                       UNITED STATES, Appellee

                                    v.

           Neil S. LUBASKY, Chief Warrant Officer Four
                       U.S. Army, Appellant

                              No. 09-0043

                       Crim. App. No. 20020924

       United States Court of Appeals for the Armed Forces

                      Argued September 22, 2009

                      Decided January 20, 2010

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.


                                 Counsel

For Appellant: William E. Cassara, Esq. (argued); Lieutenant
Colonel Jonathan F. Potter, Major Timothy D. Litka, and Captain
Jennifer A. Parker (on brief).

For Appellee: Captain Benjamin M. Owens-Filice (argued);
Colonel Denise R. Lind, Lieutenant Colonel Francis C. Kiley,
Major Teresa T. Phelps, and Major Lisa L. Gumbs (on brief);
Colonel Norman F. J. Allen III.


Military Judges:   Robert Swann (trial) and Timothy Grammel
(rehearing).




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lubasky, No. 09-0043/AR


       Judge RYAN delivered the opinion of the Court.

       This case presents two questions:   (1) whether the

unauthorized use of another’s credit and debit cards can

constitute a larceny against that person under Article 121,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 921 (2006);

and (2) if not, whether we may nonetheless affirm such a

conviction if there is sufficient evidence that the accused

committed a larceny of someone’s property.1    First, we agree with

Appellant that the credit card transactions constituted larceny

against someone other than Mary Shirley, the owner of the cards.

However, under the facts of this case, we agree with the United

States Army Court of Criminal Appeals (CCA) that the evidence is

legally sufficient to support a conviction for larceny against

Mary Shirley as to the ATM and other debit transactions

involving her checking account.    Second, we reject the

Government’s argument that a change in the subject of the

larceny at this stage of review may nonetheless be analyzed and

upheld as a nonfatal variance:    under the UCMJ and the Rules for

Courts-Martial (R.C.M.), “variance” occurs at trial, not the

1
    We granted the following issues:

       I. WHETHER APPELLANT COMMITTED LARCENIES OF M.S.’S
       PROPERTY BY ENGAGING IN THE UNAUTHORIZED USE OF HER CREDIT,
       DEBIT, AND ATM CARDS.

       II. WHETHER A VARIANCE AS TO OWNERSHIP IN LARCENY CASES IS
       FATAL IF THERE IS LEGALLY SUFFICIENT EVIDENCE THAT
       APPELLANT STILL COMMITTED A LARCENY OF PROPERTY.

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United States v. Lubasky, No. 09-0043/AR


appellate level.   Compare R.C.M. 918(a)(1) (describing the

various possible findings as to a specification), with Article

59(b), UCMJ, 10 U.S.C. § 859(b) (2006) (describing appellate

power to affirm a lesser included offense (LIO) instead of a

finding of guilty).   And while this Court may affirm an LIO

under Article 59, UCMJ, larceny from one person is not an LIO of

larceny from another person.

                      I.   Procedural History

     A general court-martial comprised of a military judge alone

convicted Appellant, contrary to his pleas, of fifteen of forty-

three charged specifications of larceny from Mary Shirley

(Charge I), and one of three charged specifications of conduct

unbecoming an officer and a gentleman (Charge II), violations of

Article 121, UCMJ, and Article 133, UCMJ, 10 U.S.C. § 933

(2006).   The sentence adjudged by the court-martial included

twenty-two months of confinement; forfeiture of all pay and

allowances; dismissal, which was recommended to be suspended;

and a $50,000 fine, with an additional two years of confinement

if not paid.   The convening authority (CA) approved the adjudged

sentence but suspended the fine “for a period of 60 days,

conditioned upon the accused making restitution in the amount of

$42,267.00 to the victim, at which time, unless the suspension

is sooner vacated for failure to satisfy the condition, the




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United States v. Lubasky, No. 09-0043/AR


suspended part of the sentence will be remitted without further

action.”

       On appeal, the CCA dismissed Specification 43 of the

larceny charge (Charge I), affirmed the remaining guilty

findings for Charge I, dismissed the conduct unbecoming

specification and charge (Charge II), set aside the sentence,

and authorized a sentence rehearing.   United States v. Lubasky

(Lubasky I), No. ARMY 20020924, 2006 CCA LEXIS 390, at *8-*9 (A.

Ct. Crim. App. Jan. 31, 2006).   Upon sentence rehearing, the

officer members sentenced Appellant to forty-two months of

confinement; a $3,322.21 fine, with an additional six months of

confinement if not paid; and forfeiture of $5,811.00 pay per

month for 108 months.   The CA approved only so much of the

sentence as provided for twenty-two months of confinement and a

forfeiture of $5,811.00 pay per month for 108 months; the CCA

approved the twenty-two months of confinement but adjusted the

forfeiture to $5,811.00 pay per month for the first twenty-two

months, followed by a forfeiture of $3,835.00 per month for the

remaining eighty-six months.   United States v. Lubasky (Lubasky

II), No. ARMY 20020924, 2008 CCA LEXIS 554, at *9-*10 (A. Ct.

