CAAFlog » September 2014 Term » United States v. Morita

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.

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Audio of yesterday’s oral arguments is available at the following links:

United States v. Phillips, No. 14-0199/AR (CAAFlog case page): Oral argument audio.

United States v. Morita, No. 14-5007/AF (CAAFlog case page): Oral argument audio.

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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In  United States v. Morita, 73 M.J. 548 (A.F.Ct.Crim.App. Jan 10, 2014) (discussed here), the Air Force CCA considered a reserve lieutenant colonel’s convictions of forgery, larceny, and frauds against the United States in connection with his reserve duty that involved, among other things, forging over 500 signatures or initials on over 100 documents, most of which were related to travel orders and reimbursement. The CCA found that only 178 of the 510 forgeries of which the appellant was convicted occurred during a time when the appellant was subject to the UCMJ under Article 2(a). In doing so, the court denied a Government motion to attach documents that the Government asserted would show which days the appellant was actually in an active duty status and subject to the UCMJ.

The Air Force JAG then certified the case to CAAF (certification discussed here) with an issue questioning whether the CCA erred in finding no subject matter jurisdiction and in denying the Government motion to attach documents.

On Friday, July 25, CAAF granted review of an issue that has the potential to moot the Government’s certification:

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.

The CAAF case number is 14-5007/AF.

Yesterday, CAAF docketed a certification of the Air Force CCA’s decision in United States v. Morita, 73 M.J. 548 (A.F.Ct.Crim.App. Jan 10, 2014) (my analysis of the CCA’s opinion is here) (link to slip op.):

No. 14-5007/AF. U.S. v. Steven S. MORITA. CCA 37838. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following 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.

That brings the total number of Air Force cases with certifications on CAAF’s docket for this term to eleven:

  1. United States v. Arriaga, No. 13-5008/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
  2. United States v. Lindgren, No. 13-5009/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
  3. United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014) (CAAFlog case page) (cross-certification).
  4. United States v. McPherson, No. 14-5002/AF (CAAFlog case page) (Article 12 issue).
  5. United States v. Wilson, No. 14-5003/AF (cert. discussed here) (CCA op. discussed here) (Article 12 issue).
  6. United States v. Burns, No. 14-5001/AF (discussed here) (factual sufficiency issue).
  7. United States v. McIntyre, No. 14-6005/AF (cert. discussed here) (CCA op. discussed here) (corroboration issue).
  8. United States v. Seton, No. 14-6008/AF (cert. discussed here) (CCA op. discussed here) (lost evidence issue).
  9. United States v. McDowell & DeMario, No. 14-5005/AF (cert. discussed here) (CCA op. discussed here) (gov’t writ pet.).
  10. United States v. Piolunek, No.s 14-5006 & 14-0283/AF (CAAFlog case page) (cross-certification).
  11. United States v. Morita, No. 14-5007/AF (cert. discussed here) (CCA op. discussed here) (subject matter jurisdiction).

An additional interesting statistic is that of the last ten cases added to CAAF’s master docket, eight are Air Force cases, and seven of those eight involve certified issues. The ten cases, in chronological order of docketing, are: Wilson, Torres, Burns, McIntyre, Piolunek, Seton, Wagner (Army), McDowell, Carrasquillo (Army), and Morita.

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.

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