UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                HAIGHT, PENLAND, and WOLFE
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                    Private First Class RICHARD T. MANRIQUEZ
                            United States Army, Appellant

                                        ARMY 20140893

              Headquarters, Joint Readiness Training Center and Fort Polk
                             Randall Fluke, Military Judge
                  Colonel Jan E. Aldykiewicz, Staff Judge Advocate

For Appellant: Captain Payum Doroodian, JA (argued); Lieutenant Colonel Charles
D. Lozano, JA; Major Christopher D. Coleman, JA; Captain J. David Hammond, JA
(on brief).

For Appellee: Major Anne C. Hsieh, JA (argued); Colonel Mark H. Sydenham, JA;
Major Steven J. Collins, JA; Major Anne C. Hsieh, JA (on brief).


                                           20 May 2016

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of desertion terminated by apprehension
and one specification of larceny of $2,600, in violation of Articles 85 and 121,
Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 921 (2012) [hereinafter
UCMJ]. The court-martial sentenced appellant to a bad-conduct discharge,
confinement for eighteen months, forfeiture of all pay and allowances, and reduction
to the grade of E-1. The convening authority approved the sentence as adjudged and
credited appellant with four days of pretrial confinement. 1 This case was referred to

1
  A pretrial agreement limited confinement to eighteen months, with a provision that
the convening authority would disapprove any adjudged confinement in excess of

                                                                                (continued . . .)
MANRIQUEZ – ARMY 20140893

us for review under Article 66(b), UCMJ. Appellant assigns two errors, both of
which merit discussion. 2

                                  BACKGROUND

       Appellant arrived at Fort Polk, Louisiana on 30 May 2013. On 30 October
2013, appellant packed his belongings and deserted his unit. He did not intend to
return to the Army. On 30 November 2013, the Army issued a deserter warrant for
appellant.

       In August of 2014, while still in a deserter status, appellant got a job as a
cashier at a Wal-Mart in Pineville, Louisiana. From 23-25 September 2014, while
serving as a cashier, appellant illicitly activated $2,600 worth of Wal-Mart gift cards
and took them out of the store. He subsequently used the gift cards to buy
merchandise at Wal-Mart. Wal-Mart detected the theft and notified the Pineville
Police Department, who arrested appellant. On 29 September 2014, the Pineville
Police Department returned appellant to military control pursuant to the deserter
warrant.

                             LAW AND DISCUSSION

      Appellant raises two assignments of error, both calling into question the
providency of his guilty plea to stealing gift cards from Wal-Mart. Specifically,
appellant pleaded guilty to a specification that he:

             [D]id, at or near Pineville, Louisiana, between on or about
             23 September 2014 and on or about 25 September 2014,
             steal Wal-Mart gift cards, of a value of about $2,600.00,
             the property of Wal-Mart.

      During the providence inquiry, appellant described his conduct as follows:



(. . . continued)
twelve months if appellant made restitution to the larceny victim (Wal-Mart) before
the convening authority’s action on the case. As appellant failed to make restitution,
the convening authority approved the sentence as adjudged.
2
 Appellant personally claims, pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), that his sentence was disproportionately severe based on the
circumstances of his case and as compared to other persons he has met while in
confinement. We find the sentence to be appropriate.



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             On August 12th, 2014, I applied for a job at the Wal-Mart
             located in Pineville, Louisiana. I was hired as a full-time
             cashier on August 25th, 2014. . . . [B]eginning on
             September 23d [2014] . . . . I began activating store gift
             cards by using my cash register to place money on the
             cards. I did not pay for the cards, nor did any store
             customers pay for the cards. I wrongfully took gift cards
             belonging to Wal-Mart and used my cash register to place
             money belonging to Wal-Mart on these cards. The funds
             used to place value on the gift cards did not belong to
             myself or any customer. The funds used to place value on
             the gift cards belonged to Wal-Mart.

             Before I was apprehended by civilian law enforcement for
             this offense, I had placed $2,600.00 worth of money using
             my cash register to activate these cards. I intended to
             permanently deprive Wal-Mart of the use and benefit of
             the money placed on these gift cards after activating these
             cards by placing store funds on the cards. I used these
             cards to purchase food, clothing, and other items from the
             store for myself and my family members.

       In the stipulation of fact, appellant agreed that on 23 September 2014, he
“methodically selected Wal-Mart gift cards worth $200.00 from under his register,
activated the cards without paying for them, and placed them into his pocket.” He
further agreed that on 25 September 2014, “he methodically selected six additional
cards and activated them without paying for them.” Appellant stipulated that on the
two separate days he stole “$2,600.00 worth of gift cards.”

                         A. What is the Value of a Gift Card?

       We review a military judge’s decision to accept a plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “It is an
abuse of discretion for a military judge to accept a guilty plea without an adequate
factual basis to support it . . . [or] if the ruling is based on an erroneous view of the
law.” United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (citation omitted).

      In his first assignment of error, appellant asserts that the military judge
abused his discretion in accepting appellant’s guilty plea because gift cards have no
“tangible value” other than the value of the “plastic card.”

       In short, appellant asks us to treat a gift card in a manner similar to a debit,
credit, or access device. Under this theory, when appellant activated and took the
gift cards—or, in his words, “placed money” on the gift cards—he had only engaged

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MANRIQUEZ – ARMY 20140893

in the theft of a piece of plastic of negligible value. Accordingly, the substantial
theft only occurred when appellant used the gift cards to acquire goods from Wal-
Mart. As neither the providence inquiry nor the stipulation of fact adequately
related the value of the goods appellant purchased with the gift cards, this reasoning
would require us to set aside the finding of guilty as to larceny, at least in part.

       Appellant’s argument is not without merit. Gift cards share some of the
characteristics of debit or credit cards. The President has specified that
“[w]rongfully engaging in a credit, debit, or electronic transaction to obtain goods or
money is an obtaining-type larceny by false pretense . . . usually . . . from the
merchant offering them.” Manual for Courts-Martial, United States (2012 ed.)
[hereinafter MCM], pt. IV, ¶ 46.c.(1)(i), (iv); United States v. Williams, 75 M.J. 129,
132 (C.A.A.F. 2016) (“[T]ypically, when larceny is by means of a wrongful credit or
debit transaction, the money or goods were wrongfully obtained from the merchant
or bank, making them the person stolen from.”); United States v. Cimball Sharpton,
73 M.J. 299, 301 (C.A.A.F. 2014); United States v. Lubasky, 68 M.J. 260, 263
(C.A.A.F. 2010). 3 Accordingly, if we were to treat a gift card and debit card
similarly, the substantial theft occurs not when the card is taken, but when the card
is used.

      However, at least in the context of a guilty plea, we decline to adopt
appellant’s view of these offenses.

       First, gift cards are unlike debit and credit cards in that they do not require
any deception to use. Credit and debit cards are issued to persons with unique
account numbers associated with the card and the particular account holder. The
unauthorized use of a credit or debit card requires that (to some greater or lesser
extent) the user falsely represent he has the authority to use the card. This is why
such crimes are usually an “obtaining” type larceny by “false pretenses.” Gift cards,


3
  We note that this case presents entirely different issues than those presented in
Williams, Lubasky, and Cimball Sharpton. On appeal, those cases answered the
question of “whom did the accused steal the goods or money from?” Williams, 75
M.J. at 132. As a larceny specification needs to place an accused on notice of what
he is defending against, a broad reading of these cases is that the specification needs
to allege the person or entity with whom the accused interacted. For a taking
offense, this is usually the person from whose possession or control the accused
removed the property, even if the property is ultimately owned by someone else.
For an obtaining-type offense, which involves theft by deception, this is usually the
entity that the accused initially deceived (e.g., by holding himself out as an
authorized user of the card). However, in this case those concerns are not present,
as appellant interacted at every stage solely with Wal-Mart.



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MANRIQUEZ – ARMY 20140893

similar to gift certificates and coupons, may be used by the bearer without any
representation. In other words, “false pretenses” are not required to use a stolen gift
card. Use of a stolen gift card requires no more deception or false representation
than the use of stolen cash, a stolen gift certificate, or a stolen baseball ticket.
Accordingly, we view this case as a theft by “taking” not “obtaining.”

       Second, it is clear that the illicitly actived gift cards that appellant removed
from Wal-Mart had “value” greater than that of a piece of plastic. “Value is a
question of fact to be determined on the basis of all the evidence admitted.” MCM,
pt. IV, ¶ 46.c.(1)(g)(i) (emphasis added). Here, as this was a guilty plea, we need
not look further than appellant’s own admissions that he “placed $2600.00 worth of
money” on the gift cards and then “stole $2600.00 worth of gift cards.” When
appellant argues in his brief that he “did not ‘place money’ or ‘store funds’ on the
gift cards,” he is disagreeing with facts that he admitted at trial. United States v.
Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995) (it is appropriate to reject facts asserted
on appeal that contradict an appellant’s admissions during a guilty plea). More
broadly, it is clear that activated gift cards have a “market value” that is greater than
the cost of the plastic used to make the card. See, e.g., MCM, pt. IV, ¶
46.c.(1)(g)(iii) (the value of stolen property is determined by market value). An
activated gift card, like a movie ticket, sports ticket, or lottery ticket, is an object
with value. Id. (“Writings representing value may be considered to have the value—
even though contingent—which they represented at the time of theft”).

       Third, our sister courts that have addressed this issue have either directly or
indirectly found that gift cards possess a value beyond their weight in plastic. In
United States v. Perrine, ACM S31972, 2013 CCA LEXIS 234, at *9-11 (A.F. Ct.
Crim. App. 18 Mar. 2013) (unpublished), review denied, 72 M.J. 442 (C.A.A.F.
2013), the Air Force Court of Criminal Appeals specifically rejected the idea that a
gift card “cannot be stolen because it is ‘intangible’ and not ‘capable of being
possessed.’” Under facts that presented identical issues of law in appellant’s case,
the Perrine court found that “appellant did take possession of ‘tangible property’
that had value . . . [when] [h]e walked away from the AAFES customer service
counter carrying a gift card . . . .” Id.

       While Perrine is the only case that specifically addresses the value of gift
cards, other courts have assumed as much. See United States v. Murphy, NMCCA
201300100, 2013 CCA LEXIS 1049 (N.M. Ct. Crim. App. 29 Oct. 2013)
(unpublished) (affirming conviction for theft of a gift card); United States v.
Gordon, ACM S32008, 2013 CCA LEXIS 675 (A.F. Ct. Crim. App. 26 Jun. 2013)
(unpublished) (affirming conviction for gift card theft). Indeed, in Cimball
Sharpton, our superior court summarized the investigation as “reveal[ing] that the
appellant used her [Government Purchase Card] to make about $20,000 in
unauthorized purchases, mostly gift cards.” 73 M.J. at 779. In all of these cases it



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MANRIQUEZ – ARMY 20140893

is clear that the courts view the accused as having taken or obtained something
valued far in excess of a piece of plastic. 4

       Appellant’s admissions that he placed money on the gift cards and then took
$2600 worth of gift cards (with the intent to permanently deprive Wal-Mart of their
value) was sufficient to establish the providency of his plea to larceny.

                                 B. Duplicitous Pleading

       Appellant’s second assignment of error alleges that two larcenies were
improperly aggregated into a single larceny of $2,600.00. Appellant correctly notes
that he stole gift cards on two separate days. However, we nonetheless do not
believe appellant is entitled to relief for two independent reasons.

       First, appellant forfeited this issue by failing to raise it at trial, and any error
does not amount to plain error. Furthermore, by pleading guilty, the appellant
waived this issue. United States v. Schweitzer, 68 M.J. 133, 136 (C.A.A.F. 2009)
(“An unconditional guilty plea generally ‘waives all defects which are neither
jurisdictional nor a deprivation of due process of law.’”) (quoting United States v.
Rehorn, 9 U.S.C.M.A. 487, 488-89, 26 C.M.R. 267, 268-69 (1958)). As this waiver
was part of a negotiated pretrial agreement, we see no basis to exercise our “highly
discretionary power” to notice forfeited and waived error. United States v. Butcher,
56 M.J. 87, 93 (C.A.A.F. 2001).

       Second, as appellant claims that the specification alleges two separate
larcenies, the appropriate remedy at trial for a duplicitous specification would have
been severance. See Rule for Courts-Martial 906(b)(5) (“Severance of a duplicitous
specification into two or more specifications”). Although not as clear as might be
preferred, the stipulation of fact indicates that appellant took thirteen $200 gift cards
totaling $2,600.00. Appellant stipulated that he took six cards on the second day.
Thus, it appears that severance would have resulted in two specifications of larceny,




4
 Although not presented here appellant’s view of the law would be problematic in
other circumstances. Consider, for example, an accused who takes a gift card from
another individual and intentionally destroys the card, preventing its use by the
owner. In such a case no goods are ever obtained from the use of the card. Under
appellant’s view of the law, only a piece of plastic was stolen, even in circumstances
where the owner has suffered an unrecoverable loss of the gift card’s face value.




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MANRIQUEZ – ARMY 20140893

each alleging a theft of over $500.00. 5 Accordingly, we find appellant has suffered
no prejudice from being charged with a single specification of larceny.

                                   CONCLUSION

       Having found no substantial basis in law or fact to question appellant’s pleas,
and finding the sentence appropriate, the findings and sentence as adjudged and
approved by the convening authority are AFFIRMED.

      Senior Judge HAIGHT and Judge PENLAND concur.

                                        FOR THE COURT:




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




5
  This case is therefore distinguishable from United States v. Harding, 61 M.J. 526
(Army Ct. Crim. App. 2005). In that case, the government combined several
larcenies over several weeks and months in order to exceed the $100 (now $500)
threshold for the increased maximum punishment for larceny. Here, appellant stole
multiple gift cards worth an aggregate value of more than $500 on at least one of the
days alleged. The reasonable inference from the stipulation of fact is that he stole
more than $500 on both days alleged. In either case, we fail to find prejudice to a
substantial right of appellant. See UCMJ art. 59(a).



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