Filed: Mar. 28, 2012
Latest Update: Mar. 02, 2020
Summary: Testimony rendered by an employee of the Defense Finance and Accounting Service on the subject establishes that while documents such as a lease and receipt for rent paid may serve as part of any package necessary to claim reimbursement for rent, additional, separate documents, including orders, that establish a reimbursable status, and a travel voucher, are essential before a soldier can expect the United States to reimburse for rent paid.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
First Lieutenant TONYA M. JONES-MARSHALL
United States Army, Appellant
ARMY 20100649
Headquarters, XVIII Airborne Corps and Fort Bragg
Gary J. Brockington, Military Judge
Colonel Stephen J. Berg, Staff Judge Advocate
For Appellant: Captain Meghan M. Poirier, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA;
Captain Jennifer A. Parker, JA (on brief); Colonel Patricia A. Ham, JA; Lieutenant
Colonel Imogene Jamison, JA; Major Richard E. Gorini, JA; Captain Meghan M.
Poirier, JA (on brief in response to specified issues).
For Appellee: Captain Daniel D. Maurer, JA (argued); Major Amber J. Williams,
JA; Major Ellen S. Jennings, JA; Captain Edward J. Whitford, JA (on brief); Major
Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain Daniel D. Maurer, JA
(on brief in response to specified issues).
28 March 2012
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OPINION OF THE COURT
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KRAUSS, Judge:
A panel of officers, sitting as a general court-martial, convicted appellant,
contrary to her pleas, of three specifications of conspiracy to commit larceny, one
specification of larceny, and six specifications of forgery, in violation of Articles
81, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, 923
(2006) [hereinafter UCMJ]. Appellant was acquitted of four specifications of false
official statement and two specifications of fraud against the United States, alleged
in violation of Articles 107 and 132, UCMJ, respectively. The convening authority
approved the adjudged sentence to dismissal from the service.
Appellant’s case is now before this court for review under Article 66, UCMJ.
She raises two assignments of error asserting that the evidence is legally and
JONES-MARSHALL—ARMY 20100649
factually insufficient to support her convictions for forgery and that the military
judge committed plain error by failing to treat the larceny and forgery charges as an
unreasonable multiplication of charges. In addition, we specified the issue as to
whether the evidence was legally and factually sufficient to support two of
appellant’s convictions for conspiracy.
BACKGROUND
Appellant, a mobilized reservist, assumed duties at Fort Jackson, South
Carolina in 2005 and, over the course of the following two years, stole over $50,000
from the United States by submitting phony rental receipts and rental agreements for
reimbursement she was not authorized. The government charged appellant with
submission of false claims as well as larceny and false official statement. The
government also charged appellant with forgery based on the falsified lease
agreements and rental receipts she made that also served as the basis for the charged
larceny and false claims. Indeed, under Article 123, UCMJ, the government charged
appellant with forgery on the theory that the documents at issue “would, if genuine,
apparently operate to the legal harm of the United States, in that [they were] used to
fraudulently submit travel vouchers.” The leases and receipts at issue concerned
purported agreements and transactions between individual private parties. The
testimony of several witnesses established appellant’s responsibility for the creation
and submission of the false documents charged and the receipt of money from the
United States as a result.
Appellant also faced charges of conspiring separately with three different
individuals to steal money from the United States by submitting fraudulent travel
vouchers in a similar fashion. In relation to the alleged conspiracies, the co-
conspirator alleged under Specification 1 of Charge I actually testified. The
government relied entirely upon documentary evidence to prove the two other
conspiracies alleged under Specifications 2 and 3 of Charge I.
LAW AND DISCUSSION
Forgery
Here the government fell into the trap set by Article 123 for those who
overlook the legal efficacy requirement necessary to properly prosecute forgery
under the UCMJ. See United States v. Thomas, 25 M.J. 396, 402 (C.M.A. 1988).
Article 123 is a narrowly defined statute that is strictly interpreted. United States v.
Hopwood,
30 M.J. 146, 147 (C.M.A. 1990). While forgery in a general sense may
simply include false signature to a document or the falsification of another
document, forgery under the UCMJ includes only those falsified documents that
“would, if genuine, apparently impose a legal liability on another or change his legal
right or liability to his prejudice.” UCMJ art. 123(1). In order to properly convict a
soldier of forgery, the evidence must establish that the false document alleged must
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itself impose such legal harm. The document in question and extrinsic facts are
admissible to show whether the document in and of itself possesses this legal
efficacy required to sustain a proper prosecution and conviction for a violation of
Article 123, UCMJ. Hopwood, 30 M.J. at 147;
Thomas, 25 M.J. at 401–02. Here,
neither the falsified leases nor the falsified receipts apparently impose a legal
liability on the United States.
Both the leases and receipts purport to reflect agreements and transactions
between private parties that neither expressly nor implicitly bear any relationship to
the United States whatsoever. Neither the leases nor the receipts themselves create
or purport to create any legal right or liability on the part of the United States. The
leases alleged involve the accused and a Mr. MN as lessee and lessor, respectively,
and Sergeant First Class KLP and Ms. RN as lessee and lessor, respectively.
