I didn’t notice it until last weekend, but the Air Force CCA issued a fascinating published opinion last month in United States v. Morita, No. 37838, 73 M.J. 548 (A.F.Ct.Crim.App. Jan 10, 2014) (link to slip op.). The case involves a reserve Lieutenant Colonel who was convicted of forgery, larceny, and frauds against the United States, in connection with his reserve duty orders that involved, among other things, charges of “forging 510 signatures or sets of initials on more than 100 documents,” most related to travel orders and reimbursement. Slip op. at 4. 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.

Before and during trial, Appellant asserted the absence of subject matter jurisdiction over his offenses, most of which occurred while he was not on any form of active duty status. The military judge rejected the challenge, and Appellant renews it at the CCA. The CCA largely agrees with Appellant, and finds that only 178 of the 510 forgeries of which Appellant was convicted occurred during a time when Appellant was subject to the UCMJ under Article 2(a). In doing so, the court denies a Government motion to attach documents that “purportedly help demonstrate what days the appellant was actually in military status during the charged time frame.” Slip op. at 9. The court notes that “Congress 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.” Slip op. at 9-10 (quoting United States v. Ginn, 47 M.J. 236, 242 (C.A.A.F. 1997)). It also discusses the contested nature of this issue:

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.

Slip op. at 10. For contrast, recall the same court’s order granting the Government interlocutory appeal in United States v. Mobley, Misc. Dkt. No. 2013-21 (A.F.Ct.Crim.App. Dec. 20, 2013) (en banc) (link to order), about which I wrote “The Air Force CCA wants the Government to get another chance.”

The court also finds that of the 178 forgeries where there is subject matter jurisdiction, only 159 are legally or factually sufficient, largely because the Government failed to introduce sufficient evidence such as “by failing to ask the purported signer if the signature at issue was his or hers,” slip op. at 17, and “neglect[ing] to introduce the document alleged to be forged, ” slip op. at 17 N.15.

For the single larceny specification (charged on divers occasions) the court finds that the record is insufficient to identify which larcenies occurred while subject matter jurisdiction existed, and it reverses the larceny conviction entirely. Notably, this seems to be less of a Walters type issue (link to recent discussion of Walters), and more of a routine failure of proof, as the Government appears to have tried the where-there’s-smoke-there’s-fire theory of proving its case:

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 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.

Slip op. at 18-19. Finally, the court reverses the conviction for frauds against the United States, in violation of Article 132, as multiplicious with the affirmed forgery convictions. Notably, the trial judge merged this offense with the forgeries for sentencing.

As a result of all of this, the court reassesses the sentence, reducing it dramatically: “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.” Slip op. at 23. But then the court goes even further. Recognizing that “[t]his case was docketed with this Court on 10 February 2011, meaning nearly three years have passed before we rendered our decision,” slip op. at 23, the court “elect[s] 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,” slip op. at 25. Appellant should now receive both a year’s pay and allowances, and a refund of his $75,000 fine (that I presume was paid).

6 Responses to “The AFCCA’s fascinating opinion in Morita”

  1. Anonymous Air Force Senior Defense Counsel with initials NM says:

    My first thought after reading this case was that it doesn’t seem fair to not only make the TC anticipate that the appellate courts will reverse a military judge, but to act on that anticipation.  Example:  TC is introducing evidence on a point (any point, motions, whatever) and the MJ says: “TC, that’s enough, you’ve met your burden on that point.”  TC is now supposed to say, “no judge, I don’t think we have, the government would like to continue introducing evidence.”
    As a practitioner, that seems weird to me. 
    But my second thought was that there are 2 lessons to be learned here.  First, don’t rely on unpublished cases (see page 6 of slip op).  Second, it might not be fair, but the TC has a duty to protect the record, even from the military judge.  As TC, you should be doing more than simply trying to convince the judge you’re right.  You should be careful to make sure that you are actually right. 
    If, as a TC, you go into court thinking, lets see what I can get the trial judge to agree with today, there could be problems on appeal.  I’m not saying that’s what happened here.  What I am saying is, don’t stop your analysis with, “okay I got the judge to agree with me.”  Take it a step further and try to make sure you’ve got everything you need on the record to survive a challenge on appeal.

  2. John O'Connor says:

    Agree with NM.  It’s the TC’s duty to protect the record.  I had a guilty plea larceny case where a certain well-known civilian defense counsel kept having his client equivocate on whether he intended to permanently deprive the owner of the property.  In my view, the DC wanted the deal we gave him, but was trying to create an appellate issue where he could argue that the accused only admitted to facts supporting wrongful appropriation (which would have gotten rid of the BCD).  The MJ kept asking me if I was satisfied with the providence of the plea and I kept saying no to the MJ’s increasing frustration.  But the accused later unambiguously admitted to the permanency element and after the court-martial the MJ came up to me and thanked me because he realized I was right about the providency of the plea. 

  3. Matt says:

    The TC should always anticipate what is required for a case to hold up on appeal.  Especially where our courts can set aside a conviction for factual insufficiency.  It is up to the government to meet the burden. The TC can’t complain that the panel thought it was enough evidence.

  4. Brian LC says:

    I would find this case uncontroversial in most settings, but am surprised by the courts ruling when the issue is subject matter jurisdiction.  Jurisdiction is never waived, and, for example, could be raised by the defense for the first time on appeal, and presumably with evidence not contained in the record.
    Generally, I have no problem with a party making a bed and then being forced to sleep in it.  And, I suppose that there might be nothing that prohibits the CCA from only barring government evidence (again, as jurisdiciton is never waived, I can’t imagine the CCA telling the defense that they are not allowed to submit matters on appeal that establish a lack of jurisdiciton).  The CCAs ruling should prod the government to fully litigate issues (regardless of what the trial judge does, and regardless that the proding only applies to one side). 
    I guess I just find it strange for a court to dismiss specifications for lack of subject matter jurisdiciton, when, according to the logic of their own opinion, there in fact their might actually be jurisdiction.

  5. Michael Lowrey says:

    The government’s theory was in large part built upon dicta in an unpublished AFCCA opinion. If adopted, it would have greatly expanded when reservists were subject to the UCMJ. So even if the panel and trial judge go along, the TC should have expected AFCCA would take a very close look at the case, as indeed it did. And if AFCCA had affirmed, the odds that CAAF would have taken the case are extremely high. And I think the odds are still pretty good that this certified to CAAF anyway. So no sympathy for the TC here.
     
    Brian — What you’re missing is that the defense here actively contested jurisdiction at trial and that this case was all about jurisdiction. As AFCCA wrote: “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.” So how would it be fair for the government to get another bit of the apple on appeal in case AFCCA rejects (as it did) its jurisdiction theory?

  6. Christine says:

    Lt Col Morita forged his way on to active duty, forged his way on to man days, and forged his way TDY.  Half the time he committed these crimes he was not, legitimately, on any sort of orders.  It is appalling to think that the appropriate court for such crimes would have had to be the U.S. EDCA instead of a court-martial simply because he wasn’t on any “real” orders.  The crime for forging orders should be tried in a court-martial.