United States v. Morita , 73 M.J. 548 ( 2014 )

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Lieutenant Colonel STEVEN S. MORITA
United States Air Force
ACM 37838
10 January 2014
____ M.J. ____
Sentence adjudged 3 October 2010 by GCM convened at Travis Air Force
Base, California. Military Judge: David S. Castro.
Approved Sentence: Dismissal, confinement for 12 months, and fine of
$75,000; in the event the fine is not paid, to be confined for 12 months.
Appellate Counsel for the Appellant: Major Zaven T. Saroyan; Major
Nathan A. White: and Matthew A. Siroka, Esquire.
Appellate Counsel for the United States: Colonel Don M. Christensen;
Lieutenant Colonel C. Taylor Smith; Major Tyson D. Kindness; Major
Rhea A. Lagano; Major Charles G. Warren; and Gerald R. Bruce, Esquire.
Before
HELGET, HECKER, and WEBER
Appellate Military Judges
OPINION OF THE COURT
This opinion is subject to editorial correction before final publication.
WEBER, Judge:
A panel of officer members convicted the appellant contrary to his pleas at a
general court-martial of seven specifications of forgery, one specification of larceny of
Government money, and one specification of forgery of signatures in connection with
claims, in violation of Articles 123, 121, and 132, UCMJ, 10 U.S.C. §§ 923, 921, 932.
The members sentenced the appellant to a dismissal, confinement for 12 months, a fine of
$75,000, and contingent confinement for an additional 12 months in the event the fine
was not paid. The convening authority approved the sentence as adjudged.
The appellant raises three issues on appeal: (1) Whether all charges and
specifications should be dismissed because the Government failed to prove that the
appellant was subject to UCMJ jurisdiction during the charged time frame; (2) Whether
the two forgery charges (Charge I and the Additional Charge) are multiplicious; and
(3) Whether the military judge abused his discretion by allowing a major change to the
larceny charge (Charge II) over defense objection. As a sub-issue to Issue 3, the
appellant alleges that the evidence is legally and factually insufficient concerning the
conviction of Charge II and its Specification. This Court ordered and considered oral
argument on the first issue.
We find that the appellant was not subject to court-martial jurisdiction for some of
the charged offenses, and that Charge I and the Additional Charge are multiplicious. We
modify the findings accordingly and reassess the sentence.
Background
The appellant was a reserve Individual Mobilization Augmentee 1 (IMA) assigned
to the Health Services Office, Western Region. His unit was responsible for providing
support to the planning, design, and construction of medical facilities within its region
west of the Mississippi River, to include Pacific Air Forces. Members of the unit were
required to travel frequently as part of their duties, working with the staff at medical units
to plan and develop construction projects. The appellant was an experienced member of
this unit, as he had been assigned to the office as an active duty officer from 1998 to
2003, and had been assigned to the same unit as an IMA since his separation from active
duty. The appellant was the only reservist assigned to the unit, and his supervisors were
generally unaware of proper procedures for approving reserve orders or approving travel
vouchers for reservists.
As an IMA, the appellant was required each fiscal year to perform 12 annual
training days on active duty 2 and 24 paid inactive duty training 3 (IDT) periods. 4 In
1
As part of the Air Force Selected Reserve, Individual Mobilization Augmentees (IMAs) are individuals who are
assigned to an active component unit and train in order to provide continuity by back-filling for that unit’s members
who mobilize. Air Force Instruction (AFI) 36-2629, Individual Reservist (IR) Management, ¶ 1.1.2.1 (13 August
2012); Department of Defense Instruction 1215.06, Uniform Reserve, Training, and Retirement Categories,
¶ 6.1.4.1.2 (7 February 2007).
2
In addition to receiving a prorated amount of monthly base pay for these 12 days of active duty, an IMA receives a
prorated amount of the basic allowance for housing and subsistence authorized for reservists. An IMA receives one
“point” (a unit of measurement used to track a member’s compliance with participation requirements and to give
credit for retirement purposes) for each day of active duty during annual training. AFI 36-2254, Vol. I, Reserve
Personnel Participation, ¶¶ 2.1, 2.2 (26 May 2010). If the reservist lives outside the established commuting area of
the duty location, he or she is reimbursed for the expenses incurred when traveling to and from the duty location for
annual training, and receives military pay and allowances for that day. Readiness Management Group Individual
2 ACM 37838
addition, he received authorization throughout the charged time frame to work 120
military personnel appropriation (MPA) “man-days” 5 on active duty per fiscal year,
meaning the appellant was authorized to work a total of approximately 144 days per
fiscal year. For each fiscal year, the appellant was approved for and received orders
covering the MPA man-days in blocks of 120 consecutive days, and he was paid as if he
performed military duty on those days. However, because the appellant’s duties
generally required more intermittent attention throughout the year, his supervisor allowed
him to fulfill those 120 days throughout the year instead of on the actual dates for which
he was approved and paid.
The appellant falsely assured his supervisor that documentation concerning his
time in military status and his travel vouchers were electronically tracked through the Air
Reserve Orders Writing System and that the appellant’s supervisor would not be involved
in the approval process for these documents. The appellant’s supervisor accepted this
explanation, and did not see any travel authorizations or vouchers from the appellant.
The unit made some efforts to track the appellant’s whereabouts and his fulfillment of his
MPA requirements, but the appellant’s experience and status as the only reservist in the
office, along with his unit’s unfamiliarity with reserve procedures and failure to exercise
more vigilance, allowed the appellant to take advantage of the lack of oversight over his
actions.
From approximately November 2005 to October 2008, the appellant repeatedly
forged the signatures of his supervisors and several other officials to create authorizations
for him to be placed on travel orders and to receive compensation for travel expenses.
Eventually, the amount of his purported travel expenditures on certain trips and the
locations of certain claimed trips caught the attention of his supervisor. The appellant’s
supervisor insisted that the appellant provide an accounting for his MPA days to ensure
that he was actually working the number of days for which he had already been paid.
Reserve Guide (Guide), ¶ 6.1. Available at http://www.afrc.af.mil/shared/media/document/afd-080408-050.pdf.
The IMA also receives one point for any days on which official travel pay is received. Guide, ¶¶ 3.15.1, 6.1.
3
An inactive duty training (IDT) period is a four-hour block of training, duty or instruction and an IMA may work
two such blocks in one day. Guide, ¶ 3.3. The IMA receives a prorated amount of monthly base pay and one point
for each of these 24 IDTs. AFI 36-2254, Vol. I, ¶ 4.9. Even if the IMA lives outside the designated commuting area
of the duty station, the IMA is not reimbursed for any expenses incurred during his travel to and from the inactive
duty training period (IDT) duty location. Guide, ¶ 3.3. The IMA also receives no points or military pay and
allowances for IDT travel days. AFI 36-2254, Vol. I, ¶¶ 2.5.5.7, 4.2.3.
4
Each IMA is also credited with 15 “membership points” for each year the IMA remains in an active reserve status.
Id. at ¶ 2.2. Furthermore, although not required to do so in order to have a satisfactory year, reservists can also
perform up to a certain amount of non-paid IDTs, for which they only receive points (one point for each four-hour
period). Id. at ¶ 4.2.
5
Military personnel appropriation (MPA) “man-days” are used to bring reservists onto active duty on a temporary
basis (generally less than 139 days per year) in order to support the short-term needs of the active force. AFI 36-
2619, Military Personnel Appropriation (MPA) Man-Day Program, ¶ 1.1 (22 July 1994). During MPA tours, an
IMA generally accrues points, military pay and allowances, and travel reimbursement in the same manner as
described in footnote 2. Id. at ¶ 8; AFI 36-2254, Vol. I, ¶ 6.
3 ACM 37838
The appellant produced a document that did not align with the travel he had claimed and
for which he was reimbursed.
A lengthy investigation revealed the appellant forged signatures on the following
documents:
- Department of Defense (DD) Form 1351: Travel voucher used to claim
reimbursement for expenses such as lodging, airline tickets, rental cars, mileage,
tolls, parking, per diem entitlement, and similar costs.
- DD Form 1610: Request and authorization for temporary duty travel of
Department of Defense personnel. Used to request, review, approve, and account
for official travel.
- Air Force (AF) Form 40A: Record of individual IDTs. Used to record a reserve
member’s IDT periods for payment and/or points for years of service credit, and
determine the member’s fulfillment of the requirements for retention in the Ready
Reserve.
- AF Form 938: Request and authorization for active duty training/active duty tour.
Used to request and authorize Air Force reservist tours of active duty as well as
acting as a temporary duty travel order.
- AF Form 973: Request and authorization for change of administrative orders.
Used to change orders previously issued.
- Memorandum for Record (MFR): Various MFRs authorizing exceptions to
normal expense limitations, such as exceeding the maximum allowable lodging
expense for a given location.
