United States v. Morton , 2010 CAAF LEXIS 378 ( 2010 )

UNITED STATES, Appellee
v.
Makisha I. MORTON, Private First Class
U.S. Army, Appellant
No. 09-0185
Crim. App. No. 20060458
United States Court of Appeals for the Armed Forces
Argued November 17, 2009
Decided May 5, 2010
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Pamela Perillo (argued); Lieutenant
Colonel Jonathan F. Potter, Lieutenant Colonel Mark Tellitocci,
and Major Grace M. Gallagher (on brief).
For Appellee: Captain Nicole L. Fish (argued); Colonel Denise
R. Lind, Lieutenant Colonel Francis C. Kiley, and Major
Christopher B. Burgess (on brief); Colonel Norman F. J. Allen
III and Major Adam S. Kazin.
Military Judge: Debra L. Boudreau
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Morton, No. 09-0185/AR
Judge BAKER delivered the opinion of the Court.
Appellant was tried before a military judge sitting as a
general court-martial. In accordance with her pleas, she was
convicted of making a false official statement, larceny, and
forgery (two specifications) in violation of Articles 107, 121,
and 123, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
907, 921, 923 (2000) respectively. She was also convicted,
contrary to her plea, of obstructing justice, in violation of
Article 134, UCMJ, 10 U.S.C. § 934 (2000). The adjudged
sentence included a bad-conduct discharge, confinement for
twenty-four months, forfeiture of $750 pay per month for twenty-
four months and reduction to pay grade E-1. Pursuant to a
pretrial agreement, the convening authority approved confinement
for eight months and forfeiture of $750 per month for eight
months, but otherwise approved the remainder of the sentence as
adjudged. The United States Army Court of Criminal Appeals
(CCA) affirmed. United States v. Morton, No. 20060458, 2008 CCA
LEXIS 615, at *10-*11 (A. Ct. Crim. App. Sept. 30, 2008).
However, the court found that the plea inquiry could not support
the two forgery specifications and instead affirmed two
violations of making false official statements, under Article
107, UCMJ. Id.2
United States v. Morton, No. 09-0185/AR
The granted issue tests the continuing vitality, of the so-
called “closely related offense” doctrine.1 In light of the
abiding principle of fair notice to an accused, we hold that
this doctrine, as currently relied upon by appellate courts in
upholding guilty pleas in the military justice system, is no
longer viable.
BACKGROUND
The issue in the case revolves around Appellant’s guilty
plea to the two forgery specifications.2 Appellant’s statements
1
On Appellant’s petition, we granted review of the
following issue:
WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY
INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE
ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE
ARMY COURT ERRED IN FINDING APPELLANT GUILTY OF A
LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO
THE TRIER OF FACT.
We note that the lower court in this case actually affirmed
the findings of guilty based on the closely related offense
doctrine rather than the lesser included offense doctrine.
Thus, notwithstanding Appellant’s framing of the issue, we
will address the closely related offense doctrine.
2
The specifications at issue comprised the Additional Charge and
were set forth as follows:
SPECIFICATION 1: In that Private First Class Makisha I.
Morton, U.S. Army, did . . . on or about 4 January 2006,
with intent to defraud, falsely alter a certain DD Form 689
(“Individual Sick Slip”) dated 1-4-06 in the following
words and figures, to wit: altering the time authorized
for quarters in the “Remarks” section of the form from an
uncertain number to “7,” which said DD Form 689 . . .
would, if genuine, apparently operate to the legal harm of
another.
3
United States v. Morton, No. 09-0185/AR
during the plea inquiry and a stipulation of fact established
that on January 4, 2006, Appellant reported to sick call for
medical care due to her pregnancy.3 Her superiors had instructed
her to return to the unit with whatever instructions the doctor
provided. A nurse issued Appellant a DD Form 689 (Individual
Sick Slip) indicating that she should be placed “on quarters for
72 hours.”4 However, before turning the slip in to her unit,
Appellant altered the slip by changing the “72” to “7” and then
falsely represented that she had been assigned “7 days of
quarters.” Appellant admitted to the military judge that she
altered the slip with the intent to defraud her unit into giving
her an additional four days on quarters, which she received.
Morton, 2008 CCA LEXIS 615, at *8.
Seven days later on January 11, 2006, Appellant’s squad
leader ordered her to report to sick call to determine whether
she was fit to return to duty. She was again directed to bring
SPECIFICATION 2: In that Private First Class Makisha I.
Morton, U.S. Army, did . . . on or about 11 January 2006,
with intent to defraud, falsely alter a certain DD Form 689
(“Individual Sick Slip”) dated 1-11-06 in the following
words and figures, to wit: altering the date from “1-4-06”
to “1-11-06,” which said DD Form 689 . . . would, if
genuine, apparently operate to the legal harm of another.
3
The brief factual recitation used here is taken in relevant
part from the lower court’s opinion.
4
Appellant’s chain of command relied on the sick slip to excuse
her from official duties that she otherwise would have had to
perform.
