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.
These issues are fairly complex and they generated two sets of briefs to CAAF. The first set of briefs address the certified issue. The second set of briefs address the granted issue.
The Government’s argument on the certified issue focuses on the application of Article 2(c), which confers jurisdiction on a person who:
(1) submitted voluntarily to military authority;
(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;
(3) received military pay or allowances; and
(4) performed military duties;
Article 2(c), UCMJ, 10 U.S.C. § 802(c). The Government asserts significance in the fact that “Appellee was able to commit his crimes because of his status as a reserve military officer. Without his reserve officer military status and assignment to the Health Services Office, Appellee would not have had the access or opportunity to commit these crimes against the Air Force.” Gov’t Br. on Cert. Issue at 3-4 (emphasis in original). The Government’s position is that:
Appellee placed himself under court-martial jurisdiction through his own conniving scheme where he used hundreds of pages of forged documents, such as military orders, travel authorizations, travel vouchers, and training records to place himself in an active military status or IDTs to steal money from the Air Force.
Gov’t Br. on Cert. Issue at 11. But the Government’s brief on the certified issue rather conspicuously omits an account of dates of active duty and criminal activity that would match Appellee’s active duty service to each individual offense. Rather, the Government accounts for only some time periods, and asserts only that “Appellee was on orders on active duty or inactive duty training during a significant portion of his misconduct.” Gov’t Br. on Cert. Issue at 7 (emphasis added). A significant portion isn’t all, and this appears to be a concession that Appellee was not on active duty during the time periods at issue in at least some of the convictions that the CCA reversed.
Despite this concession, the Government’s brief tries to blur the line between active and inactive status. For example, the Government asserts that “even when not on active duty or IDT orders, Appellee received base pay, basic allowance for subsistence (BAS), and basic allowance for housing (BAH) overlapping with acts of forgery of documents, larceny, or forged signatures.” Gov’t Br. on Cert. Issue at 4 (emphasis added). Delays in the actual payment of monies earned at an earlier time is a fragile foundation for court-martial jurisdiction. The Government also highlights the following six facts as supporting Article 2(c) jurisdiction:
(1) on the dates of the charged offenses, Appellee was a member of the Air Force Reserve component; (2) he performed active tours and reserve training pursuant to military orders, albeit military orders forged by Appellee; (3) the military orders were issued for the purpose of performing active duty or IDTs; (4) he engaged in official military travel to purportedly perform military duties at various TDY locations despite Appellee claiming expenses for unofficial, non-reimbursable travel; (5) he received military pay and allowances pursuant to military orders, and he was reimbursed for his travel expenses by the armed forces; (6) and he received military service credit in the form of retirement points for his military service dates.
Gov’t Br. on Cert. Issue at 3. Yet the first of these factors (member of a reserve component) is not active duty, and none of the other five link active duty status to an instance of forgery.
Ultimately, the Government asserts something of a paradox:
This case is the quintessential example of the idiom “trying to have one’s cake and eat it too.” Appellee strived to enter into active status to reap the bountiful benefits of military service without the burden of being subject to military jurisdiction for criminal offenses committed within such status. This would lead to an absurd result and directly contradict Congress’ intent in enacting Article 2(c), UCMJ. The legislative history discussed in Phillips demonstrates Congress enacted Article 2(c), UCMJ, to cover situations exactly like this case. Id. at 219. Appellee’s devious scheme to exploit the statutory peculiarities of temporary reserve duty does not obscure the reality of his status as a paid Air Force reservist. Morse, unpub. op. at 5. This Court should not permit Appellee to claim a lack of jurisdiction based on his own fraudulent efforts to subject himself to jurisdiction.
Gov’t Br. on Cert. Issue at 17.
Appellee’s response highlights the paradoxical nature of the Government’s argument:
The Government’s theory of the case all along has been that Appellee was not actually doing the work while traveling – hence the fraudulent travel and the theft. Further, the government argued that even if Appellee engaged in any legitimate military work, any pay or reimbursement Appellee received for such work was nonetheless larcenous because it was obtained via a scheme of forgery and fraud. J.A. at 275 (trial counsel arguing “You may be entitled to this money, but if you forge a document, if you commit fraud to get it then ultimately you’re not entitled to the money”). Indeed, if, as the Government now argues, Appellee engaged in legitimate military duty and travel, then exactly what did he steal, since while traveling he was completing the work that he was required to do? At trial the Government sought to avoid having to articulate exactly what was stolen by simply arguing that, by virtue of the false vouchers, Lt Col Morita had the intent to steal and that none of his actions were really legitimate; thus all his pay and compensation were theft. Now, the Government seeks to avoid having to prove when he was on orders, and when he was serving with the armed forces for purposes of jurisdiction, by arguing he was actually performing legitimate military duties the whole time, even if the orders were fake. The Government should be judicially estopped from arguing these inconsistent theories.
App. Br. on Cert. Issue. at 9-10.
Interestingly, it seems that Appellee was not charged with any sort of dereliction (making it seem like he was entitled to much – if not all – of the pay and allowances he received).
