Punitive Articles of the UCMJ

Article 121 - Larceny and wrongful appropriation

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“(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 de-fraud 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 de-fraud 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.

    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;

    (c) That the property was of a certain value, or of some value; and

    (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. Note: If the property is alleged to be military property, as defined in paragraph 32c(1), 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;

      (c) That the property was of a certain value, or of some value; and

      (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.

        Explanation

        (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) below. 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.

        (c) Ownership of the property.

        (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 with-holding, 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 con-sent 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 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 pre-tense. 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 re-turned, 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) above. 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 re turn 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 sub-paragraph c(2) below 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 $500.00, the court-martial may find a value of more than $500.00. 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) 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 78.

          (v) Mail. As to larceny of mail, see also paragraph 93.

          (vi) Credit, Debit, and Electronic Transactions. Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them. Such use to obtain money or a negotiable instrument (e.g., withdrawing cash from an automated teller or a cash advance from a bank) is usually a larceny of money from the entity presenting the money or a negotiable instrument. For the purpose of this section, the term 'credit, debit, or electronic transaction' includes the use of an instrument or device, whether known as a credit card, debit card, automated teller machine (ATM) card or by any other name, including access devices such as code, account number, electronic serial number or personal identification number, issued for the use in obtaining money, goods, or anything else of value.

            (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 respe ts 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 as-signed 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.

            Lesser included offenses

            (1) Larceny.

            (a) Article 121—wrongful appropriation

            (b) Article 80—attempts

              (2) Larceny of military property.

              (a) Article 121—wrongful appropriation

              (b) Article 121—larceny of property other than military property

              (c) Article 80—attempts

                (3) Wrongful appropriationArticle 80—attempts

                Maximum punishment

                (1) Larceny.

                (a) Military property of a value of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

                (b) Property other than military property of a value of $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

                (c) ​Military property of a value of more than $500.00 or of any military motor vehicle, aircraft, vessel, firearm, or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

                (d) Property other than military property of a value of more than $500.00 or any motor vehicle, aircraft, vessel, firearm, or explosive not included in subparagraph e(1)(c). Dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years.

                  (2) Wrongful appropriation.

                  (a) Of a value of $500.000 or less. Confinement for 3 months, and forfeiture of two-thirds pay per month for 3 months.

                  (b) Of a value of more than $500.00. Bad-con-duct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

                  (c) Of any motor vehicle, aircraft, vessel, firearm, or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

                    Above Information from Manual for Court Martial, 2002, Chapter 4, Paragraph 46

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