Article 121 — Larceny and wrongful appropriation

Part IV · Punitive Articles

Article 121. Larceny and wrongful appropriation · MCM ¶ 64

2024 Manual for Courts-Martial, United States

(a) Text of statute.

(a) Any person subject to this chapter who 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—

(1) 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, steals that property and is guilty of larceny; or

(2) with intent temporarily 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, is guilty of wrongful appropriation.

(b) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct.

(b) Elements.

(1) Larceny.

(a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

(b) That the property belonged to a certain person;

(d) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person other than the owner.

Practice Note

[Note: If the property is alleged to be military property, as defined in subparagraph 64.c.(1)(h), add the following element]

(e) That the property was military property.

(2) Wrongful appropriation.

(a) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

(b) That the property belonged to a certain person;

(d) That the taking, obtaining, or withholding by the accused was with the intent temporarily to deprive or defraud another person of the use and benefit of the property or temporarily to appropriate the property for the use of the accused or for any person other than the owner.

(1) Larceny.

(a) In general. A wrongful taking with intent permanently to deprive includes the common law offense of larceny; a wrongful obtaining with intent permanently to defraud includes the offense formerly known as obtaining by false pretense; and a wrongful withholding with intent permanently to appropriate includes the offense formerly known as embezzlement. Any of the various types of larceny under Article 121 may be charged and proved under a specification alleging that the accused did steal the property in question.

(b) Taking, obtaining, or withholding. There must be a taking, obtaining, or withholding of the property by the thief. For instance, there is no taking if the property is connected to a building by a chain and the property has not been disconnected from the building; property is not obtained by merely acquiring title thereto without exercising some possessory control over it. As a general rule, however, any movement of the property or any exercise of dominion over it is sufficient if accompanied by the requisite intent. Thus, if an accused enticed another’s horse into the accused’s stable without touching the animal, or procured a railroad company to deliver another’s trunk by changing the check on it, or obtained the delivery of another’s goods to a person or place designated by the accused, or had the funds of another transferred to the accused’s bank account, the accused is guilty of larceny if the other elements of the offense have been proved. A person may obtain the property of another by acquiring possession without title, and one who already has possession of the property of another may obtain it by later acquiring title to it. A withholding may arise as a result of a failure to return, account for, or deliver property to its owner when a return, accounting, or delivery is due, even if the owner has made no demand for the property, or it may arise as a result of devoting property to a use not authorized by its owner. Generally, this is so whether the person withholding the property acquired it lawfully or unlawfully. See subparagraph c.(1)(f) of this paragraph. However, acts which constitute the offense of unlawfully receiving, buying, or concealing stolen property or of being an accessory after the fact are not included within the meaning of withholds. Therefore, neither a receiver of stolen property nor an accessory after the fact can be convicted of larceny on that basis alone. The taking, obtaining, or withholding must be of specific property. A debtor does not withhold specific property from the possession of a creditor by failing or refusing to pay a debt, for the relationship of debtor and creditor does not give the creditor a possessory right in any specific money or other property of the debtor.

(i) In general. Article 121 requires that the taking, obtaining, or withholding be from the possession of the owner or of any other person. Care, custody, management, and control are among the definitions of possession.

(ii) Owner. “Owner” refers to the person who, at the time of the taking, obtaining, or withholding, had the superior right to possession of the property in the light of all conflicting interests therein which may be involved in the particular case. For instance, an organization is the true owner of its funds as against the custodian of the funds charged with the larceny thereof.

(iii) Any other person. “Any other person” means any person—even a person who has stolen the property—who has possession or a greater right to possession than the accused. In pleading a violation of this article, the ownership of the property may be alleged to have been in any person, other than the accused, who at the time of the theft was a general owner or a special owner thereof. A general owner of property is a person who has title to it, whether or not that person has possession of it; a special owner, such as a borrower or hirer, is one who does not have title but who does have possession, or the right of possession, of the property.

(iv) Person. Person, as used in referring to one from whose possession property has been taken, obtained, or withheld, and to any owner of property, includes (in addition to a natural person) a government, a corporation, an association, an organization, and an estate. Such a person need not be a legal entity.

(d) Wrongfulness of the taking, obtaining, or withholding. The taking, obtaining, or withholding of the property must be wrongful. As a general rule, a taking or withholding of property from the possession of another is wrongful if done without the consent of the other, and an obtaining of property from the possession of another is wrongful if the obtaining is by false pretense. However, such an act is not wrongful if it is authorized by law or apparently lawful superior orders, or, generally, if done by a person who has a right to the possession of the property either equal to or greater than the right of one from whose possession the property is taken, obtained, or withheld. An owner of property who takes or withholds it from the possession of another, without the consent of the other, or who obtains it therefrom by false pretense, does so wrongfully if the other has a superior right—such as a lien—to possession of the property. A person who takes, obtains, or withholds property as the agent of another has the same rights and liabilities as does the principal, but may not be charged with a guilty knowledge or intent of the principal which that person does not share.

(e) False pretense. With respect to obtaining property by false pretense, the false pretense may be made by means of any act, word, symbol, or token. The pretense must be in fact false when made and when the property is obtained, and it must be knowingly false in the sense that it is made without a belief in its truth. A false pretense is a false representation of past or existing fact. In addition to other kinds of facts, the fact falsely represented by a person may be that person’s or another’s power, authority, or intention. Thus, a false representation by a person that the person presently intends to perform a certain act in the future is a false representation of an existing fact—the intention—and thus a false pretense. Although the pretense need not be the sole cause inducing the owner to part with the property, it must be an effective and intentional cause of the obtaining. A false representation made after the property was obtained will not result in a violation of Article 121. A larceny is committed when a person obtains the property of another by false pretense and with intent to steal, even though the owner neither intended nor was requested to part with title to the property. Thus, a person who gets another’s watch by pretending that it will be borrowed briefly and then returned, but who really intends to sell it, is guilty of larceny.

