              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.

                        STEVEN P. SATHAM
                  SERGEANT (E-5), U.S. MARINE CORPS

                            NMCCA 201500078
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 31 October 2014.
Military Judge: LtCol E.A. Harvey, USMC.
Convening Authority: Commanding Officer, 1st Battalion,
11th Marines, 1st Marine Division, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol D.R. Kazmier,
USMC.
For Appellant: CAPT James A. Talbert, JAGC, USN.
For Appellee: LCDR Justin C. Henderson, JAGC, USN; Capt
Matthew Harris, USMC.

                           10 November 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a special court-martial,
convicted the appellant, in accordance with his pleas, of one
specification of making a false official statement, two
specifications of larceny, and three specifications of failing
to pay a just debt, in violation of Articles 107, 121, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 907, 921, and
934. The military judge sentenced the appellant to six months’
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority approved the sentence as
adjudged and, pursuant to a pretrial agreement, suspended all
confinement in excess of 60 days.

     The appellant raises one assignment of error, claiming that
the military judge abused her discretion by accepting the
appellant’s guilty pleas to larceny since there was insufficient
evidence to support a finding that the appellant stole the
property of the victim alleged in the specifications.1 We agree,
and will order relief in our decretal paragraph.

     After carefully considering the record of trial, the
submissions of the parties, and the appellant’s assignment of
error, we are convinced that, following our corrective action,
the findings and sentence are correct in law and fact and that
no error materially prejudicial to the substantial rights of the
appellant remains. Arts. 59(a) and 66(c), UCMJ.

                                Background

     Due to ongoing financial struggles related to gambling, the
appellant was at one point living in the home of Corporal (Cpl)
F. The appellant repaid this hospitality by secretly and
without permission photographing Cpl F’s ATM-debit card and
using the numbers thereon to obtain two Western Union wire
transfers of $1000.00 each from Cpl F’s bank account. The
appellant received the proceeds of the transfers in cash, first
at the Marine Corps Exchange, then at a local casino. Cpl F
learned of the transfers after Cpl F attempted to use his ATM-
debit card, but was declined. He immediately reported the loss
to his bank, who, within days, restored the missing funds to the
account. The record does not reveal whether the loss was
ultimately borne by the bank or Western Union.

     During the ensuing command investigation, the appellant
falsely claimed he was living with a friend in San Diego. In
truth, when not at Cpl F’s home, the appellant was living out of
his car. The investigation also revealed that the appellant had
borrowed large sums of money from junior Marines he mentored or


1
  The appellant presents this issue as one of factual sufficiency. When
factual issues arise in the context of a guilty plea, “the issue must be
analyzed in terms of providence of [the] plea, not sufficiency of the
evidence.” United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996).
Thus, we reframe the alleged error and review accordingly.
                                     2
supervised, and that, through evasion and excuses, he had
dishonorably failed to repay these debts when due.

     In its sentencing case, the Government presented testimony
of Cpl F and the appellant’s supervisor, Gunnery Sergeant
(GySgt) P. While both discussed the effects of the alleged
larceny on the unit, GySgt P also described the negative impact
of the appellant’s Article 134 offenses. The defense presented
evidence of the appellant’s otherwise outstanding performance
and high potential for rehabilitation, as well as the steps he
has taken to repay the debts. One witness described the
appellant’s heroic and selfless actions in combat that resulted
in his receiving the Navy and Marine Corps Achievement Medal
with Combat “V.”

                           Discussion

     The appellant argues that Cpl F was not the victim of the
alleged larcenies, and, therefore, the military judge erred in
accepting the appellant’s pleas to the specifications under
Charge II. The Government counters that: first, the appellant’s
unconditional guilty plea waived the issue; and, second, even if
the issue was not waived, Cpl F is the proper victim here, as he
had a superior possessory interest to the funds in his account.

Waiver.

     The Government’s argument is tantamount to saying that an
unconditional guilty plea deprives this court of its ability to
review the factual basis for the plea. We reject this position,
as it would undermine our responsibility to ensure the
providence inquiry establishes not only that the accused himself
believes he is guilty, but also that the factual circumstances
objectively support the plea. See United States v. Holmes, 65
M.J. 684, 689 (N.M.Ct.Crim.App. 2007) (holding that appellant’s
belief and in-court admission that a statement was “official”
did not waive appellate review of the issue).

Providence of Plea.

     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 this
discretion if, during the providence inquiry, she does not
ensure the appellant provide an adequate factual basis to
support the plea. See United States v. Care, 40 C.M.R. 247
(C.M.A. 1969).

                                3
     In establishing a factual basis, the military judge must
explain each element of the offense charged and question “the
accused about what he did or did not do, and what he intended .
. . .” United States v. Davenport, 9 M.J. 364, 366 (C.M.A.
1980). In doing so, “[i]t is not enough to elicit legal
conclusions. The military judge must elicit facts to support
the plea of guilty.” United States v. Jordan, 57 M.J. 236, 238
(C.A.A.F. 2002) (citation omitted). We will not reject the plea
unless there is a substantial basis in law or fact for questioning
the guilty plea. United States v. Moon, 73 M.J. 382, 386
(C.A.A.F. 2014) (citing United States v. Passut, 73 M.J. 27, 29
(C.A.A.F. 2014)).

     The appellant was charged with stealing, on each of two
consecutive days, “$1000.00, U.S. currency, the property of [Cpl
F], U.S. Marine Corps.”2 At trial, the parties stipulated that
the money was taken “directly out of [Cpl F’s] account,” that
the ATM-debit card “is not a line of credit extended by a
financial institution or bank,” and that “[Cpl F] is the victim
of this larceny.”3 During the Care inquiry, the military judge
listed among the elements of the two Article 121 offenses that
the funds were obtained “from the possession of Pacific Marine
Credit Union” and “belonged to [Cpl F].”4 The military judge
defined “possession” to be “[c]are, custody, management or
control,” and “owner” to be any person or entity, who at the
time of the obtaining, had a greater right to possession than
[the appellant].”5 The appellant subsequently agreed with the
military judge’s statements that the funds were wrongfully
obtained from “the possession of Pacific Marine Credit Union”
and taken “from [Cpl F’s] account.”6 There was no further
inquiry on this point.

     The appellant’s agreement with the military judge’s legal
conclusion regarding the victim’s identity in this case does not
make that conclusion correct. The Court of Appeals for the
Armed Forces (CAAF) has consistently held that, absent unusual
circumstances, an appellant’s unauthorized use of a debit card
to obtain goods is a larceny of those goods from the bank or
merchant, not the individual account holder. See United States
2
    Charge Sheet.
3
    Prosecution Exhibit 11 (Stipulation of Fact) at 1.
4
    Record at 74 and 78.
5
    Id.
6
    Id. at 80.
                                        4
v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010); see also United States
v. Endsley, 74 M.J. 216 (C.A.A.F. 2015) (summary disposition)
and United States v. Gaskill, 73 M.J. 207 (C.A.A.F. 2014)
(summary disposition). Lubasky exemplifies one such unusual
circumstance: where the appellant has a legal, if limited,
right to access the account’s funds. In Lubasky, the appellant,
under the guise of assisting the victim, was named a co-owner of
the victim’s account. The appellant then abused that status to
remove funds for his own personal, unauthorized use. This was
not the case in either Gaskill or Endsley, whose facts closely
mirror those in the present case.

     The Government seeks to distinguish Gaskill and Endsley in
that they dealt with the theft of goods, not currency. But in
this context, the distinction is meaningless. The CAAF in
Lubasky found the following language from the Manual for Courts-
Martial instructive: “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.” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002 ed.),
Part IV, ¶46(c)(1)(h)(vi).7 We find the next sentence of that
subparagraph no less instructive: “Such use to obtain money or
a negotiable instrument (e.g., withdrawing cash from an
automated teller or a cash advance from a bank) is usually a
larceny of money from the entity presenting the money or a
negotiable instrument.”8 Id. (emphasis added). Whether the
object of the larcenous transaction is a new toaster or a bundle
of cash is irrelevant——absent unusual circumstances, such as in
Lubasky, the account owner has no superior interest in either
item.

