ACCA Watch: Varlaro and the Migration of Transferred Intent into Article 109

In United States v. Varlaro, __ M.J. ___, ARMY 20240319 (A. Ct. Crim. App. 29 June 2026), the court affirmed a willful damage of non-military property conviction under Article 109, UCMJ, and in doing so extended transferred-intent and concurrent-intent doctrine—long confined to the law of homicide—to a crime against property. The opinion is short, candid about the novelty of its holding, and worth attention for the doctrinal move at its center.

The facts

During an argument, the appellant began what the court called a rampage in a parking lot: he beat his wife’s car, slammed its doors, tore her suitcase, and threw her backpack “hard” onto the pavement. The backpack held a laptop the appellant says he did not know was there. The laptop was destroyed. The government charged a single Article 109 specification for the laptop. A military judge sitting alone convicted on that count, along with charges under Articles 90, 115, 121, 128b, 129, and 131b, and acquitted on an Article 120 sexual-assault specification and an Article 130 stalking specification.

The legal-sufficiency holding

The appellant’s lead argument was that the government failed to prove specific intent to damage the laptop because it offered no evidence he knew the backpack contained one. The court rejected the premise that knowledge of the specific item is required, resting on three independent grounds: a factfinder may find that a person intends the natural and probable consequences of his acts; a factfinder may use common sense to infer that the appellant felt the backpack’s heft and knew it was not empty; and the manner of the act itself supplies circumstantial evidence of willfulness under the Manual.

Distinguishing Saul

The appellant leaned on United States v. Saul, 86 M.J. 30 (C.A.A.F. 2025), where CAAF found a guilty plea improvident after the accused said he never intended to crack the windshield he struck. The Varlaro court distinguished Saul as a providence case: the question there was whether the accused believed he was guilty, not whether the government could prove guilt beyond a reasonable doubt. Because Varlaro was contested, the factfinder could draw inferences unavailable to a judge testing a plea. The distinction is well grounded in Faircloth and in Saul itself, which expressly contemplated that a contested trial “might or might not” produce sufficient circumstantial proof of willfulness.

The novel move: transferred and concurrent intent

The court could have stopped at ordinary inference. It did not. It went on to hold that transferred intent and concurrent intent—doctrines drawn from the homicide line, principally United States v. Willis, 46 M.J. 258 (C.A.A.F. 1997), and the “kill zone” authorities it cites (Ford, Ruffin)—apply with equal force to Article 109. Taking the Willis formulation and substituting “damage or destroy” for “kill,” the court reasoned that the proven intent to damage the backpack transferred to its contents, and that the rampage created a zone of danger encompassing the property within the appellant’s reach.

The strongest case for the holding

The court’s reasoning has real force. Transferred and concurrent intent are, at bottom, tools for proving a single mens rea—intent to bring about a specified result—and Article 109 and intentional homicide share that mental state. The Manual nowhere bars transferred intent for property crimes, and it is equally silent on transferred intent for intentional murder under Article 118(2), yet the doctrine indisputably applies there. The court read Saul’s statement that transferred intent “do[es] not apply here” as fact-bound--Saul involved one item and one act, leaving nothing to transfer from—rather than as a categorical exclusion. On that reading, Varlaro fills a gap CAAF left open.

The strongest case against it

The counterargument is that the court reached doctrine it did not need and imported it from an ill-fitting source. The ordinary natural-and-probable-consequences inference already disposed of the case; the transferred- and concurrent-intent discussion is arguably dicta dressed as holding. More substantively, the “kill zone” cases respond to a specific problem—a defendant who sprays gunfire to guarantee a target’s death and thereby imperils bystanders—and their logic does not obviously map onto a man throwing a bag. One might also read Saul’s rejection of transferred intent more broadly than the panel did. And there is a line-drawing worry: if intent to damage one item transfers to everything in a “zone,” the contours of Article 109 liability in any multi-object outburst become difficult to predict. CAAF has not spoken to any of this, and the question is a clean candidate for review.

The sentencing wrinkle

Separately, the panel found that the military judge miscalculated confinement. He announced 374 days, then convened a post-adjournment Article 39(a) session to “correct” a perceived 30-day overage by running one specification concurrently—an adjustment that in fact reduced the total to 344 days. Invoking the principle that an accused should not be harmed by computational error, the court affirmed only 344 days. It also corrected two clerical errors in the Statement of Trial Results.

A question for the comments

The UCMJ already supplies a tailored, commander-administered remedy for exactly this conduct—a servicemember who wrongfully takes or willfully damages another’s property. Article 139 of the UCMJ, the oft-forgotten claim, allows the victim to recover from the offender’s pay through the command, with no court-martial required. It is a staple of the seagoing legal-officer’s toolkit, usually administered alongside shepherding the offender to NJP. Stealing and damaging personal belongings aboard ship ain’t conducive to morale and good order and discipline--so your prompt attention to this matter is encouraged.

So, did the wife ever submit an Article 139 claim? The opinion does not say, and nothing requires it to. If so, was it filed first, while there was a paycheck to draw from? While it’s appropriate to applaud the accountability, it would have been nice for the wife if she were not out of pocket for a new computer. This is one of the few ways for restitution. When did you last see an Article 139 claim actually filed, and would one have changed anything here?