(f) Intent.

(i) In general. The offense of larceny requires that the taking, obtaining, or withholding by the thief be accompanied by an intent permanently to deprive or defraud another of the use and benefit of property or permanently to appropriate the property to the thief’s own use or the use of any person other than the owner. These intents are collectively called an intent to steal. Although a person gets property by a taking or obtaining which was not wrongful or which was without a concurrent intent to steal, a larceny is nevertheless committed if an intent to steal is formed after the taking or obtaining and the property is wrongfully withheld with that intent. For example, if a person rents another’s vehicle, later decides to keep it permanently, and then either fails to return it at the appointed time or uses it for a purpose not authorized by the terms of the rental, larceny has been committed, even though at the time the vehicle was rented, the person intended to return it after using it according to the agreement.

(ii) Inference of intent. An intent to steal may be proved by circumstantial evidence. Thus, if a person secretly takes property, hides it, and denies knowing anything about it, an intent to steal may be inferred; if the property was taken openly and returned, this would tend to negate such an intent. Proof of sale of the property may show an intent to steal, and therefore, evidence of such a sale may be introduced to support a charge of larceny. An intent to steal may be inferred from a wrongful and intentional dealing with the property of another in a manner likely to cause that person to suffer a permanent loss thereof.

(iii) Special situations.

(A) Motive does not negate intent. The accused’s purpose in taking an item ordinarily is irrelevant to the accused’s guilt as long as the accused had the intent required under subparagraph c.(1)(f)(i) of this paragraph. For example, if the accused wrongfully took property as a joke or “to teach the owner a lesson” this would not be a defense, although if the accused intended to return the property, the accused would be guilty of wrongful appropriation, not larceny. When a person takes property intending only to return it to its lawful owner, as when stolen property is taken from a thief in order to return it to its owner, larceny or wrongful appropriation is not committed.

(B) Intent to pay for or replace property not a defense. An intent to pay for or replace the stolen property is not a defense, even if that intent existed at the time of the theft. If, however, the accused takes money or a negotiable instrument having no special value above its face value, with the intent to return an equivalent amount of money, the offense of larceny is not committed although wrongful appropriation may be.

(C) Return of property not a defense. Once a larceny is committed, a return of the property or payment for it is no defense. See subparagraph c.(2) of this paragraph when the taking, obtaining, or withholding is with the intent to return.

(g) Value.

(i) In general. Value is a question of fact to be determined on the basis of all of the evidence admitted.

(ii) Government property. When the stolen property is an item issued or procured from Government sources, the price listed in an official publication for that property at the time of the theft is admissible as evidence of its value. See Mil. R. Evid. 803(17). However, the stolen item must be shown to have been, at the time of the theft, in the condition upon which the value indicated in the official price list is based. The price listed in the official publication is not conclusive as to the value of the item, and other evidence may be admitted on the question of its condition and value.

(iii) Other property. As a general rule, the value of other stolen property is its legitimate market value at the time and place of the theft. If this property, because of its character or the place where it was stolen, had no legitimate market value at the time and place of the theft or if that value cannot readily be ascertained, its value may be determined by its legitimate market value in the United States at the time of the theft, or by its replacement cost at that time, whichever is less. Market value may be established by proof of the recent purchase price paid for the article in the legitimate market involved or by testimony or other admissible evidence from any person who is familiar through training or experience with the market value in question. The owner of the property may testify as to its market value if familiar with its quality and condition. The fact that the owner is not an expert of the market value of the property goes only to the weight to be given that testimony, and not to its admissibility. See Mil. R. Evid. 701. When the character of the property clearly appears in evidence— for instance, when it is exhibited to the court-martial— the court-martial, from its own experience, may infer that it has some value. If as a matter of common knowledge the property is obviously of a value substantially in excess of $1,000, the court-martial may find a value of more than $1,000. Writings representing value may be considered to have the value—even though contingent—which they represented at the time of the theft.

(iv) Limited interest in property. If an owner of property or someone acting in the owner’s behalf steals it from a person who has a superior, but limited, interest in the property, such as a lien, the value for punishment purposes shall be that of the limited interest.

(h) Military property. Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. Military property is a term of art, and should not be confused with Government property. The terms are not interchangeable. While all military property is Government property, not all Government property is military property. An item of Government property is not military property unless the item in question meets the definition provided in this paragraph. Retail merchandise of Service exchange stores is not military property under this article.

(i) Miscellaneous considerations.

(i) Lost property. A taking or withholding of lost property by the finder is larceny if accompanied by an intent to steal and if a clue to the identity of the general or special owner, or through which such identity may be traced, is furnished by the character, location, or marketing of the property, or by other circumstances.

(ii) Multiple article larceny. When a larceny of several articles is committed at substantially the same time and place, it is a single larceny even though the articles belong to different persons. Thus, if a thief steals a suitcase containing the property of several persons or goes into a room and takes property belonging to various persons, there is but one larceny, which should be alleged in but one specification.

(iii) Special kinds of property which may also be the subject of larceny. Included in property which may be the subject of larceny is property which is taken, obtained, or withheld by severing it from real estate and writings which represent value such as commercial paper.

(iv) Services. Theft of services may not be charged under this paragraph. But see paragraph 66.

(v) Credit, debit, and electronic transactions. Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money ordinarily should be charged under paragraph 65.

(2) Wrongful appropriation.

(a) In general. Wrongful appropriation requires an intent to temporarily—as opposed to permanently— deprive the owner of the use and benefit of, or appropriate to the use of another, the property wrongfully taken, withheld, or obtained. In all other respects wrongful appropriation and larceny are identical.

