U.S. v. Simpson, 77 M.J. 279

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in the event that an accused sets up a matter inconsistent with a plea of guilty, the military judge must resolve the inconsistency or reject the plea

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion in accepting a guilty plea if he fails to obtain from the accused an adequate factual basis to support the plea, an area in which an appellate court affords significant deference; a ruling based on an erroneous view of the law is also an abuse of discretion

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. an attempt, like a conspiracy, is an inchoate offense
2. in this case, the accused’s admissions during the providence inquiry, together with the stipulation of fact, established all the elements of the lesser included offense of attempted larceny where he admitted to performing overt acts, namely obtaining and withholding property that he believed belonged to a zero-balance account holder and these acts were done with the specific intent to commit a larceny by permanently depriving the account holder of the money at issue, and constituted more than mere preparation; the accused did, in fact, commit and plead guilty to larceny, but he was merely mistaken about who he was stealing from

Core Criminal Law Subjects: Crimes: Article 81 - Conspiracy Pre-2019 offenses

1. conspiracy, an inchoate offense, is proscribed under Article 81, UCMJ, and has two elements: (1) that the accused entered into an agreement with one or more persons to commit an offense under the UCMJ, and (2) that while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing out the object of the conspiracy
2. conspiracy punishes the agreement to commit a crime, and factual impossibility is no defense to conspiracy; in such cases, an accused should be treated in accordance with the facts as he or she supposed them to be
3. in this case, the accused’s plea of guilty to conspiracy to commit larceny was provident where the providence inquiry and the stipulation of fact showed an agreement between the accused and another soldier to use funds from an account holder’s zero-balance account in order to pay personal debts and where the accused performed overt acts in furtherance of the conspiracy such as arranging for the other soldier to receive the account information; the fact that the funds were actually obtained from a bank, as opposed to the account holder, was of no moment

Core Criminal Law Subjects: Crimes: Article 121 - Larceny and Wrongful Appropriation Pre-2019 offenses

1. Article 121, UCMJ, proscribes the wrongful taking, obtaining, or withholding, from the possession of the owner or of any other person, money or an article of value of any kind with intent to permanently deprive; the government must allege that the accused wrongfully obtained money or goods from a person or entity with a superior possessory interest
2. when an accused engages in a wrongful credit, debit, or electronic transaction, this usually constitutes either a larceny of those goods from the merchant offering the goods or from the entity presenting the money; the general rule in such a case is that the money or goods are wrongfully obtained from the merchant or bank
3. under Article 121, UCMJ, the government should generally charge as the object of the larceny, the person or entity from whom the accused obtained the goods or money at issue, rather than any person who suffered a loss or consequence as a result of the accused’s actions; for purposes of Article 121, UCMJ, it does not matter who suffered a loss or harm as a result of an accused’s actions; rather, the proper object of a larceny is the person or entity from whom the accused actually obtained the goods or money
4. in this case, the accused’s plea of guilty to larceny was improvident where the stipulation of fact set up a matter inconsistent with his plea by stating he stole the funds from an account holder, rather than the proper owner of the funds, the bank; as is true in the usual case involving a credit larceny, the bank was the proper object, not the account holder; in addition, as the stipulation of fact reflected, the bank was the only entity that possessed funds at the time of the fraudulent transactions, and there were no funds in the zero-balance account holder’s account; the accused obtained nothing from the account holder, and as a matter of law, therefore, the account holder could not be the object of the larceny

Trial Stages: Merits: Guilty Pleas

1. in the event that an accused sets up a matter inconsistent with a plea of guilty, the military judge must resolve the inconsistency or reject the plea
2. in this case, the accused’s plea of guilty to larceny was improvident where the stipulation of fact set up a matter inconsistent with his plea by stating he stole the funds from an account holder, rather than the proper owner of the funds, the bank; as is true in the usual case involving a credit larceny, the bank was the proper object, not the account holder; in addition, as the stipulation of fact reflected, the bank was the only entity that possessed funds at the time of the fraudulent transactions, and there were no funds in the zero-balance account holder’s account; the accused obtained nothing from the account holder, and as a matter of law, therefore, the account holder could not be the object of the larceny
3. in this case, the accused’s plea of guilty to conspiracy to commit larceny was provident where the providence inquiry and the stipulation of fact showed an agreement between the accused and another soldier to use funds from an account holder’s zero-balance account in order to pay personal debts and where the accused performed overt acts in furtherance of the conspiracy such as arranging for the other soldier to receive the account information; the fact that the funds were actually obtained from a bank, as opposed to the account holder, was of no moment
4. in this case, the accused’s admissions during the providence inquiry, together with the stipulation of fact, established all the elements of the lesser included offense of attempted larceny where he admitted to performing overt acts, namely obtaining and withholding property that he believed belonged to a zero-balance account holder and these acts were done with the specific intent to commit a larceny by permanently depriving the account holder of the money at issue, and constituted more than mere preparation; the accused did, in fact, commit and plead guilty to larceny, but he was merely mistaken about who he was stealing from

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo
2. an appellate court affords significant deference to a military judge in determining whether he obtained an adequate factual basis from an accused to support a guilty plea
3. an appellate court will not set aside an accused’s guilty plea on appeal unless there is a substantial basis in law or fact for questioning the plea