         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201600417
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.

                         JUSTIN C. SMITH
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

           Military Judge: Major Mark D. Sameit, USMC.
    Convening Authority: Commanding General, Marine Corps
   Installations-West, Marine Corps Base, Camp Pendleton, CA.
Staff Judge Advocate’s Recommendation : Lieutenant Colonel Todd
                           Enge, USMC.
 For Appellant: Lieutenant Commander Ryan C. Mattina, JAGC,
                                USN.
For Appellee: Major David N. Roberts, USMCR; Lieutenant Jetti L.
                        Gibson, JAGC, USN.
                      _________________________

                         Decided 31 July 2017
                        _________________________

   Before C AMPBELL , F ULTON , and H UTCHISON , Appellate Military
                                Judges
                         _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                       _________________________

   CAMPBELL, Senior Judge:
    At an uncontested special court-martial, a military judge convicted the
appellant of two specifications of conspiracy and one specification each of
larceny, wire fraud, and identity theft—violations of Articles 81, 121, and
                     United States v. Smith, No. 201600417


134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 921, and
934 (2012). The military judge sentenced the appellant to 350 days of
confinement and a bad-conduct discharge. The convening authority (CA)
approved the sentence as adjudged, suspending all confinement in excess of
eight months in accordance with a pretrial agreement.
    The appellant contends the post-trial documents do not properly reflect
that the military judge dismissed Charge III, Specification 1.1 Alternatively,
he avers that Charge III, Specifications 1 and 2 were an unreasonable
multiplication of charges (UMC). Having considered the record of trial and
the parties’ submissions, we find that the post-trial documents accurately
reflect the findings at trial, and we affirm those findings and the sentence.
Arts. 59(a) and 66(c), UCMJ.
                                 I. BACKGROUND
    In October 2015, the appellant and three other Marines agreed to steal
money from recruits’ Navy Federal Credit Union (NFCU) accounts. The other
Marines’ official duties provided them access to the recruits’ personal
information, including social security numbers, birth dates, and NFCU
account numbers. The appellant used that information to gain access to 15
recruits’ NFCU accounts and electronically transferred over $13,000.00 from
their accounts into his own NFCU account.
    Charge I, Specifications 1 and 2, respectively, alleged violations of Article
81, UCMJ, for conspiring to commit wire fraud under 18 U.S.C. § 1343,2 and
conspiring to commit larceny. Charge III, Specifications 1 and 2, respectively,
alleged violations of Article 134, UCMJ, for committing wire fraud under 18
U.S.C. § 1343,3 and for using the identification of another person to commit


    1 We summarily reject the appellant’s application of this argument to Charge I,

Specification 1, given that the CA properly stated that “[t]he military judge
conditionally dismissed Specification 1 of Charge I without prejudice to ripen into
prejudice upon completion of appellate review of the remaining charges in this case.”
Special Court-Martial Order No. 26-2016 of 22 Nov 2016 at 2 (citing Record at 54).
   2  To wit, that the appellant did, “on or about 13 October 2015,” (1) “voluntarily
and intentionally devise or participate in a scheme or plan to defraud another out of
money; (2) that [he] did so with the intent to defraud; (3) that it was reasonably
foreseeable that interstate wire communications would be used; and ( 4) that the wire
communications were in fact used, in violation of 18 U.S. Code Section 1343 and
1349, and in order to effect the object of the conspiracy the [appellant] and co-
conspirators did defraud at least $17,750.00 from [NFCU].” Charge Sheet.
    3 To wit, that the appellant did, “between on or about 9 October 2015 and on or

about 25 December 2015, (1) voluntarily and intentionally devise or participate in a
scheme or plan to defraud another out of money; (2) that the defendant did so with
the intent to defraud; (3) that it was reasonably foreseeable that interstate wire

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wire fraud per 18 U.S.C. § 1028A.4 The following discussion ensued at the
start of trial:
         MJ: Okay. At [a RULE FOR COURTS MARTIAL] 802, [MANUAL
         FOR       COURTS-MARTIAL,         UNITED      STATES      (2012)]
         conference . . . just before we came on the record, we discussed
         . . . whether or not Charge I, Specification 1 and Charge III,
         Specification 1 are multiplicious in the way that they are
         charged in this case because the first element is the way the
         government has charged Charge I, Specification 1; and Charge
         III, Specification 1 is that [the appellant] voluntarily and
         intentionally participated in a scheme or plan, which is the
         same distinguishing element of a conspiracy.
         . . . The defense did indicate that they believed it was
         multiplicious in this case; if not multiplicious, UMC. The Court
         concurs with the defense. The government requested that
         Charge III, Spec[ification] 1 be conditionally dismissed.
         TC []: Charge I, Spec[ification] 1 --
         MJ: Charge III, Spec[ification] 1.
         The Court is going to conditionally dismiss Charge III,
         Spec[ification] 1 because the conspiracy would encompass a bit
         more information than Charge III, Spec[ification] 1[sic] of,
         specifically, who he came into the agreement with, whereas
         Charge III Spec[ification] 1 just says that he entered into an
         agreement with no specificity as to who that agreement is with.
         So the Court will conditionally dismiss Charge III,
         Spec[ification] 1 upon the finding of guilty, as to all of the
         Charges and Specifications.5
   Having conducted a providence inquiry into all charges and specifications
and found the appellant guilty of “all Charges and Specifications now




communications would be used; and (4) that the wire communications were in fact
used, in violation of 18 U.S. Code Section 1343, a crime or offense not capital.” Id.
   4 To wit, that the appellant did, “between on or about 9 October 2015 and on or
about 25 December 2015, (1) knowingly transfer, possess, or use without legal
authority a means of identification of another person; (2) the [appellant] knew that
the means of identification belonged to a real person; and (3) the [appellant] did so
during and in relation to violation of 18 U. S. Code Section 1343, in violation of 18
U.S. Code Section 1343, a crime or offense not capital.” Id.
   5   Record at 4-5 ([sic] in original, emphasis added).

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pending before this Court, in accordance with [his guilty] pleas,” the military
judge later readdressed Charge III, Specification 1, and UMC in general:
         During the break, we very briefly discussed [UMC], as we
         discussed before the trial. The defense indicated that they
         believed that Spec[ification]s 1 and 2 of Charge I should be
         merged and that Specification 1 of Charge III should be
         conditionally dismissed, all as [UMC]. The government
         indicated that they still believe that Specification 1 of Charge
         III is separate and distinct from Specification 1 of Charge I,
         and that the agreement to commit wire fraud happened on a
         separate date from the actual wire fraud.6
    After further discussions with counsel, the military judge cited the UMC
factors in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), and ruled:
         Specification 1 of Charge I should be conditionally
         dismissed. By conditionally dismissing Specification 1 of
         Charge I, that eliminates any sort of UMC where you’re being
         convicted for two offenses for what’s in effect for one single
         agreement. And additionally, that also eliminates the
         consideration of UMC where you have to have formed this plan
         in order to even get to be found guilty of wire fraud.
         So the Court orders that Specification 1 of Charge I hereby be
         dismissed, conditional upon the successful completion of
         appellate review of the remaining charges in this case.7
                                     II. DISCUSSION
A. Charge III, Specification 1
   Despite the government’s concession,8 the military judge did not dismiss
Charge III, Specification 1. His initial comments reflect concern that the wire
fraud specification, as drafted, and the conspiracy to commit wire fraud
specification (Charge I, Specification 1) were multiplicious, or that combined
they represented a UMC. But those comments state only the intent to revisit
the issue after findings, not a ruling. By ultimately dismissing the conspiracy
to commit wire fraud specification, the military judge mooted his initial
concerns. The wire fraud offense presented no UMC issues with either the


   6   Id. at 51 (emphasis added).
   7   Id. at 53-54.
   8  “The United States thus concedes that the Record fails to support that the
Military Judge’s actions were not tantamount to dismissal of . . . Charge III,
Specification 1, at the beginning of trial[.]” Appellee’s Brief of 28 April 2017 at 12.