But while the Government’s jurisdictional argument is paradoxical, the Government’s argument for why the CCA’s refusal to consider additional documents is grounded in common sense:
It is illogical to now bind the Government’s hands on an issue that can never be waived, especially where the military judge at trial was satisfied with the evidence presented by the Government. There is no allegation of bad faith on the Government’s part, and the trial counsel cannot be faulted for failing to seek an advance advisory opinion from AFCCA to ensure that not only was the military judge convinced of jurisdiction but also that the appellate court would be satisfied. Rather, trial counsel moved on to the merits of his case after prevailing following a lengthy motions hearing about jurisdiction.
Gov’t Br. on Cert. Issue at 21. It’s hard to fault the Government for failing to do more than win the issue at trial.
Appellee’s response asserts that the documents are inadequate in any event:
The records lacked foundation as well as relevance. The person authenticating the records is not the custodian of records. She did not certify that she knows how to use OLRV or that the records are accurate or that her search of the system was complete. So merely at an initial foundational level, the records were faulty.
Moreover, most of the records show Appellee received pay at times other than when he is alleged to have engaged in misconduct. As discussed above, the fact that Appellee was paid at some later date for work he may or may not have performed at some earlier date when he may or may not have been on orders, or valid orders, is irrelevant. Even those portions of the records that show Appellee receiving pay at or close to the time of the alleged frauds is not conclusive. Especially in as obtuse and weak an evidentiary showing in support
App. Br. on Cert. Issue at 22 (emphasis in original). If this assertion is accurate, then these documents may not change the facts of the case even if CAAF finds that they should be considered. Perhaps that’s why the Government’s position at trial was 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.
Appellee’s response to the certified issue also asserts that the case was improperly certified. The certification was signed by Major General Robert G. Kenny as “Performing Duties of The Judge Advocate General.” App. Br. on Cert. Issue at 1. But Appellee asserts that “Maj Gen Kenny, as the Mobilization Assistant to TJAG, is not “the head of [a] major division of the Office of the Judge Advocate General,” in accordance with 10 U.S.C. § 8037(d)(3), and not qualified under the statute to perform the duties of TJAG.” Id. at 2. And so Appellee claims that CAAF “does not have jurisdiction” ove rthe certified issue and that the court “should deny the government’s attempt to have Maj Gen Kenny certify an issue.” Id. at 3.
On the granted issue, Appellee (still referring to Lieutenant Colonel Morita) argues that “AFCCA’s opinion holds, in essence, that a reservist can simply create military jurisdiction by forging his or her own orders.” App. Br. on Granted Issue at 9. The brief asserts:
Unless on orders, a Reservist is a civilian, which makes AFCCA’s opinion troubling. AFCCA seeks to vastly expand court-martial jurisdiction over civilian reservists. Under this rationale, if a reservist who forges orders at home, placing himself on active duty and commits a crime in his home (whether smoking marijuana, engaging in insider trading, or committing domestic violence), she or he is subject to court martial – rather than civilian – jurisdiction. This expands jurisdiction over civilian reservists far beyond its intended reach. Moreover, it creates difficult questions of liability and responsibility. For example, if reservist who forges his own orders is still considered “lawfully” called to duty, is the military then responsible for actions he takes while performing that duty? Such questions demonstrate that AFCCA has created an unwarranted expansion of jurisdiction over reservists.
App. Br. on Granted Issue at 11.
The Government’s response returns to the paradoxical nature of the Government’s theory of the case:
Appellee seeks to evade court-martial jurisdiction by asking this Court to reject significant periods of active duty and inactive duty training (IDT) resulting from his own conniving scheme where he used hundreds of pages of forged documents, such as military orders, travel authorizations, travel vouchers, and training records, to place himself in an active military status or IDTs to steal money from the Air Force.
App. Br. on Granted Issue at 5.
Something that’s not clearly addressed in the briefs on the granted issue is whether Article 2(c) saves any Article 2(a) jurisdictional defect for those offenses that occurred while Appellee was on active duty. It seems to me that even if an individual cannot lawfully place themselves on active duty for the purpose of court-martial jurisdiction under Article 2(a), once they are on active duty, perform military service, and receive pay, then Article 2(c) jurisdiction applies. But my read is that this jurisdiction encompasses only offenses committed while actually on active duty, and that a court-martial cannot reach back to acts committed prior to beginning active duty.
For example, imagine a civilian is overcome with patriotic spirit and, with the help of some friends, breaks into a military installation and becomes a stowaway on a military transport heading to the front lines. Imagine further that nobody realizes that this person don’t belong on the front lines and the person is issued uniforms, weapons and ammunition, and pay and allowances. But then the person’s patriotic spirit falters and the person commits a larceny. Under these facts I believe that Article 2(c) would provide court-martial jurisdiction for the larceny. However, I don’t think it would provide court-martial jurisdiction for the conspiracy with the friends.
Appellee’s case seems closely analogous, even if his spirit was not so patriotic.
• AFCCA oral argument audio
• AFCCA opinion (73 M.J. 548)
• Blog post: The AFCCA’s fascinating opinion in Morita
• Certified issue: Government’s brief
• Certified issue: Defense brief
• Granted issue: Defense brief
• Granted issue: Government brief
• Blog post: Argument preview