CAAF will hear oral argument in the certified Air Force case of United States v. Morita, No. 14-5007/AF (CAAFlog case page), on Monday, October 20, 2014. The case presents a certified issue and a granted issue, both of which question whether court-martial jurisdiction existed over Appellee who repeatedly forged his own orders to active duty:
Certified Issue: Whether the Air Force Court of Criminal Appeals erred when it found the court-martial lacked subject matter jurisdiction and whether the Air Force Court of Criminal Appeals abused its discretion when it refused to grant the Government’s motion to submit documents.
Granted Issue: Whether the Air Force Court of Criminal Appeals erred by finding that a reservist can create court-martial jurisdiction by forging active duty orders and/or inactive-duty training orders and by finding that court-martial jurisdiction existed for each 120-day period listed on the three applications for MPA man-day tours.
Lieutenant Colonel Morita (who I will identify as Appellee) is a reservist who was convicted of forgery, larceny, and frauds against the United States in connection with his reserve duty orders. He was sentenced to confinement for twelve months, a $75,000 fine with an additional twelve months of confinement as an enforcement mechanism, and a dismissal.
Appellee’s convictions arose from his rather unique reserve situation. The AFCCA’s published opinion in the case explains:
As an IMA [Individual Mobilization Augmentee], the appell[ee] was required each fiscal year to perform 12 annual training days on active duty and 24 paid inactive duty training (IDT) periods.In 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 appell[ee] was authorized to work a total of approximately 144 days per fiscal year. For each fiscal year, the appell[ee] 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 appell[ee]’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.
United States v. Morita, 73 M.J. 548, __, slip op. at 2 (A.F. Ct. Crim. App. Jan 10, 2014) (link to slip op.). But “from approximately November 2005 to October 2008, the appell[ee] 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.” Id., slip op. at 3. An investigation ensued and Appellee was ultimately charged with “forging 510 signatures or sets of initials on more than 100 documents,” as well as larceny and frauds in connection with reimbursements he received for travel claims. Id., slip op. at 4.
Appellee challenged the existence of court-martial jurisdiction throughout the pretrial process, and he moved to dismiss the charges at trial asserting a lack of both personal and subject matter jurisdiction. The Government proved that Appellee was recalled to active duty for trial, providing personal jurisdiction, but it refused to identify whether Appellee was on active duty at the time of each alleged criminal act (necessary to establish subject matter jurisdiction). Instead, the Government asserted that Appellee’s acts were committed in his capacity as a reserve officer and that “it was not necessary for the Government to prove the appell[ee] committed the charged misconduct while on active duty orders or while performing IDTs.” Morita, 73 M.J. at __, slip op. at 6. The military judge agreed with the Government and denied the Defense motion to dismiss.
But the Air Force CCA reversed in part, finding that the record demonstrated that Appellee was on active duty during only certain time periods. In taking this action the CCA denied a Government motion to attach documents that “purportedly help demonstrate what days the appell[ee] was actually in military status during the charged time frame.” Morita, 73 M.J. at __, slip op. at 9. The court determined that those active duty periods were sufficient to confer Article 2(a) subject matter jurisdiction over Appellee’s acts during those periods, even if the documents ordering Appellee to active duty contained forgeries. Id., slip op. at 13-14.
The CCA also rejected the Government’s argument that Article 2(c) subject matter jurisdiction existed for the other time periods (where the record did not prove Appellee was on active duty). The court concluded:
For periods where the appell[ee] was not in Article 2(a), UCMJ, status, there is no evidence the appell[ee] received pay or allowances for his mere act of completing travel-related forms. As far as the record reflects, the appell[ee]’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.
Morita, 73 M.J. at __, slip op. at 16. And the court rejected the argument that “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.” Id.
As a result, the CCA found that the Government proved jurisdiction for only 178 of the 510 forgeries. After finding additional errors involving legal and factual insufficiency, the CCA approved only 159 acts of forgery in violation of Article 123. The court set aside the remainder of the forgery charge, all of the larceny charge (finding in part that it could not determine whether two or more larcenies occurred when jurisdiction existed) and all of the frauds against the United States charge (as multiplicious with the forgery charge). Reassessing the sentence, the court approved only a sentence of a dismissal and three months of confinement. Id., slip op. at 23.
The Government then certified the case, questioning the CCA’s partial rejection of subject matter jurisdiction and its refusal to permit the Government to attach documents to the record. CAAF subsequently granted an issue related to the CCA’s finding of subject matter jurisdiction in any instance.
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