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remaining conspiracy to commit larceny (Charge I, Specification 2) or larceny
(Charge II, Specification 1).9 Consequently, the court-martial order
accurately reflects the findings at trial.
B. Unreasonable multiplication of charges
    As the military judge did not dismiss Charge III, Specification 1, we turn
to the appellant’s argument that it, a wire fraud offense, represents a UMC
with the Charge III, Specification 2 “identity theft” offense.10 “What is
substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” R.C.M. 307(c)(4).
We review five non-exclusive factors from Quiroz, 55 M.J. at 338-39, to
determine whether there is UMC. The non-exclusive factors are weighed
together, and “one or more factors may be sufficiently compelling[.]” United
States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).
   (1) Whether the accused objected at trial:
   The appellant did not argue at trial that the combination of wire fraud
and identity theft was a UMC. This factor favors the government.
   (2) Whether each charge and specification is aimed at distinctly separate
criminal acts:
    This factor may favor an appellant if “the acts in question were not
discrete either in time, manner, or place.” United States v. Kilpatrick, No.
9900149, 2000 CCA LEXIS 305, at *7, unpublished op. (N-M. Ct. Crim. App.
22 May 2000). For example, Kilpatrick involved charges of wire fraud by
providing stolen credit card numbers over the phone to make purchases and
“the fraudulent use of an unauthorized access device,”—providing the credit
card numbers over the phone. Id. at *5.
    However, the “mere unity of time and place” does not necessarily make
charging “two offenses” unreasonable. United States v. Letang, No.
200000416, 2002 CCA LEXIS 49, at *4, unpublished op. (N-M. Ct. Crim. App.
7 Mar 2002). In Letang, even though counterfeit money was used to
wrongfully obtain food, we found larceny and using counterfeit currency
charges aimed at separate criminal acts. Id. at *2, 4. (“Stealing a meal is a
serious offense . . . without the use of counterfeit currency. Passing
counterfeit currency [is] a significant Federal violation . . . and may be
accomplished without . . . larceny.”). In a case specifically involving both
identity and wire fraud, we also found that “identification fraud” under 10

   9 See United States v. Brumfield, No. 200301150, 2005 CCA LEXIS 321, at *11,

unpublished op. (N-M. Ct. Crim. App. 12 Oct 2005) (“[W]e find no unreasonable
multiplication of charges with regard to wire fraud and larceny.”).
   10   Taken from the title of 18 U.S.C. § 1028A, “[a]ggravated identity theft.”

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U.S.C. § 1028(a)(7) and wire fraud were “not based on the same singular act,”
as “they were all steps necessary to achieve the overall goal” of “obtain[ing]
illegal prescription opiates” in United States v. Roberts, No. 201200042, 2012
CCA LEXIS 705, at *1, 1 n.2, 8 unpublished op. (N-M. Ct. Crim. App. 26 Jul
2012) (per curiam).
    Here, the appellant used a means of identification—recruits’ social
security numbers—to log into their NFCU accounts. He then executed a
“member-to-member” transfer from each recruit’s account to his own.11 These
circumstances are distinguishable from Kilpatrick, where ordering goods by
telephone would not have been criminal wire fraud but for Kilpatrick
providing other people’s credit card numbers—the very scheme or plan
constituting wire fraud was to use the unauthorized access devices, the other
charged offense. The appellant, by contrast, executed the member-to-member
transfers after using the recruits’ social security numbers to log into their
accounts. As in Roberts, the latter was a separate criminal act towards
transferring money, so we find that this factor favors the government.
   (3) Whether the number of charges and specifications misrepresent or
exaggerate the appellant’s criminality:
    “When an ultimate offense is committed through separate means from
which the appellant can also be charged, individually charging both the
means and the ultimate offense can be evidence of UMC.” Roberts, 2012 CCA
LEXIS 705 at *9 (finding that charges of wire fraud and identification fraud
“exaggerate[d Roberts’] criminality”). However, the appellant’s use of the
recruits’ social security numbers, obtained from other Marines who misused
their official positions, to access accounts before committing wire fraud was
an egregious and criminal breach of trust. As the identity theft charge
addresses misuse of the recruits’ identification, beyond any effect on NFCU
from the appellant’s wire fraud, we thus find this factor equally balanced.
    (4) Whether the number of charges and specifications unreasonably
increase the appellant’s punitive exposure:
   Even with both charges, the punitive exposure remained the special
court-martial jurisdictional maximum. So this factor favors the government.
    (5) Whether there is any evidence of prosecutorial overreaching or abuse
in the drafting of the charges:
   Given that the appellant violated multiple federal statutes, we find no
evidence in the record of prosecutorial overreach. We find that this factor
favors the government.


   11   Record at 23.

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   On the whole, even assuming arguendo that the third factor favors the
appellant, in balancing the Quiroz factors, we find the wire fraud and
identity theft offenses in Charge III, Specifications 1 and 2 do not constitute a
UMC.
   Furthermore, even if the wire fraud and identity theft specifications were
UMC, in reassessing the appellant’s sentence after setting aside the
conviction for one of the specifications, we would confidently and reliably
determine that the appellant’s sentence would still include 350 days’
confinement and a bad-conduct discharge. United States v. Winckelmann, 73
M.J. 11, 15 (C.A.A.F. 2013).
                               III. CONCLUSION
   The findings and sentence are affirmed.
   Judge FULTON and Judge HUTCHISON concur.

                                     For the Court



                                     R.H. TROIDL
                                     Clerk of Court




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