Opinion Analysis: Forged orders alone don’t create jurisdiction in United States v. Morita, No. 14-5007/AF
CAAF decided the certified Air Force case of United States v. Morita, 74 M.J. 116, No. 14-5007/AF (CAAFlog case page) (link to slip op.), on Monday, March 16, 2015. The court rejected the Government’s expansive argument for court-martial jurisdiction over reservists, concluding that a forged order alone does not establish court-martial jurisdiction over a reservist not otherwise performing military duties. CAAF partially answers the certified issue in the negative, reverses the Air Force CCA in part, and remands the case for reassessment of, or a rehearing on, the sentence.
Judge Ryan writes for a unanimous court.
CAAF’s review involves two issues related to court-martial jurisdiction, one certified and the other granted:
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.
Appellee, a reservist, repeatedly forged signatures in order to place himself on travel orders and to receive compensation for travel expenses related to reserve duty. “Appellee’s false claims for travel reimbursement totaled $124,664.03, and he forged 510 signatures or initials on more than 100 documents.” Slip op. at 6. He also had periods of legitimate reserve duty, and some of his offenses were committed during those periods.
At trial Appellee challenged the existence of court-martial jurisdiction, asserting (generally) that his misconduct occurred while he was not subject to the UCMJ. “The Government defended jurisdiction primarily on the grounds that Appellee made the forgeries in his official capacity as a reserve officer.” Slip op. at 7.
The military judge agreed with the Government, but the AFCCA reversed in part in a published opinion (discussed here) in which it reversed many of Appellee’s convictions and reduced the sentence dramatically. In particular:
[T]he CCA identified three separate statuses that Appellee occupied during the charged time frame: (1) valid active duty status obtained through authorized 120 MPA man-day tours, Morita, 73 M.J. at 558; (2) active duty status or inactive duty status based on documents that contained forgeries, although there was no evidence that Appellee actually reported for duty during the time periods covered by the forgeries, id. at 559; and (3) reserve status, held during the remainder of the charged time frame. Id. at 560. The CCA held that the first two categories conferred subject matter jurisdiction under Article 2(a), UCMJ. Regarding the third category, the CCA found that the record did not show enough facts to conclude that Appellee’s activities as a reservist rose to the level of “serving with” the armed forces under Phillips, 58 M.J. at 220, nor to show that the remaining statutory criteria were fulfilled, and thus there was no subject matter jurisdiction under Article 2(c), UCMJ.
Slip op. at 8. Judge Ryan’s opinion affirms the CCA’s finding of jurisdiction under the first status and its finding of no jurisdiction under the third status, but it reverses the CCA’s finding of jurisdiction under the second status, resulting in the reversal of even more of Appellee’s convictions. Additionally, Judge Ryan’s opinion does not directly address the portion of the certified issue involving the Government’s motion to submit documents, because the CCA found that the documents would not have changed its opinion and so “there is no justiciable issue for [CAAF] to resolve.” Slip op. at 20 n.7.
Judge Ryan’s analysis begins with a discussion of the sources of jurisdiction in this case:
Article 2(a), UCMJ, jurisdiction for a reservist hinges on whether the charged events occurred during active duty status or IDTs. Article 2(a)(1), UCMJ, applies to reservists “lawfully called or ordered into, or to duty,” while Article 2(a)(3), UCMJ, applies to “[m]embers of a reserve component while on inactive-duty training.” For the purposes of Article 2(a), UCMJ, jurisdiction, “active duty is an all-or-nothing condition.” Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 1986). . . .
Second, Article 2(c), UCMJ, while not referencing reservists at all, extends jurisdiction “[n]otwithstanding any other provision of law” to “a person serving with an armed force” who “(1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications . . . at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties.” “The phrase ‘serving with’ an armed force has been used to describe persons who have a close relationship to the armed forces without the formalities of a military enlistment or commission.” Phillips, 58 M.J. at 220; see also United States v. McDonagh, 14 M.J. 415, 417 (C.M.A. 1983) (noting that Article 2(c), UCMJ, incorporated the “constructive enlistment” concept this Court previously employed when there was a formal defect in enlistment but the individual served with an armed force).