4
United States v. Morton, No. 09-0185/AR
what documentation she was given back to her squad leader. The
same nurse Appellant saw previously gave her a sick slip
indicating that she should be placed on quarters for the next
twenty-four hours. Appellant returned to her quarters, made a
copy of the slip she was given on January 4 and changed the date
to January 11, 2006. She submitted this altered slip to her
unit, ostensibly authorizing an additional seven days on
quarters as opposed to the actual authorized twenty-four hours.
Id.The CCA concluded that the factual basis described above
could not support a conviction for the two forgery
specifications under Article 123, UCMJ. Id. at *2-*3.
Nonetheless, citing United States v. Epps, 25 M.J. 319, 323
(C.M.A. 1987), and United States v. Hubbard, 28 M.J. 203, 205-06
(C.M.A. 1989), the lower court affirmed two violations of making
false official statements under Article 107, UCMJ, under the
closely related offense doctrine. 2008 CCA LEXIS 615, at *3-
*11. The court stated, “We are satisfied that the two
specifications alleging violations of Article 123, UCMJ, put the
appellant on notice that she could be convicted under Article
107, UCMJ, because the elements of both are substantially the
5
United States v. Morton, No. 09-0185/AR
same, with only minor technical variance.”5 Id. at *5 (footnotes
omitted).6
I
The underlying question presented in this case is whether
or not Appellant’s plea is provident in light of the fact that
the CCA affirmed Appellant’s conviction based on the closely
related offense doctrine. Heretofore, the closely related
offense doctrine, as applied to guilty pleas, has allowed an
5
The elements of Article 107, UCMJ, are:
(1) That the accused signed a certain official document or
made a certain official statement;
(2) That the document or statement was false in certain
particulars;
(3) That the accused knew it to be false at the time of
signing it or making it; and
(4) That the false document or statement was made with the
intent to deceive.
Manual for Courts-Martial, United States pt. IV, para. 31(b)
(2005 ed.) (MCM). The elements of Article 123, UCMJ –- Forgery,
making or altering -- are:
(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.
MCM, pt. IV, para. 48(b).
6
The court purported to amend the two forgery specifications
charged under Article 123, UCMJ, to allege violations of Article
107, UCMJ, and then affirmed the amended specifications. 2008
CCA LEXIS 615, at *10-*11.
6
United States v. Morton, No. 09-0185/AR
appellate court to “uphold a conviction when the providence
inquiry clearly establishes guilt of an offense different from
but closely related to the crime to which the accused has
pleaded guilty.” United States v. Wright, 22 M.J. 25, 27
(C.M.A. 1986) (citing United States v. Graves, 20 M.J. 344, 346
(C.M.A. 1985); United States v. Felty, 12 M.J. 438 (C.M.A.
1982)). Felty, the apparent genesis of the doctrine, involved a
plea of guilty to escape from custody. 12 M.J. at 439. Felty,
a Marine, was in pretrial confinement at the time of the
offense. Id. He was escorted by another Marine to his
magistrate’s hearing for review of the decision ordering him
into pretrial confinement. Id. The military magistrate
determined that Felty should remain in confinement and ordered
him returned to the brig. Id. When the escort asked Felty
whether he had been ordered returned to the unit or back to the
brig, Felty falsely replied that he had been ordered returned to
the unit. Id. En route to the unit area, the two stopped at
the dining facility for lunch. Id. While the two were at the
dining facility, Felty departed without proper authority and
entered a period of unauthorized absence. Id. at 440.
The Court of Military Appeals concluded that Felty’s
statements during the plea inquiry established that he had
escaped from confinement rather than custody. Id. at 442.
Although both offenses are proscribed under Article 95, UCMJ, 10
7
United States v. Morton, No. 09-0185/AR
U.S.C. § 895, the Court concluded that escape from confinement
and escape from custody are different offenses because they
require proof of distinct elements. Id. at 440. Nonetheless,
because the offenses were proscribed by the same article, and
carried the same maximum punishments, in the view of the Court,
this amounted to a “technical variance” without resulting in
material prejudice to the accused under Article 59, UCMJ, 10
U.S.C. § 859. Id. at 442. The Court upheld the conviction for
escape from custody since the accused’s admissions indicated he
was guilty of escape from confinement notwithstanding the fact
that the accused was apparently not guilty of the charged
offense and had neither pleaded to nor had he been charged with
escape from confinement. Id.II
This closely related reasoning in Felty was applied in
subsequent appellate contexts. In Graves, for example, the
accused pleaded guilty to receipt of stolen property under
Article 134, UCMJ. 20 M.J. at 344. After some discussion as to
whether the accused had in fact “received” the stolen property,
the Court upheld the plea based on the accused’s interpretation
of the situation. Id. at 346. Suggesting an alternative theory
for upholding the plea, however, the Court stated that the
accused “probably was an accessory after the fact to the crime
of larceny” under Article 78, UCMJ, 10 U.S.C. § 878, a
8
United States v. Morton, No. 09-0185/AR
completely different statutory offense. Id. The Court
concluded that “Graves has little cause for complaint, even
though his accuser might better have charged him as an accessory
after the fact -- or might even have preferred separate charges
against him as a receiver and as an accessory in order to
prepare for possible exigencies of proof.” Id.The Court applied a similar analysis in Epps. There the
accused pleaded guilty to larceny. 25 M.J. at 319. On appeal,
this Court found “an additional basis for upholding the pleas”
by concluding that the accused’s statements during the plea
inquiry indicated that he was guilty of the closely related
offense of receipt of stolen property, again a completely
different statutory offense. Id. at 323. The Court then stated
the essence of the closely related offense doctrine: “Felty and
its progeny establish that, if an accused pleads guilty and then
at the providence inquiry, he gives sworn testimony which
clearly establishes his guilt of a different but closely-related
offense having the same maximum punishment, we may treat that
accused’s pleas of guilty as provident.” Id. In Hubbard, this
Court appeared to move the doctrine yet a step further. This
Court characterized its holding in Wright, 22 M.J. at 27, as
having “affirmed findings of guilty for ‘closely-related’ crimes
when the authorized sentence was substantially similar to that
9
United States v. Morton, No. 09-0185/AR
which an accused could receive had he been found guilty of the
proper crime.” 28 M.J. at 206 (emphasis added).
Notably, the Court’s analysis in this line of cases is
based on neither the text of the UCMJ, nor the MCM. It is also
inconsistent with more recent cases stressing the importance of
fair notice in the context of guilty pleas and an accused’s
right to understand to what he is pleading guilty and on what
basis. See, e.g., United States v. Medina, 66 M.J. 21, 26
(C.A.A.F. 2008); United States v. Lubasky, 68 M.J. 260, 265
(C.A.A.F. 2010). Furthermore, the doctrine does not appear to
be supported by particularized consideration of any
congressional or presidential authority under Article I or
Article II of the Constitution regarding regulation of the armed
forces.
III
The problem with the “closely related offense” doctrine is
that it suggests that appellate courts can affirm a plea of
guilty on the basis that the accused’s admissions during the
plea colloquy establish his guilt to a different uncharged,
albeit closely related, offense. “[A]n accused has a right to
know to what offense and under what legal theory he or she is
pleading guilty. This fair notice resides at the heart of the
plea inquiry.” Medina, 66 M.J. at 26. Allowing an appellate
court to affirm guilt based on an offense with which the accused
10
United States v. Morton, No. 09-0185/AR
has not been charged, which is not a lesser included offense of
the charged offense, or to which he has not entered a plea of
guilty is inconsistent with the principle iterated in Medina and
other recent decisions of this Court concerning the issue of
fair notice. See, e.g., United States v. Miller, 67 M.J. 385,
389 (C.A.A.F. 2009) (overruling on notice and due process
grounds United States v. Foster, 40 M.J. 140 (C.M.A. 1994),
which held that clauses 1 and 2 of Article 134, UCMJ, were per
se included in every enumerated offense). That said, an accused
may choose, with convening authority approval, to plead guilty
to any amended specification as long as the plea inquiry
establishes that such a plea is knowing and voluntary and the
plea is accepted by the military judge.7
It is the Government’s responsibility to determine what
offense to bring against an accused. Aware of the evidence in
its possession, the Government is presumably cognizant of which
offenses are supported by the evidence and which are not. In
some instances there may be a genuine question as to whether one
offense as opposed to another is sustainable. In such a case,
the prosecution may properly charge both offenses for exigencies
of proof, a long accepted practice in military law. United
7
We have held that the convening authority’s entry into a
pretrial agreement that calls for pleas of guilty to offenses
different from those charged is the “functional equivalent” to
an order referring those offenses to the court-martial. United
States v. Wilkins, 29 M.J. 421, 424 (C.M.A. 1990).
11
United States v. Morton, No. 09-0185/AR
States v. Villareal, 52 M.J. 27, 31 (C.A.A.F. 1999); United
States v. Medley, 33 M.J. 75, 76 (C.M.A. 1991); United States v.
Heyward, 22 M.J. 35, 37 (C.M.A. 1986). In cases where offenses
are pleaded for exigencies of proof, depending on what the plea
inquiry reveals or of which offense the accused is ultimately
found guilty, the military judge may properly accept the plea
and dismiss the remaining offense.
CONCLUSION
Affirming a guilty plea based on admissions to an offense
to which an accused has not in fact pleaded guilty and which is
not a lesser included offense of the charged offense is
inconsistent with traditional due process notions of fair
notice.
The decision of the United States Army Court of Criminal
Appeals is reversed as to specifications 1 and 2 of the
Additional Charge and those specifications and the charge are
dismissed. The decision as to the remaining findings is
affirmed. The record of trial is returned to the Judge Advocate
General of the Army for remand to that court for reassessment of
the sentence.
12