(b) Examples. Wrongful appropriation includes: taking another’s automobile without permission or lawful authority with intent to drive it a short distance and then return it or cause it to be returned to the owner; obtaining a service weapon by falsely pretending to be about to go on guard duty with intent to use it on a hunting trip and later return it; and while driving a Government vehicle on a mission to deliver supplies, withholding the vehicle from Government service by deviating from the assigned route without authority, to visit a friend in a nearby town and later restore the vehicle to its lawful use. An inadvertent exercise of control over the property of another will not result in wrongful appropriation. For example, a person who fails to return a borrowed boat at the time agreed upon because the boat inadvertently went aground is not guilty of this offense.

(d) Maximum punishment.

(1) Larceny.

(a) Property of a value of $1,000 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(b) Military property of a value of more than $1,000 or of any military motor vehicle, aircraft, vessel, firearm, or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

(c) Property other than military property of a value of more than $1,000 or any motor vehicle, aircraft, vessel, firearm, or explosive not included in subparagraph d.(1)(b). Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.”

(2) Wrongful appropriation.

(a) Of a value of $1,000 or less. Confinement for 3 months, and forfeiture of two-thirds pay per month for 3 months.

(b) Of a value of more than $1,000. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(c) Of any motor vehicle, aircraft, vessel, firearm, explosive, or military property of a value of more than $1,000. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

(e) Sample specifications.

(1) Larceny. In that ______________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about ______ 20___, steal ______________, (military property), of a value of (about) $_________, the property of ______________.

(2) Wrongful appropriation. In that ___________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _______ 20___, wrongfully appropriate ______________, of a value of (about) $__________, the property of _____________.

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

(1) Any property—$1,000 or less: BCD, TF, 1 year, E-1. (Category 1)

(2) Military property—more than $1,000, or of any military motor vehicle, aircraft, vessel, firearm, or explosive: DD, TF, 10 years, E-1. (Category 2)

(3) Other than military property—more than $1,000, or any motor vehicle, aircraft, vessel, firearm, or explosive not included un subparagraph d.(1)(b): DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, steal __________, (military property), of a value of (about) $__________, the property of __________.

Elements

(1) That (state the time and place alleged), the accused wrongfully (took) (obtained) (withheld) certain property, that is, (state the property allegedly taken), from the possession of (state the name of the owner or other person alleged);

(2) That the property belonged to (state the name of the owner or other person alleged);

(3) That the property was of a value of __________ (or of some value); (and)

(4) That the (taking) (obtaining) (withholding) by the accused was with the intent (permanently to (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (permanently to appropriate the property for the accused’s own use or the use of someone other than the owner); [and]

NOTE 2. Military and other property subject to enhanced punishment provisions when alleged. Add the following element and give the appropriate definitions:

[(5)] That the property was [(a) military (property) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)] [(a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)].

Definitions & other instructions

“Possession” means care, custody, management, or control.

“Owner” refers to any person (or entity) who, at the time of the (taking) (obtaining) (withholding), had a superior right to possession of the property than the accused did, in the light of all conflicting interests.

Property “belongs” to a person or entity having (title to the property) (a greater right to possession of the property than the accused) (or) (possession of the property).

(“Took” means any actual or constructive moving, carrying, leading, riding, or driving away of another’s personal property.)

(“Withheld” means a failure to return, account for, or deliver property to its owner when a return, accounting, or delivery is due, even if the owner has made no demand for the property. Withheld can also mean devoting property to a use not authorized by its owner.)

NOTE 3. Wrongfulness of the taking, withholding, or obtaining. When an issue of wrongfulness is raised by the evidence, an instruction tailored substantially as follows should be given:

(A (taking) (or) (withholding) is wrongful only if done without the consent of the owner and with a criminal state of mind.)

(An obtaining is wrongful only when it is accomplished by false pretenses with a criminal state of mind.)

(A criminal “false pretense” is any misrepresentation of fact by a person who knows it to be untrue, which is intended to deceive, which does in fact deceive, and which is the means by which value is obtained from another without compensation. The false pretense may be made by means of any act, word, symbol, or token and may relate to a past or existing fact. The misrepresentation must be an effective and intentional factor in causing the owner to part with the property. The misrepresentation does not, however, have to be the only cause of the obtaining.)

(In determining whether the (taking) (or) (withholding) (or) (obtaining) was wrongful, you should consider all the facts and circumstances presented by the evidence.) (Consider evidence that the (taking) (or) (withholding) (or) (obtaining) may have been (from a person with a greater right to possession) (without lawful authorization) (without the authority of apparently lawful orders) (__________)).

(On the other hand, consider evidence that the (taking) (or) (withholding) (or) (obtaining) may have been (negligent) (under a mistaken belief of right) (with lawful authority) (authorized by apparently lawful superior orders) (from a person with a lesser right to possession than the accused) (from a person with whom the accused enjoyed an equal right to possession) (for the purpose of returning the property to the owner) (__________)).

NOTE 4. Non-larcenous or “innocent” motive. If there is evidence that the accused took property as a joke or trick, to “teach another a lesson,” or for a similar reason, the following instruction may be appropriate. See US v. Kastner, 17 MJ 11 (CMA 1983) (overruling the “innocent purpose defense” of US v. Roark, 31 CMR 64 (CMA 1961)), and US v. Johnson, 17 MJ 140 (CMA 1984). This evidence will ordinarily raise the lesser included offense of wrongful appropriation:

Evidence has been presented that the accused may have (taken) (or) (obtained) (or) (withheld) the (state the property allegedly taken) as a (joke) (trick) (to teach another a lesson) (to test security) (__________). The accused’s reason for (taking) (or) (withholding) (or) (obtaining) the property is neither an element of larceny nor is it a defense. (An intent to pay or replace the stolen property is not a defense). However, it is evidence that may be considered in determining whether the accused, at the time of the (taking) (or) (obtaining) (or) (withholding) had the intent permanently to:

a. (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property; or

b. appropriate the property to (his/her) own use or the use of any other person other than the owner.

The burden is upon the prosecution to establish the guilt of the accused. Unless you are satisfied beyond a reasonable doubt that the accused had the intent permanently to ((deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (appropriate the property to (his/her) own use or the use of any person other than the owner), the accused may not be found guilty of larceny.

NOTE 5. Possession of recently stolen property. If the accused may have been found in possession of recently stolen property, an instruction tailored substantially as follows is appropriate:

If the facts establish that the property was wrongfully (taken) (or) (obtained) (or) (withheld) from the possession of (state the name of the owner or other person alleged) and that shortly thereafter it was discovered in the knowing, conscious, and unexplained possession of the accused, you may infer that the accused (took) (or) (obtained) (or) (withheld) the property. The drawing of this inference is not required.

It is not required that the property actually be in the hands of or on the person of the accused, and possession may be established by the fact that the property is found in a place which the accused controls. Two or more persons may be in possession of the same property at the same time. One person may have actual possession of property for that person and others. But mere presence in the vicinity of the property or mere knowledge of its location does not constitute possession.

“Shortly thereafter” is a relative term and has no fixed meaning. Whether property may be considered as discovered shortly thereafter it has been taken depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the (taking) (or) (obtaining) (or) (withholding), the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.

In considering whether the possession of the property has been explained, you are reminded that in the exercise of Constitutional and statutory rights, an accused need not take the stand and testify. Possession may be explained by facts, circumstances, and evidence independent of the testimony of the accused.

NOTE 6. Lost, mislaid, or abandoned property. If the evidence raises the possibility that before it was taken the property was abandoned, lost, or mislaid, the instruction that follows is appropriate. In addition, Instruction 5-13, Mistake of Fact, may apply to the issue of intent to deprive or to the issue of the wrongfulness of the taking:

The evidence has raised the issue of whether the property was abandoned, lost, or mislaid. In deciding this issue you should consider, along with all the other evidence that you have before you, the place where and the conditions under which the property was found (as well as how the property was marked).

“Abandoned property” is property which the owner has thrown away, relinquishing all right and title to and possession of the property with no intention to reclaim it. One who finds, takes, and keeps abandoned property becomes the new owner and does not commit larceny.

“Lost property” is property which the owner has involuntarily parted with due to carelessness, negligence, or other involuntary reason. In such cases, the owner has no intent to give up ownership. The circumstances and conditions under which the property was found may support the inference that it was left unintentionally but you are not required to draw this inference. One who finds lost property is not guilty of larceny unless (he) (she) takes possession of the property having (1) an intent permanently to (deprive) (defraud) the owner of its use and benefit or permanently to appropriate the property to (his) (her) own use, or the use of someone other than the owner, and (2) a clue as to the identity of the owner.

A clue as to identity of the owner may be provided by the character, location, or marking of the property, or by other circumstances. The clue(s) must provide a reasonably immediate means of knowing or ascertaining the owner of the property.

Such a person is guilty of larceny if the property is wrongfully taken with the same intent permanently to deprive, defraud, or appropriate the property as I discussed earlier with lost property even though there is no clue as to the identity of the owner.

The burden is on the government to prove each and every element of larceny beyond a reasonable doubt. The accused cannot be convicted unless you are convinced beyond a reasonable doubt that the property was not abandoned. In addition, if you are convinced beyond a reasonable doubt that the property was “mislaid,” the accused may be convicted only if you are convinced beyond a reasonable doubt of all the elements of larceny. If you are convinced beyond a reasonable doubt that the property was not abandoned but are not convinced beyond a reasonable doubt that the property was “mislaid,” you should consider the property to be “lost.” In this circumstance, the accused cannot be convicted unless you are convinced beyond a reasonable doubt that, at the time of the taking, along with the other elements of larceny, the accused had a clue as to the identity of the owner.

NOTE 7. Bailment and withholding by conversion—other than pay and allowances erroneously paid. The following instruction may be appropriate where there is evidence that the accused misused property given to him or her in a bailment arrangement. See US v. Hale, 28 MJ 310 (CMA 1989) and US v. Jones, 35 MJ 143 (CMA 1992):

You may find that a wrongful withholding occurred if you find beyond a reasonable doubt that the owner loaned, rented, or otherwise entrusted property to the accused for a certain period of use, the accused later retained the property beyond the period contemplated without consent or authority from the owner, and had the intent permanently to (deprive) (defraud) the owner of its use and benefit.

NOTE 8. Withholding of pay and/or allowances. When the accused has erroneously received either pay and/or allowances, an instruction tailored substantially as below may be given. This instruction is based upon US v. Helms, 47 MJ 1 (CAAF 1997). Helms clarified a previously unsettled area by making clear that knowing receipt, without any action on the part of the service member, when coupled with an intent permanently to deprive, is sufficient to prove larceny. Thus, there is neither a requirement for an affirmative action on the part of the service member which causes the payment (as was previously indicated in US v. Antonelli, 43 MJ 183 (CAAF 1995)), nor a requirement for the service member to fail to account for the payment when called upon to do so (as was previously indicated in US v. Thomas, 36 MJ 617 (ACMR 1992)). The question is one of proof: (1) did the service member realize he/she was receiving the payment; and (2) did the service member form the intent to steal? An affirmative action (Antonelli) or failure to account (Thomas) is still relevant as evidence of knowledge of the payment(s) and/or intent to steal, along with other examples listed in the paragraph below.

The mere failure to inform authorities of an overpayment of (an allowance) (pay) (pay and allowances) does not of itself constitute a wrongful withholding of that property.

In order to find that the accused wrongfully withheld (an allowance) (pay) (pay and allowances), you must find beyond a reasonable doubt that:

(1) The accused knew that (he) (she) was erroneously receiving (an allowance) (pay) (pay and allowances); and

(2) The accused, either at the time of receipt of the (allowance) (pay) (pay and allowances), or at any time thereafter, formed an intent (permanently to (deprive) (defraud) the government of the use and benefit of the money) (or) (permanently to appropriate the money to the accused’s own use or the use of someone other than the government).

