## UNITED STATES ARMY COUR T 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. Brockingt on, Military Judge Colonel Stephen J. Ber g, Staff Judge Advocate

For Appellant: Captain Megh an M. Poirier, JA (argue d); Colonel Ma rk Tellitocci, JA; Lieutenant Colonel Imogene M. Ja mison, JA; Major Laura R. Kesler, JA; Captain Jennifer A. Parker, JA (on brief); Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene Jamison, JA; Major Rich ard E. Gorini, JA; Captain Meghan M. Poirier, JA (on brief in resp onse 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 Ka therine 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-ma rtial, convicted appellant, contrary to her pleas, of three specifications of conspiracy to commit larceny, one specification of larceny, and si x specifications of forgery, in violat ion of Articles 81, 121, and 123, Unifor m 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 sp ecifications of fraud agains t 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 be fore this court for review under Article 66, UCMJ. She raises two assignments of error asserting that the evidence is legally andJONES-MARSHALL—ARMY 20100649

2 factually insufficient to supp ort her convic tions for forgery and that the military judge committed plain error by failing to treat the larcen y and forgery charges as an unreasonable multiplication of charges. In addition, we specified the issue as to whether the evidence was legally and fa ctually sufficient to support two of appellant’s convictions for conspiracy.

BACKGROUND

Appellant, a mobilized re servist, assumed duties at Fort Jackson, South Carolina in 2005 and, over th e course of the following tw o years, stole over $50,000 from the United States by submitting phony rental receipts and re ntal agreements for
reimbursement she was not authorized. The governmen t charged appellant with
submission of false claims as well as larceny and fals e official statement. The government also charged ap pellant with forgery base d on the falsified lease agreements and rental receipts she made that also served as the basis for the charged larceny and false clai ms. Indeed, under Article 12 3, UCMJ, the government charged appellant with forgery on the theory that th e 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 le ases and receipts at issue concerned purported agreements and tr ansactions 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 char ges of conspiring separately with three different individuals to steal money fro m the United States by submitting fr audulent travel
vouchers in a similar fashion. In relation to the al leged conspiracies, the coconspirator alleged under Sp ecification 1 of Charge I ac tually testified. The government relied entirely up on documentary evidence to prove the two other conspiracies alleged under Specificat ions 2 and 3 of Ch arge I.

LAW AND DISCUSSION

Forgery

Here the government fell into the tr ap set by Article 123 for those who overlook the legal efficacy requirement necessary to pr operly 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). Wh ile forgery in a general sense may simply include false signat ure to a document or the falsification of another document, forgery under the UCMJ includes only those falsified documents that “would, if genuine, apparent ly impose a legal li ability on another or change his legal right or liability to his prejud ice.” UCMJ art. 12 3(1). In order to properly convict a soldier of forgery, the evidence must esta blish that the false do cument alleged mustJONES-MARSHALL—ARMY 20100649

3 itself impose such legal ha rm. The document in questi on and extrinsic facts are
admissible to show whethe r the document in and of its elf possesses this legal efficacy required to su stain 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 implicitl y bear any rela tionship to
the United States whatsoever. Neither the leases nor the receipts themselves create or purport to create a ny 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 KL P and Ms. RN as lessee and lessor, respectively.
Nowhere is the United States mentioned in eith er case and the le ases in question contain nothing that would o ffer any legal right or impos e any legal liability upon the United States. The receip ts purport to reflect rent pa id by individuals in their private capacity to individuals in their private capacity. The receipts neither expressly or by implicatio n involve the United St ates in any sense.

The government argues that when consid ered in light of the Joint Federal Travel Regulation (JFT R), the leases and receipts pe rfect a mobilize d reservist’s right to reimbursement from the United States fo r 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 instru ments perfecting any claim for reimbursement. The JFTR merely a llows reimbursement for rent paid by
mobilized reservists wh ile in a temporary dut y status. Nor do the leases and receipts in this case purport to crea te a right to reimbursement or establish an entitlement to reimbursement. Testimony rend ered by an employee of the Defense Finance and Accounting Service on the subject establishe s 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, addi tional, separate documents, including orders, that
establish a reimbursable stat us, and a travel voucher, ar e 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 th at the alleged re ceipts or leases themselves perfect a right to reimbursement or that those docu ments, 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, th ey cannot as alleged and prosecuted here.JONES-MARSHALL—ARMY 20100649

4 Additional documents in a particular case may constitute extrinsic facts relevant to the questi on of legal efficacy when consid ered in conjunction with the
false document. See Thomas , 25 M.J. at 400–02. Ho wever, those additional
documents must actual ly confer legal effi cacy upon the document itself, define the document as possessi ng legal efficacy itself, or establish that, under the circumstances, legal efficacy inheres in the document alle ged. Additional
documents that illustrate th e alleged false documents as merely preliminary steps toward imposition of legal harm or perfection of a legal right, on th e other hand, do not suffice as proof of forger y. 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 th at are merely preliminary and necessary steps toward perfection of a legal right or imposition of a legal harm ca nnot, as a matter of law, constitute forgeries u nder Article 123, UCMJ, the forger ies in this case must fail. Hopwood , 30 M.J. at 148.

While creation and provision of th e falsified leases and receipts may constitute preliminary steps toward perf ecting a false claim against the United States, in this case, the lease and receipt s themselves neither impose an apparent liability on the United States nor apparently perfect a soldier’s entitlement to
reimbursement for re nts paid. Neither do those doc uments possess that legal efficacy when viewed in conjunction with the JFTR. One who submits falsified rental agreements or receipts for rent, alon e, 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 perf ection 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, UC MJ, does not prevent the government from properly pr osecuting a soldier for dishonest dealings in this respect. Inde ed, this case exemplifie s that fact. Appellant was properly prosecuted for larceny and false claim ba sed on the same facts used to prosecute the forgery
offenses and was ultimately convicte d of larceny. Hopwood , 30 M.J. at 148.

Conspiracy

In response to the issue specified by this court, the appe llant argues and the government concedes that the evidence is factually insuffi cient to support appellant’s conviction for cons piracy under Specifica tion 2 of Charge IV. We agree.
After consideration of the record and the brie fs and arguments of th e parties, we also
maintain reasonable doubts about whether appellant en tered into the agreement necessary to support a conviction under Sp ecification 3 of Char ge IV, as alleged, and find the evidence factually insufficient to supp ort the same. UCMJ art. 66(c).JONES-MARSHALL—ARMY 20100649

5 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 misc onduct charged, are confident that the sentence to dismissal is not inappropriately severe and that a dismissal would be imposed by this court-martial even ab sent charge of the forgery and conspiracy offenses here disapproved. Reassessing th e 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 th e 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 an d Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: