9th Circuit affirms denial of ex-Army Reserve’s motion to dismiss indictment

The U.S. Court of Appeals for the Ninth Circuit has affirmed the U.S. District Court for the NMI’s denials of a former U.S. Army Reserve member’s motion to dismiss the indictment filed against him.

Circuit Judges Kim McLane Wardlaw and Mark J. Bennett determined that U.S. District Court for the NMI senior judge Alex R. Munson, who presided over the trial of Jordan M. Jucutan, correctly concluded that the criminal indictment against Jucutan was not barred by the five-year statute of limitations.

Wardlaw and Bennett said Munson did not err by concluding that the Wartime Suspension of Limitations Act applied to toll the five-year limitations period.

Circuit Judge Marsha S. Berzon, however, dissented. She said Munson erred in concluding that the Wartime Suspension of Limitations Act applies to the wire fraud and aggravated identity theft charge against Jucutan.

“I disagree with the majority’s conclusion that the government has provided evidence showing that the Army Reserve – Recruiting Assistance Program was “directly connected with or related to “either the Authorization for Use of Military Force Against Iraq Resolution of 2002 or the Authorization for Use of Military Force passed in response to the Sept. 11 attacks,” Berzon said.

On May 26, 2016, a federal jury unanimously found Jucutan guilty of four counts of wire fraud and four counts of aggravated identity theft, in connection with a scheme to defraud the AR-RAP.

Munson sentenced Jucutan to two years and four months in prison.

Jucutan, through counsel David Banes, appealed to the Ninth Circuit.

Jucutan moved for his continued release pending his appeal. Manglona granted the motion. The U.S. government did not oppose Jucutan’s motion for release.

In affirming Munson’s ruling, Ninth Circuit judges Wardlaw and Bennett said the U.S. government demonstrated that the offenses charged were “committed in connection with the…performance…of any contract, subcontract, or purchase order which is…directly connected with or related to the authorized use of the Armed Forces,” satisfying the third prong of the Wartime Suspension of Limitations Act’s offense clause.

Wardlaw and Bennett said Munson correctly found that Document and Packaging Broker Inc., or Docupak, contracted with the Army Reserve to administer its recruiting assistance program, AR-RAP.

Wardlaw and Bennett said the Army Reserve used task orders to request funding for AR-RAP from the National Guard’s “umbrella contract” with Docupak.

Docupak invoiced the Army Reserve for reimbursement pursuant to those task orders.

The judges said the government also demonstrated that the AR-RAP was “directly connected with or related to “the United States’ use of the Armed Forces pursuant to either the Authorization for Use of Military Force Against Iraq Resolution of 2002 or the Authorization for Use of Military Force.

Through AR-RAP, the judges said, the Army Reserve hired more personnel to meet their “end-strength” goals as the global war on terror drew reservists into active operations.

Thus, the judges said, Munson correctly concluded that AR-RAP had a direct connection with or relationship to the use of the Armed Forces pursuant to the AUMF or the AUMFAI to combat international terrorism.