kind of administrative burden which courts-martial
are prohibited from considering during sentencing. See Fisher, 67 M.J. 617. Thus,
we find plain and obvious error.

       With regard to prejudice, “[w]e test the erroneous admission . . . of evidence
during the sentencing portion of a court-martial to determine if the error
substantially influenced the adjudged sentence.” Eslinger, 70 M.J at 200-01
(quoting United States v. Griggs, 61 M.J 402, 410 (C.A.A.F. 2005)). “Military
judges are presumed to know the law and to follow it absent clear evidence to the
contrary.” United States v. Rodriguez, 60 M.J. 87, 90 (C.A.A.F. 2004). The fact
that the military judge elicited the improper testimony about soldiers’ desire “to take
matters into their hands” because of “the slow pace of justice” provides some
evidence to demonstrate the judge considered the improper evidence in reaching
appellant’s sentence. * Furthermore, the judge sentenced appellant to precisely the
sentence the assistant trial counsel requested in the government’s sentencing
argument. Under the unique circumstances of this case, we conclude the improper
evidence substantially influenced the adjudged sentence. Nonetheless, we are
confident we can cure any prejudice through sentence reassessment.

                                    CONCLUSION

       The findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the error noted, the entire record, and applying the principles of United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986) and United States v. Winckelmann, 73 M.J.
11 (C.A.A.F. 2013), we are confident appellant would have received a sentence at



 *
  A military judge is presumed to know the law, apply it correctly, and filter out
 inadmissible evidence when fashioning a sentence. Fisher, 67 M.J. at 622. Once
 again, we stress that while there is no requirement for a military judge to note that
 he or she did not consider improper evidence or arguments, “a transparent statement
 by the military judge that he is not considering improper evidence or argument
 forcefully moots any potential issues and . . . further increases the perception of
 fairness in the military justice system.” Id. at 623 n.5.


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WILLIAMS — ARMY 20130284

least as severe as the approved sentence of a bad-conduct discharge and fifteen
months confinement. The approved sentence is AFFIRMED.

      Judge KRAUSS concurs.

LIND, Senior Judge, concurring in part and dissenting in part:

      I concur with the majority opinion that we should affirm the findings of guilty
and the sentence. However, with regard to the alleged improper sentencing evidence
the military judge elicited, I disagree that there was plain error.

       I do not find the military judge’s question about the “slow pace of justice”
constitutes error that was plain or obvious. The military judge referenced the “slow
pace of justice” in only one question. There is no explicit evidence in the record
that the judge elicited this fact as aggravation evidence. An equally plausible
explanation for eliciting this fact is to consider it as mitigation evidence in favor of
appellant due to the delay by the government in bringing the case to trial and the
negative impact on appellant of dealing with soldiers who wanted to “beat him up”
for something outside of his control.

       I also find no prejudice in this case. Assistant trial counsel made no reference
to any of the allegedly impermissible testimony during his sentencing argument.
Appellant was convicted of numerous offenses, including theft from fellow soldiers,
use of drugs, housebreaking, false official statement, disobeying commissioned and
noncommissioned officers, failure to repair, and bigamy. He was facing a
significant maximum punishment and received only a fraction of the potential
maximum sentence. Appellant also cannot show material prejudice “when he
received the protection and benefit of a pretrial agreement that limited his maximum
time in confinement to [fifteen months] regardless of the sentence adjudged by the
court.” United States v. Fisher, 67 M.J. 617, 623 (Army Ct. Crim. App. 2009)
(quoting United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006) (citations
omitted)). Ultimately, I do not find that the military judge’s single question
substantially influenced appellant’s adjudged sentence. See United States v.
Eslinger, 70 M.J. 193 (C.A.A.F. 2011). For these reasons, I respectfully dissent
from my colleagues’ holding of plain error.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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