In deciding whether the accused knew (he) (she) was erroneously receiving (pay) (an allowance) (pay and allowances) and whether the accused formed the requisite intent, you must consider all the facts and circumstances, including but not limited to (the accused’s intelligence) (the length of time the accused has been in the military) (any affirmative action by the accused which caused the overpayment) (the length of time the accused received the overpayment) (any failure by the accused to account for the funds when called upon to do so) (the amount of the erroneous payment when compared to the accused’s total pay) (any statement(s) made by the accused) (any actions taken by the accused to (conceal) (correct) the erroneous payment) (any representations made to the accused concerning the erroneous payment by persons in a position of authority to make such representations) (__________).

NOTE 9. Custodian of a fund. When the accused was the custodian of a fund and may have failed to produce property on request or to render an accounting, an instruction tailored substantially as follows may be given:

The mere (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) does not of itself constitute a larceny of that property. However, (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (a refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) will permit an inference that the custodian has wrongfully withheld the property. The drawing of this inference is not required. Whether it should be drawn at all and the weight to be given to it, if it is drawn, are matters for your exclusive determination. In making this determination you should consider the circumstances surrounding any (refusal) (failure) to (account for) (deliver) the property. In making your decision, you should also apply your common sense and general knowledge of human nature and the ordinary affairs of life.

NOTE 10. Military property. For a definition of military property, See US v. Schelin, 15 MJ 218 (CMA 1983), and US v. Simonds, 20 MJ 279 (CMA 1985). See also NOTE 10 below when money is alleged as military property. When military property is alleged, the following instruction should be given:

“Military property” is real or personal property owned, held, or used by one of the armed forces of the United States which either has a uniquely military nature or is used by an armed force in furtherance of its mission.

NOTE 11. “Money” as military property. In US v. Hemingway, 36 MJ 349 (CMA 1993), the court held that appropriated funds belonging to the Army—even if only being “held” by the Army for immediate disbursement to an individual service member for duty travel—are military property. Hemingway did not mention any of the service court cases that previously addressed the issue, such as US v. Dailey, 34 MJ 1039 (NMCMR 1992) (“money” paid as BAQ was considered to be “military property” because it was appropriated by Congress and used to provide an integral morale and welfare function); US v. Newsome, 35 MJ 749 (NMCMR 1992) (treasury checks are military property); US v. Field, 36 MJ 697 (AFCMR 1992) (appropriated funds for PCS and TDY travel are military property); or US v. Thomas, 31 MJ 794 (AFCMR 1990) (“money” paid as TLA (temporary lodging allowance) and VHA was not “military property” because ordinarily it is the property purchased with appropriations, and not “money,” which has a unique military nature or is put to a function meriting special status).

NOTE 12. Motor vehicle, aircraft, vessel, explosive, and firearm defined. If the property is alleged to be a motor vehicle, aircraft, vessel, explosive, or firearm, the following definitions will usually be sufficient. In a complex case, the military judge should consult the rules and statutes cited below:

Vehicle: 1 USC section 4

Motor Vehicle: 18 USC section 31 and 18 USC section 2311

Aircraft: 18 USC section 31 and 18 USC section 2311

Vessel: 1 USC section 3

Explosive: RCM 103(13), 18 USC section 844(j), and 18 USC section 232(5)

Firearm: RCM 103(14) and 18 USC section 232(4)

(“Motor vehicle” includes every description of carriage or other contrivance propelled or drawn by mechanical power and used, or capable of being used, as a means of transportation on land.)

(“Aircraft” means any contrivance invented, used or designed to navigate, fly, or travel in the air.)

(“Vessel” includes every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.)

(“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.)

(“Explosive” means gunpowders; powders used for blasting; all forms of high explosives; blasting materials; fuses (other than electrical circuit breakers), detonators, and other detonating agents; smokeless powders; any explosive bomb, grenade, missile, or similar device; and any incendiary bomb or grenade, fire bomb, or similar device. “Explosive” includes ammunition.)

NOTE 13. Other definitions of explosive. The above definition of explosive (except the last sentence regarding ammunition, which is derived from U.S. v. Murphy, 74 MJ 302 (2015)) is taken from RCM 103(13). The Manual definition also includes any other compound, mixture, or device within the meaning of 18 USC section 232(5) or 18 USC section 844(j). Title 18 USC section 232(5) includes the following definitions of explosive not included above: dynamite or other devices which (a) consist of or include a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone. 18 USC section 844(j) also includes the following: any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.

NOTE 14. Military or specified property, variance. If the property is alleged to be military property and/or a motor vehicle, aircraft, vessel, firearm, or explosive, and an issue as to its nature is raised by the evidence, the following instruction should be given:

The government has charged that the property allegedly stolen was “((military property)) ((a military) (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)).” To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property is of the nature as alleged. If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged, you may still convict the accused of larceny. In this event you must make appropriate findings by excepting the words “((military property)) ((a military) (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)).”

NOTE 15. Value alleged as $1000.00 or less and property in evidence. Under these circumstances, the following instruction may be given:

When property is alleged to have a value of $1000.00 or less, the prosecution is required to prove only that the property has some value. When, as here (you have evidence of the nature of the property) (the property has been admitted in evidence as an exhibit and can be examined by the members), you may infer that it has some value. The drawing of this inference is not required.

NOTE 16. Value alleged in excess of $1000.00. If value in excess of $1000.00 is alleged, Instruction 7-16, Value, Damage, or Amount, may be appropriate.

NOTE 17. Larceny of a completed check, money order or similar instrument. The following instruction may be appropriate:

When the subject of the larceny is a completed check, money order, or similar instrument, the value is the face amount for which it is written (in the absence of evidence to the contrary raising a reasonable doubt as to that value).

NOTE 18. Asportation. The asportation (the taking or carrying away) continues, and thus the crime of larceny continues, as long as there is any movement of the property with the requisite intent, even if not off the premises. As long as the perpetrator is dissatisfied with the location of the property, a relatively short interruption of the movement of the property does not end the asportation. See US v. Escobar, 7 MJ 197 (CMA 1979).

NOTE 19. Receiver of stolen property or accessory after the fact. Larceny by “withholding” cannot be premised on evidence of receiving stolen property or being an accessory after the fact. See US v. Jones, 33 CMR 167 (CMA 1963).

NOTE 20. Taking and stealing of mail. See Article 109a, Part IV, MCM and Instructions 3a-33a-1, Mail—Taking, 3a-33a-2, Mail—Opening, Secreting, or Destroying, and 3a-33a-3, Mail--Stealing.

NOTE 21. Tangible property subject of larceny. Money, personal property or article of value, as those terms are used in Article 121, UCMJ, include only tangible items having corporeal existence and do not include services or other intangibles, such as taxicab and telephone services, or use and occupancy of government quarters, or a debt. See US v. Roane, 43 MJ 93 (CMA 1995), US v. Abeyta, 12 MJ 507 (ACMR 1981) and US v. Mervine, 26 MJ 482 (CMA 1988). (Theft of intangibles may be charged under Article 121b as obtaining services under false pretenses.)

NOTE 22. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), normally applies. Instruction 7-16, Variance - Value, Damage, or Amount, may apply. Instruction 7-15, Variance, may apply.

NOTE 23. Wrongful appropriation as a lesser included offense. When wrongful appropriation is raised as a lesser included offense, give the following:

The offense of wrongful appropriation is a lesser included offense of the offense of larceny as set forth in (The) Specification (__) of (The) (Additional) Charge (__). If you find the accused not guilty of larceny, you should then consider the lesser included offense of wrongful appropriation, also in violation of Article 121. In order to find the accused guilty of this lesser offense, you must be satisfied by legal and competent evidence beyond a reasonable doubt of the following elements:

(2) That the property belonged to (state the name of the owner or other person alleged);

(3) That the property was of a value of __________ (or of some value); (and)

(4) That the (taking) (obtaining) (withholding) by the accused was with the intent (temporarily to (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (temporarily to appropriate the property for the accused’s own use or the use of someone other than the owner.) [and]

[(5)] That the property was (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive) (military property of a value more than $1000).

The offense of larceny differs from the offense of wrongful appropriation in that the offense of larceny requires as an essential element that you be satisfied beyond a reasonable doubt that at the time of the (taking) (withholding) (obtaining), the accused had the intent permanently to deprive the owner of the use and benefit of the property or had the intent permanently to appropriate the property to (his) (her) own use or the use of anyone other than the lawful owner. The lesser included offense of wrongful appropriation does not include that element but does require as an essential element that you be satisfied beyond reasonable doubt that at the time of the (taking) (withholding) (obtaining) the accused had the intent temporarily to deprive the owner of the use and benefit of the property or had the intent temporarily to appropriate the property for (his) (her) own use or the use of anyone other than the lawful owner.

NOTE 24. Other instructions distinguishing larceny from wrongful appropriation. The following instructions may be appropriate:

The (taking) (withholding) (obtaining) as a (joke) (trick) (to teach another a lesson) (to test security) (__________) is not a defense to wrongful appropriation.

NOTE 25. Failure to pay or refusing to pay a debt.

A person who owes a debt to another does not commit larceny by failing or refusing to pay a debt to a creditor.

NOTE 26. Delayed intent. If the specification alleges a wrongful withholding, the following instruction may be appropriate:

A person who gets property by a taking or obtaining which was not wrongful, or without an intent to steal the property at the time, is still guilty of larceny if an intent to steal is formed after the taking or obtaining and the property is then wrongfully withheld with that intent.

References

Abandoned, lost, mislaid property: US v. Wiederkehr, 33 MJ 539 (AFCMR 1991); Pay and allowances: US v. Helms, 47 MJ 1 (CAAF 1997).

Source: Instruction 3a-64-1 · view original on jagcnet.army.mil

NOTE 1. Applicability of this instruction. Use this instruction when wrongful appropriation is the charged offense. When instructing upon wrongful appropriation as a lesser included offense of larceny, use Instruction 3a-64-1.

NOTE 2. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

(1) $1,000 or less: 2/3 x 3 months, 3 months, E-1. (Category 1)

(2) More than $1,000: BCD, TF, 1 year, E-1. (Category 1)

(3) Of motor vehicle, aircraft, vessel, firearm, explosive or military property of a value of more than $1,000: DD, TF, 2 years, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, wrongfully appropriate __________, of a value of (about) $__________, the property of __________.

Elements

(2) That the property belonged to (state the name of the owner or other person alleged);

(3) That the property was of a value of __________ (or of some value); (and)

(4) That the (taking) (obtaining) (withholding) by the accused was with the intent (temporarily to (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (temporarily to appropriate the property to the accused’s own use or the use of someone other than the owner). [and]

NOTE 3. Property subject to enhanced punishment provisions when alleged. Add the following element and give the appropriate definitions:

[(5)] That the property was (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive) (military property of a value of more than $1000.00).

Definitions & other instructions

“Possession” means care, custody, management, or control.

“Owner” refers to any person (or entity) who, at the time of the (taking) (obtaining) (withholding) had a superior right to possession of the property than the accused did, in the light of all conflicting interests.

Property “belongs” to a person or entity having (title to the property) (a greater right to possession of the property than the accused) (or) (possession of the property).

(“Took” means any actual or constructive moving, carrying, leading, riding, or driving away of another’s personal property.)

