Throwing the Backpack, Breaking the Laptop: ACCA Extends Transferred and Concurrent Intent to Property Crimes in United States v. Varlaro

The Army Court of Criminal Appeals (ACCA) decided United States v. Varlaro, ARMY 20240319, 2026 CCA LEXIS 309 (A. Ct. Crim. App. 29 Jun. 2026), on 29 June 2026. The opinion answers a question the Court of Appeals for the Armed Forces (CAAF) left open in United States v. Saul, 86 M.J. 30 (C.A.A.F. 2025): can the government prove specific intent to damage property the accused never knew existed? ACCA says yes, and it reaches for two doctrines borrowed from homicide law to get there.

The facts

A military judge (MJ) sitting alone convicted Sergeant First Class Varlaro, contrary to his pleas, of willful disobedience, damaging non-military property, communicating a threat, wrongful appropriation, domestic violence, burglary, and obstructing justice, in violation of UCMJ arts. 90, 109, 115, 121, 128b, 129, and 131b, 10 U.S.C. §§ 890, 909, 915, 921, 928b, 929, and 931b. The MJ acquitted him of sexual assault and stalking.

The Article 109 specification arose from an argument with his wife. When she returned to pick him up after dropping him off, he beat the trunk of her car, tore her suitcase by throwing it on the pavement, threw her car key, slammed the doors, and hurled her backpack “hard” into the parking lot. The backpack held her laptop. The laptop worked before the throw and never worked again.

On appeal, the defense argued the evidence was legally insufficient because the government never proved the appellant knew the laptop was inside the backpack. Without that knowledge, the argument ran, he could not have formed the specific intent Article 109 requires. United States v. Bernacki, 13 U.S.C.M.A. 641, 643-44, 33 C.M.R. 173, 175-76 (1963).

Distinguishing Saul

The defense leaned on Saul, where CAAF found a guilty plea to destroying a windshield improvident because the accused told the MJ he never intended to damage it and was surprised it cracked. 86 M.J. at 32, 34. ACCA’s answer is the one every appellate practitioner should have ready: providence and sufficiency are different questions. In a guilty plea, the issue is whether the accused believes in his or her own guilt. United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996). In a contested trial, the factfinder may draw every permissible inference from the evidence, and legal sufficiency review asks only whether any rational factfinder could convict. United States v. Robinson, 77 M.J. 294, 297-98 (C.A.A.F. 2018). CAAF itself flagged the distinction in Saul, observing that a factfinder at a contested trial “might or might not” find the circumstantial evidence sufficient. 86 M.J. at 35.

On that conventional footing, ACCA affirmed. The factfinder could infer the appellant intended the natural and probable consequences of throwing a backpack hard onto pavement, could conclude from the bag’s heft that he knew it was not empty, and could look to the manner of the acts as circumstantial proof of willfulness. United States v. Johnson, 24 M.J. 101, 105-06 (C.M.A. 1987); Manual for Courts-Martial, United States (2019 ed.), pt. IV, para. 45.c.(2).

The new ground: transferred and concurrent intent for property

The court could have stopped there. Instead, Judge Williams wrote an alternative rationale importing transferred intent and concurrent intent, doctrines built for homicide cases, into Article 109. Taking CAAF’s formulation in United States v. Willis, 46 M.J. 258, 261 (C.A.A.F. 1997), the court swapped three words: where there is an intent to damage or destroy and an act designed to bring it about, the accused answers for all natural and probable consequences regardless of the intended object. Under the concurrent intent theory, the appellant’s rampage created a “zone of danger” that swept in the backpack and everything inside it. Under transferred intent, his intent to damage the backpack transferred to the laptop within.

The court acknowledged in footnote 4 that CAAF said in Saul the doctrines “do not apply here,” and reads “here” as fact-bound: Saul involved one act against one item, leaving nothing from which intent could transfer. That is a plausible reading, but it is ACCA’s inference, not CAAF’s holding. The extension is also, strictly, an alternative holding, since the court had already affirmed on ordinary permissive-inference grounds.

Why it matters

Defense counsel should watch three things. First, the unit-of-prosecution question the opinion invites: if one throw transfers intent to every item in a bag, may the government charge a separate specification for each broken item inside? The opinion suggests it “reasonably should be criminalized for each item,” which raises unreasonable multiplication concerns the court did not address. Second, whether CAAF grants review to decide if property crimes really warrant doctrines developed for kill zones and stray bullets. The severity gap between murder and a broken laptop did not trouble ACCA (footnote 5 answers it by noting both require the same category of mens rea, and footnote 6 enlists Locke and Hume), but the fit is contestable. Third, the government now has published language to quote in every contested Article 109 case involving containers, vehicles, and rooms full of property.

A sentencing footnote worth more than a footnote

Separately, and unraised by either party, ACCA caught a segmented-sentencing error. The MJ announced consecutive and concurrent terms totaling 374 days, then reconvened, misstated his own total as 404 days, and ran a 30-day term concurrent to “fix” it. The actual effect cut the total to 344 days. ACCA held the appellant should benefit from the computational error and affirmed only 344 days. The lesson for trial practitioners: do the arithmetic on segmented sentences yourself, on the record, before the court adjourns. Appellate counsel should do it again on review.

Cave & Freeburg handles court-martial appeals before all the service courts, CAAF, and the Supreme Court, including sufficiency challenges and sentence-computation issues, and defends domestic violence charges under Article 128b at trial. More case coverage appears on our Court-Martial Trial Practice Blog.