     In both Endsley and Gaskill the CAAF noted that “the proper
victim[s]” in those cases were “the merchants who provided the
goods and services . . . , not the debit cardholder,” yet “the
charge sheet, stipulation of fact, and the providence inquiry
focused on the [account holders] as the victim[s], and there was
no discussion on the record whether the merchants were
victimized.” Endsley, 74 M.J. at 216; Gaskill, 73 M.J. at 207.
Such is the case here, except that Cpl F being reimbursed by his
bank further strengthens the argument that the bank or Western
Union, not Cpl F, was the “proper victim.”


7
  The same language is in the current edition of the Manual at Part IV,
¶ 46c(1)(i)(vi).
8
    Id.
                                      5
     We thus find there is a substantial basis in law for
questioning the pleas of guilty to both specifications under
Charge II. Accordingly, we find the military judge abused her
discretion in accepting those pleas.

                      Sentence Reassessment

     Courts of Criminal Appeals (CCAs) can often “modify
sentences ‘more expeditiously, more intelligently, and more
fairly’ than a new court-martial[.]” United States v.
Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013) (quoting Jackson v.
Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCAs “act
with broad discretion when reassessing sentences,” and the CAAF
“will only disturb the [lower court’s] reassessment in order to
prevent obvious miscarriages of justice or abuses of
discretion.” Id. (citations and internal quotation marks
omitted).

     Reassessing a sentence is only appropriate if we are able
to reliably determine that, absent the error, the sentence would
have been at least of a certain magnitude. United States v.
Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). 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 base these determinations on the totality of the
circumstances of each case, 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.

    (3) Whether the nature of the remaining offenses
    captures the gravamen of criminal conduct included
    within the original offenses and, 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.

                                6
Winckelmann, 73 M.J. at 15-16.

     Under all the circumstances presented, we find that we can
reassess the sentence and that it is appropriate for us to do
so. Although the two larcenies were far more serious than the
remaining offenses, and the preponderance of the Government’s
sentencing evidence would no longer be relevant,9 other factors
favor reassessment by this court. First, the appellant elected
to be sentenced by a military judge. We are more likely to be
certain of what sentence the military judge would have imposed
as opposed to members. Second, we have extensive experience and
familiarity with the remaining convictions, as none presents a
novel issue in aggravation. Third, the evidence in aggravation
regarding the effect of the appellant’s debts on unit
performance remains. Taking these facts as a whole, we can
confidently and reliably determine that, absent the error, the
military judge would have sentenced the appellant to at least
confinement for 60 days and reduction to pay grade E-3.
Finally, we conclude that a sentence of confinement and
reduction in rank is an appropriate punishment for the remaining
offenses and this offender, but that a bad-conduct discharge is
not——thus satisfying the Sales requirement that the reassessed
sentence not only be purged of error, but appropriate. Sales,
22 M.J. at 308.

                                    Conclusion

     The findings of guilt as to Charge II and its
specifications are set aside and Charge II and its
specifications are dismissed. The remaining findings of guilty
are affirmed. We affirm only so much of the sentence as
includes 60 days’ confinement and reduction to pay grade E-3.

                                           For the Court



                                           R.H. TROIDL
                                           Clerk of Court


9
  The Government argues that evidence of the larcenies would still be
admissible under RULE FOR COURTS-MARTIAL 1001(B)(4), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), to show why the appellant lied regarding his living
arrangements. While this may be correct, the evidence would, at most, only
be relevant to show a significant adverse impact on the command’s
investigation, not a financial or emotional impact on Cpl F.
                                          7
