UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              MULLIGAN, FEBBO, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                       Staff Sergeant MAURICE N. JOHNSON
                            United States Army, Appellant

                                      ARMY20160245

        Headquarters, United States Army Training Center and Fort Jackson
              Edye L. Moran and Robert A. Cohen, Military Judges
            Lieutenant Colonel Robert L. Shuck, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Patrick J. Scudieri, JA; Captain
Joshua G. Grubaugh, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA;
Captain Marc B. Sawyer, JA (on brief).


                                        17 April 2018
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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge:

       There is no dispute that appellant exceeded his authority and used his
Government Purchase Card (GPC) several different times to make purchases of
riding lawnmowers or televisions that each exceeded $500. He then sold these items
for his own benefit. For these actions appellant pleaded guilty to four specifications
of larceny amongst other crimes. Relying on our superior court’s credit card
transaction jurisprudence, appellant asserts the military judge abused his discretion
by accepting the guilty pleas to the larceny charges and specifications without a
factual record of the indemnification agreement between the U.S. Army and the bank
that issued the GPC. We disagree because appellant was an authorized user of the
GPC, vesting legal title of the items in the Army at the point of sale. The
government, therefore, appropriately charged appellant’s theft as a “taking” of the
items from the U.S. Army.
JOHNSON—ARMY 20160245

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of larceny, wrongful sale of military
property, willful dereliction of duty, and three specifications of false official
statements, in violation of Articles 92, 107, 108, and 121 of the Uniform Code of
Military Justice [UCMJ], 10 U.S.C. §§ 892, 907, 908, and 921. The convening
authority approved the adjudged sentence to a bad-conduct discharge.

      This case is before us for review pursuant to Article 66, UCMJ. After
reviewing the entire record and all the matters personally asserted by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we find no
substantial basis in law or fact to question any of appellant’s pleas. 1

                                  BACKGROUND

      Prior to the charged offenses, appellant served as a supply specialist for
approximately fifteen years and was assigned as the non-commissioned officer in
charge (NCOIC) of his unit’s supply room at Fort Jackson, South Carolina. Part of
appellant’s duties included serving as a GPC holder. Prior to becoming a GPC
holder, appellant completed the DoD Government Purchase Card Course from the
Defense Acquisition University and attended the Government International Merchant
Purchase Authorization Credit Card course. In order to become a “GPC super card
purchaser,” appellant attended more advanced training for the U.S. Bank Corporate
Payment Systems. These courses informed appellant of his duties and
responsibilities as a GPC holder. This included his duty to add property purchased
through the GPC to the unit property book.

                                   A. The Scheme

       Appellant purchased thirteen riding lawnmowers using the unit’s GPC. The
lawnmowers were valued at a total of approximately $33,300.00. After making the
purchases, appellant falsely listed the purchases as “supplies,” “parts,” and “folding
tables” on the unit’s credit-card-log-sheets. He also submitted forged receipts to the


1
  One of the matters appellant asserts in his Grostefon matters is that his sentence,
consisting solely of a bad-conduct discharge, is inappropriately severe because of
his loss of retirement benefits and possible effect of the punitive discharge on his
medical and mental health care from the Veteran’s Administration. Appellant’s
sentence included no confinement, no fine, no reduction in rank, and no forfeiture of
pay and allowances. Considering the entire record, to include appellant’s military
and disciplinary record, we do not find appellant’s lenient sentence to be
inappropriately severe. Appellant’s rank, seniority, experience, and misuse of his
position aggravated his crimes.




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JOHNSON—ARMY 20160245

unit. Appellant never listed the lawnmowers on the unit’s property book or brought
the items to the unit. Instead, he sought buyers to purchase the lawnmowers at a
price lower than the retail price. In the stipulation of fact, appellant admitted to
selling all the lawnmowers and pleaded guilty to separately selling one of the
lawnmowers to an unknown male.

       Appellant also purchased three high-definition televisions using the unit’s
GPC. The televisions were valued at a total of approximately $4,170.00. After
making the purchases, appellant falsely listed the purchases as “All-In-One Printr
[sic]” on the unit’s credit-card-log-sheets and again submitted a forged receipt to the
unit. He never listed the televisions on the unit’s property book or brought the items
to the unit. In the stipulation of fact, appellant admitted to selling the televisions,
including selling one of them to a sergeant in his unit for $400.

                                 B. The Investigation

       In 2015, a unit audit revealed that over a twelve-month period appellant was
using the unit GPC to purchase a number of expensive items, misrepresenting the
type of purchases to the unit, failing to list the items on the unit property book, and
keeping the items for his own benefit. A criminal investigation revealed appellant
had sold the property and retained the proceeds for his personal use.

      At trial, among other charges, appellant pleaded guilty to stealing U.S. Army
property (lawnmowers and televisions) by making purchases with the unit GPC. For
each of the above purchases, appellant admitted that the U.S. Army had a greater
“ownership” and “possessory right” to the property and that the purchased items
were the property of the U.S. Army.

                              LAW AND DISCUSSION

       On appeal, appellant asserts “the military judge abused his discretion by
accepting a plea that does not have a substantial basis in fact because the U.S. Army
was not the larceny victim.” Appellant asserts that the record had nothing to support
that the U.S. Army had a contractual relationship to indemnify the merchants or the
bank for appellant’s GPC purchases. According to appellant, the military judge
erred by focusing on whether the U.S. Army had greater ownership in the property
appellant purchased. Appellant relies on our superior court’s holding in United
States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), and United States v. Williams, 75
M.J. 129 (C.A.A.F. 2016), for the rule that the proper victim in a credit card theft
case is usually the merchant. On the other hand, citing the Court of Appeals for the
Armed Forces’ (CAAF’s) cases of United States v. Cimball Sharpton, 73 M.J. 299
(C.A.A.F. 2014), and United States v. Ragins, 11 M.J. 42 (C.M.A. 1981), the
government argues appellant’s agency relationship with the U.S. Army and misuse




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JOHNSON—ARMY 20160245

of a GPC support appellant’s larceny convictions and guilty pleas with the U.S.
Army as the victim.

                                A. Standard of Review

       “We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and questions of law arising from the guilty plea de novo.” United States
v. Simpson, __ M.J. ___, 2018 CAAF LEXIS 176, *5 (C.A.A.F. 2018) (citing United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the plea. Id. at *6
(citing Inabinette, 66 M.J. at 322). We apply the “substantial basis” test to
determine whether the record raises a substantial question about the factual basis of
appellant’s guilty plea or the law underpinning the plea. Inabinette, 66 M.J. at 322;
see also UCMJ art. 45(a); Rule for Courts-Martial [R.C.M.] 910(e). This court does
not review guilty pleas for factual and legal sufficiency. United States, v. Cowan,
ARMY 20160031, 2017 CCA LEXIS 633, *5-9 (Army Ct. Crim. App. 28 Sep. 2017)
(mem. op.).

      Where an appellant pleads guilty, “the issue must be analyzed in terms of
providence of his plea, not sufficiency of the evidence.” United States v. Faircloth,
45 M.J. 172, 174 (C.A.A.F. 1996); see also United States v. Barton, 60 M.J. 62, 64
(C.A.A.F. 2004).

             Article 45(a), UCMJ, 10 USC § 845(a), requires that a
             military judge set aside a guilty plea if an accused “sets up
             matter inconsistent with the plea, or if it appears that he
             has entered the plea of guilty improvidently or through
             lack of understanding of its meaning and effect.”
             [R.C.M.] 910(e), Discussion, Manual for Courts-Martial,
             United States (1995 ed.), requires that the military judge
             explain the elements of the offense and ensure there is “a
             factual basis for the plea.” Then, “the accused must be
             convinced of, and able to describe all the facts necessary
             to establish guilt.” [R.C.M.] 910(e), Discussion.

                     There is no requirement “that any witness be called
             or any independent evidence be produced to establish the
             factual predicate for the plea.” The factual predicate is
             sufficiently established if “the factual circumstances as
             revealed by the accused himself objectively support that
             plea . . . .” United States v. Davenport, 9 [M.J.] 364, 367
             ([C.M.A.] 1980).

Faircloth, 45 M.J. at 174 (Emphasis added).



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JOHNSON—ARMY 20160245

       In considering appellant’s assigned error, this court will review our superior
court’s reasoning in several credit card larceny cases, appellant’s actual providence
inquiry, and the military judge’s explanation of the elements of the offense to
determine if there was an abuse of discretion by the military judge in accepting
appellant’s guilty plea.

                           B. Credit Card Larceny Offenses

       Our superior court recently reiterated that “[w]hen an accused engages in a
wrongful ‘credit, debit, or electronic transaction,’ this usually constitutes either ‘a
larceny of those goods from the entity from the merchant offering [the goods]’ or
‘from the entity presenting the money.’” Simpson, __ M.J. ___, 2018 CAAF LEXIS
176, at *6 (citations omitted).

       However, “[a]lternative charging theories are also available,” as long as “the
accused wrongfully obtained goods or money from a person or entity with a superior
possessory interest.” Manual for Courts-Martial, United States, Analysis of
Punitive Articles app. 23 at A23-17 (2012 ed.). “The relevant question in
determining the person to name in a larceny specification is whom did the accused
steal the goods or money from?” Williams, 75 M.J. at 132.

        Cimball Sharpton was a contested case in which the CAAF held that the U.S.
Air Force was a properly named victim in the larceny of money, when the appellant
exceeded the scope of her GPC authority and misused her GPC by purchasing
unauthorized items. 73 M.J.at 301-02. As part of this decision the CAAF relied on
the stipulation by the accused in Cimball Sharpton that the Defense Finance and
Accounting System paid the GPC bank the full amount owed for the unauthorized
charges. Id. at 301. The CAAF also noted a U.S. Air Force Instruction required the
government to pay for charges involving “misuse or abuse by the [GPC] cardholder.”
Id. at 301 n.2. Thus, the CAAF held because “[t]he Air Force suffered the financial
loss . . . the government was correct in charging larceny from the Air Force.” Id. at
302. In other words, since the vendor and issuing bank were fully compensated by
the U.S. Air Force through the agreement, the U.S. Air Force was the only entity
that actually suffered any financial loss.

       In Williams, the CAAF clarified its holding in Cimball Sharpton stating “the
Air Force was an appropriate person to allege in the larceny specification because it
was an entity from whom the appellant wrongfully obtained goods or money.” 75
M.J. at 134. The CAAF then noted that while the government in Cimball Sharpton
charged the larceny of money from the Air Force, “it seems the better charging
theory would have been that she stole the particular items by exceeding her actual
authority and keeping the items that were in effect purchased by the Air Force for
herself.” Id. at 134 n.6.




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JOHNSON—ARMY 20160245

       The charging theory of stealing items rather than money from the U.S. Air
Force may have been “the better charging theory” in Cimball Sharpton because it
would not have required introducing the relationships of the banking institution as
an intermediary between the U.S. Air Force and the vendor who ultimately received
the funds. Under the “better charging theory,” legal title to the items vested in the
U.S. Air Force at the point of sale because the accused in Cimball Sharpton was an
authorized user of the GPC. The accused in Cimball Sharpton, therefore, stole the
particular items from the U.S. Air Force when she kept them for herself because at
that point the U.S. Air Force owned them.

                          C. Appellant’s Providence Inquiry

       The military judge properly explained the elements of the offenses and
elicited the factual basis to support appellant’s pleas. In the case at bar, the
government followed the “better charging theory” noted in Williams. As a result of
this charging decision, the military judge appropriately focused the providence
inquiry on whether the U.S. Army had greater ownership in the property than
appellant.

       During the providence inquiry, appellant explained to the military judge that
he stole from the U.S. Army. Appellant agreed he was a GPC holder, that
government funds were used through the GPC for the purchases, the government had
the right of possession of the property, he had a duty to report the purchases to his
command, and the property should have been listed on the unit property book. This
is because—and the appellant agreed—the property actually belonged to the U.S.
Army. Appellant then explained that he took the items for his own personal benefit.

       Although appellant did not have authorization from his unit to purchase the
lawnmowers or televisions, this inquiry is irrelevant to the key question identified in
Williams of from whom the accused stole the goods or money. Appellant admitted
he was a GPC holder. He was trained and authorized to use his unit’s GPC. He
properly signed the GPC purchase authorizations, and therefore accepted the
property on behalf of the U.S. Army. Appellant also served as the NCOIC of his
unit’s supply room and made multiple other authorized GPC purchases from these
and other vendors. What distinguished appellant’s lawful GPC transactions from the
thefts were his criminal actions after the sale by keeping the items for his own
benefit, rather than listing them on the property book and placing them in the unit’s
actual possession. 2


2
  To highlight this distinction, even if appellant did not have authorization to use his
GPC to purchase the lawnmowers and televisions, there would have been no criminal
theft offenses if he had properly delivered the items to the unit and reported the

                                                                        (continued . . .)


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JOHNSON—ARMY 20160245

       Notably, appellant did not obtain the lawnmowers and televisions from the
vendors through false pretenses. In fact, he did not make any false representations
to the vendors. There would have been no reason for the vendors to challenge
appellant’s purchases. See United States v. Willard, 48 M.J. 147 (C.A.A.F. 1998)
(bank had no duty to challenge appellant’s authority to withdraw funds using a
power-of-attorney and the proper victim was the account holder instead of the bank).
From the vendor’s perspective, appellant’s authorized actions as an agent of the U.S.
Army at the time of the purchases would have been no different than if he purchased
the property with cash or a general power-of-attorney.

        Appellant was aware of the limits of his GPC authority, exceeded that
authority, and misused the GPC. Appellant ultimately accomplished the larcenies by
keeping the lawnmowers and televisions that were in effect purchased by the U.S.
Army for his own benefit. He then proceeded to conceal the thefts from detection by
forging receipts from the vendors, failing to inform his command and property book
officer of the purchases, falsely recording the GPC purchases on the log, and failing
to list the actual items purchased on the unit property book.

       Lastly, at both an R.C.M. 802 session and during a hearing on appellant’s
unreasonable multiplication of charges motion, the military judge confirmed that
both parties still agreed the proper larceny victims were charged. The military judge
stated that the defense counsel had convinced him that the one victim was the U.S.
Army and both parties agreed that the U.S. Army was the “properly-named victim”
of the larceny offenses. As a result, defense counsel persuasively argued that there
was only one victim of the larcenies – the U.S. Army – and four specifications were
merged for sentencing. This reduced appellant’s exposure to confinement for those
specifications from twenty years to five years.

       The stipulation of fact and facts elicited by the military judge during the
providence inquiry fully support the charges and specifications for which appellant
pleaded guilty. It is also clear from the record that appellant understood the
meaning and effect of his guilty plea. As the U.S. Army was the proper victim in
this case, there is no substantial basis in fact or law to question the providence of
appellant’s plea. Therefore, the military judge did not abuse his discretion by
accepting appellant’s guilty pleas to the larceny charges and specifications.




(. . . continued)
purchases by recording them on the unit property book. This would have been a
regulatory violation for an unauthorized purchase – but not a theft of U.S. Army
property.




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JOHNSON—ARMY 20160245

                                   CONCLUSION

       Having found no substantial basis in law or fact to question appellant’s pleas,
and finding the sentence appropriate, the findings and sentence as adjudged and
approved by the convening authority are AFFIRMED.

      Senior Judge MULLIGAN concurs.

WOLFE, Judge, concurring:

      I understand appellant’s desire to see his case as the next in the line of
confusing cases of electronic thefts so that he can then characterize the offense as
being mischarged—and thereby invalidate a guilty plea. But, this is a case of theft
by “taking,” not a case of obtaining by false pretenses.

       Appellant was charged with stealing lawnmowers and televisions. He was not
charged with stealing “money.” Appellant’s crime would be no different had the
Army provided him with an envelope of cash to make unit purchases instead of a
credit card. In both instances, appellant would have bought lawnmowers and
televisions for the U.S. Army. I would not evaluate this case under Simpson,
Lubasky, Cimball-Sharpton, or Williams, just because, at one point, a credit card was
used.

       This was a theft by “taking” not a theft by obtaining through false pretenses.
That was what was charged. Those were the actions to which appellant pleaded
guilty. Given appellant’s admitted facts at the providence inquiry there is no basis
in law or fact to question the providence of his plea.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court




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