## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class RI CHARD T. MANRIQUEZ United States Army, Appellant

ARMY 20140893

Headquarters, Joint Readiness Tr aining Center and Fort Polk Randall Fluke, Military Judge
Colonel Jan E. Al dykiewicz, Staff J udge Advocate

For Appellant: Captain Payum Doroodian, JA (argued); Lieutenant Colonel Charles D. Lozano, JA; Major Chri stopher D. Coleman, JA; Captain J. David Hammond, JA (on brief).

For Appellee: Major Anne C. Hsieh, JA (argued); Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Major Anne C. Hsieh, JA (on brief).

20 May 2016

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of de sertion terminated by apprehension and one specification of larceny of $2,60 0, in violation of Articles 85 and 121,
Uniform Code of Milit ary Justice, 10 U.S.C. §§ 88 5 and 921 (2012) [hereinafter UCMJ]. The court-martial sentenced ap pellant to a bad-conduct discharge, confinement for eighteen months, forfeiture of all pay and allowa nces, and reduction to the grade of E-1. The convening author ity approved the senten ce as adjudged and credited appellant with four days of pretrial confinement. 1 This case was referred to

1 A pretrial agreement limite d confinement to ei ghteen months, with a provision that the convening authority woul d disapprove any adjudged confinement in excess of

(continued . . .)MANRIQUEZ – ARMY 20140893

2 us for review under Article 66(b), UCMJ. Appellant assigns two er rors, both of
which merit discussion. 2

BACKGROUND

Appellant arrived at Fo rt Polk, Louisiana on 30 May 2013. On 30 October 2013, appellant packed his belo ngings and deserted his unit . He did not intend to return to the Army. On 30 November 2013, the Army issu ed a deserter warrant for appellant.

In August of 2014, while s till in a deserter status, appellant got a job as a
cashier at a Wal-Mart in Pineville, Louisiana. Fr om 23-25 September 2014, while serving as a cashier, appellan t illicitly activated $2,600 wo rth of Wal-Mart gift cards

and took them out of the st ore. He subsequently us ed the gift cards to buy
merchandise at Wal-Mart. Wa l-Mart detected the theft and notified the Pineville Police Department, who arrest ed appellant. On 29 Se ptember 2014, the Pineville Police Department returned a ppellant to military control pursuant to the deserter

warrant.

LAW AND DISCUSSION

Appellant raises two assignments of error, both calling into question the providency of his guilt y plea to stealing gift cards from Wal-Mart. Specifically, appellant pleaded guilty to a specification that he:

[D]id, at or near Pineville, L ouisiana, between on or about 23 September 2014 and on or about 25 September 2014, steal Wal-Mart gift cards, of a value of ab out $2,600.00, the property of Wal-Mart.

During the providence in quiry, appellant described his conduct as follows:

(. . . continued) twelve months if appellant made restitutio n to the larceny victim (Wal-Mart) before the convening authority’s action on the case. As ap pellant failed to make restitution, the convening authority approved the sentence as adjudged.

2 Appellant personally claims, pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), that his se ntence was disproportionately severe based on the

circumstances of his case and as compared to othe r persons he has met while in
confinement. We find the sent ence to be a ppropriate.MANRIQUEZ – ARMY 20140893

3 On August 12th, 2014, I applie d for a job at the Wal-Mart located in Pineville, Louisiana. I was hired as a full-time cashier on August 25 th, 2014. . . . [B]eginning on September 23d [2014] . . . . I began activating store gift cards by using my cash regist er to place money on the
cards. I did not pay for the cards, nor did any store customers pay for the cards. I wrongfully took gift cards belonging to Wal-Mart and used my cash register to place money belonging to Wal-Mart on these cards. The funds used to place value on the gi ft cards did not belong to myself or any customer. The funds used to place value on the gift cards belonge d to Wal-Mart.

Before I was apprehended by civilian law enforcement for this offense, I ha d placed $2,600.00 wo rth of money using my cash register to activate these cards. I intended to permanently deprive Wal-Mart of the use and benefit of the money placed on these gift cards after activating these cards by placing store funds on the cards. I used these cards to purcha se food, clothing, and other items from the store for myself and my family members.

In the stipulation of fact, appellan t agreed that on 23 September 2014, he “methodically selected Wal- Mart gift cards worth $200.00 from und er his register, activated the cards without paying for them, and placed them into his pocket.” He further agreed that on 25 September 2014, “he methodically selected six additional
cards and activated them with out paying for them.” Appell ant stipulated that on the two separate days he stole “$2,600.00 wort h of gift cards.”