Slip op. at 10-12 (paragraphing added). Applying these fundamentals to the facts, Judge Ryan explains that:
Appellee was lawfully in an active duty status, and subject to the UCMJ, pursuant to Article 2(a)(1) for offenses committed during the three approved MPA tour periods.
Slip op. at 13. This affirms the AFCCA’s decision on the first status (valid active duty status obtained through authorized tours of duty). However, for the second status (active duty status or inactive duty status based on documents that contained forgeries), Judge Ryan explains that the CCA’s finding of jurisdiction is erroneous because it is based on the forged orders alone:
The CCA stressed that, other than the MPA periods of active duty, and the forged orders, there was no other evidence presented for the purpose of establishing Appellee’s military status throughout the charged time periods. . . . We are left to conclude, therefore, that the CCA based Article 2(a), UCMJ, jurisdiction for these additional periods on the mere fact of forged orders, without more. While no prior case from this Court establishes whether forged orders to active duty or to IDTs may place a reservist within Article (2)(a), UCMJ, we conclude that forged orders do not place a reservist in such a status.
Slip op. at 13-14. This conclusion turns on the facts that “Article 2(a)(1), UCMJ, requires that a member be “lawfully called or ordered to active duty” and “a forgery is the antithesis of a lawful order.” Slip op. at 15 (marks omitted).
Judge Ryan is sensitive to the policy concerns raised by this decision:
That only reservists who meet the statutory requirements are subject to the UCMJ reflects Congress’s determination that for other misconduct they are subject to the jurisdiction of the civilian courts. While this may deprive the military of jurisdiction over reservists who fraudulently obtained orders through forgery and benefited from them in some instances, they may be prosecuted by a U.S. Attorney under any one of several federal criminal and civil statutes and subjected to both criminal sanction and civil forfeitures upon conviction.
Slip op. at 16 (citations omitted). Yet practical reality prevails:
Congress is understandably chary of the exercise of military jurisdiction over civilians unless they are, in fact, in a military status under Article 2, UCMJ. We do not think that a forged order, without more, is sufficient to subject a reservist not in an actual military status to military jurisdiction under Article 2(a), UCMJ.
Slip op. at 17 (citations omitted). The final portion of Judge Ryan’s opinion addresses the application of Article 2(c) jurisdiction. Article 2(c) is a jurisdictional savings clause. It confers jurisdiction on a person who, for whatever reason, wouldn’t be subject to court-martial jurisdiction except that they:
(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;
But Article 2(c) doesn’t save the Government’s prosecution in Morita because:
[T]he Government did not proffer sufficient facts to show Appellee was “serving with” the armed forces. . . . According to the CCA, only one of the six factors identified in Phillips to determine if the appellant there was “serving with” the armed forces was present in Appellee’s case, namely, the fact that he was a member of a reserve component. We agree with the CCA that this factor alone is not sufficient to find that Appellee was “serving with” the armed forces under Article 2(c), UCMJ.
Nor were the other statutory criteria for jurisdiction under Article 2(c), UCMJ, met. For example, the CCA found that the “Government did not demonstrate that [Appellee] received any compensation or retirement credit for days on which he merely initiated the issuance of or completed travel forms (apart from the days where he was in proper Article 2(a), UCMJ, status),” 73 M.J. at 560, or establish that Appellee otherwise performed military duties during these times.6 Id. at 561. Under these facts, where the Government’s theory of the case was that Appellee was not performing military duties, but rather exploiting his knowledge of the system to generate orders and travel vouchers to support private boondoggles, we agree with the CCA that Appellee was not subject to jurisdiction under Article 2(c), UCMJ, during the remaining periods during which misconduct was alleged.
Slip op. at 18-19 (citations omitted).
This result is a wholesale rejection of the Government’s argument 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). Ultimately, CAAF’s decision in Morita is a strong reminder of the limited jurisdiction of courts-martial.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis