UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                         BURTON, CAMPANELLA, and SCHASBERGER
                                  Appellate Military Judges

                                UNITED STATES, Appellee
                                            v.
                             Sergeant MICHAEL J. PAULINO
                              United States Army, Appellant

                                       ARMY 20160388

                               Headquarters, Fort Bragg
             Christopher T. Fredrikson, Military Judge (first arraignment)
          Thomas E. Brzozowski, Military Judge (second arraignment & trial)
               Colonel Jeffrey C. Hagler, Staff Judge Advocate (pretrial)
        Lieutenant Colonel William E. Mullee, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Julie L.
Borchers, JA; Captain Michael A. Gold, JA (on brief); Colonel Mary J. Bradley, JA;
Major Julie L. Borchers, JA; Captain Steven J. Dray, JA (on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick,
JA; Captain Joshua Banister, JA; Captain KJ Harris, JA (on brief).

                                          26 April 2018

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       Appellant challenges his convictions of larceny and attempted larceny on two
separate grounds. 1 First, appellant asserts the findings of guilty are legally and
factually insufficient. Regarding the larceny specifications, appellant claims no
larceny was committed because the bank created a creditor-debtor relationship.
Regarding the attempted larceny charge, he claims there is no evidence to satisfy the
“overt act” requirement for an attempted offense. With respect to the larceny
specifications, we disagree with appellant’s characterization of the offense and the
evidence. With respect to the attempted larceny charge we agree with appellant that

1
 Appellant raises a third assignment of error based on post-trial delay and
personally submits matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), which, after due consideration, merits no discussion or relief.
PAULINO—ARMY 20160388

the record is factually insufficient. Second, appellant argues the military judge
erred by denying the defense’s challenges for cause against seven of the panel
members. We disagree.

       An officer and enlisted panel sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of attempted larceny and two
specifications of larceny, in violation of Articles 80 and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 880, 921 (2012). The panel sentenced appellant to a
bad-conduct discharge, total forfeitures of all pay and allowances, and a reduction to
the grade of E-1. The convening authority disapproved the forfeitures, but approved
the bad-conduct discharge and the reduction to the grade of E-1.

                                  BACKGROUND

                                  A. The Larcenies

      In the fall of 2014, appellant was having financial difficulties. To pay his
$200.00 telephone bill, his friend and coworker, Corporal (CPL) JP, loaned him
money. To pay the bill directly, CPL JP gave appellant his United Services
Automobile Association (USAA) account information and telephone.

       A few weeks later, CPL JP asked appellant to return his money. Appellant did
not have the money but told CPL JP he knew a way to get it. All appellant needed
was for CPL JP to give him his banking information, including his username,
password, and personal identification number (PIN). Appellant told CPL JP he knew
someone who worked at USAA in Texas and could deposit fake checks into
CPL JP’s USAA account. Then, taking advantage of a USAA mobile banking 2
policy, CPL JP could immediately withdraw the money and give it to appellant.
Appellant would then split the funds with the depositor and pay CPL JP back.
Corporal JP agreed, giving appellant the necessary information to enable someone to
access his account to deposit a check.

      A few hours later, appellant told CPL JP his contact had deposited a check
and now they needed to withdraw the funds. The two spent the next several hours
attempting to withdraw $4,983.00. After visiting multiple automated teller machines
and driving to several Walmarts, they were successful. Appellant gave CPL JP
$300.00 (repaying the $200.00 loan and $100.00 for participating in the scheme).

     The next day, appellant told CPL JP another check had been deposited in
CPL JP’s account. As both appellant and CPL JP were unable to leave work,


2
 USAA has a mobile banking application where account holders may deposit a
check by submitting a photograph of the endorsed check. Although the check might
need several days to clear, USAA policy is make the funds immediately available.


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PAULINO—ARMY 20160388

appellant told CPL JP to transfer the money to CPL JP’s wife’s account and have her
withdraw the money and bring it to them. Corporal JP made two transfers totaling
$4,900.00 to his wife’s account, and his wife brought the money from the first
transfer over that day. Corporal JP gave the envelope to appellant who gave a few
hundred dollars to CPL JP and kept the rest.

       On 24 October, CPL JP’s wife brought the rest of the money to her husband at
work. Again, CPL JP gave the money to appellant, who gave him $300.00 and kept
the rest. Appellant told CPL JP to reset his username, password, and PIN so no one
else could access the account. That same day, appellant’s contact deposited a third
check for just under $5,000.00 into CPL JP’s account. The money from the third
check was not withdrawn.

       The next day, CPL JP attempted to make a purchase with his USAA debit
card, but the transaction was denied. When CPL JP called USAA, he was informed
his account was overdrawn by $10,000.00. He then called appellant and informed
him about the situation. Appellant instructed him to say his account had been
hacked. He further threatened CPL JP by asserting he would tell everyone that
CPL JP’s wife concocted the scheme since she was on the security cameras
withdrawing the money.

      Corporal JP went to the Criminal Investigation Command and reported
appellant had stolen $10,000.00 from him. During the course of the investigation,
CPL JP lied repeatedly about his involvement in the scheme. Eventually, CPL JP
admitted he was a knowing participant.

                              B. Challenges for Cause

       The convening authority appointed twelve panel members. During group voir
dire, nine of the twelve members stated they previously used a smartphone
application to deposit checks, ten of the twelve members stated they banked with
USAA, and six of the twelve members used USAA as their primary bank.
Additionally, several members had been victims of financial crimes and other
members had taken courses or training in law or law enforcement.

       At the close of voir dire, the defense raised three individual challenges for
cause, followed by a general challenge for cause against the members who banked
with USAA. 3 The defense asserted USAA membership should be generally


3
  The defense raised individual challenges for cause against Lieutenant Colonel
(LTC) BM, Major (MAJ) CB, and Sergeant Major (SGM) TB. Regarding MAJ CB,
the main reasons the defense challenged him for cause were based on his status as a

                                                                       (continued . . .)


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PAULINO—ARMY 20160388

disqualifying because USAA is the named victim and USAA is a member-owned
organization. As a result, the panel members that bank with USAA are members of
the organization that has potentially been wronged and, therefore, the defense
“believe[d] there is some sort of implied bias for that.”

       Regarding USAA membership, the military judge found that even considering
the mandate to liberally grant challenges, merely being a USAA member does not
rise to the level of implicating either actual or implied bias.

                             LAW AND DISCUSSION

                          A. Legal and Factual Sufficiency

       Article 66(c), UCMJ, establishes our statutory duty to review a record of trial
for legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). Under Article 66(c), UCMJ, we may affirm only those findings of
guilty that we find correct in law and fact and determine, should be affirmed based
on the entire record. Id. The test for legal sufficiency “is ‘whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’”
United States v. Mack, 65 M.J. 108, 114 (C.A.A.F. 2007) (quoting Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979)). When applying this test, we are “bound to
draw every reasonable inference from the record in favor of the prosecution.”
United States v. Craion, 64 M.J. 531, 534 (Army Ct. Crim. App. 2006) (citations
omitted). The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed the
witnesses, [we are] convinced of appellant’s guilt beyond a reasonable doubt.”
Walters, 58 M.J. at 395 (citing United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987)). In weighing factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

      The essential elements of the specification of larceny are: that the appellant
wrongfully took, obtained or withheld property from the owner; the property
belonged to a certain person; the property was of some value; and that the taking
was with the intent to permanently deprive or defraud another person of the use and


(. . . continued)
military police officer and his USAA membership. The military judge found
MAJ CB had never acted in a law enforcement capacity and his work with the
military police was in a non-investigative capacity. The military judge denied the
challenges for cause against LTC BM and MAJ CB, but granted the challenge
regarding SGM TB. The government exercised its preemptory challenge against
MAJ SC and the defense used their preemptory challenge against LTC BM.


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PAULINO—ARMY 20160388

benefit of the property. Manual for Courts-Martial, United States (2012 ed.)
[hereinafter MCM], pt. IV, ¶ 46.b.(1). In addition, to be found liable as an aider or
abettor, the government must prove appellant assisted, encouraged, advised,
instigated, counseled, commanded, or procured another in the commission of the
offense, and that they shared in the criminal purpose or design. MCM, pt. IV,
¶ 1.b.(2)(b).

      On appeal, appellant claims he did not steal anything. Specifically, appellant
argues that because the checks had not cleared, the money in the account was a debt,
and debts cannot be stolen. Appellant’s argument is hard to square with the
envelopes of cash he received.

       There is ample evidence that on two occasions appellant and CPL JP
knowingly had fake checks deposited in CPL JP’s USAA account, and based on
those deposits withdrew USAA’s money. Appellant’s role was paramount as he both
suggested the scheme and had the contact to deposit the worthless checks. Further,
appellant received most of the funds that were stolen. Appellant argues this does not
constitute larceny because, at the time of the withdrawal, USAA was in effect
lending CPL JP the money until the check cleared. We find this argument
unpersuasive. Appellant obtained funds that belonged to USAA through a scheme
that began with providing CPL JP’s account information to his contact and ended
with appellant telling CPL JP to say his account was hacked.

       While the evidence clearly shows appellant committed the two specifications
of larceny, the same cannot be said of the attempted larceny. The defense alleges
and the government concedes the record is factually insufficient with regard to the
charge of attempted larceny. We agree.

       One of the essential elements of attempt is that appellant committed a “certain
overt act” that was a substantial step towards the commission of the larceny. MCM,
pt. IV, ¶ 4.b.(1). At trial the government alleged the overt act was appellant and
CPL JP discussing the check being deposited in CPL JP’s account. The testimony at
trial does not support this finding. Corporal JP denied that appellant approached
him about a third check, and there was no evidence to the contrary. In fact, prior to
the third check the evidence shows appellant counseled CPL JP to change his
account information so no one would be able to access the account. Therefore, we
find the Specification of Charge I is legally and factually insufficient.

                             B. Challenges to the Panel

       At trial appellant challenged three panel members for actual and implied bias
and then challenged the seven other panel members who banked with USAA for
actual bias. The sole basis was being a member of USAA.




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PAULINO—ARMY 20160388

       Actual bias is a question of fact to be decided by the trial judge on the basis
of the responses of the member and any other evidence presented at the court-
martial. United States v. Woods, 74 M.J. 238, 243 (C.A.A.F. 2015). The test for
implied bias is objective, viewing the circumstances through the eyes of the public
and focusing on the perception or appearance of fairness. United States v. Bagstad,
68 M.J. 460, 462 (C.A.A.F. 2010). “We look to determine whether there is ‘too high
a risk that the public will perceive’ that the accused received less than a court
composed of fair, impartial, equal members.” United States v. Moreno 63 M.J. 129,
134 (C.A.A.F. 2006) (citing United States v. Wiesen, 56 M.J. 172, 176 (C.A.A.F.
2001)).

       There is no basis for us to disturb the trial judge’s finding that the panel
members exhibited no actual bias. The defense questioned the panel members and
did not elicit any responses that would suggest their membership in USAA would
cause them to have preconceived notions regarding appellant. The trial judge was
able to gauge their responses and assess their demeanor and sincerity. We conclude
the trial judge did not abuse his discretion in denying the challenges for cause on
actual bias grounds.

       We also conclude the trial judge did not err in refusing to grant the challenge
against these members on the basis of implied bias. The trial judge clearly
articulated his consideration of the liberal grant mandate in his rejection of the
challenge on both actual and implied bias grounds. Thus, we grant more deference
to his decision than we would if he had failed to articulate his consideration of this
principle. 4

       To conclude that merely being a member of USAA would make the public
question whether appellant received a fair trial is farfetched. It would be akin to
finding that a panel member could not sit on a court-martial when the Army is the
victim. When a case involves theft of military equipment, soldiers sit on the panel
even though their employer is the victim. One could argue that having equipment
they need in combat is more likely to have an impact on the individual panel member
than a $10,000.00 theft from a multi-billion dollar institution. Similarly, for cases
brought under Article 134, UCMJ, alleging that conduct was service discrediting, we
allow soldiers to serve as panel members even as the alleged behavior would by
definition cause shame and approbation to the service of which they are a member.



4
 The standard for reviewing rulings on challenges involving implied bias is “less
deferential than abuse of discretion, but more deferential than de novo review.”
Moreno, 63 M.J. at 134. Where a military judge has addressed implied bias by
applying the liberal grant mandate on the record, that military judge will accordingly
be granted “more deference on review than one that does not.” United States v.
Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).


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PAULINO—ARMY 20160388

       That is not to say there could never be a case where being a member of a
financial institution could lead to actual or implied bias, but appellant has brought
forth no facts that would lead to such a conclusion in this case. Therefore, we find
the military judge did not abuse his discretion by denying appellant’s challenges for
cause against any of the panel members.

                                   CONCLUSION

      On consideration of the entire record, the findings of guilty of the
Specification of Charge I and Charge I are set aside, and Charge I is dismissed. The
remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986),
the sentence is AFFIRMED. All rights, privileges, and property, of which appellant
has been deprived by virtue of that portion of the findings set aside by this decision,
are ordered restored.

      Senior Judge BURTON and Senior Judge CAMPANELLA concur.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




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




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