LARCENY & FRAUD
UMCJ Article 121 prohibits larceny (theft or wrongful taking, withholding, etc) and enhances the sentence if the property in question is military property and if the property is of a value over $500. The UCMJ also prohibits acts of fraud against the United States.
Often, the prosecutors charge both larceny and fraud, as in cases where they allege that entitlements were fraudulently obtained from filing false paperwork and the money was paid out improperly. The most common case where larceny and fraud overlap is in allegations involving BAH (Basic Allowance for Housing) as an entitlement for housing or an entitlement to support geographically separated dependent family members. Larceny cases also arise when persons who are entrusted with the care and custody of military property become accused of failing to maintain accountability of the property.
Evidence in larceny and fraud cases is often based on documents and often is referred to as “paper cases.” Because larceny and fraud are closely related, military prosecutors will often charge both in addition to other punitive articles of the U.C.M.J. The most common article charged in larceny cases where the entitlement or “taking” stems from filling out paperwork is false official statement, under Article 107, U.C.M.J. False official statement can mean not only verbal statements a person makes, but also can mean assertions that a person makes on paperwork, including checking certain entitlements as something the person should receive and then signing. False official statement can be charged when the person signs an official record, and such charging theory probably is the most common way to charge theories of larceny involving BAH entitlements. Often the prosecutor will elect to charge both the false official statement and the larceny itself.
When prosecutors charge both larceny and false official statement, defense counsel often will file a motion that if the client is found guilty of both offenses to merge the two offenses for purposes of sentencing. Such a motion is styled as a motion for appropriate relief for an unreasonable multiplication of charges, which essentially argues that by charging both, the prosecutor is inflating the culpability of the client to unfairly and excessively punish him. The argument counsel made is that it is the signing of the official record that enables the taking (larceny) to occur and accordingly should be merged as part of the “same transaction or occurrence” for sentencing purposes. In recent years, such motions have not been given much traction or weight by trial courts and seldom on appeal. That said, the motions should still be made because on occasion the military appellate courts will change course. A past trend is not necessarily the perfect indicator of a new trend and it would hurt the client not to try in case there could be relief on appeal.
KINDS OF EVIDENCE AND OBJECTING
The rules of evidence decide what documents are reliable and therefore admissible; understanding where to look for holes in the government’s evidentiary foundations is critical when mounting a defense to any “paper case.” Making the proper objections at the strategic moment can mean the difference between a finding of guilty or not guilty. The objections that attack the documents speak to whether or not as a preliminary matter the manner that the government is attempting to introduce the document is one that is recognized as sufficiently reliable. In order for a document to be introduced into evidence against any military accused, a prosecutor must do more than merely hand it to the judge. Either the document has to be introduced through an appropriate witness, known as the “proponent witness” or the document itself must be accompanied by another document that attests to the reliability of the document and be one that is accepted for the type of document it is. This process is known as authentication. Authentication comes either from a person with sufficient knowledge of the contents of the document itself or the person has sufficient knowledge of the system that kept the document, such as the records system that maintains documents. In an age where documents are seldom kept in actual paper format and instead are maintained in a digital records system, practitioners should not take for granted that the proponent witness is a person with sufficient knowledge of the system to lay the proper foundation to authenticate the document.
Additionally, even when the evidence document is accompanied by a certificate of its authenticity, the defense counsel must interview the person who purports to authenticate the document in the certificate. Often, the attorney will find that the person’s knowledge is lacking, the person did not retrieve the actual record and has only third party knowledge of the retrieval process, and / or the person did not even understand what they were signing. Authentication by certificate certainly is a recognized shortcut to introducing evidence; however, a lazy prosecutor will assign the task to a member of support staff and seldom verifies if the task was accomplished to standard.
NOT ALL FOUNDATIONS ARE THE SAME
Furthermore, the document itself will dictate the precise foundation that must be laid and the requisite notice requirements in order to gain the document’s admission into evidence. The foundation required varies according to whether or not the document is a business record, a public record, or private record. In some cases, the government has to provide the authentication certificate in advance of trial to permit the defense to test its reliability and in other cases, the government need not provide any advanced notice; the timing of those requirements differs based on the document’s identity as being kept by a public or governmental agency or if kept and maintained privately.
When efforts prove unsuccessful to excluding the damning evidence and punishment lies ahead, understanding the aggravating and mitigating facts and trends will be crucial in managing expectations. Larceny cases often see stiffer punishments when the accusations arise out of a servicemember-on-servicemember dispute and especially when they occur in a deployed environment. With no mandatory minimums, sentences in larceny cases often vary from jurisdiction to jurisdiction, service to service, military occupation to military occupation and even from judge to judge.
Ms. Stewart prosecuted and defended multiple larceny and fraud cases on active duty, and she has defended BAH, larceny, false official statement in entitlement documents and receipt of stolen goods in private practice. She is available for a consultation to assess allegations of larceny, receipt of stolen property, and frauds against the U.S. cases for service members worldwide.