United States v. Lieutenant Colonel ALICE M. ROOSA ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Lieutenant Colonel ALICE M. ROOSA
United States Army, Appellant
ARMY 20100879
Headquarters, Military District of Washington
Denise R. Lind, Military Judge
Colonel Corey L. Bradley, Staff Judge Advocate
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Barbara A. Snow-Martone, JA (on brief); Captain Susrut A.
Carpenter, JA.
For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain T. Campbell Warner, JA (on brief).
30 April 2013
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SUMMARY DISPOSITION
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MARTIN, Judge:
A general court-martial composed of officer members convicted appellant,
contrary to her pleas, of four specifications of false official statement, one
specification of larceny, one specification of submitting a false or fraudulent claim,
and two specifications of conduct unbecoming an officer and a gentlewoman, in
violation of Articles 107, 121, 132, and 133 Uniform Code of Military Justice, 10
U.S.C. §§ 907, 921, 932, 933 (2006) [hereinafter UCMJ]. The panel sentenced
appellant to a dismissal, confinement for thirty days, a fine of $100,000.00, and to
serve additional confinement of thirty days if the fine was not paid. The convening
authority disapproved the additional thirty days of confinement, and otherwise
approved the adjudged sentence.
This case is before our court for review under Article 66, UCMJ. We have
considered the entire record, including the matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), as well as the
three assignments of error, and conclude that one assignment of error warrants
discussion and relief.
ROOSA—ARMY 20100879
BACKGROUND
Appellant, a mobilized reservist, assumed duties at the Army Operations
Center of the Pentagon in 2004, and over the course of the following two years, stole
thousands of dollars from the United States by submitting fraudulent travel vouchers
that reflected inflated lodging expenses. To perpetrate her scheme, appellant
fabricated lease agreements from a fictitious company. In order to make the
company appear legitimate, appellant used the home address of a friend as the
mailing address of the company, and used an unwitting civilian co-worker as a
“manager” of the fake company. Several years later, when Defense Finance and
Accounting Office (DFAS) attempted to recoup the payments, she made false
statements in an attempt to cover up the plan.
Appellant’s actions to collect unauthorized monies she was not entitled to led
to the following charges: two specifications of false official statement for signing
travel vouchers, Dep’t of Def., Form 1351-2, Travel Voucher or Subvoucher (May
2011), and false lease agreements, in violation of Article 107, UCMJ; one
specification of larceny of over $500.00 on divers occasions, in violation of Article
121, UCMJ; one specification of making false and fraudulent claims of over $500.00
to the United States on divers occasions, in violation of Article 132, UCMJ; and one
specification of conduct unbecoming an officer and a gentlewoman, in violation of
Article 133, UCMJ, for using the name, signature, and address of her civilian co-
worker, without her consent.
When DFAS notified appellant of their intent to recoup the payments, she
made false official statements to DFAS, and provided false and misleading
information to her commander, who provided a letter of support urging DFAS to
remit the debt against appellant. Appellant was charged with two specifications of
false official statement for her statements to DFAS, in violation of Article 107,
UCMJ, and an additional specification of conduct unbecoming an officer and a
gentlewoman, in violation of Article 133, UCMJ for providing false and misleading
information to her commander in order to obtain a letter of support for the
remittance action.
Before trial, appellant’s defense counsel moved to dismiss the false and
fraudulent claim charge in violation of Article 132, UCMJ, as being multiplicious
with the Article 133, UCMJ, specification alleging appellant used the name,
signature, and address of her civilian co-worker, without her knowledge or consent.
The military judge, applying the elements test, found the false claim was not a
lesser-included offense of the conduct-unbecoming charge and therefore denied the
motion.
Appellant’s defense counsel also moved for relief based on an unreasonable
multiplication of charges for sentencing. Defense counsel asked that the larceny
charge, the false-claim charge, and the conduct-unbecoming charge relating to the
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ROOSA—ARMY 20100879
use of the co-worker’s personal information, all be merged for sentencing. The
military judge ruled that while several of the charges and specifications were
unreasonably multiplied 1 and adjusted the maximum punishment accordingly, she
ruled the false-official-statement specifications, the larceny charge, and the false-
claim charge should not be merged for sentencing. 2
LAW AND DISCUSSION
Appellate defense counsel now assert that Specifications 1 and 2 of Charge I
(false official statements for the voucher and the lease agreements), Charge II
(larceny), Charge III (false and fraudulent claim), and Specifications 1 and 2 of
Charge IV (conduct unbecoming), constitute an unreasonable multiplication of
charges and urge us to set aside all but the larceny charge. Pursuant to Rule for
Courts–Martial 307(c)(4), “[w]hat is substantially one transaction should not be
made the basis for an unreasonable multiplication of charges against one person.”
This principle is well established in military law. See, e.g., United States v.
Redenius, 4 U.S.C.M.A. 161, 15 C.M.R. 161 (1954). We consider five factors to
determine whether charges have been unreasonably multiplied:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
(2) Is each charge and specification aimed at distinctly
separate criminal acts?;
1
At trial, the military judge found Specification 2 of Charge I and Specification 2 of
Charge IV, were unreasonably multiplied and merged the offenses for purposes of
sentencing. Likewise, she found Specifications 3 and 4 of Charge I, and
Specification 1 of Charge IV were unreasonably multiplied, and merged the offenses
for purposes of sentencing. These rulings reduced the maximum sentence to
confinement from thirty-two years to twenty-five years.
2
In her ruling, the military judge actually used the term “multiplicious for
sentencing.” We note this case was decided before United States v. Campbell, 71
M.J. 19, 23 (C.A.A.F. 2013), where our superior court clarified that “there is only
one form of multiplicity . . . if an offense is multiplicious for sentencing it must
necessarily be multiplicious for findings as well.” Consequently, we will consider
the military judge’s ruling as one finding an unreasonable multiplication of charges
for sentencing.
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ROOSA—ARMY 20100879
(3) Does the number of charges and specifications
misrepresent or exaggerate the appellant's
criminality?;
(4) Does the number of charges and specifications
[unreasonably] increase [the] appellant's punitive
exposure?;
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”).
When we apply the Quiroz factors to the particulars of this case, many of our
determinations are close calls, but factors one, three, four, and five generally favor
the government. Nonetheless, we find the second Quiroz factor to be dispositive in
resolving appellant’s claim. See United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2012) (noting one or more factors may be sufficiently compelling, without
more, to warrant relief). While some of the charges are distinct, not all of them are
aimed at separate criminal acts. Beginning with those offenses that are aimed at
distinct criminal acts, we find appellant’s larceny is separate and distinct from her
false claim, as collecting unauthorized funds from the United States requires a
specific intent to permanently deprive, while “making a false and fraudulent claim is
a specific-knowledge offense.” United States v. Groves, 23 M.J. 374, 375 (C.M.A.
1987). Additionally, the conduct addressed in Charge IV, was distinct from the
conduct alleged in Charges I, II, and III—the first specification of Charge IV went
to appellant’s activities when faced with the DFAS recoupment action and the
second specification focused on appellant’s unauthorized use of her co-worker’s
name, address, and signature. Although the use of her co-worker’s personal
information formed part of the foundation for the false claim, this specification
addressed the separate act of involving an unwitting partner in a criminal enterprise,
and therefore reflects a distinct set of activities. However, we find that two of the
false-official-statement specifications (Specifications 1 and 2 of Charge I) are aimed
at the same criminal acts as those contained in the false-claim charge (Charge III).
These two false official statement charges address the very same fraudulent
documents that were the basis of the false claim. Furthermore, the false-claim
charge expressly references the vouchers which contained those documents in the
language of the specification. Accordingly, we find Specifications 1 and 2 of
Charge I constitute an unreasonable multiplication of charges with the Specification
of Charge III.
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ROOSA—ARMY 20100879
CONCLUSION
The findings of guilty of Specifications 1 and 2 of Charge I are set aside. The
remaining findings of guilty are AFFIRMED. 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 sentence approved by the convening authority is AFFIRMED.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the findings set aside by this decision, are ordered restored. See
UCMJ art. 75(a).
Senior Judge KERN and Judge ALDYKIEWICZ concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH.H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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