United States v. Oliver , 57 M.J. 170 ( 2002 )

UNITED STATES, Appellee
v.
Larry A. OLIVER, Staff Sergeant
U.S. Marine Corps Reserve, Appellant
No. 02-0084
Crim. App. No. 200000659
United States Court of Appeals for the Armed Forces
Argued May 1, 2002
Decided August 22, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant Colonel Dwight H. Sullivan, USMCR
(argued); Commander George F. Reilly, JAGC, USN (on brief).
For Appellee: Commander Paul Jones, JAGC, USNR (argued);
Colonel R. M. Favors, USMC (on brief); Lieutenant Jason A. Lien,
JAGC, USNR.
Military Judge: C. R. Zelnis
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Oliver, No. 02-0084/MC
Chief Judge CRAWFORD delivered the opinion of the Court.
Appellant was tried by a special court-martial composed of
officer and enlisted members and, contrary to his pleas, was
found guilty of three specifications of fraud against the United
States, in violation of Article 132, Uniform Code of Military
Justice (UCMJ), 10 USC § 932. Specification 2 of the Charge
failed to allege that appellant was on active duty at the time
of the offense. The other two specifications alleged appellant
committed the offenses while on active duty. All three
specifications alleged that appellant’s criminal activity
transpired “on or about 29 September 1997.”
The convening authority approved the sentence of a bad-
conduct discharge, confinement for thirty days, and reduction to
E-1. The Navy-Marine Corps Court of Criminal Appeals accepted
the Government’s concession that Specifications 1 and 2 were
multiplicious and dismissed Specification 1, affirmed the
findings of guilty of the remaining two specifications, and upon
reassessment, affirmed the adjudged and approved sentence. 55
M.J. 763, 772 (2001). We granted review of the following issue:
WHETHER, IN A CONTESTED COURT-MARTIAL OF A
RESERVIST, THE GOVERNMENT MUST PROVE
SUFFICIENT FACTS TO ESTABLISH SUBJECT MATTER
JURISDICTION OVER THE ALLEGED OFFENSE.
We hold that appellant was subject to military jurisdiction.
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FACTS
Appellant, a member of the Marine Corps Reserve, had a
total of about 18 years of combined active and reserve service
as of the date of trial. On August 25, 1997, he reported for a
period of active duty at Camp Lejeune, North Carolina. That
duty was to continue until September 27, 1997. Appellant
checked into the Bachelor Enlisted Quarters (BEQ) on August 25
and stayed there until September 7. On September 11, he checked
back into the BEQ and remained there until September 29.
On September 29, 1997, appellant filed a travel claim for
his period of active duty. The Court of Criminal Appeals found
the following with respect to the travel claim:
In doing so, he claimed $1,888.00 for lodging expenses
and attached a supporting receipt indicating that he
stayed at a nearby hotel from 23 August until 11
September. It was apparent that the computer-
generated hotel receipt had been altered by hand in
several significant aspects: the middle initial of the
name of the patron was written as “A,” the month of
arrival was written as “Aug,” the date of departure
was written as “11 Sept,” and the room rate was
written as “1888.00.” Thus, as altered, the receipt
indicated that a Laurence A. Oliver from York, PA
stayed at the hotel from 23 August 1997 until 11
September 1997 and incurred charges totaling
$1,888.00. The receipt was also computer-printed with
this notation: “(DUPLICATE).” Prosecution Exhibit 6,
page 1.
Officials at the disbursing office reviewed the
claim package and notified the Naval Criminal
Investigative Service (NCIS) of these apparent
irregularities. Special Agent Ball was assigned to
the investigation. He testified that during an
interrogation of 28 October 1997, he advised the
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appellant that he was suspected of forgery, false
official statement and fraud, advised him of his
rights and obtained a waiver. During the subsequent
conversation, the appellant admitted that: (1) he was
on active duty, (2) he did not stay at the hotel, (3)
he made the marks on the hotel receipt, and (4) ... he
submitted the travel claim. He also explained that
the marks on the receipt were a mistake. When asked
if he would put that information in writing, the
appellant refused, and asked to speak to a lawyer.
The interrogation ended at that point.
A front desk manager from the hotel testified
that a Lawrence T. Oliver stayed there for three
nights in June 1997 but that, after checking their
records for the last two years, a Larry A. Oliver had
never stayed there. She also testified that hotel
employees don’t normally write on the receipts, but
that if they do, they would always initial that
handwriting. In response to a member’s question, she
added that the hotel does not ask for identification
if somebody requests a copy (or duplicate) of a
receipt. If somebody asks for a receipt copy, one is
provided.
55 M.J. at 765-66.
At the beginning of the trial, the trial counsel
represented to the court that the charges were properly
referred. When the judge asked if appellant had been
“involuntarily extended on active duty,” the trial counsel noted
that appellant was on “medical hold” and would not “be allowed
to terminate his active duty” until the medical problems cleared
up. There was no objection or clarification by the defense.
During his opening statement, the trial counsel asserted that
appellant was “a reservist who had been on active duty
orders....” The defense counsel also admitted in his opening
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statement that appellant was on active duty and “continues on
active duty as a reservist here today.”
Corporal Nichole M. Martin testified that when a reservist
comes on active duty and government quarters and meals are not
provided, he or she is entitled to full per diem. In this case,
appellant was authorized full reimbursement until September 30,
1997.
Unchallenged medical documentation submitted on appeal in
response to appellant’s jurisdictional challenge indicates that
appellant was extended on active duty past September 28, 1997,
for medical observation and treatment, and that this extension
continued well past September 29, 1997.
During his closing argument, the prosecutor argued that
appellant was on active duty at least up until October 28, 1997.
This was not contradicted by any evidence at trial.
DISCUSSION
The Constitution grants to Congress the power
“[t]o make Rules for the Government and
Regulation of the land and naval Forces.” U.S.
Const., Art. I, § 8, cl. 14. Exercising this
authority, Congress has empowered courts-martial
to try servicemen for the crimes proscribed by
the UCMJ[.]
Solorio v. United States, 483 U.S. 435, 438 (1987). Such a
trial requires both in personam and subject matter jurisdiction,
in addition to a properly constituted, see, e.g., United States
v. Schneider, 38 M.J. 387, 393 (CMA 1993), and referred court-
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United States v. Oliver, No. 02-0084/MC
martial. Article 2, UCMJ, 10 USC § 802, addresses subject
matter jurisdiction, and Article 2(a)(1) indicates that
servicemembers such as appellant, who are “lawfully called or
ordered into, or to duty in or for training in, the armed
forces,” are subject to jurisdiction. RCM 204(b)(1), Manual for
Courts-Martial, United States (2000 ed.),∗ provides that a
“reserve component” servicemember who is “on active duty prior
to arraignment” is subject to court-martial jurisdiction.
Appellant’s jurisdictional argument rests on his belief
that his status as an individual subject to court-martial
jurisdiction is an element of Article 132, supra. However, the
beginning language of Article 132 -- “[a]ny person subject to
this chapter” -- does not establish an element of the offense
but, rather, sets forth the baseline for jurisdiction under the
UCMJ common to all offenses. Historically, the Manuals for
Courts-Martial have not treated the “[a]ny person subject to
this chapter” language as an element of the offense. Similarly,
the Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9
(1 April 2001 and 30 Sept. 1996), does not include such an
instruction. This longstanding practice underscores the fact
that Congress set forth the “any person” language as a basic
∗
This provision is identical to the one in effect at the time of appellant’s
court-martial.
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jurisdictional prerequisite, not as an element of a particular
offense or offenses that are not peculiarly military.
Jurisdiction is an interlocutory issue, to be decided by
the military judge, with the burden placed on the Government to
prove jurisdiction by a preponderance of the evidence. See
United States v. McDonagh, 14 M.J. 415, 422, 424 (CMA
1983)(Everett, C.J.; Cook, J., concurring in part); see also
United States v. Laws, 11 M.J. 475, 476-77 (CMA 1981)(Cook, J.;
Everett, C.J., concurring in the result); see also 1 Francis A.
Gilligan and Fredric I. Lederer, Court-Martial Procedure § 2-
52.10 at 85 (2d ed. 1999)(“the government has the burden of
proving jurisdiction on a preponderance basis”).
When appellant challenged the jurisdiction of the court-
martial at the Court of Criminal Appeals, the Government
recognized its burden and filed a Motion to Attach appellant’s
medical records to demonstrate that he was continued on active
duty in a “medical hold” status beyond the expiration of his
active duty orders. Medical hold is a valid reason for
extending the active duty of a reservist, or any servicemember,
and entitles him or her to the full pay and benefits of being on
active duty. See In the Matter of First Lieutenant Larry R.
Hughes, USMCR, 567 Comp.Gen. 451 (1978); Peiffer v. United
States, 96 Ct. Cl. 344 (1942); 10 USC § 1074a(a); DoD Dir.
1241.1, Reserve Components Incapacitation Benefits (Dec. 3,
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United States v. Oliver, No. 02-0084/MC
1992); SECNAVINST 1770.3C, Management and Disposition of
Incapacitation and Incapacitation Benefits for Members of Navy
and Marine Corps Reserve Components (Apr. 3, 2002). The medical
records submitted clearly indicate that appellant was retained
on active duty beyond the expiration of his orders and,
therefore, establish that the court-martial possessed subject
matter jurisdiction over the offense.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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SULLIVAN, Senior Judge (concurring in the result):
Preliminarily, I note that the premise of appellant’s
argument in this case is that his status as a person subject to
the Uniform Code of Military Justice at the time of the offense
was an element of the offense for which he was found guilty. See
United States v. McDonagh, 14 M.J. 415, 422 (CMA 1983) (Everett,
C.J.); United States v. Ornelas, 2 USCMA 96, 6 CMR 96 (1952). No
legal authority has been provided for appellant’s premise, but
instead, it is based on his view of language in Article 132,
UCMJ. His view of this statute is not supported by the
President’s explanation of this offense in paragraph 58, Part IV,
Manual for Courts-Martial, United States (1998 ed.), and
paragraph 211, Manual for Courts-Martial, United States, 1969
(Rev. ed.) and 1951, nor by our case law. See United States v.
Steele, 2 USCMA 379, 9 CMR 9 (1953); United States v. Perry, 45
M.J. 339 (1996); cf. United States v. Prentiss, 256 F.3d 971, 981-
85 (10th Cir. 2001).
With regard to the substance of the jurisdictional issue
before us, my view is that the undisputed facts in the record
decide this case. Trial counsel, defense counsel, and appellant
all clearly indicated on the record that appellant was a
reservist on active duty (by reason of a medical hold) at the
time of the offenses and at the time of the trial. (R. 42, 99,
101, 189, 191-92) Accordingly, this record was sufficient to
United States v. Oliver, No. 02-0084/MC
establish court-martial jurisdiction. See United States v.
Wilson, 53 M.J. 327, 329-30 (2000); United States v. Self, 13 M.J.
132, 135 (CMA 1982); see generally United States v. Meadows, 13
M.J. 165, 168 n.4 (CMA 1982). The post-trial evidence submitted by
the Government, and uncontroverted by appellant, reaffirms this
point.
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