          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                            Lieutenant Colonel STEVEN S. MORITA
                                    United States Air Force

                                           ACM 37838 (rem)

                                            7 December 2015

         Sentence adjudged 3 October 2010 by GCM convened at Travis Air Force
         Base, California. Military Judge: David S. Castro.

         Approved Sentence: Dismissal, confinement for 12 months, and fine of
         $75,000.00; in the event the fine is not paid; to be confined for 12 months.

         Appellate Counsel for Appellant: Major Christopher D. James; Major
         Zaven T. Saroyan; Major Nathan A. White; and Matthew A. Siroka
         (civilian counsel).

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Colonel Katherine E. Oler; Lieutenant Colonel C. Taylor Smith; Major
         Jeremy D. Gehman; Major Tyson D. Kindness; Major Rhea A. Lagano;
         Major Charles G. Warren; and Gerald R. Bruce, Esquire.

                                                  Before

                                 ALLRED, HECKER, and TELLER
                                    Appellate Military Judges

                                     OPINION OF THE COURT
                                         UPON REMAND

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



HECKER, Judge:

      A panel of officer members convicted Appellant contrary to his pleas at a general
court-martial of seven specifications of forgery, one specification of larceny of
government money, and one specification of forgery of signatures in connection with
claims, in violation of Articles 123, 121, and 132, UCMJ, 10 U.S.C. §§ 923, 921, 932.
The members sentenced Appellant to a dismissal, confinement for 12 months, a fine of
$75,000, and contingent confinement for an additional 12 months in the event the fine
was not paid. The convening authority approved the sentence as adjudged.

                                Appellant’s Misconduct

        As discussed in detail in this court’s prior decision, Appellant was a reserve
Individual Mobilization Augmentee (IMA) who used his experience and status as the
only reservist in his assigned office, along with his unit’s unfamiliarity with reserve
procedures and failure to exercise vigilance, to take advantage of the lack of oversight
over his actions. From approximately November 2005 to October 2008, Appellant
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. He was ultimately charged with and convicted of forging 510 signatures
or sets of initials on more than 100 documents. The Government also alleged that some
amount of his travel reimbursement amounted to larceny, asserting that some trips for
which he was reimbursed involved personal travel while other reimbursements involved
excess expenses claimed in the course of apparently official travel. Appellant was also
convicted of one specification of larceny covering this time period.

                                Procedural Background

        During the initial review of this court, Appellant argued: (1) all charges and
specifications should be dismissed because the Government failed to prove he was
subject to UCMJ jurisdiction during the charged time frame; (2) the two forgery charges
were multiplicious; and (3) the military judge abused his discretion by allowing a major
change to the larceny charge over defense objection. As a sub-issue to Issue 3, Appellant
alleged the evidence was legally and factually insufficient concerning the conviction of
Charge II and its Specification. On 10 January 2014, this court found Appellant was not
subject to court-martial jurisdiction for some of the charged offenses, and that Charge I
and the Additional Charge were multiplicious. We modified the findings accordingly and
reassessed the sentence, as discussed below. United States v. Morita, 73 M.J. 548, 568
(A.F. Ct. Crim. App. 2014). We also sua sponte granted some sentence relief due to post-
trial delay. Id.

       On 16 March 2015, the Court of Appeals for the Armed Forces affirmed in part
and reversed in part this court’s ruling, as discussed below. United States v. Morita, 74
M.J. 116 (C.A.A.F. 2015). That court then remanded the case to us.




                                            2                             ACM 37838 (rem)
                      Findings and Sentence Following Appellate Review

        During our initial review of this case, we found Appellant was subject to the
UCMJ for his misconduct during ten specific time periods. Based on this jurisdictional
limitation and evidence presented at trial, we found the evidence factually and legally
sufficient to sustain Appellant’s conviction for 159 of the original 510 forgeries. Morita,
73 M.J. at 566. We therefore dismissed two of the forgery specifications and removed
other forgeries from the lists found in the remaining five specifications. We also
dismissed the larceny specification due to insufficient proof that the relevant misconduct
occurred during any of the ten specific time periods. Lastly, we dismissed the charge of
larceny of signatures in connection with claims, finding it multiplicious with the
remaining forgery specifications. Id. We then reassessed the sentence to a dismissal and
three months of confinement, finding this cured any prejudicial effect of the errors in this
case with regard to the sentence. Due to post-trial delay, we further reduced the sentence
to a dismissal. Id.

