UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

CESAR CORTEZ

GUNNERY SERGEANT (E-7), U.S. MARINE CORPS

NMCCA 201300462

SPECIAL COURT-MARTIAL

Sentence Adjudged: 16 August 2013.

Military Judge: Col Howard Russell, USMC.

Convening Authority: Commanding Officer, Wounded Warrior 

Battalion (WEST), Wounded Warrior Regiment, Camp Pendleton, 

CA. 

Staff Judge Advocate's Recommendation: Maj T.H. Campbell, 

USMC.

For Appellant: LtCol Richard Belliss, USMCR.

For Appellee: CDR Mary Grace McAlevy, JAGC, USN; Maj Crista 

Kraics, USMC.

30 June 2014

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A military judge sitting as a special court-martial 

convicted the appellant, in accordance with his pleas, of making 

a false official statement and larceny, in violation of Articles 

107 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 907 

and 921. The military judge sentenced him to nine month’s

confinement, reduction to pay grade E-1, and a bad-conduct 
2

discharge. The convening authority approved the sentence and, 

except for the punitive discharge, ordered it executed. A 

pretrial agreement had no effect on the adjudged sentence. 

The appellant’s sole assignment of error is that the 

military judge abused his discretion in accepting the 

appellant’s guilty plea to the larceny charge. After careful 

consideration of the record of trial, the assignment of error, 

and the pleadings of the parties, we conclude that the findings 

and the sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant was committed. Arts. 59(a) and 66(c), UCMJ. 

Background

A supply chief at his battalion, the appellant’s duties 

included purchasing consumable supplies at the ServMart store on 

base. Between January 2012 and January 2013, the appellant 

signed out the ServMart card from his unit and used it to make 

unauthorized purchases of a total value of approximately 

$14,000.00, the cost borne by the appellant’s unit.

At trial, he pleaded guilty to stealing “unit funds, 

military property of value more than $500, property of the U.S.

Marine Corps.” Charge Sheet. During the providence inquiry, 

the military judge inquired as to which theory of larceny 

applied – a taking or obtaining. Record at 39-40. Both trial 

and defense counsel agreed that the appellant’s conduct fit 

either a taking or obtaining theory. Id. at 40. Later, both 

the appellant and his counsel agreed with the military judge 

that the appellant’s conduct constituted a “taking” within the 

meaning of Article 121, UCMJ, because his unit and ultimately 

the Marines Corps were obligated to pay for the appellant’s 

unauthorized purchases. Id. at 48.

Analysis

We review the military judge’s decision to accept the 

appellant’s plea of guilty for an abuse of discretion. United 

States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). We will 

only disturb a guilty plea when the record of trial shows a 

substantial basis in law or fact to question the plea. United 

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

The appellant argues that his guilty plea was improvident 

because he admitted to stealing from the wrong victim, i.e. the 

Marine Corps as opposed to ServMart. This error, he argues, 
3

mischaracterizes his crime as a larceny by taking rather than a 

larceny by obtaining. Citing the Manual, he contends that 

larceny using a credit or debit card is usually considered a 

larceny from the merchant offering the goods that were purchased 

with the card. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), 

Part IV, ¶ 46(c)(1)(b)(vi). In further support of his position, 

he cites United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), 

a case in which the Court of Appeals for the Armed Forces (CAAF) 

overturned a credit card larceny conviction after the court 

found that the true victim of that crime was either the card 

issuer or the business establishments where the goods were 

purchased instead of the cardholder.

We find the appellant’s reliance on Lubasky misplaced. We 

begin by noting that, unlike Lubasky, this case involves a 

guilty plea. Furthermore, we also note that in Lubasky there 

were two distinct types of larcenies involved. Some

specifications involved Chief Warrant Officer Lubasky’s use of 

credit and/or debit cards without the account holder’s 

permission or knowledge. Other specifications focused on 

occasions where the account holder gave Chief Warrant Officer 

Lubasky limited permission to use the card but he exceeded that

authority by making unauthorized purchases and transactions.

The CAAF distinguished between those transactions made with 

cards to which appellant had no lawful access and those 

transactions involving the card that he had limited 

authorization to use. The CAAF found the former constituted a 

larceny from the merchant as described in the Manual. But the 

court found the latter a larceny from the account holder since 

Chief Warrant Officer Lubasky had limited authority to use the 

card. Id. at 264-65. Thus, we find the appellant’s reliance on 

Lubasky misplaced as he exceeded his authority to use his unit’s 

ServMart card. 

Furthermore, because the appellant pleaded guilty “the 

issue must be analyzed in terms of the providence of his plea, 

not sufficiency of the evidence.” United States v. Faircloth,

45 M.J. 172, 174 (C.A.A.F. 1996). A factual predicate for a 

guilty plea is sufficiently established if “‘the factual 

circumstances as revealed by the accused support that plea . . .

.’” Id. (quoting United States v. Davenport, 9 M.J. 364, 367 

(C.M.A. 1980)).

The appellant admitted that he regularly used his unit’s 

ServMart card as a part of his official duties as the unit 

supply chief. He admitted that on the charged occasions he 
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signed the card out using his own name but exceeded his 

authority by making purchases for his own personal gain. Both 

he and his defense counsel agreed that his unit would reimburse 

ServMart for the cost of his unauthorized purchases and 

therefore his unit, and ultimately the Marine Corps, was the 

economic victim of his crime. Therefore, we find no substantial 

basis in law or fact to question his plea. Lubasky, 68 M.J. at 

264-65.

1 

Conclusion

The findings and the sentence as approved are affirmed.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

 

1 We note that in United States v. Sharpton, __ M.J. ___, 2014 CAAF LEXIS 618

(C.A.A.F. June 13, 2014) the CAAF found no error by the Air Force Court of 

Criminal Appeals in affirming Senior Airman Sharpton’s conviction for larceny 

from the Air Force through her unauthorized use of her unit’s Government 

Purchase Card. Reasoning that the same Manual provision cited above provides 

for “alternative theories” of charging, the CAAF found that since the Air 

Force was contractually obligated to reimburse merchants for Senior Airman 

Sharpton’s unauthorized purchases, the Air Force was the proper victim of her 

larceny. Id. at *8-9.