This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Henry L. Williams III, Specialist

United States Army, Appellant

No. 15-0140

Crim. App. No. 20130284

Decided February 23, 2016

Military Judges: Tara A. Osborn and David H. Robertson

For Appellant: Lieutenant Colonel Charles D. Lozano,

Major Aaron R. Inkenbrandt, Captain J. David Hammond, 

and Captain Heather L. Tregle (on brief); Colonel Kevin 

Boyle, Major Amy E. Nieman, and Captain Michael J. 

Millios.

For Appellee: Major A. G. Courie III, Major Daniel D. 

Derner, and Captain Timothy C. Donahue (on brief).

Judge RYAN delivered the opinion of the Court, in 

which Chief Judge ERDMANN, Judges STUCKY and 

OHLSON, and Senior Judge LAMBERTH, joined.

_______________

Judge RYAN delivered the opinion of the Court.1

Appellant was convicted, pursuant to his pleas, of failure 

to go to his appointed place of duty, disobedience of a 

superior commissioned officer, two specifications of 

disobedience of a noncommissioned officer, making a false 

official statement, wrongful use of marijuana, three 

specifications of larceny, two specifications of 

housebreaking, and bigamy in violation of Articles 86, 90, 

91, 107, 112a, 121, 130, and 134, Uniform Code of Military 

 1 Senior Judge Royce C. Lamberth, of the United States 

District Court for the District of Columbia, sat by designation, 

pursuant to Article 142(f), Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 942(f) (2012).
United States v. Williams, No. 15-0140/AR

Opinion of the Court

2

Justice (UCMJ), 10 U.S.C. §§ 886, 890, 891, 907, 912a, 921, 

930, 934 (2006). Appellant was convicted, contrary to his 

pleas, of two specifications of larceny in violation of Article 

121, UCMJ, and was sentenced to a bad-conduct discharge 

and confinement for eighteen months. Pursuant to a pretrial 

agreement, the convening authority approved only the badconduct discharge and fifteen months of confinement. The 

convening authority also credited Appellant with 123 days 

against the sentence. 

The United States Army Court of Criminal Appeals 

(ACCA) affirmed the findings and sentence. We granted 

Appellant’s petition to review the following issue:

Whether Appellant committed larcenies of the 

property of two soldiers by using their debit card 

information without authority. See United States v.

Lubasky, 68 M.J. 260 (C.A.A.F. 2010). 

Contrary to the premise underlying the ACCA’s holding, 

an Article 121, UCMJ, conviction does not turn on 

identifying the “victims,” “impact,” and “loss” as those terms 

are commonly used and employed. Rather, it requires, inter 

alia, that an appellant steal something from a person who 

owns it or has a greater possessory interest in it than the 

appellant. Lubasky, 68 M.J. at 263 (citing Manual for 

Courts-Martial, United States, Analysis of Punitive Articles 

app. 23 at A23–16 (2008 ed.) [hereinafter Drafters’

Analysis]). As the Government concedes, Appellant did not 

steal anything from Private First Class (PFC) Irvine or 

Specialist (SPC) Aldrich. Appellant’s convictions for 

Specifications 1 and 2 of Charge VI, Article 121, UCMJ, are 

set aside, and these specifications are dismissed. 

I. FACTS

Appellant lived with PFC Benjamin P. Irvine from 

December 2011 to February 2012 at Fort Bragg, North 

Carolina. In February 2012, a fraud agency notified PFC 

Irvine that there were suspicious purchases on his checking 

account with the Boulder Valley Credit Union (BVCU), 

including a charge from Verizon Wireless for $2,269.51, 

charges from various food vendors, and charges from the 
United States v. Williams, No. 15-0140/AR

Opinion of the Court

3

online sex and dating website Adult FriendFinder.2 The 

charges totaled $3,067.70. Appellant was listed as the 

purchaser of the food on a Pizza Hut receipt, and he later 

testified that he had written down PFC Irvine’s debit card 

number and mistakenly used it to complete all of the 

purchases, except for the one to Verizon Wireless, which 

Appellant claimed his wife made. Once PFC Irvine notified 

BVCU of the fraudulent charges, BVCU provided PFC 

Irvine with provisional credit, but also charged him $33 in 

overdraft fees. 

