          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201600038
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.
                        JOSEPH B. FAGGIOLE
                    Sergeant (E-5), U.S. Marine Corps
                                Appellant
                         _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Lieutenant Colonel David M. Jones, USMC.
     For Appellant: Lieutenant R. Andrew Austria, JAGC, USN .
          For Appellee: Major Tracey L. Holtshirley, USMC;
                   Captain Cory A. Carver, USMC.
                       _________________________

                         Decided 31 October 2016
                         _________________________

   Before M ARKS , F ULTON , and G LASER -A LLEN , Appellate Military
                                Judges
                       _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

FULTON, Judge:
    A military judge sitting as a general court-martial convicted the
appellant, in accordance with his pleas, of one specification of unauthorized
absence, one specification of obstruction of justice, one specification of bank
fraud, and three specifications of larceny, in violation of Articles 86, 121, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 921, and
934. The military judge sentenced the appellant to be reduced to pay grade E-
1, total forfeitures of pay and allowances, 20 months’ confinement, and a
dishonorable discharge.
                  United States v. Faggiole, No. 201600038


    The appellant raises the following three assignments of error: First, that
the military judge abused his discretion by accepting his guilty pleas to
larceny because account holders rather than financial institutions were
alleged to have been the victims of his larceny. Second, he alleges that his
conviction for both bank fraud and larceny represents an unreasonable
multiplication of charges. Last, he alleges that a sentence that includes a
punitive discharge is inappropriately severe. We find no error and affirm.
                              I. BACKGROUND
    The appellant devised a novel and complex scheme to steal money. He
falsely told three other Marines that he was unable use his ATM card to
withdraw money from his own account and asked for their help. He told these
Marines that he would transfer money from his Navy Federal Credit Union
(NFCU) account to their accounts, and that they were to then withdraw the
money from their accounts and give it to him. Indeed, the appellant did
transfer money to these Marines’ accounts. But, unbeknownst to the three
helpful Marines, the money hadn’t come from the appellant’s own bank
account. Rather, using personal information available to him as a recruiter as
well as through Facebook, the appellant impersonated recruits who were also
NFCU account holders. Representing himself as these recruits to NFCU, he
directed the transfer of money from the recruits’ accounts to the accounts of
the Marines who had agreed to help him.
   In addition to transferring money to the three Marines’ accounts, the
appellant also transferred money from the recruits’ accounts into his mother’s
bank account.
A. Larceny from MF
    The first Marine who agreed to help the appellant withdraw money was
MF. The appellant told MF that his ATM card was not working and that he
needed cash. The appellant asked MF to withdraw cash from his own account
and told him that he would reimburse him by transferring money from
Sergeant Faggiole’s own account to MF’s. On six occasions, MF used an ATM
to withdraw cash from his own account and gave the cash, totaling $1,800, to
the appellant. The appellant reimbursed MF by fraudulently transferring
money from a recruit’s account to MF’s account. MF believed that his account
was being replenished from the appellant’s account.
B. Larceny from DF
    The second Marine who agreed to help the appellant withdraw money was
DF. The appellant told DF that his ATM card was not working and that he
could not withdraw cash. DF agreed that if the appellant transferred money
into DF’s account, DF would withdraw money from his own account and give
it to the appellant. On four occasions, the appellant caused money to be

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placed in DF’s account, and on four occasions DF withdrew money and gave it
to the appellant. On the first of these occasions, DF withdrew $400 from an
ATM and gave the appellant the money in cash. On the other three occasions,
DF wired the money to the appellant using Western Union. Altogether, the
appellant received $1,725 from DF. DF did not know that the money being
deposited in his account had not come from the appellant’s account but
instead had been fraudulently transferred by the appellant from the accounts
of recruits.
C. Larceny from WD
    The third Marine who agreed to help the appellant withdraw money was
WD. The appellant told WD that his ATM card was not working, and that he
needed cash. The appellant told WD that if WD would wire money to him, the
appellant would pay WD back by transferring money from his account to
WD’s. WD wired the appellant a $275.00 money order, and the appellant
fraudulently transferred money from a recruit’s account to WD’s account. WD
believed that he would be reimbursed with money from the appellant’s bank
account.
                               II. DISCUSSION
A. Did the appellant steal money from MF, DF, and WD?
    In his first assignment of error, the appellant alleges that the military
judge erred by accepting the appellant’s guilty pleas to larceny. We review a
military judge’s acceptance of a guilty plea for an abuse of discretion. United
States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). We will not overturn a
military judge’s acceptance of a guilty plea unless the record of trial shows a
substantial basis in law or fact for questioning the guilty plea. United States
v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
    The appellant contends that MF, DF, and WD were not properly named
as larceny victims in the specifications under Charge IV because they did not
have a possessory interest in the money superior to that of the appellant’s,
and because no special circumstances existed that would have justified an
alternative charging theory.
    The Court of Appeals for the Armed Forces (CAAF) recently observed that
“lower courts continue to flounder and misstep” in identifying the appropriate
party to be named as a victim in a larceny specification. United States v.
Williams, 75 M.J. 129, 132 (C.A.A.F. 2016). Wrongfully engaging in a credit,
debit, or electronic transaction to obtain money or a negotiable instrument is
usually a larceny of money from the entity presenting the money or
negotiable instrument. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.), Part IV, ¶ 46.c.(1)(i)(vi). Other theories of charging may be appropriate,
or even necessary, as long as the specification alleges the accused wrongfully

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obtained money from a person or entity with a superior possessory interest.
Williams, 75 M.J. at 132. The mere fact that a person or entity experiences a
loss or other consequence as a result of a larceny is neither necessary nor
sufficient to make that person or entity the charged victim. Id. at 130 (“[A]n
Article 121, UCMJ, conviction does not turn on identifying the ‘victims,’
‘impact,’ and ‘loss’ as those terms are commonly used and employed.”). The
test is whether the accused received, as a result of a false pretense, property
from a person or entity with a right to possess the property superior to that of
the accused. Id. at 132.
    Although the appellant used one overarching scheme to steal money from
MF, DF, and WD, the method by which he received the money from each was
slightly different, and requires separate analysis.
   1. Larceny from MF
    The appellant pleaded guilty to stealing from MF, admitting that he
falsely told MF that he could not withdraw funds from his own account and
that he would transfer funds from his account to MF’s. Because of this false
pretense, MF withdrew cash from an ATM and gave the cash to the
appellant. Appellant now alleges that NFCU, not MF, should have been
named in the specification as the victim. The appellant contends that NFCU
retained a superior interest in the money MF withdrew, and that “NFCU
suffered the actual loss of funds, not MF.”1
    We find that MF is appropriately named as the victim of this larceny.
First, it is far from clear that this larceny is a “credit, debit, or electronic
transaction” as contemplated by the Manual for Courts-Martial. The
appellant did not use a credit or debit card to obtain money from a financial
institution. Rather, he made a false representation to MF who, because of the
false representation, handed him currency. As for the claim that NFCU
suffered the actual loss of funds, we find this possibility irrelevant. The fact
that NFCU might have suffered a financial consequence does not necessarily
make that institution the appropriate victim named in the specification. Id.
at 132.
    The appellant’s claim that NFCU had a superior possessory interest in
the money is also unpersuasive. MF withdrew money from his own account.
He possessed this money in good faith before giving it to the appellant. There
is no reason for us to trace the source of the money through MF, NCFU, and
the recruit who the appellant impersonated in an attempt to determine who
among all the victims had the superior possessory interest. Whatever MF’s
possessory interest was in relation to the other victims’ interests, it was
certainly superior to the appellant’s. Even if NFCU had an interest superior

   1   Appellant’s Brief of 4 May 2016 at 13.

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                  United States v. Faggiole, No. 201600038


to MF’s, “[t]wo legal interests may coexist in the same property and the
invasion of either may sustain a larceny prosecution.” United States v. Leslie,
13 M.J. 170, 172 (C.M.A. 1982); see also United States v. Faircloth, 45 M.J.
172, 174 (C.A.A.F. 1996) (noting that a co-payee on a check has a separate
possessory interest subject to invasion by other payee); People v. Hansen, 192
N.E.2d 359, 368 (Ill. 1963) (holding that where property is held in bailment,
either the bailor or the bailee may be considered the victim of a theft). In
short, the appellant used a false pretense to obtain money from MF, and MF’s
possessory interest in the money was superior to the appellant’s. We find that
the military judge did not abuse his discretion in accepting the appellant’s
guilty plea to Specification 5 of Charge IV.
   2. Larceny from DF
    The appellant used the same basic scheme with DF on four different
occasions. On the first of these, DF responded to the false pretense by
withdrawing cash from an ATM and giving it to the appellant. We find that
this constituted a larceny from DF for the reasons the same fact pattern
constituted a larceny from MF.
    The other three occasions, DF wired the money to the appellant using
Western Union. The appellant now argues that Western Union or NFCU
should have been named in the specification as the victims of this larceny.
We disagree. We find that although Western Union was involved in the
transfer, the appellant’s actions here do not constitute “credit, debit, or
electronic transactions to obtain money” as that expression is used in the
Manual for Courts-Martial, and that the government need not have alleged
that Western Union or NFCU was the victim of the larceny. The CAAF
explained in Williams that “credit, debit or electronic transactions” are
typically those in which the goods or money belong to the merchant or bank,
“and the defendant merely uses the credit or debit card, falsely representing
herself as the cardholder, as a means to commit the larceny.” Williams, 75
M.J. at 132 (citation omitted). That is not what this appellant did. The
appellant did not falsely represent himself as someone else to Western Union
or to a bank to get money. Rather, he falsely told DF that he could not access
his own account and, as a result of this false pretense, DF wired money to the
appellant.
    This specification is less analogous to Williams and more analogous to
cases in which service members steal increased housing allowance by falsely
pretending to be married. A service member who pretends to be married and
wrongfully receives money in his account does not steal from the bank when
he withdraws the stolen money from his account at an ATM. See generally
United States v. Antonelli, 35 M.J. 122, 127 (C.M.A. 1992) (noting that
allowances which Antonelli was not entitled to were “property of the United

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States”). Rather, he has made a false pretense to the government and
induced the government to transfer money to him. See generally United
States v. Hall, 74 M.J. 525, 527-31 (A.F. Ct. Crim. App. 2014) (entering into a
“sham marriage” and receiving a housing allowance was larceny by false
pretenses of military property of the United States). We find that when the
appellant induced DF to wire him money through the use of a false pretense
directed at DF, the appellant stole that money from DF.
   3. Larceny from WD
    The appellant used this same scheme on WD one time. He falsely told WD
that he could not use his ATM card, and asked WD to send him money. WD
sent the appellant a $275 money order. As was the case with the theft from
DF, we find that the appellant did in fact steal money from WD, and that WD
is appropriately named as the victim in the specification. There is no evidence
in the record that the appellant made any false pretense to any bank or other
financial institution that caused it to give the appellant money. WD was
properly named in the specification as the victim of this larceny.
    We find no substantial basis in law or fact to question any of the
appellant’s three pleas of guilty to larceny and conclude the military judge
did not abuse his discretion by accepting them. See Inabinette, 66 M.J. at 322.
B. Unreasonable multiplication of charges
    The appellant next contends that his convictions for both bank fraud and
larceny constitute an unreasonable multiplication of charges. Although the
pretrial agreement prevented him from raising the issue at trial, the military
judge raised the issue with counsel to solicit their views. After considering
the factors announced in United States v. Quiroz, 55 M.J. 334, 338-39
(C.A.A.F. 2001), the military judge found that the charges and specifications
do not represent an unreasonable multiplication of charges. We agree.
   We consider five factors when determining if the government has
unreasonably multiplied charges: (1) Did the accused object at trial? (2) Is
each charge and specification aimed at distinctly separate criminal acts? (3)
Does the number of charges and specifications misrepresent or exaggerate
the appellant's criminality? (4) Does the number of charges and specifications
unfairly increase the appellant's punitive exposure? (5) Last, is there any
evidence of prosecutorial overreaching or abuse in the drafting of the
charges? Quiroz, 55 M.J. at 338-39. These factors are weighed together, and
“one or more factors may be sufficiently compelling.” United States v.
Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).
   Applying the Quiroz factors to this case, we find that the convictions for
bank fraud (charged under Article 134, UCMJ as a violation of 18 U.S.C. §


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1344) and larceny do not represent an unreasonable multiplication of
charges.
   First, we note that the appellant did not object at trial. While we do not
apply a blanket forfeiture rule, this factor weighs against the appellant.
    We find that the second and third factors cut against the appellant as
well, because the two charges are aimed at distinctly separate criminal acts.
The facts underlying the bank fraud conviction are distinct from the facts
that constitute the appellant’s larcenies. The appellant admitted that he
committed bank fraud by impersonating NFCU customers, by logging in to
NFCU customers’ accounts without their permission, and by transferring
funds from their accounts to his mother and to other Marines. Although
commission of some of these acts facilitated the larcenies the appellant was
convicted of, the acts constituting the offense are distinct. The bank fraud
statute protects the government’s interest in the soundness and integrity of
financial institutions, which is a different purpose than Article 121, UCMJ.
See United States v. Lewis, 67 F.3d 225, 230 (9th Cir. 1995). Indeed, NFCU
did suffer a financial consequence as a result of the appellant’s bank fraud.
    Turning to the fourth factor, the appellant faced an additional 30 years of
confinement as a result of being charged with bank fraud. This is a large
increase in punitive exposure. But we are not convinced it is an unfair
increase, because the potential punishment serves to deter a distinct harm.
Finally, the record contains no indications of prosecutorial overreaching.
    Taken together, we find that the military judge did not abuse his
discretion by finding that convictions for larceny and bank fraud do not
constitute an unreasonable multiplication of charges in this case.
C. Sentence appropriateness
   The appellant argues that a sentence that includes a punitive discharge is
inappropriately severe. We disagree.
   We review sentence appropriateness de novo. United States v. Baier, 60
M.J. 382, 384-85 (C.A.A.F. 2005). Under Article 66(c), UCMJ, this court
independently reviews sentences within its purview and only approves that
part of a sentence which it finds should be approved. Id.
   Our review of the facts of this case leaves us convinced that the
appellant’s sentence is appropriate. The appellant used the trust placed in
him as a recruiter to engage in an elaborate scheme to steal money. Having
been entrusted with sensitive personal information as a recruiter, the
appellant used that information to impersonate bank customers and transfer
money out of their accounts. He repeatedly involved other Marines who
trusted him in his scheme and obtained money from them. Then the


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appellant absented himself from his place of duty and returned only upon
being apprehended.
    Although the appellant faced up to 47 years of confinement, he was
awarded 20 months—a small fraction of the maximum. We find that a
sentence of 20 months’ confinement, reduction to pay grade E-1, total
forfeiture of pay and allowances, and a dishonorable discharge is appropriate.
                              III. CONCLUSION
   The findings and the sentence are affirmed.
   Senior Judge MARKS and Judge GLASER-ALLEN concur.
                               For the Court




                               R.H. TROIDL
                               Clerk of Court




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