Finding no dramatic change

In United States v. Morton, ACCA on remand from CAAF found no “dramatic change in the penalty landscape” and affirmed the sentence imposed at trial.

On first review ACCA had set-aside two specifications regarding a falsification of a sick-slip under Article 123, UCMJ.  But ACCA then affirmed two specifications thought to be closely related to the dismissed specifications.  CAAF dismissed the two specifications and said that:

By dismissing those specifications, our superior court rang the death knell of the “closely-related offense” doctrine. United States v. Morton, 69 M.J. 12, 13 (C.A.A.F. 2010). Also as part of their decision, our superior court returned the record of trial to The Judge Advocate General for remand to this court for sentence reassessment.

Actually what CAAF said was:

The granted issue tests the continuing vitality, of the so-called "closely related offense" doctrine.  In light of the abiding principle of fair notice to an accused, we hold that this doctrine, as currently relied upon by appellate courts in upholding guilty pleas in the military justice system, is no longer viable.

Here is the link to United States v. Morton, 68 M.J. 12 (C.A.A.F. 2010).

The original ACCA opinion is at United States v. Morton, No. 20060458, 2008 CCA LEXIS 615, at *10-*11 (A. Ct. Crim. App. Sept. 30, 2008)

CAAF agreed with ACCA that changing the information on a sick slip is not an offense under Artilce 123, UCMJ.  The issue was substitution of a false official statement offense under Article 107, UCMJ.

Oooops, here’s what ACCA first said about the charge and the evidence on which the prosecution held an Article 32, UCMJ, investigation, had a legal review, went to trial on, the parties agreed to a guilty plea on, and the military judge accepted.  (Which indicates the relevance of reading this case to trial practice.)

We accept the government concession that appellant’s acts of altering an individual sick slip cannot support her convictions of forgery in violation of Article 123, UCMJ. See United States v. Young, 21 C.M.R. 431, 432 (A.B.R. 1956) [citing to United States v. Strand, 6 U.S.C.M.A. 297; 20 C.M.R. 13 (1955)] (holding that a sick slip has no legal efficacy); United States v. Sher, 21 C.M.R. 371 (A.B.R. 1956) (finding no regulation making a sick slip either binding or enforceable and concluding such an instrument does not give an accused a right to avoid duty); see generally United States v. Abbey, 63 M.J. 631, 634 (C.A.A.F. 2006) (Commenting that “the nature and use of sick slips are basically the same now as when Sher and Young were decided in 1956.”). [n.1]

Young and Sher are in the red books.  Some of us remember the red books as practical research tools now made (apparently) redundant by computer research.  Here’s my LEXIS search term “"sick slip" or siq or "sick in quarters.””  I used SIQ because that’s what the chit and practice is called in the Department of the Navy.  Each of the cases cited by ACCA showed up in some fashion in a list of 22 cases.  The first Morton decision was in September 2008.  In April 2008, ACCA decided United States v. Guilette II, ARMY 20051539, 2008 CCA LEXIS 545 (A. Ct. Crim. App. April 24, 2008).  The appellant in Guilette II was also charged with forging a sick slip while stationed at Fort Sill, OK.  Two different jurisdictions, all the parties were different.  Most odd.

The current Manual for Courts-Martial, para. 48.c.(6), states:

The alteration must effect a material change in the legal tenor of the writing. Thus, an alteration which apparently increases, diminishes, or discharges any obligation is material.

But apparently this doesn’t include the legal obligation to show up for duty?  The Appendix doesn’t have any explanation other than a note that the paragraph is based on para. 202, MCM (1969).  But the new explanation is not duplicative.

The 2003 Benchbook doesn’t address this particular issue and doesn’t reference any caselaw.

Paragraph 202 of the 1969 manual states:

image image

The 1969 Manual doesn’t have the Analysis sections that subsequent manuals have.  So what are we left with?  The 1984 manual is no help.  The analysis from 1984 is that found in the 2008 manual.

I think the bottom line to us all here is a reminder of the need to conduct research into caselaw.  An Article and it’s explanation may seem straightforward on its face but the appellate courts add their interpretation.  In the case of an SIQ chit, the appellate courts are consistent in finding the document doesn’t qualify under Article 123, UCMJ.  In two cases at the trial level it appears everyone got it wrong.

——————————————-

n.1.  Also most odd.  Abbey is correctly cited by ACCA and is available in LEXIS.  However, when I went to link to the opinion on CAAF’s website in the 2006 opinions I could not find Abbey.  The citations stop at 63 M.J. 478 and then take up with 64 M.J. 1.  A search of the CAAF website shows ‘no matches found’ for this case.