Nowhere is the United States mentioned in either case and the leases in question
contain nothing that would offer any legal right or impose any legal liability upon
the United States. The receipts purport to reflect rent paid by individuals in their
private capacity to individuals in their private capacity. The receipts neither
expressly or by implication involve the United States in any sense.
The government argues that when considered in light of the Joint Federal
Travel Regulation (JFTR), the leases and receipts perfect a mobilized reservist’s
right to reimbursement from the United States for rent paid and therefore satisfy the
legal efficacy requirement. See D EF . T RAVEL M GMT O FFICE , J OINT F ED . T RAVEL
R EG ’ S , V OL . 1, ch. 4 (C303, 1 March 2012). However, the JFTR provision relied
upon does not describe those or any documents as instruments perfecting any claim
for reimbursement. The JFTR merely allows reimbursement for rent paid by
mobilized reservists while in a temporary duty status. Nor do the leases and receipts
in this case purport to create a right to reimbursement or establish an entitlement to
reimbursement. Testimony rendered by an employee of the Defense Finance and
Accounting Service on the subject establishes that while documents such as a lease
and receipt for rent paid may serve as part of any package necessary to claim
reimbursement for rent, additional, separate documents, including orders, that
establish a reimbursable status, and a travel voucher, are essential before a soldier
can expect the United States to reimburse for rent paid. Therefore, neither the JFTR
nor any other extrinsic fact in this case establishes that the alleged receipts or leases
themselves perfect a right to reimbursement or that those documents, in and of
themselves, impose a legal harm on the United States.
While falsified leases and receipts may properly serve as the basis for prosecution
under Article 123, UCMJ, in other circumstances, they cannot as alleged and
prosecuted here.
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JONES-MARSHALL—ARMY 20100649
Additional documents in a particular case may constitute extrinsic facts
relevant to the question of legal efficacy when considered in conjunction with the
false document. See Thomas, 25 M.J. at 400–02. However, those additional
documents must actually confer legal efficacy upon the document itself, define the
document as possessing legal efficacy itself, or establish that, under the
circumstances, legal efficacy inheres in the document alleged. Additional
documents that illustrate the alleged false documents as merely preliminary steps
toward imposition of legal harm or perfection of a legal right, on the other hand, do
not suffice as proof of forgery. This distinction preserves the statutory requirement
to prove legal efficacy as defined.
Hopwood, 30 M.J. at 147–48;
Thomas, 25 M.J. at
400–02. Because documents that are merely preliminary and necessary steps toward
perfection of a legal right or imposition of a legal harm cannot, as a matter of law,
constitute forgeries under Article 123, UCMJ, the forgeries in this case must fail.
Hopwood, 30 M.J. at 148.
While creation and provision of the falsified leases and receipts may
constitute preliminary steps toward perfecting a false claim against the United
States, in this case, the lease and receipts themselves neither impose an apparent
liability on the United States nor apparently perfect a soldier’s entitlement to
reimbursement for rents paid. Neither do those documents possess that legal
efficacy when viewed in conjunction with the JFTR. One who submits falsified
rental agreements or receipts for rent, alone, to finance, will not be reimbursed for
rent on the basis of those documents alone or by reference to the JFTR. Either taken
alone or as steps toward perfection of such an entitlement they cannot, as a matter of
law, constitute forgeries under Article 123, UCMJ. Hopwood, 30 M.J. at 147–48;
Thomas, 25 M.J. at 400–02.
The limitation of the law under Article 123, UCMJ, does not prevent the
government from properly prosecuting a soldier for dishonest dealings in this
respect. Indeed, this case exemplifies that fact. Appellant was properly prosecuted
for larceny and false claim based on the same facts used to prosecute the forgery
offenses and was ultimately convicted of larceny. Hopwood, 30 M.J. at 148.
Conspiracy
In response to the issue specified by this court, the appellant argues and the
government concedes that the evidence is factually insufficient to support
appellant’s conviction for conspiracy under Specification 2 of Charge IV. We agree.
After consideration of the record and the briefs and arguments of the parties, we also
maintain reasonable doubts about whether appellant entered into the agreement
necessary to support a conviction under Specification 3 of Charge IV, as alleged,
and find the evidence factually insufficient to support the same. UCMJ art. 66(c).
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CONCLUSION
The findings of guilty of Specifications 2 and 3 of Charge I and of the
specifications of Charge IV and Charge IV are set aside and dismissed. The
remaining findings of guilty are affirmed. Under the particular facts of this case we
are confident that reassessment of the sentence is appropriate. Indeed we agree with
the sense of appellant’s argument, relative to an unreasonable multiplication of
charges, that the larceny constitutes the gravamen of the misconduct charged, are
confident that the sentence to dismissal is not inappropriately severe and that a
dismissal would be imposed by this court-martial even absent charge of the forgery
and conspiracy offenses here disapproved. Reassessing the sentence on the basis of
the error noted, the entire record, and in accordance with the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit,
63 M.J. 40
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms the sentence as approved by the convening
authority.
Senior Judge JOHNSON and Judge BURTON concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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