       Our superior court disagreed with our conclusion that Appellant was subject to
UCMJ jurisdiction for seven of the ten time periods, holding that such jurisdiction only
existed within the time periods covered by lawfully requested and approved orders which
were not forged by Appellant and for which Appellant was actually credited and
compensated.1 Morita, 74 M.J. at 121–22. That court therefore reversed our decision
for the seven time periods covered by forged orders or travel vouchers. Id. at 123–24.
The case was then remanded to us to either conduct a sentence reassessment or order a
sentence rehearing. Id. at 124.

                                       Sentence Reassessment

       As we did during our first review, we have considered the possibility of returning
this case for a sentence rehearing. However, we are again confident we can accurately
reassess Appellant’s sentence.

       This court has “broad discretion” in deciding to reassess a sentence to cure error
and in arriving at the reassessed sentence. United States v. Winckelmann, 73 M.J. 11, 12
(C.A.A.F. 2013). Our superior court has observed that judges of the Courts of Criminal
Appeals can modify sentences “more expeditiously, more intelligently, and more fairly”
than a new court-martial. Id. at 14 (quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957))
(internal quotation marks omitted). Based on the totality of the circumstances in this
case, we again find that we may reassess the sentence, thereby curing any prejudicial
effect of the errors in this case with regard to the sentence. In his brief on remand,
Appellant concurs that we can reassess the sentence, as opposed to ordering a rehearing.

1
 These active duty tours covered 14 November 2005 to 14 March 2006, 1 December 2006 to 30 March 2007, and 1
October 2007 to 28 January 2008. United States v. Morita, 73 M.J. 566, 557–58 (A.F. Ct. Crim. App. 2014).


                                                    3                                    ACM 37838 (rem)
       Despite the jurisdictional and multiplicity issues discussed above, including our
superior court’s decision, Appellant still stands properly convicted of 140 instances of
forgery over an extended period. The larceny charge, the majority of the forgery line
items, and the forgery in connection with claims charge no longer remain, but “the nature
of the remaining offenses capture[s] the gravamen of criminal conduct included within
the original offenses.” Id. at 16. The gravamen of his offenses was that he carried out a
long-term scheme to forge documents that allowed him to travel at Government expense.

       In our previous review, we concluded the remaining 159 line items in the forgery
charge captured the essence of the original charged offenses. We make the same
conclusion regarding the 140 line items that survived our superior court’s review. In
addition, evidence of all the instances of forgery, including those dismissed by our
superior court, could have been introduced to the members in sentencing as evidence of a
continuing course of conduct involving similar actions and misconduct with the same
victim. United States v. Nourse, 55 M.J. 229, 231–32 (C.A.A.F. 2001).

       Our initial action on the jurisdictional issue reduced the maximum sentence to
confinement from 35 years to 20 years, while our action on the multiplicity issue did not
affect the penalty landscape, because the military judge merged this charge with the
forgery charge for sentencing. During our initial review, therefore, we concluded the
penalty landscape had not changed so greatly that we could not determine what sentence
the members would have adjudged. We also found the remaining offenses were the sort
that this court had experience and familiarity with to reliably determine what sentence
would have been imposed at trial by the members. These same conclusions hold true
following our superior court’s review which notably did not change the penalty
landscape.

       Therefore, under the unique facts of this case and considering the totality of the
circumstances before us, we once again find we are able to “determine to [our]
satisfaction that, absent any error, the sentence adjudged would have been of at least a
certain severity.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). It is
inconceivable that members faced with an officer who had committed 140 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 confinement. We therefore
once again reassess the sentence accordingly.

                                     Post-Trial Delay

       This case was originally docketed with this court on 10 February 2011, meaning
nearly three years passed before we rendered our first decision. Although Appellant did
not raise a claim of post-trial delay prior to that decision, we found Appellant was denied
his due process right to a speedy post-trial review and appeal under the standards set forth
in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and the four factors laid out in


                                             4                              ACM 37838 (rem)
Barker v. Wingo, 407 U.S. 514, 530 (1972). Following this analysis, and mindful of our
mandate to consider post-trial delay in approving only so much of the sentence as we
determine is appropriate, see United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), we
elected to cure any prejudicial effects of the post-trial delay and render Appellant’s
sentence appropriate by approving only so much of the sentence as provides for a
dismissal. For the same reasons, we again reach this conclusion.

        We decline to provide any further relief based on the passage of time since our
first decision. Although the Moreno standards continue to apply as a case continues
through the appellate process, the Moreno standard is not violated when each period of
time used for the resolution of legal issues between this court and our superior court is
within the 18-month standard. United States v. Mackie, 72 M.J. 135, 135–36 (C.A.A.F.
2013); see also United States v. Roach, 69 M.J. 17, 22 (C.A.A.F. 2010). The time
between our superior court’s remand which returned the record of trial to our court for
our review and this decision has not exceeded 18 months; therefore, the Moreno
presumption of unreasonable delay is not triggered and we do not examine the remaining
Barker factors. See Mackie, 72 M.J. at 136.

                                      Conclusion

       Concerning Charge I and its specifications, only those instances of forgery that
occurred during the following dates, and for which the Government introduced sufficient
evidence to demonstrate forgery, are affirmed: (1) 14 November 2005–14 March 2006,
(2) 1 December 2006–30 March 2007, and (3) 1 October 2007–28 January 2008.
Therefore, we affirm only the following amended specifications under Charge I:

      Specification 1: In that LIEUTENANT COLONEL STEVEN S. MORITA,
      United States Air Force, 60th Medical Support Squadron, Travis Air Force
      Base, California, did, inside or outside the United States, on divers
      occasions between on or about 9 November 2007 and on or about 28
      December 2007, with intent to defraud, falsely make the signature and
      initials of Lieutenant Colonel [KP] to the following:

       Document           Travel Order      Date            Number of Signatures/Sets
       Type               Number                            of Initials Per Documents

       MFR                TV0144            28 Dec 07       1/0
       MFR                TV0141            13 Dec 07       1/0
       AF IMT 973         TV0140            12 Dec 07       2/1
       MFR                TV0139            9 Nov 07        1/0




                                            5                             ACM 37838 (rem)
        which said signature and initials, would, if genuine, apparently operate to
        the legal harm of another.

        Specification 2: In that LIEUTENANT COLONEL STEVEN S. MORITA,
        United States Air Force, 60th Medical Support Squadron, Travis Air Force
        Base, California, did, inside or outside the United States, on divers
        occasions between on or about 1 December 2006 and on or about 9
        February 2007, and between on or about 9 October 2007 and on or about 20
        January 2008, with intent to defraud, falsely make the signature and initials
        of Lieutenant Colonel [BK] to the following:

          Document                   Travel Order            Date               Number of Signatures/Sets
          Type                       Number                                     of Initials Per Documents

          DD Form 1610               TV0144                  20 Jan 08          2/2
          DD Form 1351               TV0144                  28 Dec 07          2/1
          DD Form 1351               TV0141                  13 Dec 07          2/2
          DD Form 1351               TV0142                  13 Dec 07          2/1
          DD Form 1610               TV0144                  12 Dec 07          2/2
          DD Form 1610               TV0141                  20 Nov 07          2/2
          DD Form 1610               TV0140                  19 Nov 07          2/2
          DD Form 1610               TV0142                  15 Nov 07          2/2
          DD Form 1351               TV0139                  9 Nov 07           2/1
          DD Form 1351               TV0140                  1 Nov 07           2/2
          DD Form 1610               TV0139                  21 Oct 07          2/2
          DD Form 1351               TV0001                  9 Oct 07           2/2
          DD Form 1351               TV0004                  9 Feb 07           2/1
          DD Form 1610               TV0004                  2 Feb 07           2/2
          DD Form 1351               TV0003                  7 Dec 06           2/1
          DD Form 1351               TV0002                  1 Dec 06           2/12

        which said signature and initials, would, if genuine, apparently operate to
        the legal harm of another.

        Specification 3: In that LIEUTENANT COLONEL STEVEN S. MORITA,
        United States Air Force, 60th Medical Support Squadron, Travis Air Force
        Base, California, did, inside or outside the United States, on divers
        occasions between on or about 22 December 2005 and on or about 31

2
   Although this travel voucher covers travel during a time period where Appellant was not subject to court-martial
jurisdiction, it contains the date “1 December 2006” next to Appellant’s signature and forged signature and initials
of his supervisor. We are convinced beyond a reasonable doubt that Appellant forged this document while he was
subject to court-martial jurisdiction on 1 December 2006,


                                                         6                                      ACM 37838 (rem)
January 2006, and between on or about 8 December 2006 and on or about
26 March 2007, with intent to defraud, falsely make the signature and
initials of Major [ME] to the following:

 Document            Travel Order        Date         Number of Signatures/Sets
 Type                Number                           of Initials Per Documents
 DD Form 1351        TV0115              26 Mar 07    2/1
 DD Form 1610        TV0116              20 Mar 07    2/2
 DD Form 1610        TV0115              20 Mar 07    2/2
 DD Form 1351        TV0108              12 Mar 07    2/1
 DD Form 1351        TV0107              8 Mar 07     2/1
 DD Form 1610        TV0108              2 Mar 07     2/2
 DD Form 1610        TV0107              23 Feb 07    2/2
 DD Form 1351        TV0104              14 Dec 06    2/1
 DD Form 1351        TV0103              14 Dec 06    2/1
 DD Form 1610        TV0104              10 Dec 06    2/1
 DD Form 1351        TV0102              8 Dec 06     2/1
 DD Form 1351        TV0101              8 Dec 06     2/1
 DD Form 1351        TV0047              31 Jan 06    2/1
 DD Form 1351        TV0036              22 Dec 05    2/1

which said signature and initials, would, if genuine, apparently operate to
the legal harm of another.

Specification 4: In that LIEUTENANT COLONEL STEVEN S. MORITA,
United States Air Force, 60th Medical Support Squadron, Travis Air Force
Base, California, did, inside or outside the United States, on divers
occasions between on or about 4 January 2007 and on or about 9 February
2007, with intent to defraud, falsely make the signature and initials of
Lieutenant Colonel [JC] to the following:

 Document            Travel Order        Date         Number of Signatures/Sets
 Type                Number                           of Initials Per Documents
 DD Form 1351        TV0111              9 Feb 07     2/1
 DD Form 1351        TV0007              25 Jan 07    2/1
 DD Form 1610        TV0007              19 Jan 07    2/2
 DD Form 1351        TV0006              19 Jan 07    2/1
 DD Form 1610        TV0006              8 Jan 07     2/2
 DD Form 1610        TV0111              4 Jan 07     2/2

which said signature and initials, would, if genuine, apparently operate to
the legal harm of another.


                                     7                             ACM 37838 (rem)
        Specification 5 is set aside and dismissed because neither of the charged instances
of forgery took place while the record reveals Appellant was in Article 2(a), UCMJ,
status.

       Specification 6 [to be renumbered Specification 5 after this court’s set aside
       and dismissal of Specification 5]: In that LIEUTENANT COLONEL
       STEVEN S. MORITA, United States Air Force, 60th Medical Support
       Squadron, Travis Air Force Base, California, did, inside or outside the
       United States, on divers occasions between on or about 10 December 2006
       and on or about 20 March 2007, with intent to defraud, falsely make the
       signature and initials of [JM] to the following:

        Document             Travel Order        Date          Number of Signatures/Sets
        Type                 Number                            of Initials Per Documents
        DD Form 1610         TV0116              20 Mar 07     1/0
        DD Form 1610         TV0115              20 Mar 07     1/0
        DD Form 1610         TV0108              2 Mar 07      1/0
        DD Form 1610         TV0107              23 Feb 07     1/0
        DD Form 1610         TV0004              2 Feb 07      1/0
        DD Form 1610         TV0007              19 Jan 07     1/0
        DD Form 1610         TV0006              8 Jan 07      1/0
        DD Form 1610         TV0111              4 Jan 07      1/0
        DD Form 1610         TV0104              10 Dec 06     1/0

       which said signature and initials, would, if genuine, apparently operate to
       the legal harm of another.

        Specification 7 [to be renumbered Specification 6 after this court’s dismissal of
original Specification 5] is set aside and dismissed because none of the charged instances
of forgery took place while the record reveals Appellant was in Article 2(a), UCMJ,
status.

      The finding of guilty as to Charge II and its Specification is set aside and
dismissed on the grounds that this court is unable to determine whether the court-martial
possessed subject matter jurisdiction over the offenses of which Appellant was convicted.

       The finding of guilty as to the Additional Charge and its Specification is set aside
and dismissed on the grounds of multiplicity.

      As so modified, the findings are correct in law and fact. The court approves only
so much of the sentence as provides for a dismissal. The findings, as modified, and the


                                             8                              ACM 37838 (rem)
sentence, as reassessed and modified, are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c),
UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings, as modified, and the
sentence, as reassessed, are AFFIRMED.



             FOR THE COURT



             LEAH M. CALAHAN
             Clerk of the Court




                                            9                              ACM 37838 (rem)
