               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.
                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        CESAR CORTEZ
            GUNNERY SERGEANT (E-7), U.S. MARINE CORPS

                            NMCCA 201300462
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 16 August 2013.
Military Judge: Col Howard Russell, USMC.
Convening Authority: Commanding Officer, Wounded Warrior
Battalion (WEST), Wounded Warrior Regiment, Camp Pendleton,
CA.
Staff Judge Advocate's Recommendation: Maj T.H. Campbell,
USMC.
For Appellant: LtCol Richard Belliss, USMCR.
For Appellee: CDR Mary Grace McAlevy, JAGC, USN; Maj Crista
Kraics, USMC.

                              30 June 2014

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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 making
a false official statement and larceny, in violation of Articles
107 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 907
and 921. The military judge sentenced him to nine month’s
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority approved the sentence and,
except for the punitive discharge, ordered it executed. A
pretrial agreement had no effect on the adjudged sentence.

     The appellant’s sole assignment of error is that the
military judge abused his discretion in accepting the
appellant’s guilty plea to the larceny charge. After careful
consideration of the record of trial, the assignment of error,
and the pleadings of the parties, we conclude that the findings
and the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.

                           Background

     A supply chief at his battalion, the appellant’s duties
included purchasing consumable supplies at the ServMart store on
base. Between January 2012 and January 2013, the appellant
signed out the ServMart card from his unit and used it to make
unauthorized purchases of a total value of approximately
$14,000.00, the cost borne by the appellant’s unit.

     At trial, he pleaded guilty to stealing “unit funds,
military property of value more than $500, property of the U.S.
Marine Corps.” Charge Sheet. During the providence inquiry,
the military judge inquired as to which theory of larceny
applied – a taking or obtaining. Record at 39-40. Both trial
and defense counsel agreed that the appellant’s conduct fit
either a taking or obtaining theory. Id. at 40. Later, both
the appellant and his counsel agreed with the military judge
that the appellant’s conduct constituted a “taking” within the
meaning of Article 121, UCMJ, because his unit and ultimately
the Marines Corps were obligated to pay for the appellant’s
unauthorized purchases. Id. at 48.

                            Analysis

     We review the military judge’s decision to accept the
appellant’s plea of guilty for an abuse of discretion. United
States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). We will
only disturb a guilty plea when the record of trial shows a
substantial basis in law or fact to question the plea. United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

     The appellant argues that his guilty plea was improvident
because he admitted to stealing from the wrong victim, i.e. the
Marine Corps as opposed to ServMart. This error, he argues,

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mischaracterizes his crime as a larceny by taking rather than a
larceny by obtaining. Citing the Manual, he contends that
larceny using a credit or debit card is usually considered a
larceny from the merchant offering the goods that were purchased
with the card. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Part IV, ¶ 46(c)(1)(b)(vi). In further support of his position,
he cites United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010),
a case in which the Court of Appeals for the Armed Forces (CAAF)
overturned a credit card larceny conviction after the court
found that the true victim of that crime was either the card
issuer or the business establishments where the goods were
purchased instead of the cardholder.

     We find the appellant’s reliance on Lubasky misplaced. We
begin by noting that, unlike Lubasky, this case involves a
guilty plea. Furthermore, we also note that in Lubasky there
were two distinct types of larcenies involved. Some
specifications involved Chief Warrant Officer Lubasky’s use of
credit and/or debit cards without the account holder’s
permission or knowledge. Other specifications focused on
occasions where the account holder gave Chief Warrant Officer
Lubasky limited permission to use the card but he exceeded that
authority by making unauthorized purchases and transactions.

     The CAAF distinguished between those transactions made with
cards to which appellant had no lawful access and those
transactions involving the card that he had limited
authorization to use. The CAAF found the former constituted a
larceny from the merchant as described in the Manual. But the
court found the latter a larceny from the account holder since
Chief Warrant Officer Lubasky had limited authority to use the
card. Id. at 264-65. Thus, we find the appellant’s reliance on
Lubasky misplaced as he exceeded his authority to use his unit’s
ServMart card.

     Furthermore, because the appellant pleaded guilty “the
issue must be analyzed in terms of the providence of his plea,
not sufficiency of the evidence.” United States v. Faircloth,
45 M.J. 172, 174 (C.A.A.F. 1996). A factual predicate for a
guilty plea is sufficiently established if “‘the factual
circumstances as revealed by the accused support that plea . . .
.’” Id. (quoting United States v. Davenport, 9 M.J. 364, 367
(C.M.A. 1980)).

     The appellant admitted that he regularly used his unit’s
ServMart card as a part of his official duties as the unit
supply chief. He admitted that on the charged occasions he

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signed the card out using his own name but exceeded his
authority by making purchases for his own personal gain. Both
he and his defense counsel agreed that his unit would reimburse
ServMart for the cost of his unauthorized purchases and
therefore his unit, and ultimately the Marine Corps, was the
economic victim of his crime. Therefore, we find no substantial
basis in law or fact to question his plea. Lubasky, 68 M.J. at
264-65.1

                                 Conclusion

     The findings and the sentence as approved are affirmed.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




1
  We note that in United States v. Sharpton, __ M.J. ___, 2014 CAAF LEXIS 618
(C.A.A.F. June 13, 2014) the CAAF found no error by the Air Force Court of
Criminal Appeals in affirming Senior Airman Sharpton’s conviction for larceny
from the Air Force through her unauthorized use of her unit’s Government
Purchase Card. Reasoning that the same Manual provision cited above provides
for “alternative theories” of charging, the CAAF found that since the Air
Force was contractually obligated to reimburse merchants for Senior Airman
Sharpton’s unauthorized purchases, the Air Force was the proper victim of her
larceny. Id. at *8-9.

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