NOTE 4. Wrongfulness of the taking, withholding, or obtaining. When an issue of wrongfulness is raised by the evidence, an instruction tailored substantially as follows should be given:

(A (taking) (or) (withholding) is wrongful only if done without the consent of the owner and with a criminal state of mind.)

(An obtaining is wrongful only when it is accomplished by false pretenses with a criminal state of mind.)

(In determining whether the (taking) (or) (withholding) (or) (obtaining) was wrongful, you should consider all the facts and circumstances presented by the evidence.)

(Consider evidence that the (taking) (or) (withholding) (or) (obtaining) may have been (from a person with a greater right to possession) (without lawful authorization) (without the authority of apparently lawful orders) (__________).)

NOTE 5. “Innocent” motive. An “innocent” motive to take the property, such as for a joke or trick, to “teach another a lesson,” or for a similar reason, is NOT a defense to wrongful appropriation.

NOTE 6. Possession of recently taken property. If the accused may have been found in possession of recently taken property, an instruction tailored substantially as follows is appropriate:

In considering whether the possession of the property has been explained, remember that in the exercise of Constitutional and statutory rights, an accused need not take the stand and testify. Possession may be explained by facts, circumstances and evidence independent of the testimony of the accused.

NOTE 7. Lost, mislaid, or abandoned property. If the evidence raises the possibility that before it was taken, the property was abandoned, lost, or mislaid, the instruction that follows is appropriate. In addition, Instruction 5-13, Mistake of Fact, may apply to the issue of intent to deprive or to the issue of the wrongfulness of the taking.

“Lost property” is property which the owner has involuntarily parted with due to carelessness, negligence, or other involuntary reason. In such cases, the owner has no intent to give up ownership. The circumstances and conditions under which the property was found may support the inference that it was left unintentionally but you are not required to draw this inference. One who finds lost property is not guilty of wrongful appropriation unless (he) (she) takes possession of the property with both the intent temporarily to (deprive) (defraud) the owner of its use and benefit or temporarily to appropriate the property to (his) (her) own use, or the use of someone other than the owner, and has a clue as to the identity of the owner.

A clue as to identity of the owner may be provided by the character, location, or marking of the property, or by other circumstances. The clue must provide a reasonably immediate means of knowing or ascertaining the owner of the property.

“Mislaid property” is property which the owner voluntarily and intentionally leaves or puts in a certain place for a temporary purpose and then forgets where it was left or inadvertently leaves it behind. A person who finds mislaid property has no right to take possession of it, other than for the purpose of accomplishing its return to the owner. Such a person is guilty of wrongful appropriation if the property is wrongfully taken with the same intent temporarily to deprive, defraud, or appropriate the property (as was discussed earlier with lost property) even though there is no clue as to the identity of the owner.

The burden is on the government to prove each and every element of wrongful appropriation beyond a reasonable doubt. The accused cannot be convicted unless you are convinced beyond a reasonable doubt that the property was not abandoned. In addition, if you are convinced beyond a reasonable doubt that the property was “mislaid,” the accused may be convicted only if you are convinced beyond a reasonable doubt of all the elements of wrongful appropriation. If you are convinced beyond a reasonable doubt that the property was not abandoned but are not convinced beyond a reasonable doubt that the property was “mislaid,” you should consider the property to be “lost.” In this circumstance, the accused cannot be convicted unless you are convinced beyond a reasonable doubt that, at the time of the taking, along with the other elements of wrongful appropriation, the accused had a clue as to identity of the owner.

NOTE 8. Bailment and withholding by conversion — other than pay and allowances erroneously paid. The following instruction may be appropriate where there is evidence that the accused misused property given to him or her in a bailment arrangement. See US v. Hale, 28 MJ 310 (CMA 1989) and US v. Jones, 35 MJ 143 (CMA 1992):

You may find that a wrongful withholding occurred if you find beyond a reasonable doubt that the owner loaned, rented, or otherwise entrusted property to the accused for a certain period of use, the accused later retained the property beyond the period contemplated without consent or authority from the owner, and had the intent temporarily to (deprive) (defraud) the owner of its use and benefit.

NOTE 9. Withholding of pay and/or allowances. When the accused has erroneously received either pay and/or allowances, an instruction tailored substantially as below may be given. This instruction is based upon US v. Helms, 47 MJ 1 (CAAF 1997). Helms clarified a previously unsettled area by making clear that knowing receipt, without any action on the part or the service member, when coupled with an intent permanently to deprive, is sufficient to prove larceny. Thus, there is neither a requirement for an affirmative action on the part of the service member which causes the payment (as was previously indicated in US v. Antonelli, 43 MJ 183 (CAAF 1995)), nor a requirement for the service member to fail to account for the payment when called upon to do so (as was previously indicated in US v. Thomas, 36 MJ 617 (ACMR 1992)). The question now is one of proof: (1) did the service member realize (he) (she) was receiving the payment; and (2) did the service member form the intent to temporarily deprive? An affirmative action (Antonelli) or failure to account (Thomas) is still relevant as evidence of knowledge of the payment(s) and/or intent to temporarily deprive, but is only an example of proof as listed with other examples in the paragraph below.

The mere failure to inform authorities of an overpayment of (an allowance) (pay) (pay and allowances) does not of itself constitute a wrongful withholding of that property.

To find that the accused wrongfully withheld (an allowance) (pay) (pay and allowances), you must find beyond a reasonable doubt that:

(1) The accused knew that (he) (she) was erroneously receiving (an allowance) (pay) (pay and allowances); and

(2) The accused, either at the time of receipt of the (allowance) (pay) (pay and allowances), or at any time thereafter, formed an intent (temporarily to (deprive) (defraud) the government of the use and benefit of the money) (or) (temporarily to appropriate the money to the accused’s own use or the use of someone other than the government).

NOTE 10. Custodian of a fund. When the accused was the custodian of a fund and may have failed to produce property on request or to render an accounting, an instruction tailored substantially as follows may be given:

The mere (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) does not of itself constitute a wrongful appropriation of that property. However, (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (a refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) will permit an inference that the custodian has wrongfully withheld the property. The drawing of this inference is not required. Whether it should be drawn at all and the weight to be given to it, if it is drawn, are matters for your exclusive determination. In making this determination you should consider the circumstances surrounding any (refusal) (failure) to (account for) (deliver) the property. In making your decision, you should also apply your common sense and general knowledge of human nature and the ordinary affairs of life.

NOTE 11. Military property. For a definition of military property, See US v. Schelin, 15 MJ 218 (CMA 1983), and US v. Simonds, 20 MJ 279 (CMA 1985). See also NOTE 10 below when money is alleged as military property. When military property is alleged, the following instruction should be given:

NOTE 12. “Money” as military property. In US v. Hemingway, 36 MJ 349 (CMA 1993), the court held that appropriated funds belonging to the Army—even if only being “held” by the Army for immediate disbursement to an individual service member for duty travel—are military property. Hemingway did not mention any of the service court cases that previously addressed the issue, such as US v. Dailey, 34 MJ 1039 (NMCMR 1992) (“money” paid as BAQ was considered to be “military property” because it was appropriated by Congress and used to provide an integral morale and welfare function); US v. Newsome, 35 MJ 749 (NMCMR 1992) (treasury checks are military property); US v. Field, 36 MJ 697 (AFCMR 1992) (appropriated funds for PCS and TDY travel are military property); or US v. Thomas, 31 MJ 794 (AFCMR 1990) (“money” paid as TLA (temporary lodging allowance) and VHA was not “military property” because ordinarily it is the property purchased with appropriations, and not “money,” which has a unique military nature or is put to a function meriting special status).

NOTE 13. Motor vehicle, aircraft, vessel, explosive, and firearm defined. If the property is alleged to be a motor vehicle, aircraft, vessel, explosive, or firearm, the following definitions will usually be sufficient. In a complex case, the military judge should consult the rules and statutes cited below:

Vehicle: 1 USC section 4

Motor Vehicle: 18 USC section 31 and 18 USC section 2311

Aircraft: 18 USC section 31 and 18 USC section 2311

Vessel: 1 USC section 3

Explosive: RCM 103(13), 18 USC section 844(j), and 18 USC section 232(5)

Firearm: RCM 103(14) and 18 USC section 232(4)

(“Motor vehicle” includes every description of carriage or other contrivance propelled or drawn by mechanical power and used, or capable of being used, as a means of transportation on land.)

(“Aircraft” means any contrivance invented, used, or designed for to navigate, fly, or travel in the air.)

(“Vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.)

(“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.)

(“Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device. “Explosive” includes ammunition.)

NOTE 14. Other definitions of explosive. The above definition of explosive (except the last sentence regarding ammunition, which is derived from U.S. v. Murphy, 74 MJ 302 (2015)) is taken from RCM 103(13). The Manual definition also includes any other compound, mixture, or device within the meaning of 18 USC section 232(5) or 18 USC section 844(j). Title 18 USC section 232(5) includes the following definitions of explosive not included above: dynamite or other devices which (a) consist of or include a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone. 18 USC section 844(j) also includes the following: any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.

NOTE 15. Specified property, variance. If the property is alleged to be a motor vehicle, aircraft, vessel, firearm, or explosive, and an issue as to its nature is raised by the evidence, the following instruction should be given:

The government has charged that the property allegedly taken was “(a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive).” To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property is of the nature as alleged. If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged, you may still convict the accused of wrongful appropriation. In this event you must make appropriate findings by excepting the words “(a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)).”

NOTE 16. Value alleged as $1000.00 or less and property in evidence. Under these circumstances, the following instruction may be given:

NOTE 17. Value alleged in excess of $1000. If value in excess of $1000 is alleged, Instruction 7-16, Variance - Value, Damage, or Amount, may be appropriate.

NOTE 18. Wrongful appropriation of a completed check, money order, or similar instrument. The following instruction may be appropriate:

When the subject of the wrongful appropriation is a completed check, money order, or similar instrument, the value is the face amount for which it is written (in the absence of evidence to the contrary raising a reasonable doubt as to that value).

NOTE 19. Asportation. The asportation (the taking or carrying away) continues, and thus the crime of wrongful appropriation continues, as long as there is any movement of the property with the requisite intent, even if not off the premises. As long as the perpetrator is dissatisfied with the location of the property, a relatively short interruption of the movement of the property does not end the asportation. See US v. Escobar, 7 MJ 197 (CMA 1979).

NOTE 20. Taking of mail. See Article 109a, Part IV, MCM and Instruction 3a-33a-1, Mail—Taking.

NOTE 21. Tangible property subject of wrongful appropriation. Money, personal property, or article of value, as those terms are used in Article 121, UCMJ, include only tangible items having corporeal existence and do not include services or other intangibles, such as taxicab and telephone services, or use and occupancy of government quarters, or a debt. See US v. Roane, 43 MJ 93 (CMA 1995), US v. Abeyta, 12 MJ 507 (ACMR 1981) and US v. Mervine, 26 MJ 482 (CMA 1988). (Wrongful appropriation of intangibles may be charged under Article 121b as obtaining services under false pretenses).

NOTE 22. Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), normally applies. Instruction 7-16, Variance - Value, Damage, and Amount, may apply. Instruction 7-15, Variance, may apply.

References

Abandoned, lost, mislaid property: US v. Wederkehr, 33 MJ 539 (AFCMR 1991). Pay and allowances: US v. Helms, 47 MJ 1 (CAAF 1997).

Source: Instruction 3a-64-2 · view original on jagcnet.army.mil