As a result of the above actions, Specification 1 of Charge 

VI, alleged:

In that [Appellant], did, at or near Fort Bragg, 

North Carolina, on divers occasions, between 

on or about 26 December 2011 and on or about 

4 February 2012, steal money, of a value of 

more than $500.00, the property of Private 

First Class (E-3) BI.

SPC John C. Aldrich worked with Appellant in the 

summer of 2011 while they were both stationed in Iraq at 

Contingency Operating Site Warrior. In July of that year, 

SPC Aldrich noticed two unauthorized charges on his 

checking account with BB&T Bank totaling $755.10. The 

charges were related to attempted equipment purchases 

from computergeeks.com. Computergeeks.com never shipped 

the computer equipment because it flagged the purchases as 

fraudulent. 

 2 While we are reversing this specification on the ground that 

nothing was stolen from PFC Irvine, we clarify one point. To the 

extent that the Government’s theory at trial involved theft of 

services, such as those that Appellant may have purchased from 

Verizon Wireless and the sex and dating website, these services 

are, unlike goods, not “tangible and capable of being possessed,” 

United States v. Mervine, 26 M.J. 482, 483 (C.M.A. 1988), and thus 

not the proper object of larceny under Article 121, UCMJ. Manual 

for Courts-Martial, United States pt. IV, para. 78.c. (2012 ed.) 

(MCM) (contrasting the Article 134 offense of obtaining services 

under false pretenses with larceny and wrongful appropriation, 

which pertain to stealing money, personal property, or articles of 

value). 
United States v. Williams, No. 15-0140/AR

Opinion of the Court

4

Appellant used SPC Aldrich’s debit card information to 

attempt to make the above purchases without authority, 

though his defense was that his use was accidental. The 

computers were never shipped, but BB&T Bank charged 

him $70 in overdraft fees and put a hold on SPC Aldrich’s 

account for $755.10, which caused SPC Aldrich to be unable 

to make his car payment on time. 

Consequently, Specification 1 of Charge VI, related to the 

above actions, alleged:

In that [Appellant], did, at or near 

Contingency Operating Site Warrior, Iraq, on 

divers occasions, between on or about 30 June 

2011 and or about 7 July 2011, steal money, of 

a value of more than $500.00, the property of 

Specialist (E-4) JA. 

At trial, Appellant moved under Rule for Courts-Martial 

(R.C.M.) 917 for a finding of not guilty due to insufficient 

evidence to sustain a larceny conviction. Citing this Court’s 

decision in Lubasky, Appellant argued that PFC Irvine and 

SPC Aldrich were the “wrong victim[s]” of the larcenies, and 

that the merchants or the banks should have been named as 

the victims in the specifications. The military judge denied 

the motion. 

II. ACCA DECISION

On appeal, Appellant claimed, inter alia, that the 

evidence of his larceny convictions was legally insufficient 

because the two checking account holders, PFC Irvine and 

SPC Aldrich, were not the “correct victims.” United States v.

Williams, No. ACM 20130284, 2014 CCA LEXIS 665, at *11, 

2014 WL 7228945, at *4 (A. Ct. Crim. App. Aug. 28, 2014) 

(unpublished). The ACCA held that the evidence was legally 

sufficient. 2014 CCA LEXIS 665, at *11–14, 2014 WL 

7228945, at *4–5. Citing MCM pt. IV, para. 46.c.(1)(h)(vi), 

the ACCA recognized that larceny via the unauthorized use 

of another’s debit card “is usually a larceny of those goods 

from the merchant offering them.” Williams, 2014 CCA 

LEXIS 665, at *12, 2014 WL 7228945, at *4. It nonetheless 

determined that an alternative charging theory was 

appropriate in this case because PFC Irvine and SPC 

Aldrich were the “actual victims in this case. Appellant 
United States v. Williams, No. 15-0140/AR

Opinion of the Court

5

caused the movement of [PFC Irvine’s and SPC Aldrich’s] 

money from their control, intending to permanently deprive 

them and actually depriving them of its use and benefit.” 

2014 CCA LEXIS 665, at *13, 2014 WL 7228945, at *5 

(citing United States v. Cimball Sharpton, 73 M.J. 299 

(C.A.A.F. 2014)). 

III. DISCUSSION

A.

“The test for legal sufficiency is whether, considering the 

evidence in the light most favorable to the prosecution, a 

reasonable factfinder could have found all the essential 

elements beyond a reasonable doubt.” Lubasky, 68 M.J. at 

263 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

The elements of larceny are, in relevant part: 

 (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;

 ...; and 

 (d) That the taking ... by the accused was 

with the intent permanently to deprive ... 

another person of the use and benefit of the 

property .... 

MCM pt. IV, para. 46.b.(1) (2012 ed.).3 

As discussed at length in both Lubasky and Cimball 

Sharpton, Article 121, UCMJ, sought to consolidate the 

various means of stealing — by larceny, false pretense, and 

embezzlement — under the single rubric of “larceny.” 

Lubasky, 68 M.J. at 263; Cimball Sharpton, 73 M.J. at 301; 

MCM pt. IV, para. 46.c.(1)(a). In one sense, then, ‘“the 

particular means of acquisition of the property became 

relatively unimportant.’” Lubasky, 68 M.J. at 263 (quoting 

United States v. Aldridge, 2 C.M.A. 330, 331–32, 8 C.M.R. 

130, 131–32 (1953)). While this remains the case, the person 

stolen from is important, and it is evident to this Court that 

 3 The relevant portions of the 2008 and 2012 editions of the

MCM are identical.
United States v. Williams, No. 15-0140/AR

Opinion of the Court

6

charging authorities and lower courts continue to flounder 

and misstep when it comes to the elemental requirement 

“that the accused wrongfully obtain money or goods ... from

a person or entity with a superior possessory interest.” Id. 

(emphasis added) (citing Drafters’ Analysis app. 23 at A23-

16 (2008 ed.)); see, e.g., United States v. Gaskill, 73 M.J. 207 

(C.A.A.F. 2014) (per curiam) (summary disposition); United 

States v. Endsley, 74 M.J. 216 (C.A.A.F. 2015) (summary 

disposition).4 The relevant question in determining the 

person5 to name in a larceny specification is whom did the 

accused steal the goods or money from?

The MCM is instructive on this point. When an accused

engages in a wrongful “credit [or] debit” transaction, she has 

“usually” stolen from the merchant offering the purchased 

goods or “the entity presenting the money.” MCM pt. IV, 

para. 46.c.(1)(i)(vi). That is, typically, when larceny is by 

means of a wrongful credit or debit transaction, the money 

or goods were wrongfully obtained from the merchant or 

bank, making them the person stolen from. The goods or 

money at issue belong to the merchant or banks, see Burton 

v. United States, 196 U.S. 283, 302 (1905), and the 

defendant merely uses the credit or debit card, falsely 

representing herself as the cardholder, as a means to 

commit the larceny. See, e.g., United States v. Sierra, 62 

M.J. 539, 542 (A. Ct. Crim. App. 2005), aff’d, 64 M.J. 179 

(C.A.A.F. 2006). While it is true that the credit or debit 

cardholder may also suffer a consequence — such as a bank 

fee or loss of access to funds in an account — the defendant 

nonetheless did not obtain money or goods from the 

cardholder. 

By way of example, in Lubasky, with respect to the 

specifications involving the appellant’s use of the widow 

 4 As noted infra pp. 9–10, we don’t doubt this is attributable in 

part to the unfortunate choice of language used to explain this 

Court’s decision in Cimball Sharpton. 

5 As explained in the MCM, “[p]erson” can refer both to a 

natural person and to “a government, a corporation, an

association, an organization, and an estate. Such a person need 

not be a legal entity.” MCM pt. IV, para. 46.c.(1)(c)(iv). 
United States v. Williams, No. 15-0140/AR

Opinion of the Court

7

Shirley’s credit cards, we found the convictions legally 

insufficient because the “[a]ppellant did not obtain anything 

from Shirley. Rather, he obtained those things from other 

entities. For these reasons, the proper subject of the creditcard-transaction larcenies in this case was not Shirley.” 

Lubasky, 68 M.J. at 263. Shirley, the account holder, simply 

did not own the goods that the appellant obtained from the 

merchants or the funds the card-issuing bank used to pay 

for them. Id. The appellant obtained nothing from Shirley 

when he used her credit cards. Thus, despite the fact that 

Shirley was, intuitively, likely inconvenienced and, by any 

definition, a “victim,” nothing was stolen from her in these 

specifications, and she was the wrong person to name in 

them. Id.

We reiterate, in the usual case of a credit card or debit 

card larceny, the “person” who should be alleged in the 

specification is a person from whom something was 

obtained, whether it is goods or money. Id. (citing Drafter’s 

Analysis app. 23 at A23–16 (2008 ed.)). 

B.

“Alternative charging theories are also available,” as long 

as “the accused wrongfully obtained goods or money” from 

someone “with a superior possessory interest.” Drafters’ 

Analysis app. 23 at A23–17 (2012 ed.). Such alternative 

theories are the exception, and not, as the ACCA assumed, 

the rule. Again, Lubasky is instructive as to when such 

alternative theories are warranted, since in the usual case of 

debit card theft, an accused obtains nothing from the 

cardholder through an unauthorized use of the cards. See 

generally, Benjamin M. Owens-Filice, “Where’s the Money 

Lebowski?” – Charging Credit and Debit Card Larcenies 

Under Article 121, UCMJ, Army Law., Nov. 2014, at 9 

(explaining why cardholders do not own the money in the 

related account). Lubasky was not, however, the “usual case” 

when it came to the larceny specifications involving the 

Union Planters Bank (UPB) checking account.

What made Lubasky different with respect to the UPB 

checking account was the appellant’s status as a joint 

account holder, which he obtained by misrepresenting to 

Shirley and the bank representative that he would only 
United States v. Williams, No. 15-0140/AR

Opinion of the Court

8

make withdrawals for her benefit, intending all the while to 

make withdrawals for his own benefit. Lubasky, 68 M.J. at 

262–63, 265. While we disliked regressing to fixation upon a 

particular theory of theft, given the purpose of creating 

Article 121, UCMJ, in the first instance, MCM pt. IV, para. 

46.c.(1)(a), it was apparent the person from whom Lubasky 

stole was Shirley by becoming a joint account holder under 

false pretenses, removing money purportedly for her benefit 

by virtue of those false pretenses, and keeping it for himself. 

Lubasky, 68 M.J. at 263–64. It was the fiduciary account 

relationship obtained through fraud, combined with 

Lubasky’s joint account holder status, that made an 

“alternative charging theory” not only available but viable 

and necessary with respect to the UPB checking account 

funds. See id. at 264 n.4 (citing Leffew v. Mayes, 685 S.W.2d 

288, 291 (Tenn. Ct. App. 1984)); State v. Lavigne, 57 A.3d 

332, 339–40 (Conn. 2012) (holding that “in the case of a joint 

holder who has not herself contributed any of the funds to 

the joint account in which she claims an ownership interest, 

the factual question is whether the other joint holder and 

sole contributor of the funds, by creation of the joint account, 

intended to effect an immediate, inter vivos transfer or gift 

of the funds to the noncontributing joint holder”). 

Cimball Sharpton was another case where the appellant 

challenged the legal sufficiency of the evidence on the 

grounds that the wrong “person” was alleged in the 

specification. Cimball Sharpton, 73 M.J. at 300–01. The 

question in that case was not whether an alternative object 

of the larceny could be alleged, but rather whether the Air 

Force was precluded from being the person charged in the 

specification because the appellant obtained nothing from it. 

See id. at 301–02.

In Cimball Sharpton, the Air Force issued the appellant 

a General Purchase Card (GPC) in her name to purchase 

medical supplies for the Air Force. Id. at 299. The Air Force 

was the account holder; the appellant was its agent. Id. at 

299–300. While the agency agreement between the appellant 

and the Air Force was that the card could only be used for 

government purchases of medical supplies, id. at 299, there 

was an additional factual twist: the issuing bank, U.S. Bank, 

had an agreement with the Air Force that charges “that 
United States v. Williams, No. 15-0140/AR

Opinion of the Court

9

involve misuse or abuse by the cardholder are not disputable 

with the Bank.... and the government is obligated to make 

payment for the transaction.” Id. at 301 n.2. 

The appellant, while aware of the limits on her 

authority, exceeded that authority and misused the GPC to 

purchase items for herself. Id. at 299–300. By doing so, she 

induced the Air Force to make payments to U.S. Bank. Id. at 

300. Indeed, she stipulated that the Defense Finance 

Accounting Service (DFAS) paid for all charges with 

appropriated funds. Id. In the usual case under the MCM, 

the thefts would have been charged as larceny from the 

merchants from whom the goods were obtained or from U.S. 

Bank, which held the GPC account. Id. at 301 (citing MCM

pt. IV, para. 46.c.(1)(h)(vi). What made the Air Force an 

object of the larceny was not that it was the only one who 

“suffered the financial loss.” See Cimball Sharpton, 73 M.J. 

at 299, 301–02. It is irrelevant, for purposes of larceny, that 

a merchant is later paid for goods that are wrongfully 

obtained or a bank repaid for moneys expended to those 

merchants. Id. at 301–02; see also MCM pt. IV, para. 

46.c.(1)(f)(iii)(C). Rather, it was the Air Force’s agreement 

with U.S. Bank that it would pay all charges that raised the 

issue of whether the appellant’s actions could also be theft 

from the Air Force. In effect, the agreement between the Air 

Force and U.S. Bank meant that U.S. Bank (and hence the 

merchants) would honor any charges made either with 

apparent or actual authority, and that any wrongful use of 

the GPC by the appellant would wrongfully induce payment 

by the Air Force. 

Unfortunately, the language we used focused on the Air 

Force as “the victim,” and the one who “suffered the 

financial loss.” Cimball Sharpton, 73 M.J. at 299, 301–02. 

More accurately, it should have stated that 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.6 See MCM

 6 The issue granted in Cimball Sharpton focused on whether 

the larceny could be from the Air Force, not on what was stolen, 

and not on whether only the Air Force was stolen from. While 

there is precedent supporting the theory, under a legal sufficiency 
United States v. Williams, No. 15-0140/AR

Opinion of the Court

10

pt. IV, para. 46.c.(1)(i)(vi). The appellant — the Air Force’s 

agent — exceeded her authority and abused her role as an 

agent by either obtaining money from the Air Force by 

wrongfully inducing it to pay funds to U.S. Bank as if the 

charges were, in fact, authorized purchases, or by wrongfully 

obtaining goods from the Air Force by keeping goods that 

she purchased without authority but that, in fact, belonged 

to the Air Force. See Cimball Sharpton, 73 M.J. at 300. Once 

again, Cimball Sharpton was not the usual case. To the 

extent it can be read to suggest that in a larceny 

specification the government may name as the object of the 

larceny any person who suffered a loss or experienced other 

harm, we clarify that the government should instead name 

the person or entity from whom the accused actually 

obtained the goods or money.

C.

The instant case is not an unusual case — there were no 

agency relationships, no joint accounts, and no contracts. 

Our unfortunate choice of language in Cimball Sharpton

does not change the law, and we urge the Government to 

cleave to the rule set forth in the MCM in the “usual case.” 

See MCM pt. IV, para. 46.c.(1)(h)(vi). This is such a case: 

Appellant’s actions constituted a garden-variety larceny by 

unauthorized use of debit card information, and the usual 

rule — that the person who was stolen from, or, in the case 

of computergeeks.com, from whom larceny was attempted, 

was the merchant from whom the goods were obtained or 

the bank from whom money was obtained — applies. The 

account holders here did not own either the goods or the 

bank funds available to satisfy the debit card purchases. 

While it is both intuitively and objectively true that PFC 

Irvine and SPC Aldrich were “victims” and “suffered the 

financial loss[es],” see Cimball Sharpton, 73 M.J. at 299, 

 

analysis, that what the appellant stole from the Air Force was 

money, see United States v. Ragins, 11 M.J. 42, 46 (C.M.A. 1981), 

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.
United States v. Williams, No. 15-0140/AR

Opinion of the Court

11

301–02, because of Appellant, he neither took nor obtained 

nor withheld anything from them. Though he was the butfor cause of their financial problems, that does not constitute 

larceny from them. If a defendant did not steal from the 

person the government names in the larceny specification, 

the conviction is legally insufficient. See Lubasky, 68 M.J. at 

263, 265. 

IV. JUDGMENT

The decision of the United States Army Court of 

Criminal Appeals is reversed as to Specifications 1 and 2 of 

Charge VI and the sentence. The findings of guilty as to 

Specifications 1 and 2 of Charge VI are set aside, and those 

specifications are dismissed. The remaining findings of 

guilty are affirmed. The record of trial is returned to the 

Judge Advocate General of the Army for remand to the 

Court of Criminal Appeals for reassessment of the sentence, 

or for a rehearing on sentence, if necessary.