A. What is the Value of a Gift Card?

We review a military judge’s decision to accept a plea for an abuse of
discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F . 2008). “It is an

abuse of discretion for a mi litary judge to acce pt a guilty plea wi thout an adequate factual basis to support it . . . [or] if the ruling is based on an e rroneous view of the
law.” United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 20 12) (citation omitted).

In his first assignment of error, ap pellant asserts that the military judge abused his discretion in accepting appellant ’s guilty plea because gift cards have no “tangible value” other than the value of the “plastic card.”

In short, appellant asks us to treat a gift card in a manner simila r to a debit, credit, or access device. Under this theory, when appellant activated and took the gift cards—or, in hi s words, “placed money” on the gift cards—he had only engagedMANRIQUEZ – ARMY 20140893

4 in the theft of a piec e of plastic of neglig ible value. Accord ingly, the substantial theft only occurred when ap pellant used the gift cards to acquire goods from WalMart. As neither th e providence inquiry nor the st ipulation of fact adequately related the value of the goods appellant purchased with the gift cards, this reasoning would require us to se t aside the finding of guilty as to larceny, at le ast in part.

Appellant’s argument is not without me rit. Gift cards share some of the

characteristics of debit or credit cards. The President has specified that “[w]rongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense . . . usually . . . from the merchant offering them.” Manual for Courts-Mar tial, United States (2012 ed.) [hereinafter MCM ], pt. IV, ¶ 46.c.(1)(i), (iv); United States v. Williams , 75 M.J. 129, 132 (C.A.A.F. 2016) (“[T]ypically , when larceny is by means of a wrongful credit or debit transaction, the money or goods were wrongf ully obtained from the merchant or bank, making them th e person stolen from.”); United States v. Cimball Sharpton

, 73 M.J. 299, 301 (C.A.A.F. 2014); United States v. Lubasky , 68 M.J. 260, 263 (C.A.A.F. 2010). 3 Accordingly, if we were to treat a gift card and debit card similarly, the substantial theft occurs not wh en the card is taken, but when the card
is used.

However, at least in the context of a guilty plea, we decline to adopt appellant’s view of these offenses.

First, gift cards are unlike debit and cr edit cards in that they do not require any deception to use. Credit and debit cards are issued to persons with unique
account numbers associated with the card and the particular ac count holder. The

unauthorized use of a cr edit or debit card requires that (to some greater or lesser extent) the user falsel y represent he has the authority to use the card. This is why such crimes are usually an “obtaining” type larceny by “false pret enses.” Gift cards,

3 We note that this case pres ents entirely different issues than those presented in
Williams

, Lubasky , and Cimball Sharpton . On appeal, those cases answered the question of “whom did the accused steal the goods or money from?” Williams , 75
M.J. at 132. As a la rceny specification need s to place an accuse d on notice of what he is defending against, a broad reading of these cases is that the specification needs to allege the person or en tity with whom the accused interacted. For a taking offense, this is usually th e person from whose posses sion or control the accused removed the property, even if the property is ultimately owne d by someone else. For an obtaining-type offens e, which involves theft by deception, th is is usually the entity that the accused in itially deceived (e.g., by ho lding himself out as an authorized user of the card). However, in this case th ose concerns ar e not present, as appellant interacted at every stage solely with Wal-Mart.MANRIQUEZ – ARMY 20140893

5 similar to gift certificat es and coupons, may be used by the be arer without any representation. In other words, “false preten ses” are not required to use a stolen gift card. Use of a stolen gift card requires no more decep tion or false representation than the use of stolen cash, a stolen gift certificate, or a stol en baseball ticket. Accordingly, we view this case as a theft by “taking” not “obtaining.”

Second, it is clear that the illicitly actived gift cards that appellant removed from Wal-Mart had “value” greater than that of a piece of plas tic. “Value is a question of fact to be determin ed on the basis of all th e evidence admitted.” MCM

, pt. IV, ¶ 46.c.(1)(g)(i ) (emphasis added). Here, as th is was a guilty plea, we need not look further than appell ant’s own admissions that he “placed $2600.00 worth of money” on the gift cards and then “stole $2 600.00 worth of gift cards.” When appellant argues in his brief that he “did not ‘place money’ or ‘store funds’ on the gift cards,” he is disagreeing with facts that he admitted at trial. United States v.
Johnson , 42 M.J. 443, 445 (C.A.A.F . 1995) (it is appropriate to reject facts asserted on appeal that contra dict an appell ant’s admissions during a guilty plea). More broadly, it is clear that activated gift card s have a “market value” that is greater than the cost of the plastic us ed to make the card. See, e.g., MCM, pt. IV, ¶ 46.c.(1)(g)(iii) (the value of stolen proper ty is determined by market value). An activated gift card, like a movie ticket, sports ticket, or lo ttery ticket, is an object
with value. Id. (“Writings representing value may be considered to have the value— even though contingent—whi ch they represented at the time of th eft”).