Crim. App. July 29, 2008).2


2
    The CCA added:

       To the extent appellant was subject to excessive
       forfeitures based on release from confinement before

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United States v. Lubasky, No. 09-0043/AR


     Consequently, only Charge I and particular specifications

thereunder remain at issue in this appeal -- ATM withdrawals

from the Union Planters Bank (UPB) account (Specifications 4 and

5), other debit transactions from the UPB account

(Specifications 9, 10, 11, 13, and 14), credit card transactions

with the First USA Visa card (Specification 18), cash advances

with the MBNA MasterCard (Specifications 22 and 23), credit card

transactions with the MBNA MasterCard (Specifications 27, 29,

and 30), and credit card transactions with the British Petroleum

(BP) card (Specification 41).

                           II.   Facts

     In September 1998, the Army assigned Appellant as a

Casualty Assistance Officer (CAO) to temporarily help seventy-

seven-year-old Mary Shirley manage her financial affairs and

procure a new military identification (ID) card upon the death

of her husband, Lieutenant Colonel (ret.) Courtney Shirley.

Appellant helped Mary Shirley pay her bills, took care of some

of her household needs, and brought her cash, which she gave to

her friend and friend’s mother to go shopping for her.   Although

Appellant’s assistance should have concluded in December 1998 --


     the expiration of the twenty-two month period, such
     excess forfeitures are not affirmed and the lower
     $3,835.00 monthly forfeiture figure shall apply to the
     portion of the twenty-two month period during which
     appellant was not confined.

Lubasky II, 2008 CCA LEXIS 554, at *10 n.8.

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United States v. Lubasky, No. 09-0043/AR


after he procured a new ID card for Shirley -- Appellant

offered, and Shirley accepted, further assistance with her

financial affairs.

     As relevant to the issues in this case, between December

1998 through June 2000, Appellant had limited and specific

authority from Shirley to use specific credit cards and to

access the UPB account.   At other times, Appellant obtained

access to her funds and used her credit cards and bank funds

without her knowledge or permission.

     In approximately December 1998, Appellant gained access to

the UPB checking account while Shirley was in a nursing home.

Austin Jason Turnbow, a UPB financial services employee,

testified that he and his manager paid a personal visit to

Shirley before adding Appellant to the account.   While Turnbow

described Appellant’s status on the account as one of “joint

ownership,” that term was never defined.    And when asked whether

he had “the impression that [Appellant] was being added as a

full and joint owner on the account to have personal ownership

of [Shirley’s] finances,” Turnbow replied, “Absolutely not.”

Rather, the sole reason Appellant was added to the account was

to help pay Shirley’s bills and expenses and to “do things that

she couldn’t do.”    Appellant knew this, and he “made a point to

make it clear [to Turnbow] that he did not intend to use it [the

UPB account] for his own personal needs.”   Thereafter, up until


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United States v. Lubasky, No. 09-0043/AR


June 2000, all but one of the monthly bank statements were sent

to Appellant’s work address.

     “Fraud Alert” contacted Shirley in June 2000 about activity

on her credit cards, prompting her to call the police.      At this

time she also discovered the thirty-nine ATM and other debit

transactions from the UPB account, made in Georgia, Florida, and

Texas between June 1999 and June 2000, that are still in issue.

                         III.    Discussion

                                Issue I

     The test for legal sufficiency is whether, considering the

evidence in the light most favorable to the prosecution, a

reasonable factfinder could have found all the essential

elements beyond a reasonable doubt.       Jackson v. Virginia, 443

U.S. 307, 319 (1979); United States v. Chatfield, 67 M.J. 432,

441 (C.A.A.F. 2009) (quoting United States v. Dobson, 63 M.J. 1,

21 (C.A.A.F. 2006)).   A servicemember commits larceny under

Article 121(a)(1), UCMJ, when that person:

     wrongfully takes, obtains, or withholds, by any means,
     from the possession of the owner or of any other
     person any money, personal property, or article of
     value of any kind . . . with intent permanently to
     deprive or defraud another person of the use and
     benefit of property or to appropriate it to his own
     use or the use of any person other than the owner.

As used in Article 121, UCMJ, the single term “larceny”

encompasses and consolidates what in the past were separate

crimes, i.e., larceny, larceny by trick, embezzlement, and


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United States v. Lubasky, No. 09-0043/AR


obtaining property by false pretenses.   See United States v.

Antonelli, 35 M.J. 122, 124 (C.M.A. 1992) (citing Hearings on

H.R. 2498 Before a Subcommittee of the House Committee on Armed

Services, 81st Cong. 1232 (1949)).    Because of this, “the

particular means of acquisition of the property became

relatively unimportant . . . .”   United States v. Aldridge, 25

C.M.A. 330, 331-32, 8 C.M.R. 130, 131-32 (1953).

     Appellant argues that the credit and debit card

transactions at issue in this case could not be larcenies from

Shirley.   Rather, he suggests that they constitute larcenies, if

larcenies at all, from the credit card issuers and the business

establishments where the goods were purchased.   He further

argues that the transactions involving the UPB account could not

constitute larceny at all because he was named on the account as

an account owner.   We agree in part and disagree in part.

     Appellant was alleged to have committed larcenies from

Shirley by making unauthorized use of Shirley’s credit cards --

a First USA Visa, an MBNA Mastercard, and a BP card –- to obtain

cash advances and unspecified goods of a certain value.   While

the evidence is legally sufficient to support the conclusion

that the use made of these credit cards constituted a wrongful

taking of property with the requisite intent, we nonetheless

agree with Appellant that the unauthorized use of those cards

was not a larceny from Shirley.   The 2002 amendments to the


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United States v. Lubasky, No. 09-0043/AR


Manual for Courts-Martial (MCM) are instructive in this regard:

“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.”    MCM

pt. IV, para. 46.c(1)(h)(vi) (2002 ed.).

     While this amendment post-dates Appellant’s court-martial,

under Article 121, UCMJ, larceny always requires that the

accused wrongfully obtain money or goods of a certain value from

a person or entity with a superior possessory interest.    See

MCM, Analysis of Punitive Articles app. 23 at A23-16 (2008 ed.)

[hereinafter Drafters’ Analysis].    In using the credit cards in

this case, Appellant did not obtain anything from Shirley.

Rather, he obtained those things from other entities.    For these

reasons, the proper subject of the credit-card-transaction

larcenies in this case was not Shirley.

     With respect to the ATM and other debit transactions from

the UPB account, however, Appellant’s arguments fail.    While it

is true that the 2002 amendments suggest that debit card

transactions are “usually a larceny of those goods from the

merchant offering them” and that ATM withdrawals are “usually a

larceny of money from the entity presenting the money,”    MCM pt.

IV, para. 46.c(1)(h)(vi) (2002 ed.) (emphasis added),

alternative charging theories remain available if warranted by


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United States v. Lubasky, No. 09-0043/AR

the facts.   Drafters’ Analysis at A23-15.   Under the particular

facts of this case, the evidence is legally sufficient to

support the finding that these transactions constituted larceny

from Shirley.3   First, assuming that Appellant had an ownership

interest in the account equal to that of Shirley, the evidence

supports a conclusion that he obtained access to the account as

a joint owner by false pretenses -- representing to Shirley that

he would use her funds in the manner she authorized -- with the

actual intent to use the funds for his own purposes instead.    In

using false pretenses to obtain access to Shirley’s UPB account

in this manner, Appellant committed larceny against Shirley.

     Moreover, “[w]hatever apparent legal authority appellant

possessed to use the UPB checking account funds, it was properly

limited in scope by Mrs. Shirley’s beneficiary status and

appellant’s fiduciary role.”   Lubasky I, 2006 CCA LEXIS 390, at

*7 n.*.4   In other words, while adding Appellant to the account


3
  Although “[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) (discussing that issue in the context of bailments and
trusts), this case does not raise -- and therefore we do not
discuss -- what other entities here could be the proper subject
of a larceny.
4
  Appellant argues that Tenn. Code. Ann. § 45-2-703 (2009), gives
a joint owner of a bank account the right to withdraw all funds
from the account. But that provision sweeps less broadly than
Appellant suggests, see Leffew v. Mayes, 685 S.W.2d 288, 291
(Tenn. Ct. App. 1984) (“Even though a joint tenant may withdraw
the entire fund, one who does withdraw funds in excess of his
moiety is liable to the other joint tenant for the excess so

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United States v. Lubasky, No. 09-0043/AR

vested him with the authority to retrieve funds from it, his

authority to make various uses of those funds was limited to

making necessary purchases for Shirley, not purchasing things

for himself.   See United States v. Willard, 48 M.J. 147, 148-50

(C.A.A.F. 1998) (upholding larceny conviction as legally

sufficient where accused exceeded actual authority to withdraw

money to pay bills, in reliance on general power of attorney

granted by his roommate, and instead kept money for himself; “A

power of attorney is not a license to embezzle.   The power of

attorney may convey apparent authority vis-[à]-vis an innocent

third party, but it does not empower the grantee to exceed the

terms of his or her actual authority.”).   Appellant had

authority to spend money from the UPB account, but only within

the limits set by Shirley.

     Drawing all inferences in favor of the Government, a

reasonable factfinder could have found beyond a reasonable doubt

that the evidence with respect to the UPB specifications was

legally sufficient to show that Appellant wrongfully obtained




withdrawn. A contractual agreement between the bank and the
joint depositors does not conclusively determine the rights
between the depositors during their lifetime. . . . [Section]
45-2-703, which absolves a bank of liability upon its payment to
either joint tenant or the survivor, was enacted for the
protection of the bank and does not affect the rights of the
joint tenants, as between themselves, during their lifetime.”)
(citations omitted), and does not bar his prosecution under the
UCMJ.

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United States v. Lubasky, No. 09-0043/AR

money from Shirley with the intent to permanently deprive her of

it.

                                 Issue II

       We are left, then, with evidence that is legally

insufficient as to the credit card transactions but legally

sufficient as to the transactions on the UPB account.     The

Government argues that we may nonetheless affirm all

specifications because a larceny did occur, and “a variance in

ownership is not fatal.”    “A variance between pleadings and

proof exists when evidence at trial establishes the commission

of a criminal offense by the accused, but the proof does not

conform strictly with the offense alleged in the charge.”

United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003).       While

the question whether a variance was fatal would be the one we

would answer if the factfinder had made findings by exceptions

and substitutions, see United States v. Marshall, 67 M.J. 418,

420-21 (C.A.A.F. 2009) (undertaking this analysis and holding

the exceptions and substitutions produced a fatal variance

because the change was both material and substantially

prejudicial); R.C.M. 918,5 the findings in this case were made


5
    R.C.M. 918(a)(1) provides:

       General findings as to a specification may be:
       guilty; not guilty of an offense as charged, but
       guilty of a named lesser included offense; guilty with
       exceptions, with or without substitutions[;] not

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United States v. Lubasky, No. 09-0043/AR

based on the charges and specifications as drafted.    There were

no exceptions and substitutions by the military judge -- the

factfinder in this case.

     The Government nonetheless seeks to frame, and asks us to

analyze, the issue of substituting victim names in larceny

specifications as one of “variance.”    As noted in R.C.M. 918,

explained in Teffeau, and recently reiterated in Marshall,

exceptions and substitutions may be made by the factfinder at

the findings portion of the trial.   The question for this Court

under those circumstances would be whether the findings by

exceptions and substitutions created a “fatal variance” -- not

permitted -- or a non-fatal variance.   See Marshall, 67 M.J. at

420; Teffeau, 58 M.J. at 66; R.C.M. 918.    But nothing in either

the UCMJ or the R.C.M. suggests that, at this second tier of

appellate review, crossing out Shirley’s name on the charge

sheet and inserting the name of some other entity is

permissible.   While R.C.M. 918(a)(1) does describe the various

possible findings as to a specification, that provision is

directed at the factfinder:   R.C.M. 918(a)(1) does not grant us

the authority the Government suggests we have.


     guilty of the exceptions, but guilty of the
     substitutions, if any; not guilty only by reason of
     lack of mental responsibility; or, not guilty.
     Exceptions and substitutions may not be used to
     substantially change the nature of the offense or to
     increase the seriousness of the offense or the maximum
     punishment for it.

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United States v. Lubasky, No. 09-0043/AR

     Article 59(b), UCMJ, which states that “[a]ny reviewing

authority with the power to approve or affirm a finding of

guilty may approve or affirm, instead, so much of the finding as

includes a lesser included offense,” governs what this Court may

do under the present circumstances.   We are authorized by

statute to affirm an LIO of a crime where, as here, the evidence

as to the greater offense is not legally sufficient.   See

Article 59(b), UCMJ.   But there is no authority for the

proposition that larceny from one entity is an LIO of larceny

from another entity.   See generally United States v. Medina, 66

M.J. 21, 25 (C.A.A.F. 2008) (“‘One offense is not “necessarily

included” in another unless the elements of the lesser included

offense are a subset of the elements of the charged offense.’”

(quoting United States v. Schmuck, 489 U.S. 705, 716 (1989))).

                           IV.   Decision

     The decision of the United States Army Court of Criminal

Appeals is affirmed in part and reversed in part.   The findings

of guilty as to Specifications 18, 22, 23, 27, 29, 30, and 41 of

Charge I are set aside, and those specifications are dismissed.

The findings of guilty as to the remaining specifications (4, 5,

9, 10, 11, 13, and 14 of Charge I) are affirmed.    The sentence

is set aside, and the record of trial is returned to the Judge

Advocate General of the Army.    A rehearing on sentence may be

ordered.


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