All told, the appellant was charged with forging 510 signatures or sets of initials
on more than 100 documents. The vast majority of the forged documents related to travel
orders creation and reimbursement, with a small minority of the alleged forgeries relating
to the creation of active duty orders or documentation of IDTs allegedly performed. The
Government also alleged that some amount of his travel reimbursement amounted to
larceny, asserting that some trips for which he was reimbursed involved personal travel
while other reimbursements involved excess expenses claimed in the course of apparently
official travel.
Further facts relevant to each issue are laid out below.
4 ACM 37838
Jurisdiction
At the pretrial investigation under Article 32, UCMJ, 10 U.S.C. § 832, the
investigating officer (IO) noted that jurisdiction was a potential issue that had not yet
been satisfactorily resolved. Specifically concerning subject matter jurisdiction, the IO
observed:
At the hearing, the [appellant’s] reserve orders activating him
to active duty were not produced. I have no way of knowing
that he committed the alleged offenses while under orders
because no matrix of dates comparing his orders to the
alleged forgeries and larcenies was presented. Even if the
dates lined up, the [appellant] could have submitted/signed
(allegedly forged)/presented the documents while not on
orders. Likewise, there was no testimony that related, “I saw
him commit this offense while under orders.”
At trial, the defense moved to dismiss all charges and specifications due to lack of
both personal and subject matter jurisdiction. In response to the personal jurisdiction
aspect of the defense motion, the Government introduced documents demonstrating that
the appellant was recalled to active duty throughout relevant pretrial and trial stages, and
the military judge found personal jurisdiction existed over the appellant. The appellant
does not challenge this finding on appeal.
Concerning subject matter jurisdiction, the defense noted the Government had not
remedied the issue identified by the IO. The defense argued to the military judge that the
Government had produced no evidence showing the appellant’s status at the time of each
alleged offense.
The Government responded by generally asserting that all of the appellant’s
misconduct took place pursuant to his role as a reserve officer and was carried out to
claim military pay, allowances, and benefits. The Government asserted that “jurisdiction
over reserve members is not wholly contingent upon looking at dates which may appear
on orders calling reservists to (or releasing reservists from) active duty service.” Rather,
the Government argued, case law from this Court and our superior court establishes that
“jurisdiction over reservists encompasses a variety of factors beyond merely looking at
the dates which appear on orders calling reservists to active duty service.” Therefore, the
Government asserted that it was not required to detail the dates on which the appellant
was subject to orders or how those dates on orders compared to the dates of the
appellant’s charged misconduct. The Government did attach to its motion response three
Air Force Form 49s, each placing the appellant on MPA orders for 120-day periods
during the charged time frame. However, it did not specify what days the appellant
performed his annual training tours, IDTs, or any other reserve duty pursuant to active
5 ACM 37838
duty orders. The Government also did not provide a chart or other aid comparing the
dates of the appellant’s orders and IDTs to the dates of the charged misconduct.
The military judge accepted the Government’s argument that it was not necessary
for the Government to prove the appellant committed the charged misconduct while on
active duty orders or while performing IDTs. Instead, at the Government’s urging, the
military judge relied on an unpublished case from this Court, United States v. Morse,
ACM 33566 (A.F. Ct. Crim. App. 4 October 2000) (unpub. op.), and held that the
appellant’s actions took place in his capacity as a reserve officer, thereby establishing
subject matter jurisdiction based on this fact alone. He further found that subject matter
jurisdiction was established pursuant to the four-part test outlined in Article 2(c), UCMJ,
10 U.S.C. § 802(c).
We review questions of jurisdiction de novo. United States v. Kuemmerle,
67 M.J. 141, 143 (C.A.A.F. 2009). Jurisdiction is an interlocutory issue, to be decided by
the military judge, with the burden placed on the Government to prove jurisdiction by a
preponderance of the evidence. United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F.
2002). See also Rule for Courts-Martial (R.C.M.) 905(c)(2)(B).
It is well established that subject matter jurisdiction requires that the accused be
subject to the UCMJ at the time of the alleged offenses. United States v. Ali, 71 M.J. 256,
261-62 (C.A.A.F. 2012) (citing Solorio v. United States, 483 U.S. 435 (1987)). In
Solorio, the Supreme Court overruled its prior decision in O’Callahan v. Parker,
395 U.S. 258 (1969), and held that jurisdiction of a court-martial depends solely on
whether the accused was a member of the armed forces at the time of the charged
offense. Solorio, 483 U.S. at 435, 450-51.
Article 2(a)(1), UCMJ, generally defines persons subject to the code as those
“[m]embers of a regular component of the armed forces, including . . . other persons
lawfully called or ordered into, or duty in or for training in, the armed forces, from the
dates when they are required by the terms of the call or order to obey it.” In addition,
“[m]embers of a reserve component while on inactive-duty training” are subject to the
code. Article 2(a)(3), UCMJ. No other section of Article 2, UCMJ, explicitly covers
reservists. As a result, for much of the UCMJ’s history, courts have held to a bright-line
rule for subject matter jurisdiction over reservists – “there is no jurisdiction over a
reservist who commits an offense when not on active duty or inactive duty training.”
Major Tyler J. Harder, USA, Moving Towards the Apex: Recent Developments in
Military Jurisdiction, ARMY LAW., April/May 2003, at 15.
In 2000, however, this Court suggested that subject matter jurisdiction did not rely
solely on whether a reservist was on active duty orders or performing IDTs at the time of
the offense. In Morse, a reservist colonel was convicted of attempted larceny and filing
false travel vouchers in conjunction with active duty and IDTs performed in his reserve
6 ACM 37838
role. Morse, unpub. op. at 1. On appeal, Colonel (Col) Morse contended he had signed
several of his forms after he was released from active duty or IDTs, and therefore subject
matter jurisdiction was lacking. However, he had stipulated at trial that he was serving
on active duty or IDTs when he signed all the forms in question, other evidence
supported this stipulation, and the military judge had found jurisdiction over the offenses.
Therefore, this Court found that subject matter jurisdiction existed because Col Morse
was either on active duty or performing IDTs when he signed the forms that formed the
bases for the charges. Id. However, the Court then went a step further, adding:
Finally, even if we were to ignore the overwhelming evidence
of subject matter jurisdiction noted above, we would still find
jurisdiction based upon the simple and undeniable fact that
the appellant signed these forms in his official capacity as a
reserve officer in the United States Air Force. It was part of
his duty incident to these reserve tours or training to complete
these forms with truthful information and that duty was not
complete until the forms were signed, regardless of whether
or not he completed travel pursuant to his orders. Therefore,
it is immaterial if the appellant did not sign these forms until
after completing his travel. He did so in a duty status.
Id. at 6 (citation omitted). One commentator noted this decision “stretched the
boundaries” of jurisdiction over reservists. Major Christopher T. Fredrikson, USA, The
Unsheathing of a Jurisdictional Sword: The Application of Article 2(c) to Reservists,
ARMY LAW., July 2004, at 4. Another remarked the Morse decision “stepped beyond
the traditional parameters of [r]eserve jurisdiction” and marked “a significant departure
from past decisions that viewed status at the time of the offense as the determining factor
in deciding whether subject-matter jurisdiction exists.” Harder, supra, at 13 (emphasis in
original). 6
Three years later, our superior court expanded the scope of jurisdiction over
reservists in a different setting and through a different analysis in United States v.
Phillips, 58 M.J. 217 (C.A.A.F. 2003). Lieutenant Colonel (Lt Col) Phillips was an Air
Force reservist IMA who traveled from Pennsylvania to Wright-Patterson Air Force Base
(AFB), Ohio, pursuant to orders to perform her annual training tour. While in
Government quarters at Wright-Patterson AFB the evening before her annual training
tour was scheduled to begin, she consumed brownies she knew to contain marijuana. She
unsuccessfully challenged the court-martial’s subject matter jurisdiction at trial and
before this Court. Id.6
Our superior court denied review of the Morse decision, perhaps because determining the propriety of this Court’s
willingness to find jurisdiction outside of periods when Colonel Morse was on orders or performing IDTs was not
necessary to the disposition of the case. United States v. Morse, 55 M.J. 473 (C.A.A.F. 2001).
7 ACM 37838
Our superior court agreed that subject matter jurisdiction was present. Because
Lt Col Phillips was not in active military status or performing IDTs on the day she
ingested the marijuana, subject matter jurisdiction was not present under Article 2(a),
UCMJ. Nonetheless, the Court held that subject matter jurisdiction was present under
Article 2(c), UCMJ. Id. at 220. Where a reservist is “serving with” the armed forces, and
the individual is in “active service” based on the four-part Article 2(c), UCMJ, criteria,
subject matter jurisdiction may be present even when the reservist is not in military status
as defined in Article 2(a), UCMJ. Id. The Court noted the question of whether the
person is “serving with” the armed forces “is dependent upon a case-specific analysis of
the facts and circumstances of the individual’s particular relationship with the military.”
Id.Conducting this case-specific analysis, the Court found that Lt Col Phillips was
“serving with” the armed forces on the day she ingested marijuana, as established by the
following uncontested facts: (1) Lt Col Phillips was a member of a reserve component of
the armed forces on the day of her offense; (2) she was traveling to a military base under
military orders, and was reimbursed by the military for her travel expenses; (3) the orders
were issued for her to perform military duty; (4) she was assigned to, occupied, and
committed the offense in military officers’ quarters; (5) she received a retirement point
for the travel day; and (6) she received military base pay and allowances for the travel
day. Id. The Court then concluded Lt Col Phillips was “in active service” under the
four-part test of Article 2(c), UCMJ, noting she received military pay and allowances for
the day of her offense and that her travel to the base in preparation for her upcoming
active duty orders constituted the performance of “military duty.” Id. Under those
circumstances, the Court found Lt Col Phillips subject to military jurisdiction on the day
she travelled to her unit. Id.This case presents facts far more complicated and unsettled than either Morse or
Phillips. The parties disagree not only on the interpretation of the facts contained in the
record of trial and the reach of Morse and Phillips, but also what documents this Court
may consider in reaching its ruling. After ordering and considering supplemental briefs
and oral arguments, this Court has narrowed the subject matter jurisdiction issue to six
questions that must be answered to reach our ultimate conclusion:
(1) Should this Court grant the Government’s motion on appeal to attach several
documents that purport to demonstrate the appellant was in military status
during some of the charged offenses?
(2) Considering evidence properly before this Court, was the appellant actually
on active duty orders or performing IDTs when any of the charged offenses
took place?
8 ACM 37838
(3) For any periods where the record reveals the appellant was in military status
under Article 2(a), UCMJ, were the appellant’s orders sufficiently “valid” to
demonstrate that he was actually a person subject to the code?
(4) For charged offenses that transpired when the appellant was not on active
duty orders or performing IDTs, to what extent does Phillips indicate that the
appellant was nonetheless “serving with” an armed force sufficient to trigger
the four-part analysis under Article 2(c), UCMJ?
(5) To the extent that subject matter jurisdiction is not found for some or all of
the charged offenses based either on the appellant’s military status or
Phillips, should this Court nonetheless find subject matter jurisdiction
existed under the position espoused in Morse?
(6) What is the proper remedy to address the appellant’s conviction for any
actions that occurred when subject matter jurisdiction was not present?
We address each question in turn. Ultimately, we conclude that the Government did not
demonstrate subject matter jurisdiction over the majority of the actions for which the
appellant was convicted.
(1) Should this Court grant the Government’s motion to attach documents?
After receiving the parties’ initial briefs in this case, this Court ordered the parties
to address specific points on the subject matter jurisdiction issue. Among other matters,
we asked the parties to address whether the appellant’s actions for which he was
convicted took place while he was in military status under Article 2(a), UCMJ. The
Government filed a supplemental brief and contemporaneously moved to attach two sets
of records not introduced at trial: (1) AF Form 938s with a records custodian affidavit;
and (2) an Air Force Reserve Repository printout with a records custodian affidavit.
These documents purportedly help demonstrate what days the appellant was actually in
military status during the charged time frame.
This Court denied the Government’s motion to attach the documents, finding that
the Government had not sufficiently demonstrated the proffered documents were relevant
on appeal. The Government then moved us to reconsider our denial. We did not act on
the motion for reconsideration at that time, instead directing the parties the issue would
be covered at oral argument.
Article 66, UCMJ, 10 U.S.C. § 866, provides the Courts of Criminal Appeals
factfinding powers. See United States v. Cendejas, 62 M.J. 334, 342 (C.A.A.F. 2006).
Article 66(c), UCMJ, grants the Courts of Criminal Appeals the authority to “weigh the
evidence, judge the credibility of the witnesses, and determine controverted questions of
fact, recognizing that the trial court saw and heard the witnesses.” However, “Congress
9 ACM 37838
intended a Court of Criminal Appeals to act as factfinder in an appellate-review capacity
and not in the first instance as a trial court.” United States v. Ginn, 47 M.J. 236, 242
(C.A.A.F. 1997), cited in United States v. Hurn, 55 M.J. 446, 449 (C.A.A.F. 2001). Our
factfinding authority “is not unlimited in scope but is expressly couched in terms of a trial
court’s findings of guilty and its prior consideration of the evidence.” Id. Our authority
to make findings of fact is particularly limited where the evidence presented after trial is
conflicting. Id. at 243. Cf. United States v. Johnson, 43 M.J. 192, 194 (C.A.A.F. 1995)
(noting the difficulties with resolving issues on appeal based on post-trial competing
affidavits).
In Oliver, the appellant was a Marine Corps reservist charged with fraud against
the United States. He did not challenge the Government’s jurisdiction over him at trial,
and his trial defense counsel admitted in his opening statement that the appellant was on
active duty and continued on active duty through trial. Oliver, 57 M.J. at 172. On
appeal at the Navy-Marine Court of Criminal Appeals, Staff Sergeant Oliver challenged
the jurisdiction of the court-martial. The Government opposed, filing a motion to attach
Sergeant Oliver’s medical records to demonstrate that he was continued on active duty
in a medical hold status beyond the expiration of his active duty orders. The Court of
Criminal Appeals granted the Government’s motion and both the Court of Criminal
Appeals and the Court of Appeals for the Armed Forces found that these records
established that the court-martial possessed subject matter jurisdiction over the offense.
Id. at 173.
Unlike Oliver, in the instant case the appellant challenged the jurisdiction of the
court-martial at trial, and the burden was on the Government then to establish
jurisdiction. On appeal, the Government has still not established why it could not have
introduced these documents at trial, documents that would have been responsive to the
appellant’s motion challenging the court-martial’s jurisdiction. Indeed, the documents
the Government now seeks to attach are the very type of documents the Article 32,
UCMJ, IO advised the Government to introduce. The defense directly placed subject
matter jurisdiction at issue by challenging it prior to arraignment. Instead of building the
record at trial as to the appellant’s status during the charged time frame, the Government
chose to wholly rely on its theory that jurisdiction was established by the nature of the
appellant’s actions as a reserve officer rather than his military status at the time of the
charged misconduct.
We decline to consider the documents the Government proffers for the first time
on appeal. Therefore, the Government’s motion to reconsider this Court’s earlier denial
of its motion to attach documents is denied. The documents the Government now seeks
to attach pertain to a matter squarely at the heart of the trial, whereas our ability to accept
additional evidence on appeal is normally limited to collateral claims. See Ginn,
47 M.J. at 242 (“[A] conservative view of a service appellate court’s factfinding power
on collateral claims is entirely consistent with our repeated holdings that Article 66[,
10 ACM 37838
UCMJ,] does not authorize a Court of Criminal Appeals to determine innocence on the
basis of evidence not presented at trial.”). It would be fundamentally unfair to allow the
Government to introduce documents at this stage of the proceedings when the appellant
has lost his opportunity to contest their veracity, cross-examine their proponents, or call
witnesses in rebuttal. We also note the documents are not entirely self-explanatory, and
the parties differ as to their interpretation. Therefore, it is not proper to allow their
introduction without a witness who could testify as to their meaning, something that can
only occur at trial. Under these facts, we decline the Government’s invitation to
belatedly build the record as to the appellant’s status throughout the charged time frame. 7
(2) Was the appellant actually in military status at the time of the charged offenses?
Our answer to the first question means we are limited to the record that existed at
trial as to the appellant’s status. We next determine whether this record shows the
appellant was in military status during any portion of the charged time frame. We find
sufficient evidence in the record of the appellant’s military status for certain time periods.
In response to the defense’s motion to dismiss at trial, the Government presented
the military judge with three AF Form 49s, evidencing that the appellant was approved to
perform MPA man-day tours for the following periods: (1) 14 November 2005-14 March
2006, (2) 1 December 2006-30 March 2007, and (3) 1 October 2007-28 January 2008.
The appellant’s supervisor testified the appellant was placed on one MPA tour per fiscal
year and the supervisor had approved the requests for MPA tours. Based on this, we find
sufficient proof that the appellant was subject to the UCMJ for his misconduct during the
three time periods reflected in these MPA documents.
Apart from these three MPA active duty tours, however, the record is incomplete
as to the appellant’s status throughout the remainder of the charged time period. Most of
the prosecution exhibits admitted into evidence as proof of the appellant’s misconduct
related to either DD Form 1610s (request and authorization for temporary duty travel of
Department of Defense personnel) or DD Form 1351s (travel vouchers). Standing alone,
these travel-oriented documents are insufficient to demonstrate the appellant was in any
military status during the periods of travel stated on them. The Government called no
witnesses to explain how these travel periods lined up with the appellant’s IDTs, annual
training, or other periods of military service. The evidence introduced indicates the
appellant was permitted to file and be reimbursed for travel vouchers without any proof
of his military status during these periods, and therefore it is entirely possible that he took
7
We considered ordering a post-trial factfinding hearing into evidence of the appellant’s military status under
Article 2(a), UCMJ, 10 U.S.C. § 802(a), pursuant to United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).
However, we find that this approach is inappropriate in a case such as this. DuBay hearings are more properly
ordered “for addressing a wide range of post-trial collateral issues,” whereas this issue was raised at trial and fell
squarely at the heart of the case. United States v. Harvey, 64 M.J. 13, 22 (C.A.A.F. 2006). See also id. (finding that
post-trial delay is a relevant factor in declining to order a DuBay hearing).
11 ACM 37838
trips at government expense while in a purely civilian capacity. Indeed, the
Government’s theory of the case was that the appellant did exactly that. Therefore, the
DD Form 1610s and DD Form 1351s fail to establish that the appellant was in military
status as defined in Article 2(a), UCMJ, during the periods of travel documented on them.
In addition, to the extent the appellant may have traveled in fulfillment of any
military duties, it appears he could have been “making up” MPA days for which he was
earlier approved and compensated. Under the “agreement” with his supervisor, the
appellant was permitted to be credited and reimbursed for 120 consecutive MPA days
early in each fiscal year, but was allowed to actually perform these days scattered
throughout the fiscal year at times he selected on his own, without coordination. Even if
the appellant’s travel constituted performance of MPA days for which he was earlier
credited and compensated, we find that he was in status under Article 2(a), UCMJ, only
during the times where he actually was credited and compensated for MPA days, and not
during the days he actually performed the “make up” duty. This reading is consistent
with the language of Article 2(a), UCMJ, which concerns itself with the member’s
official status, not duties performed. We find it inappropriate to stretch subject matter
jurisdiction to other times when the appellant was allegedly “making up” his MPA
requirements, particularly where the record does not reveal when the appellant was
fulfilling earlier requirements and when he was on purely personal quests. We therefore
find that we are bound by official Air Force records in determining when the appellant
was in military status, not an informal agreement between the appellant and his
supervisor. 8
Apart from the MPA records, the Government did not introduce any other record
that demonstrated when the appellant performed annual training tours, other periods of
active military service, or IDTs. In its effort to prove the appellant committed forgery,
however, the Government introduced a limited number of documents that also contained
evidence of the appellant’s military status. These records demonstrate the appellant was
in military status and thus subject to military jurisdiction during the following time
periods:
- 10-12 September 2007: active duty for training
- 11-15 February 2008: IDTs
- 18-22 February 2008: IDTs
- 25-26 February 2008: IDTs
- 8-12 September 2008: IDTs
- 15-19 September 2008: IDTs
- 22-26 September 2008: IDTs
8
We note as well that the Government’s theory would subject a reservist in the appellant’s situation to UCMJ
jurisdiction twice for the same military tour – once when Air Force records reflect the member is in status and once
when the appellant actually fulfills his or her military requirements. We reject such a broad reading of Article 2(a),
UCMJ.
12 ACM 37838
In total, the documents introduced in motions practice and at trial demonstrate that
the appellant was in military status pursuant to Article 2(a), UCMJ, during the following
periods: (1) 14 November 2005-14 March 2006, (2) 1 December 2006-30 March 2007,
(3) 10-12 September 2007, (4) 1 October 2007-28 January 2008, (5) 11-15 February
2008, (6) 18-22 February 2008, (7) 25-26 February 2008, (8) 8-12 September 2008, (9)
15-19 September 2008, and (10) 22-26 September 2008. 9
(3) Were the appellant’s active duty orders and IDT paperwork sufficiently “valid” to
confer jurisdiction?
Despite this evidence in the record that the appellant was in a military status under
Article 2(a), UCMJ, for at least some of the charged time frame, the appellant asserts he
was never subject to such jurisdiction because there is insufficient evidence he was ever
validly in military status in the charged time frame. He argues he was charged with a
number of forgeries (including some relating to his military status) and therefore it is
entirely possible that he forged the signatures on all of the documents relating to his
military status, making them invalid. He further asserts he was charged with forging
documents to place himself on military orders in order to further his personal concerns
and take unofficial travel and therefore any orders or documents appearing to
demonstrate he was in military status were invalid, because he did not perform any
military duty under these documents. We decline to adopt the appellant’s position.
Article 2(a), UCMJ, conditions subject matter jurisdiction on the member’s
official status at the time of the offenses. It does not concern itself with how the member
got into that status or whether he was doing official Government business pursuant to that
status. Under the appellant’s rationale, the military would be wholly without jurisdiction
to prosecute a member who fraudulently obtains military orders through forgery, is
compensated for those orders, and receives military credit under those orders, simply
because of the fraudulent nature of the member’s own actions. 10 We find this position to
be overbroad and contrary to the appellant’s purpose at the time he took these actions to
have his record reflect he was in military status. Cf. United States v. Meadows,
13 M.J. 165, 168 n.4 (C.M.A. 1982) (“Although an accused cannot create court-martial
jurisdiction by consent, under some circumstances his actions may have the effect of
establishing or confirming court-martial jurisdiction.”). We therefore hold that to the
extent the Government presented evidence showing the appellant was in active military
9
The Government also charged the appellant with forging signatures on Air Force (AF) Form 938s (request and
authorization for active duty training/active duty tour) on 10 April 2006 and 28 January 2008. The appellant was
convicted of the specifications that contained these allegations without exceptions. However, the record of trial
contains neither of these AF Form 938s, and the individuals whose signatures the appellant was alleged to have
forged did not testify about these documents. We therefore find there is no evidence that the appellant performed
active duty service pursuant to these two AF Form 938s.
10
In addition, the Government did not demonstrate at trial that all of the appellant’s travel or his documents creating
his military status were fraudulent or purely for personal business.
13 ACM 37838
status or performing IDTs, the Government had jurisdiction over offenses occurring
during those time periods, pursuant to Article 2(a), UCMJ, even if some of these
documents contained forgeries. 11
(4) Does Phillips support a finding of jurisdiction?
Having found that the appellant was subject to Article 2(a), UCMJ, jurisdiction for
offenses committed during certain periods within the charged time frame, we next
consider whether the appellant was “serving with” an armed force during the time periods
covering the remainder of his misconduct, thus triggering a test for jurisdiction under
Article 2(c), UCMJ. We find that Phillips does not support such a holding.
Phillips involved a very fact-specific case in which the reservist committed her
offense on a military base, on a travel day authorized by military orders, and on a day for
which she received military pay, travel allowances, and point credit toward her military
retirement. All the facts the Court found persuasive to establish jurisdiction in that case
were also uncontested. The instant case is significantly different.
First, the facts of this case are anything but clear. Because of the Government’s
theory of jurisdiction at trial, its method of charging the larcenies, and the “agreement”
for the appellant to perform his MPA days at scattered intervals apart from the dates in
the MPA orders themselves, the record does not always clearly reveal distinct periods of
military service and non-military service, as was the case in Phillips. Also, whereas in
Phillips the reservist was compensated for the day on which the offense was committed,
here the Government did not demonstrate that the appellant received any compensation or
retirement credit for days on which he merely initiated the issuance of or completed
travel forms (apart from days where he was in proper Article 2(a), UCMJ, status). Such
acts are generally performed before or after a reservist has performed the military duty
covered by that paperwork and thus, absent evidence to the contrary, would be completed
without financial compensation. There is no evidence the appellant used Government
resources or facilities to effect these forgeries. In short, only one of the six facts our
superior court found persuasive in Phillips is present here: the appellant was a member
of a reserve component on the dates in question. That factor alone is insufficient to
trigger the Article 2(c), UCMJ, test for jurisdiction; otherwise, the floodgates of UCMJ
jurisdiction would be opened for reservists for actions long considered outside the scope
of court-martial jurisdiction.
We acknowledge the appellant’s offenses were military-specific. He used his
experience as a reservist and his knowledge of military procedures to forge the signatures
11
The appellant was not charged with forging any of the AF Form 49s that approved his MPA tours, and the
appellant’s supervisor agreed that the appellant was approved for MPA tours at points during the charged time
frame, further demonstrating that his orders for these tours were sufficiently valid as to demonstrate subject matter
jurisdiction for the time periods they covered.
14 ACM 37838
of his military superiors and co-workers, submit these documents to military authorities,
and thereby steal currency belonging to the military. This is not a situation where a
reservist committed his misconduct in a purely civilian capacity with no connection to the
military. Nonetheless, this case is also a far cry from Phillips.
The UCMJ’s drafters and enactors were sensitive to concerns that Article 2,
UCMJ, might overreach and bring reservists in their civilian status under the umbrella of
UCMJ jurisdiction. They saw the requirement in Article 2(a), UCMJ, that the reservist
be in military status at the time of the offense as sufficient protection against this
concern. 12 Although Phillips further expanded jurisdiction concerning reservists to
situations outside Article 2(a), UCMJ, our superior court was still sensitive to the concern
that jurisdiction over reservists could be expanded too far. In fact, the Phillips Court
specifically quoted from the Senate Report accompanying Article 2, UCMJ’s
amendment, noting that Article 2(c), UCMJ, is “not intended to affect reservists not
performing active service or civilians.” Phillips, 58 M.J. at 219 (quoting S. Rep. No. 96-
197, at 122 (1979)). The Court then went on to determine that Lt Col Phillips was “in
active service” at the time of her offense under that case’s unique facts and thus fell
within the bounds of Article 2(c), UCMJ. Id. at 220. The instant case presents a far
different scenario where the appellant (for offenses that took place outside his periods of
military service) was forging documents and collecting currency obtained through
larceny when he was in no military status whatsoever. The mere fact the appellant’s
offenses were aimed at the military does not confer jurisdiction, and we do not believe
our superior court intended to extend jurisdiction over reservists to any scenario where
the reservist commits an offense against the military. In short, Phillips does not support
extending jurisdiction under Article 2(c), UCMJ, to offenses committed when the
appellant was not in military status, particularly where the record does not reveal when
the appellant was performing military duties or making up earlier approved MPA days. 13
12
See, e.g., Uniform Code of Military Justice: Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the S.
Comm. On Armed Services, 81st Cong. 154-55 (1949) (response of Felix Larkin, assistant general counsel to the
Secretary of Defense, to concerns that Article 2(a)(3), UCMJ, might be interpreted to cover reservists when they
merely wear a uniform or take a correspondence course, who stressed the article was intended to provide reservists
with notice of when they were subject to the UCMJ through the requirement that they receive notice of their UCMJ
jurisdiction before beginning IDTs.). See also id. at 329 (stressing that Article 2(a)(3), UCMJ, represented a
significant diminution of jurisdiction from a prior statute involving Navy reservists); Congressional Floor Debate
on The Uniform Code of Military Justice, 200 (1949-50) (statement of Senator Kefauver that Article 2(a)(3), UCMJ,
was intended to limit jurisdiction over reservists on IDTs and provide notice to such reservists as to when they were
subject to the code); Conference Report to Accompany H.R. 4080, 81st Cong., 2d sess., at 4-5 (report from
Rep. Brooks of the conference committee expressing concern that the armed forces should not be given “wide
latitude” to obtain UCMJ jurisdiction over reservists).
13
United States v. Phillips, 58 M.J. 217 (C.A.A.F. 2003) also involved a reservist who had been called to active duty
pursuant to orders to complete her annual active duty tour. Under Article 2(c), UCMJ, a person serving with an
armed force and who meets the four-part Article 2(c), UCMJ, test remains subject to the code “until such person’s
active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.”
That Court could easily apply this jurisdictional limit in Lieutenant Colonel Phillips’ situation, which involved one
distinct period of active duty service. Here, there is no evidence the appellant was ever on active duty outside of the
periods discussed above. Therefore, it would be illogical to hold that the appellant was subject to jurisdiction under
15 ACM 37838
Finally, we note that even if the Phillips framework led us to find the appellant
was “serving with” the armed forces for offenses that occurred when he was not in
Article 2(a), UCMJ, status, subject matter jurisdiction would still not be present under
these facts because he was not in “active service” based on the four-part test of Article
2(c), UCMJ. The third criterion under Article 2(c), UCMJ, requires the member to have
received military pay or allowances during the period in question. For periods where the
appellant was not in Article 2(a), UCMJ, status, there is no evidence the appellant
received pay or allowances for his mere act of completing travel-related forms. As far as
the record reflects, the appellant’s actions outside periods of Article 2(a), UCMJ,
jurisdiction came on days when he was not compensated for his act of completing travel
forms. The fact that he later received travel compensation for his fraudulent activity does
not alter the fact that he did not receive pay or allowances for any military service on the
dates in question.
(5) Should this Court adopt the Morse position?
In motions practice at trial, the Government and the military judge primarily relied
on this Court’s statement in Morse that jurisdiction could be found apart from evidence of
a reservist’s military status, in a situation where a reservist signs forms in his “official
capacity as a reserve officer in the United States Air Force.” Morse, unpub. op. at 6.
Under this approach, subject matter jurisdiction would attach over a reservist any time a
reservist completes actions incident to his or her duty as a member of a reserve
component. We disagree.
First, we note that Morse’s statement about subject matter jurisdiction under
Article 2(c), UCMJ, constituted dicta, because our Court found ample evidence in the
record to conclude that Col Morse was in a proper Article 2(a), UCMJ, status at the time
of his offenses. Second, the dicta from this unpublished decision does not provide a basis
to find subject matter jurisdiction in the instant case, because the Government did not
demonstrate the appellant forged the signatures incident to any official military duties.
Finally, the later Phillips decision by our superior court affects any potential broad
applicability of the Morse dicta. Phillips may have broadened subject matter jurisdiction
over reservists beyond the strict limits of Article 2(a), UCMJ, but the Court did so
through a narrow ruling on the facts presented in that case and a strict reading of Article
2(c), UCMJ. Nothing in Phillips or the legislative history of Articles 2(a) or 2(c), UCMJ,
supports Morse’s conclusion that a reservist should automatically be subject to military
jurisdiction any time he or she commits an act merely related to his reserve duties. 14
Article 2(c), UCMJ, for individual fraudulent actions, where the appellant was not on active service during the
periods in question and we would have no way of determining when that distinct period of jurisdiction would end.
14
To date, no other military court has followed the logic found in this dicta.
16 ACM 37838
To be clear, we do not hold that subject matter jurisdiction may never be present
when a reservist completes reserve obligations outside of periods of Article 2(a), UCMJ,
service. However, as discussed above, it would be too great a stretch to find jurisdiction
under Article 2(c), UCMJ, in the instant case, where the Government simply did not
demonstrate how the appellant’s criminal actions corresponded to genuine reserve
obligations and periods of military service.
(6) What is the proper remedy?
Having found the court-martial only had subject matter jurisdiction over the
appellant for misconduct committed while he was in Article 2(a), UCMJ, status, we
affirm only those offenses that occurred during periods when the record demonstrates the
appellant was in Article 2(a), UCMJ, status: (1) 14 November 2005-14 March 2006,
(2) 1 December 2006-30 March 2007, (3) 10-12 September 2007, (4) 1 October 2007-28
January 2008, (5) 11-15 February 2008, (6) 18-22 February 2008, (7) 25-26 February
2008, (8) 8-12 September 2008, (9) 15-19 September 2008, and (10) 22-26 September
2008.
For Charge I and its specifications, the Government charged individual forgeries
under each specification. The charge sheet (after some line items were stricken before
trial) listed 195 line items, with 510 individual forgeries alleged. The members convicted
the appellant of the forgery charge and specifications without exceptions or substitutions.
Of these 510 individual forgeries of which the appellant was convicted, 178 of them
occurred during the periods when the record reveals the appellant was in status pursuant
to Article 2(a), UCMJ. Furthermore, we note the Government introduced insufficient
evidence as to several of the individual alleged forgeries within these periods by failing to
ask the purported signer if the signature at issue was his or hers. 15 As a result, we find
the appellant’s convictions for the following forgeries legally and factually insufficient:
Document Type Purported Travel Order # Date Signatures/sets
Signer of initials
DD Form 1610 ME TV0105 9 Feb 07 2/2
AF IMT 938 KP D28796 10 Sep 07 1/0
DD Form 1610 JM TV0139 21 Oct 07 1/0
DD Form 1610 JM TV0140 1 Nov 07 1/0
DD Form 1610 JM TV0142 15 Nov 07 1/0
MFR KP TV0140 19 Nov 07 1/0
DD Form 1610 JM TV0141 20 Nov 07 1/0
15
In some instances, the Government also neglected to introduce the document alleged to be forged in addition to
not providing witness testimony about the alleged forgery.
17 ACM 37838
DD Form 1610 JM TV0144 12 Dec 07 1/0
DD Form 1610 BK TV0143 20 Jan 08 2/2
DD Form 1610 JM TV0144 20 Jan 08 1/0
DD Form 1610 JM TV0143 20 Jan 08 1/0
AF IMT 938 KP D05114 28 Jan 08 2/0
Eliminating these factually and legally insufficient alleged forgeries, the number of
forgeries of which the appellant was properly convicted is further reduced to 159. 16
The larceny in Charge II and its Specification represents a more difficult situation.
On the initial charge sheet, the Government listed 65 individual travel payments in which
the appellant was alleged to have stolen money from the Government. However, shortly
before trial, the Government successfully moved to amend the Specification of Charge II
to “give[] the [G]overnment more flexibility.” The amended specification removed
references to individual larcenies, instead alleging that the appellant stole money from the
Government on divers occasions between on or about 1 January 2005 and on or about
1 March 2008, of a value of more than $500.00. As a result of this change, 17 the
Government did not detail for the members exactly which trips were alleged to be
larcenous, or even exactly what its theory of larceny was. 18 The members convicted the
appellant of the amended specification without exceptions and substitutions.
After reviewing the record, we are unable to conclude exactly which travel
payments the members determined were obtained through larceny. As a result, we
cannot conclude if the members convicted the appellant of two or more larcenies during
times when subject matter jurisdiction was present, especially in light of the
Government’s strategy at trial. The Government focused particular attention on
demonstrating that a small number of the travel payments were obtained through larceny,
and therefore the appellant’s travel claims were not to be trusted in their entirety.
Although some of the payments the Government focused on at trial did take place while
the appellant was in Article 2(a), UCMJ, status, in each instance the Government relied
largely on inference in an effort to prove the corresponding trip was for unofficial
purposes. No witness was able to definitively state the appellant had no official reason to
travel to any given location, or that any individual expenses were sufficiently exorbitant
16
The appellant alleges there is insufficient proof he actually committed the forgeries on the dates listed next to each
signature, and therefore there is no way of knowing when the forgeries were committed. We reject this contention.
There is no reason to suspect the appellant had a motive to alter the dates on any forged documents, and the
Government’s burden to establish subject matter jurisdiction is only a preponderance of the evidence. We conclude
the dates listed next to each forgery adequately establish the appellant committed the offenses on the dates listed.
17
While the record makes it abundantly clear the Government and trial defense counsel understood the change and
the military judge approved the change, the change was not reflected on the original charge sheet.
18
The Government alternatively argued that the appellant claimed excess expenses on some trips (for example,
rental car fuel in excess of that needed for the mileage involved), or that some of the trips were wholly or partially
taken for personal business.
18 ACM 37838
that they could not have been legitimately incurred. Instead, the Government merely
introduced the travel vouchers and then argued the vouchers on their face proved some
amount of larceny based on factors such as the destinations of the trips, the appellant’s
travel patterns, and the nature of the expenses. 19
Under the general verdict system the members were not required to state which
instances they found constituted larceny, and we are unable to determine this in the
record before us. Therefore, we cannot determine whether the appellant was properly
convicted of two or more larcenies that occurred only when subject matter jurisdiction
was present. We are left with no other appropriate remedy but to set aside the finding of
guilty as to Charge II and its Specification.
We need not discuss a remedy for the Additional Charge and its Specification,
because below we set aside this guilty finding and dismiss this charge on multiplicity
grounds. We discuss the impact of these actions on the appellant’s sentence below.
Multiplicity
Charge I alleged the appellant forged the signatures of seven coworkers or
supervisors, in violation of Article 123, UCMJ. The Additional Charge alleged the
appellant forged the signatures of four military officers for the purpose of obtaining the
approval, allowance, and payment of claims against the United States, in violation of
Article 132, UCMJ.
This Court reviews multiplicity issues de novo. United States v. Anderson,
68 M.J. 378, 385 (C.A.A.F. 2010). Multiplicity in violation of the Double Jeopardy
Clause of the Constitution occurs when “‘a court, contrary to the intent of Congress,
imposes multiple convictions and punishments under different statutes for the same act or
course of conduct.’” Id. (quoting United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F.
2006)) (emphasis omitted). Accordingly, an accused may not be convicted and punished
for two offenses where one is necessarily included in the other, absent congressional
intent to permit separate punishments. See United States v. Teters, 37 M.J. 370, 376
(C.M.A. 1993). Where legislative intent is not expressed in the statute or its legislative
history, “it can also be presumed or inferred based on the elements of the violated statutes
and their relationship to each other. Id. at 376-77. The Supreme Court laid out a
“separate elements test” for analyzing multiplicity issues: “The applicable rule is that,
where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one,
19
In two instances, the Government introduced additional evidence that the trips were larcenous – a photograph of
the appellant running the New York City marathon during one of his trips to New York, and photographs of him at a
college football game during a trip to Chicago and Indiana. However, even if this evidence would have convinced
the members that these trips were larcenous, neither of these two trips occurred during the dates we have found the
appellant was subject to UCMJ jurisdiction.
19 ACM 37838
is whether each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). Accordingly, multiple
convictions and punishments are permitted for a distinct act if the two charges each have
at least one separate statutory element from each other.
Article 123, UCMJ, Forgery, contains the following elements:
(a) That the accused falsely made or altered a certain signature or writing;
(b) That the signature or writing was of a nature which would, if genuine,
apparently impose a legal liability on another or change another’s legal
rights or liabilities to that person’s prejudice; and
(c) That the false making or altering was with the intent to defraud.
Manual for Courts-Martial, United States (MCM), Part IV, ¶ 48.b.(1) (2008 ed.).
Article 132, UCMJ, Frauds against the United States, contains the following
elements:
(a) That the accused forged or counterfeited the signature of a certain
person on a certain writing or other paper; and
(b) That the act was for the purpose of obtaining the approval, allowance, or
payment of a certain claim against the United States or an officer
thereof.
MCM, Part IV, ¶ 58.b.(5).
The appellant asserts the two offenses present identical elements, as each offense
essentially requires a false signing made with the intent to defraud the Government. The
Government counters by asserting that the Additional Charge is aimed at criminalizing “a
distinct legal harm” because forgery of the approving official’s signature on a travel
voucher would, if genuine, operate not only to the legal harm of the United States, but to
the legal harm of the approving official as well. The Government asserts that a forged
approving official’s signature, if genuine, could subject the approving official to
disciplinary action for failing to fulfill his or her duties to review the expenses claimed.
Therefore, the Government asserts that because the forgeries could have a different
victim than the Article 132, UCMJ, offenses, the two charges are not multiplicious. The
Government also argues the offenses are distinct because under forgery, the act of forging
a signature alone completes the crime. In contrast, for the Article 132, UCMJ, offense,
there must be a forged signature in connection with a “claim,” which is defined as a
“demand for transfer” of money. MCM, Part IV, ¶ 58.c.(1)(a). To complete this offense,
the Government argues, the appellant needed to not only forge signatures but also
complete substantial other documentation.
20 ACM 37838
After hearing argument on this motion, the military judge ruled the two offenses
were not multiplicious for findings. He issued no findings of fact or conclusions of law
on this issue, and offered no analysis to support his ruling. He did, however, merge
specifications 6 and 7 of Charge I into the remaining specifications of Charge I, and he
merged the Additional Charge into Charge I for sentencing, reducing the maximum
possible sentence to confinement from 50 years to 35 years.
We find that the two offenses are multiplicious. All of the acts charged under
Article 132, UCMJ, were also charged as forgeries under Article 123, UCMJ. The
forgery charge does not require proof of an element that Article 132, UCMJ, charge does
not. The first element of the Article 132, UCMJ, offense requires that the appellant have
“forged” a signature. This element necessarily encompasses all three elements of the
forgery charge, as it uses the identical term as the title of the Article 123, UCMJ, offense,
and the explanation of the term “forged” for Article 132, UCMJ, in the Manual refers to
the definition of forgery utilized in Article 123, UCMJ. The Article 132, UCMJ, offense
then requires proof of a second element – that the act was for the purpose of obtaining the
approval, allowance, or payment of a certain claim against the United States or an officer
thereof. While this element may be distinct from the elements of forgery, the fact
remains that forgery does not require proof of any element that the Article 132, UCMJ,
offense does not, because the Article 132, UCMJ, offense specifically requires that the
appellant have “forged” a document. Forgery is therefore a lesser included offense of
this Article 132, UCMJ, offense, and by definition, the two offenses are multiplicious.
See United States v. Rhine, 67 M.J. 646, 652 (A.F. Ct. Crim. App. 2009) (“Offenses are
multiplicious if one is a lesser-included offense of the other.”) (citing United States v.
Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002)).
We requested the Government to elect which conviction to retain. See Palagar,
56 M.J. at 296-97. The Government first requested this Court affirm so much of the
conviction under Charge I as did not overlap with the conviction under the Additional
Charge, thereby retaining convictions for both offenses. In the alternative, the
Government requested that if this Court should find that the two entire charges are
completely multiplicious, then Charge I and its specifications should be retained. We
find that the more prudent course is to set aside and dismiss the Additional Charge and its
Specification. See id. (recognizing that an appellant court may elect on its own which
charges and specifications to retain in the interests of justice and judicial economy). The
Government elected to charge the appellant in a way so that the Additional Charge was
wholly subsumed within Charge I. In addition, the military judge merged the Additional
Charge into Charge I for sentencing purposes, indicating the more appropriate approach
in this case is to simply retain Charge I and its specifications. We therefore set aside and
dismiss the Additional Charge and its Specification.
21 ACM 37838
Change to Charge II/Legal and Factual Insufficiency
At trial and on appeal, the appellant alleged that the military judge erred by
permitting the Government to amend the Specification of Charge II after arraignment.
The appellant argues that in amending the specification from listing specific instances of
alleged larceny to a general divers occasions specification, the Government made a
“major change” to the charge sheet after arraignment, an act not permitted over the
accused’s objection. R.C.M. 603(d). As a sub-issue to his claim of an improper major
change, he alleges that his conviction on Charge II and its Specification is legally and
factually insufficient, because the Government relied on a flawed theory that the
appellant’s fraudulent activity rendered all his travel reimbursements larcenous. As we
have set aside this finding of guilty and dismissed this charge and specification, this issue
and its sub-issue have been rendered moot and warrant no further discussion.
Sentence Reassessment
We have considered the possibility of returning this case for a sentence rehearing.
However, we are confident that we can accurately reassess the appellant’s sentence,
despite the fact that the findings have been significantly altered and the fact that this case
involved members.
This Court has “broad discretion” in deciding to reassess a sentence to cure error
and in arriving at the reassessed sentence. United States v. Winckelmann, ___ M.J. ___
No. 11-0280/AR, slip. op. at 3 (C.A.A.F. 18 December 2013). Our superior court has
recently observed that judges of the Courts of Criminal Appeals can modify sentences
“‘more expeditiously, more intelligently, and more fairly’ than a new court-martial.” Id.
at 11-12 (quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). Based on the totality of
the circumstances in this case, we find that we may reassess the sentence, thereby curing
any prejudicial effect of the errors in this case with regard to the sentence.
Despite the jurisdictional and multiplicity issues discussed above, the appellant
still stands properly convicted of 159 instances of forgery involving five different people
over an extended period. The larceny charge, the majority of the forgery line items, and
the forgery in connection with claims charge no longer remain, but “the nature of the
remaining offenses capture[s] the gravamen of criminal conduct included within the
original offenses.” Id. at 13. The gravamen of his offenses was that he carried out a
long-term scheme to forge documents that allowed him to travel at Government expense.
The remaining 159 line items in the forgery charge capture the essence of the original
charged offenses. In addition, evidence of all the instances of forgery could have been
introduced to the members in sentencing as evidence of a continuing course of conduct
involving similar actions and misconduct with the same victim. United States v. Nourse,
55 M.J. 229, 231-32 (C.A.A.F. 2001). Our action on the jurisdictional issue reduces the
maximum sentence to confinement from 35 years to 20 years, while our action on the
22 ACM 37838
multiplicity issue does not affect the penalty landscape, because the military judge
merged this charge with Charge I for sentencing. Thus, the appellant remained exposed
to 20 years’ confinement, while he was only sentenced to confinement for 12 months.
Therefore, the penalty landscape has not changed so greatly that we are not able to
determine what the members would have adjudged. The remaining offenses are also the
sort that this Court has experience and familiarity with to reliably determine what
sentence would have been imposed at trial by the members.
Therefore, under the unique facts of this case and considering the totality of the
circumstances before us, we find that we are able to “determine to [our] satisfaction that,
absent any error, the sentence adjudged would have been of at least a certain severity.”
United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). It is inconceivable that members
faced with an appellant who had committed 159 acts of forgery – largely on travel
vouchers for which he was reimbursed – would not have imposed a sentence of a
dismissal and at least three months of confinement. We therefore reassess the sentence
accordingly.
Post-Trial Delay
This case was docketed with this Court on 10 February 2011, meaning nearly three
years have passed before we rendered our decision. The appellant has not raised an issue
concerning the post-trial delay in this case. Nonetheless, the appellate delay in this case
far exceeds the standards set forth in United States v. Moreno, 63 M.J. 129 (C.A.A.F.
2006). It is this Court’s practice to address issues of post-trial delay even when the
parties have not raised the issue. It is therefore appropriate to consider whether the post-
trial delay in this case warrants relief either on due process grounds or based on our
authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c) to only approve so much of the
sentence as we determine should be approved.
We review de novo claims that an appellant was denied his due process right to a
speedy post-trial review and appeal. Moreno, 63 M.J. at 142. In conducting this review,
we assess the four factors laid out in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the
length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right
to timely review and appeal; and (4) prejudice. Id. at 135 (citing United States v. Jones,
61 M.J. 80, 83 (C.A.A.F. 2005); United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F.
2004)). There is a presumption of unreasonable appellate delay when the Court of
Criminal Appeals does not render a decision within 18 months of docketing. Id. at 142.
In this case, the appellate delay was facially unreasonable, and we therefore
proceed to an analysis under the Barker/Moreno factors.
23 ACM 37838
(1) The length of the delay
The appellant’s case was docketed with this Court nearly three years ago. The
appellate processing in this case is nearly double the period that Moreno identified as
presumptively unreasonable. This factor weighs in favor of the appellant.
(2) The reasons for the delay
A significant portion of the delay in this case occurred when appellate defense
counsel took nearly 16 months to file an assignment of errors. However, we recognize
that the defense’s motions for enlargement generally cited caseload as the reason for the
delay, and “responsibility for this portion of the delay and the burden placed upon
appellate defense counsel initially rests with the Government,” because the Government
provides staffing to the appellate defense division. Moreno, 63 M.J. at 137. The
appellant retained civilian counsel long after the case had been joined, and therefore the
fact that his military appellate defense counsel took an extended period to file a brief in
this case should not be held against him.
After the Government timely filed an answer and the case was joined, one year
passed before this Court issued its order for oral argument. We find that no valid reason
exists for this delay.
This Court initially scheduled oral argument for 11 September 2013. Oral
argument was rescheduled for 15 November 2013 when the appellant retained civilian
appellate defense counsel. We find that the appellant’s retention of civilian defense
counsel, and civilian defense counsel’s other commitments justify the two-month delay in
oral argument. Following oral argument, this Court has timely issued this decision.
We also note that this case involved a 24-volume record of trial with a trial
transcript consisting of more than 1,500 pages. We find that the complexity of this case –
which was caused in no small part by the appellant’s misconduct – provides a partial
explanation for the overall delay in this case.
Weighing the various portions of the overall appellate processing of this case, and
considering the totality of the reasons discernable for this extended timeline, we find that
this factor weighs slightly in favor of the appellant.
(3) The appellant’s assertion of the right to timely review and appeal
At no time during the nearly three-year appellate processing of this case has the
appellant expressed any concern with the time it has taken to review his case. To the
contrary, the last three motions appellate defense counsel submitted for enlargement of
24 ACM 37838
time to file an assignment of errors noted that the appellant concurred in his counsel’s
requests for delay. The appellant’s motion to delay oral argument also noted his
concurrence with the delay and documented that he waived this period for calculation of
any issues of post-trial delay. We find that this factor weighs in favor of the Government.
(4) Prejudice
In Barker, the Supreme Court recognized a framework to analyze the prejudice
factor in a speedy trial context, and the Moreno Court adopted this framework in
analyzing claims of prejudice arising from post-trial delay. Moreno, 63 M.J. at 140.
Under this framework, we are to analyze whether the following interests of the appellant
have been prejudiced: (1) prevention of oppressive incarceration pending appeal;
(2) minimization of anxiety and concern of those convicted awaiting the outcome of their
appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal,
and his or her defenses in case of reversal and retrial, might be impaired.
Analyzing these sub-factors in the instant case, we find that there is some evidence
that the post-trial delay in this case has prejudiced the appellant. The appellant was
adjudged confinement for 12 months and a $75,000 fine, while our sentence reassessment
finds that confinement for only three months and no fine is now appropriate. We
recognize that even had this case been processed as quickly as possible, the size and
complexity of this case makes it is extremely unlikely that this Court could have rendered
a decision before the appellant’s release from confinement. Nonetheless, the fact remains
that the appellant served nine more months of adjudged confinement than he should have,
and also has been deprived of the $75,000 he paid for his fine for an extended period.
We find no evidence that the appellant has suffered any particularized anxiety or
concern that is distinguishable from the normal anxiety experienced by those awaiting an
appellate decision. On the third prejudice sub-factor, because we have not authorized a
sentence rehearing, there is no possibility that the appellant will have a negative impact
on his ability to prepare and present his defense at a rehearing. Overall, we find that this
fourth Barker factor weighs slightly in favor of the appellant.
We have analyzed the totality of the Barker factors, and we are mindful of our
mandate to consider post-trial delay in approving only so much of the sentence as we
determine is appropriate, see United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). We
elect to cure any prejudicial effects of the post-trial delay and render the appellant’s
sentence appropriate by approving only so much of the sentence as provides for a
dismissal.
25 ACM 37838
Conclusion
The finding of guilty as to Charge II and its Specification is set aside and
dismissed on the grounds that this Court is unable to determine whether the court-martial
possessed subject matter jurisdiction over the offenses of which the appellant was
convicted. The finding of guilty as to the Additional Charge and its Specification is set
aside and dismissed on the grounds of multiplicity. Concerning Charge I and its
specifications, only those instances of forgery that occurred during the following dates,
and for which the Government introduced sufficient evidence to demonstrate forgery, are
affirmed: (1) 14 November 2005-14 March 2006, (2) 1 December 2006-30 March 2007,
(3) 10-12 September 2007, (4) 1 October 2007-28 January 2008, (5) 11-15 February
2008, (6) 18-22 February 2008, (7) 25-26 February 2008, (8) 8-12 September 2008, (9)
15-19 September 2008, and (10) 22-26 September 2008. Therefore, we affirm only the
following amended specifications under Charge I:
Specification 1: In that LIEUTENANT COLONEL STEVEN S. MORITA,
United States Air Force, 60th Medical Support Squadron, Travis Air Force
Base, California, did, inside or outside the United States, on divers
occasions between on or about 1 August 2006 and on or about 1 October
2008, with intent to defraud, falsely make the signature and initials of
Lieutenant Colonel [KP] to the following:
Document Travel Order Date Number of Signatures/Sets
Type Number of Initials Per Documents
AF Form 40A N/A 26 Sep 08 2/0
AF Form 40A N/A 19 Sep 08 2/0
AF Form 40A N/A 12 Sep 08 2/0
AF IMT 40A N/A 26 Feb 08 2/0
AF IMT 40A N/A 22 Feb 08 2/0
MFR TV0145 20 Feb 08 1/0
AF IMT 40A N/A 15 Feb 08 2/0
MFR TV0144 28 Dec 07 1/0
MFR TV0141 13 Dec 07 1/0
AF IMT 973 TV0140 12 Dec 07 2/1
MFR TV0139 9 Nov 07 1/0
which said signature and initials, would, if genuine, apparently operate to
the legal harm of another.
Specification 2: In that LIEUTENANT COLONEL STEVEN S. MORITA,
United States Air Force, 60th Medical Support Squadron, Travis Air Force
Base, California, did, inside or outside the United States, on divers
26 ACM 37838
occasions between on or about 1 November 2006 and on or about 1 March
2008, with intent to defraud, falsely make the signature and initials of
Lieutenant Colonel [BK] to the following:
Document Travel Order Date Number of Signatures/Sets
Type Number of Initials Per Documents
DD Form 1351 TV0145 20 Feb 08 2/1
DD Form 1610 TV0144 20 Jan 08 2/2
DD Form 1351 TV0144 28 Dec 07 2/1
DD Form 1351 TV0141 13 Dec 07 2/2
DD Form 1351 TV0142 13 Dec 07 2/1
DD Form 1610 TV0144 12 Dec 07 2/2
DD Form 1610 TV0141 20 Nov 07 2/2
DD Form 1351 TV0140 19 Nov 07 2/2
DD Form 1610 TV0142 15 Nov 07 2/2
DD Form 1351 TV0139 9 Nov 07 2/1
DD Form 1351 TV0140 1 Nov 07 2/2
DD Form 1610 TV0139 21 Oct 07 2/2
DD Form 1351 TV0001 9 Oct 07 2/2
DD Form 1351 TV0004 9 Feb 07 2/1
DD Form 1610 TV0004 2 Feb 07 2/2
DD Form 1610 TV0003 7 Dec 06 2/1
DD Form 1351 TV0002 1 Dec 06 2/1
which said signature and initials, would, if genuine, apparently operate to
the legal harm of another.
Specification 3: In that LIEUTENANT COLONEL STEVEN S. MORITA,
United States Air Force, 60th Medical Support Squadron, Travis Air Force
Base, California, did, inside or outside the United States, on divers
occasions between on or about 1 November 2005 and on or about 1 July
2007, with intent to defraud, falsely make the signature and initials of
Major [ME] to the following:
Document Travel Order Date Number of Signatures/Sets
Type Number of Initials Per Documents
DD Form 1351 TV0115 26 Mar 07 2/1
DD Form 1610 TV0116 20 Mar 07 2/2
DD Form 1610 TV0115 20 Mar 07 2/2
DD Form 1351 TV0108 12 Mar 07 2/1
DD Form 1351 TV0107 8 Mar 07 2/1
DD Form 1610 TV0108 2 Mar 07 2/2
27 ACM 37838
DD Form 1610 TV0107 23 Feb 07 2/2
DD Form 1351 TV0104 14 Dec 06 2/1
DD Form 1351 TV0103 14 Dec 06 2/1
DD Form 1610 TV0104 10 Dec 06 2/1
DD Form 1351 TV0102 8 Dec 06 2/1
DD Form 1351 TV0101 8 Dec 06 2/1
DD Form 1351 TV0047 31 Jan 06 2/1
DD Form 1351 TV0036 22 Dec 05 2/1
DD Form 1351 TV0020 15 Nov 05 2/1
which said signature and initials, would, if genuine, apparently operate to
the legal harm of another.
Specification 4: In that LIEUTENANT COLONEL STEVEN S. MORITA,
United States Air Force, 60th Medical Support Squadron, Travis Air Force
Base, California, did, inside or outside the United States, on divers
occasions between on or about 1 January 2007 and on or about 10 February
2007, with intent to defraud, falsely make the signature and initials of
Lieutenant Colonel [JC] to the following:
Document Travel Order Date Number of Signatures/Sets
Type Number of Initials Per Documents
DD Form 1351 TV0111 9 Feb 07 2/1
DD Form 1351 TV0007 25 Jan 07 2/1
DD Form 1610 TV0007 19 Jan 07 2/2
DD Form 1351 TV0006 19 Jan 07 2/1
DD Form 1610 TV0006 8 Jan 07 2/2
DD Form 1610 TV0111 4 Jan 07 2/2
which said signature and initials, would, if genuine, apparently operate to
the legal harm of another.
Specification 5 is set aside and dismissed because neither of the charged instances
of forgery took place while the record reveals the appellant was in Article 2(a), UCMJ,
status.
Specification 6 [renumbered Specification 5 after this Court’s set aside and
dismissal of Specification 5]: In that LIEUTENANT COLONEL STEVEN
S. MORITA, United States Air Force, 60th Medical Support Squadron,
Travis Air Force Base, California, did, inside or outside the United States,
on divers occasions between on or about 1 November 2005 and on or about
28 ACM 37838
1 March 2008, with intent to defraud, falsely make the signature and initials
of [JM] to the following:
Document Travel Order Date Number of Signatures/Sets
Type Number of Initials Per Documents
DD Form 1610 TV0116 20 Mar 07 1/0
DD Form 1610 TV0115 20 Mar 07 1/0
DD Form 1610 TV0108 2 Mar 07 1/0
DD Form 1610 TV0107 23 Feb 07 1/0
DD Form 1610 TV0004 2 Feb 07 1/0
DD Form 1610 TV0007 19 Jan 07 1/0
DD Form 1610 TV0006 8 Jan 07 1/0
DD Form 1610 TV0111 4 Jan 07 1/0
DD Form 1610 TV0104 10 Dec 06 1/0
which said signature and initials, would, if genuine, apparently operate to
the legal harm of another.
Specification 7 [to be renumbered as Specification 6 after this Court’s dismissal of
original Specification 5] is set aside and dismissed because none of the charged instances
of forgery took place while the record reveals the appellant was in Article 2(a), UCMJ,
status.
As so modified, the findings are correct in law and fact. The Court approves only
so much of the sentence as provides for a dismissal. The findings, as modified, and the
sentence, as reassessed and modified, are correct in law and fact, and no error materially
prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41 (C.A.A.F.
2000). Accordingly, the findings, as modified, and the sentence, as reassessed and
modified, are
AFFIRMED.
FOR THE COURT
LAQUITTA J. SMITH
Appellate Paralegal Specialist
29 ACM 37838