NOTE 1: Applicability of this instruction. Use this instruction when wrongful appropriation is the charged offense. When instructing upon wrongful appropriation as a lesser included offense of larceny, use Instruction 3a-64-1.
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) $1,000 or less: 2/3 x 3 months, 3 months, E-1. (Category 1)
(2) More than $1,000: BCD, TF, 1 year, E-1. (Category 1)
(3) Of motor vehicle, aircraft, vessel, firearm, explosive or military property of a value of more than $1,000: DD, TF, 2 years, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, wrongfully appropriate __________, of a value of (about) $__________, the property of __________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused wrongfully (took) (obtained) (withheld) certain property, that is, (state the property allegedly taken), from the possession of (state the name of the owner or other person alleged);
(2) That the property belonged to (state the name of the owner or other person alleged);
(3) That the property was of a value of __________ (or of some value); (and)
(4) That the (taking) (obtaining) (withholding) by the accused was with the intent (temporarily to (deprive) (defraud) (state the name of the owner or other person alleged) of the use and benefit of the property) (or) (temporarily to appropriate the property to the accused’s own use or the use of someone other than the owner). [and]
NOTE 3: Property subject to enhanced punishment provisions when alleged. Add the following element and give the appropriate definitions:
[(5)] That the property was (a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive) (military property of a value of more than $1000.00).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Possession” means care, custody, management, or control.
“Owner” refers to any person (or entity) who, at the time of the (taking) (obtaining) (withholding) had a superior right to possession of the property than the accused did, in the light of all conflicting interests.
Property “belongs” to a person or entity having (title to the property) (a greater right to possession of the property than the accused) (or) (possession of the property).
(“Took” means any actual or constructive moving, carrying, leading, riding, or driving away of another’s personal property.)
(“Withheld” means 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. Withheld can also mean devoting property to a use not authorized by its owner.)
NOTE 4: Wrongfulness of the taking, withholding, or obtaining. When an issue of wrongfulness is raised by the evidence, an instruction tailored substantially as follows should be given:
(A (taking) (or) (withholding) is wrongful only if done without the consent of the owner and with a criminal state of mind.)
(An obtaining is wrongful only when it is accomplished by false pretenses with a criminal state of mind.)
(A criminal “false pretense” is any misrepresentation of fact by a person who knows it to be untrue, which is intended to deceive, which does in fact deceive, and which is the means by which value is obtained from another without compensation. The false pretense may be made by means of any act, word, symbol, or token and may relate to a past or existing fact. The misrepresentation must be an effective and intentional factor in causing the owner to part with the property. The misrepresentation does not, however, have to be the only cause of the obtaining.)
(In determining whether the (taking) (or) (withholding) (or) (obtaining) was wrongful, you should consider all the facts and circumstances presented by the evidence.)
(Consider evidence that the (taking) (or) (withholding) (or) (obtaining) may have been (from a person with a greater right to possession) (without lawful authorization) (without the authority of apparently lawful orders) (__________).)
(On the other hand, consider evidence that the (taking) (or) (withholding) (or) (obtaining) may have been (negligent) (under a mistaken belief of right) (with lawful authority) (authorized by apparently lawful superior orders) (from a person with a lesser right to possession than the accused) (from a person with whom the accused enjoyed an equal right to possession) (for the purpose of returning the property to the owner) (__________).)
NOTE 5: “Innocent” motive. An “innocent” motive to take the property, such as for a joke or trick, to “teach another a lesson,” or for a similar reason, is NOT a defense to wrongful appropriation.
Evidence has been presented that the accused may have (taken) (or) (obtained) (or) (withheld) the (state the property allegedly taken) as a (joke) (trick) (to teach another a lesson) (to test security) (__________). The accused’s reason for (taking) (or) (withholding) (or) (obtaining) the property is neither an element of wrongful appropriation nor is it a defense.
NOTE 6: Possession of recently taken property. If the accused may have been found in possession of recently taken property, an instruction tailored substantially as follows is appropriate:
If the facts establish that the property was wrongfully (taken) (or) (obtained) (or) (withheld) from the possession of (state the name of the owner or other person alleged) and that shortly thereafter it was discovered in the knowing, conscious, and unexplained possession of the accused, you may infer that the accused (took) (or) (obtained) (or) (withheld) the property. The drawing of this inference is not required.
It is not required that the property actually be in the hands of or on the person of the accused, and possession may be established by the fact that the property is found in a place which the accused controls. Two or more persons may be in possession of the same property at the same time. One person may have actual possession of property for that person and others. But mere presence in the vicinity of the property or mere knowledge of its location does not constitute possession.
“Shortly thereafter” is a relative term and has no fixed meaning. Whether property may be considered as discovered shortly thereafter it has been taken depends upon the nature of the property and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the (taking) (or) (obtaining) (or) (withholding), the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.
In considering whether the possession of the property has been explained, remember that in the exercise of Constitutional and statutory rights, an accused need not take the stand and testify. Possession may be explained by facts, circumstances and evidence independent of the testimony of the accused.
NOTE 7: Lost, mislaid, or abandoned property. If the evidence raises the possibility that before it was taken, the property was abandoned, lost, or mislaid, the instruction that follows is appropriate. In addition, Instruction 5-13, Mistake of Fact, may apply to the issue of intent to deprive or to the issue of the wrongfulness of the taking.
The evidence has raised the issue of whether the property was abandoned, lost, or mislaid. In deciding this issue you should consider, along with all the other evidence that you have before you, the place where and the conditions under which the property was found (as well as how the property was marked).
“Abandoned property” is property which the owner has thrown away, relinquishing all right and title to and possession of the property with no intention to reclaim it. One who finds, takes, and keeps abandoned property becomes the new owner and does not commit wrongful appropriation.
“Lost property” is property which the owner has involuntarily parted with due to carelessness, negligence, or other involuntary reason. In such cases, the owner has no intent to give up ownership. The circumstances and conditions under which the property was found may support the inference that it was left unintentionally but you are not required to draw this inference. One who finds lost property is not guilty of wrongful appropriation unless (he) (she) takes possession of the property with both the intent temporarily to (deprive) (defraud) the owner of its use and benefit or temporarily to appropriate the property to (his) (her) own use, or the use of someone other than the owner, and has a clue as to the identity of the owner.
A clue as to identity of the owner may be provided by the character, location, or marking of the property, or by other circumstances. The clue must provide a reasonably immediate means of knowing or ascertaining the owner of the property.
“Mislaid property” is property which the owner voluntarily and intentionally leaves or puts in a certain place for a temporary purpose and then forgets where it was left or inadvertently leaves it behind. A person who finds mislaid property has no right to take possession of it, other than for the purpose of accomplishing its return to the owner. Such a person is guilty of wrongful appropriation if the property is wrongfully taken with the same intent temporarily to deprive, defraud, or appropriate the property (as was discussed earlier with lost property) even though there is no clue as to the identity of the owner.
The burden is on the government to prove each and every element of wrongful appropriation beyond a reasonable doubt. The accused cannot be convicted unless you are convinced beyond a reasonable doubt that the property was not abandoned. In addition, if you are convinced beyond a reasonable doubt that the property was “mislaid,” the accused may be convicted only if you are convinced beyond a reasonable doubt of all the elements of wrongful appropriation. If you are convinced beyond a reasonable doubt that the property was not abandoned but are not convinced beyond a reasonable doubt that the property was “mislaid,” you should consider the property to be “lost.” In this circumstance, the accused cannot be convicted unless you are convinced beyond a reasonable doubt that, at the time of the taking, along with the other elements of wrongful appropriation, the accused had a clue as to identity of the owner.
NOTE 8: Bailment and withholding by conversion — other than pay and allowances erroneously paid. The following instruction may be appropriate where there is evidence that the accused misused property given to him or her in a bailment arrangement. See US v. Hale, 28 MJ 310 (CMA 1989) and US v. Jones, 35 MJ 143 (CMA 1992):
You may find that a wrongful withholding occurred if you find beyond a reasonable doubt that the owner loaned, rented, or otherwise entrusted property to the accused for a certain period of use, the accused later retained the property beyond the period contemplated without consent or authority from the owner, and had the intent temporarily to (deprive) (defraud) the owner of its use and benefit.
NOTE 9: Withholding of pay and/or allowances. When the accused has erroneously received either pay and/or allowances, an instruction tailored substantially as below may be given. This instruction is based upon US v. Helms, 47 MJ 1 (CAAF 1997). Helms clarified a previously unsettled area by making clear that knowing receipt, without any action on the part or the service member, when coupled with an intent permanently to deprive, is sufficient to prove larceny. Thus, there is neither a requirement for an affirmative action on the part of the service member which causes the payment (as was previously indicated in US v. Antonelli, 43 MJ 183 (CAAF 1995)), nor a requirement for the service member to fail to account for the payment when called upon to do so (as was previously indicated in US v. Thomas, 36 MJ 617 (ACMR 1992)). The question now is one of proof: (1) did the service member realize (he) (she) was receiving the payment; and (2) did the service member form the intent to temporarily deprive? An affirmative action (Antonelli) or failure to account (Thomas) is still relevant as evidence of knowledge of the payment(s) and/or intent to temporarily deprive, but is only an example of proof as listed with other examples in the paragraph below.
The mere failure to inform authorities of an overpayment of (an allowance) (pay) (pay and allowances) does not of itself constitute a wrongful withholding of that property.
To find that the accused wrongfully withheld (an allowance) (pay) (pay and allowances), you must find beyond a reasonable doubt that:
(1) The accused knew that (he) (she) was erroneously receiving (an allowance) (pay) (pay and allowances); and
(2) The accused, either at the time of receipt of the (allowance) (pay) (pay and allowances), or at any time thereafter, formed an intent (temporarily to (deprive) (defraud) the government of the use and benefit of the money) (or) (temporarily to appropriate the money to the accused’s own use or the use of someone other than the government).
In deciding whether the accused knew (he) (she) was erroneously receiving (pay) (an allowance) (pay and allowances) and whether the accused formed the requisite intent, you must consider all the facts and circumstances, including but not limited to (the accused’s intelligence) (the length of time the accused has been in the military) (any affirmative action by the accused which caused the overpayment) (the length of time the accused received the overpayment) (any failure by the accused to account for the funds when called upon to do so) (the amount of the erroneous payment when compared to the accused’s total pay) (any statement(s) made by the accused) (any actions taken by the accused to (conceal) (correct) the erroneous payment) (any representations made to the accused concerning the erroneous payment by persons in a position of authority to make such representations) (__________).
NOTE 10: Custodian of a fund. When the accused was the custodian of a fund and may have failed to produce property on request or to render an accounting, an instruction tailored substantially as follows may be given:
The mere (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) does not of itself constitute a wrongful appropriation of that property. However, (failure on the part of the custodian to account for or deliver the property when, in the ordinary course of affairs, an accounting is due) (a refusal on the part of the custodian to deliver the property when delivery is due or upon timely request by proper authority) will permit an inference that the custodian has wrongfully withheld the property. The drawing of this inference is not required. Whether it should be drawn at all and the weight to be given to it, if it is drawn, are matters for your exclusive determination. In making this determination you should consider the circumstances surrounding any (refusal) (failure) to (account for) (deliver) the property. In making your decision, you should also apply your common sense and general knowledge of human nature and the ordinary affairs of life.
NOTE 11: Military property. For a definition of military property, See US v. Schelin, 15 MJ 218 (CMA 1983), and US v. Simonds, 20 MJ 279 (CMA 1985). See also NOTE 10 below when money is alleged as military property. When military property is alleged, the following instruction should be given:
“Military property” is real or personal property owned, held, or used by one of the armed forces of the United States which either has a uniquely military nature or is used by an armed force in furtherance of its mission.
NOTE 12: “Money” as military property. In US v. Hemingway, 36 MJ 349 (CMA 1993), the court held that appropriated funds belonging to the Army—even if only being “held” by the Army for immediate disbursement to an individual service member for duty travel—are military property. Hemingway did not mention any of the service court cases that previously addressed the issue, such as US v. Dailey, 34 MJ 1039 (NMCMR 1992) (“money” paid as BAQ was considered to be “military property” because it was appropriated by Congress and used to provide an integral morale and welfare function); US v. Newsome, 35 MJ 749 (NMCMR 1992) (treasury checks are military property); US v. Field, 36 MJ 697 (AFCMR 1992) (appropriated funds for PCS and TDY travel are military property); or US v. Thomas, 31 MJ 794 (AFCMR 1990) (“money” paid as TLA (temporary lodging allowance) and VHA was not “military property” because ordinarily it is the property purchased with appropriations, and not “money,” which has a unique military nature or is put to a function meriting special status).
NOTE 13: Motor vehicle, aircraft, vessel, explosive, and firearm defined. If the property is alleged to be a motor vehicle, aircraft, vessel, explosive, or firearm, the following definitions will usually be sufficient. In a complex case, the military judge should consult the rules and statutes cited below:
Vehicle: 1 USC section 4
Motor Vehicle: 18 USC section 31 and 18 USC section 2311
Aircraft: 18 USC section 31 and 18 USC section 2311
Vessel: 1 USC section 3
Explosive: RCM 103(13), 18 USC section 844(j), and 18 USC section 232(5)
Firearm: RCM 103(14) and 18 USC section 232(4)
(“Motor vehicle” includes every description of carriage or other contrivance propelled or drawn by mechanical power and used, or capable of being used, as a means of transportation on land.)
(“Aircraft” means any contrivance invented, used, or designed for to navigate, fly, or travel in the air.)
(“Vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.)
(“Firearm” means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.)
(“Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device. “Explosive” includes ammunition.)
NOTE 14: Other definitions of explosive. The above definition of explosive (except the last sentence regarding ammunition, which is derived from U.S. v. Murphy, 74 MJ 302 (2015)) is taken from RCM 103(13). The Manual definition also includes any other compound, mixture, or device within the meaning of 18 USC section 232(5) or 18 USC section 844(j). Title 18 USC section 232(5) includes the following definitions of explosive not included above: dynamite or other devices which (a) consist of or include a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone. 18 USC section 844(j) also includes the following: any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.
NOTE 15: Specified property, variance. If the property is alleged to be a motor vehicle, aircraft, vessel, firearm, or explosive, and an issue as to its nature is raised by the evidence, the following instruction should be given:
The government has charged that the property allegedly taken was “(a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive).” To convict the accused as charged, you must be convinced beyond a reasonable doubt of all the elements, including that the property is of the nature as alleged. If you are convinced of all the elements beyond a reasonable doubt except the element that the property was of the nature as alleged, you may still convict the accused of wrongful appropriation. In this event you must make appropriate findings by excepting the words “(a) (an) (motor vehicle) (aircraft) (vessel) (firearm) (explosive)).”
NOTE 16: Value alleged as $1000.00 or less and property in evidence. Under these circumstances, the following instruction may be given:
When property is alleged to have a value of $1000.00 or less, the prosecution is required to prove only that the property has some value. When, as here (you have evidence of the nature of the property) (the property has been admitted in evidence as an exhibit and can be examined by the members), you may infer that it has some value. The drawing of this inference is not required.
NOTE 17: Value alleged in excess of $1000. If value in excess of $1000 is alleged, Instruction 7-16, Variance - Value, Damage, or Amount, may be appropriate.
NOTE 18: Wrongful appropriation of a completed check, money order, or similar instrument. The following instruction may be appropriate:
When the subject of the wrongful appropriation is a completed check, money order, or similar instrument, the value is the face amount for which it is written (in the absence of evidence to the contrary raising a reasonable doubt as to that value).
NOTE 19: Asportation. The asportation (the taking or carrying away) continues, and thus the crime of wrongful appropriation continues, as long as there is any movement of the property with the requisite intent, even if not off the premises. As long as the perpetrator is dissatisfied with the location of the property, a relatively short interruption of the movement of the property does not end the asportation. See US v. Escobar, 7 MJ 197 (CMA 1979).
NOTE 20: Taking of mail. See Article 109a, Part IV, MCM and Instruction 3a-33a-1, Mail—Taking.
NOTE 21: Tangible property subject of wrongful appropriation. Money, personal property, or article of value, as those terms are used in Article 121, UCMJ, include only tangible items having corporeal existence and do not include services or other intangibles, such as taxicab and telephone services, or use and occupancy of government quarters, or a debt. See US v. Roane, 43 MJ 93 (CMA 1995), US v. Abeyta, 12 MJ 507 (ACMR 1981) and US v. Mervine, 26 MJ 482 (CMA 1988). (Wrongful appropriation of intangibles may be charged under Article 121b as obtaining services under false pretenses).
NOTE 22: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), normally applies. Instruction 7-16, Variance - Value, Damage, and Amount, may apply. Instruction 7-15, Variance, may apply.
e. REFERENCES: Abandoned, lost, mislaid property: US v. Wederkehr, 33 MJ 539 (AFCMR 1991). Pay and allowances: US v. Helms, 47 MJ 1 (CAAF 1997).