Third, our sister courts that have addres sed this issue have either directly or indirectly found that gift ca rds possess a value beyond thei r weight in pl astic. In
United States v. Perrine , ACM S31972, 2013 CCA LEXIS 234, at *9-11 (A.F. Ct. Crim. App. 18 Mar. 2 013) (unpubl ished), review denied

, 72 M.J. 442 (C.A.A.F. 2013), the Air Force C ourt of Criminal Appe als specifically reje cted the idea that a gift card “cannot be stolen because it is ‘intangible’ and not ‘capable of being possessed.’” Under facts that presented identical issues of law in appellant’s case,

the Perrine court found that “appellant did take possession of ‘tangible property’ that had value . . . [when] [h]e walked away from the AAFES customer service counter carrying a gift card . . . .” Id.

While Perrine is the only case that specifically addresses the value of gift cards, other courts ha ve assumed as much. See United States v. Murphy , NMCCA 201300100, 2013 CCA LEXIS 1049 (N.M. Ct. Crim . App. 29 Oct. 2013) (unpublished) (affirming conviction for thef t of a gift card); United States v.
Gordon , ACM S32008, 2013 CCA LEXIS 675 (A.F. Ct. Cr im. App. 26 Jun. 2013) (unpublished) (affirming conviction for gift card theft). Indeed, in Cimball Sharpton, our superior court summar ized the investigation as “reveal[ing] that the appellant used her [Govern ment Purchase Card] to make about $20,000 in unauthorized purchases, mostly gift cards.” 73 M.J. at 779. In all of these cases itMANRIQUEZ – ARMY 20140893

6 is clear that the courts vi ew the accused as having ta ken or obtained something
valued far in excess of a piece of plastic. 4

Appellant’s admissions th at he placed money on th e gift cards and then took $2600 worth of gift cards (wit h the intent to permanently deprive Wal-Mart of their value) was sufficient to es tablish the providency of his plea to larceny.

B. Duplicitous Pleading

Appellant’s second assignment of er ror alleges that tw o larcenies were improperly aggregated into a single larceny of $2,60 0.00. Appellant correctly notes that he stole gift cards on two separate days. However, we nonetheless do not believe appellant is en titled to relief for two independent reasons.

First, appellant forfeited this issue by fa iling to raise it at trial, and any error does not amount to plai n error. Furthermore, by pl eading guilty, the appellant
waived this issue. United States v. Schweitzer , 68 M.J. 133, 136 (C.A.A.F. 2009) (“An unconditional guilty plea generall y ‘waives all defect s which are neither jurisdictional nor a deprivation of due process of law.’”) (quoting United States v.
Rehorn , 9 U.S.C.M.A. 487, 488-89, 26 C.M.R. 267 , 268-69 (1958)). As this waiver was part of a negotiate d pretrial agreement, we see no basis to exercise our “highly discretionary power” to notice forfeited and wa ived error. United States v. Butcher

, 56 M.J. 87, 93 (C.A.A.F. 2001).

Second, as appellant cl aims that the specification alleges two separate larcenies, the appropriate remedy at tria l for a duplicitous sp ecification would have
been severance. See Rule for Courts-Martial 906(b)(5 ) (“Severance of a duplicitous specification into two or more specifications”). Although not as clear as might be preferred, the stipulation of fact indicates that appellant took th irteen $200 gift cards totaling $2,600.00. Appellant stipulated that he took si x cards on th e second day. Thus, it appears that severa nce would have resulted in two specifications of larceny,

4 Although not presen ted here appellant’s view of the law woul d be problematic in other circumstances. Consider, for exampl e, an accused who takes a gift card from another individual and intentionally destro ys the card, preventing its use by the
owner. In such a case no goods are ever obtained from the use of the card. Under appellant’s view of the law, only a piece of plastic was st olen, even in circumstances
where the owner has suffered an unrecoverable loss of the gift card’s face value.MANRIQUEZ – ARMY 20140893

7 each alleging a thef t of over $500.00. 5 Accordingly, we find appellant has suffered no prejudice from being charged with a single specification of larceny.

CONCLUSION

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

Senior Judge HAIGHT and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

5 This case is therefor e distinguishable from United States v. Harding , 61 M.J. 526 (Army Ct. Crim. App. 2005). In that case, the government combined several
larcenies over severa l weeks and months in order to exceed the $100 (now $500)

threshold for the incr eased maximum punishment for larc eny. Here, appellant stole multiple gift cards worth an aggregate value of more than $500 on at least one of the days alleged. The reasonable inference from the stipulation of fact is that he stole more than $500 on both days alleged. In either case, we fail to find prejudice to a substantial right of appellant. See UCMJ art. 59(a). MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: