United States v. Barbeau

9 M.J. 569
CourtU S Air Force Court of Military Review
DecidedApril 9, 1980
DocketACM S24809
StatusPublished
Cited by19 cases

This text of 9 M.J. 569 (United States v. Barbeau) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barbeau, 9 M.J. 569 (usafctmilrev 1980).

Opinion

DECISION

MAHONEY, Judge:

Tried by special court-martial, military judge alone, the accused was convicted, in accordance with his pleas, of stealing a stereo turntable valued in excess of $100.00, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. The approved sentence extends to a bad conduct discharge, confinement at hard labor for thirty days, and forfeiture of $279.00 per month for two months. The sole issue before us is whether the court-martial properly exercised in personam jurisdiction over the accused. However, before addressing that issue, it is necessary to consider the impact of a defect in the trial procedure.

In conjunction with his motion to dismiss for lack of in personam jurisdiction, defense counsel recited a chronology of events, styled as an “offer of proof,” concerning the accused’s pending administrative discharge, scheduled for the same day that the court-martial charge was preferred against him. Likewise, trial counsel recited information concerning the pretrial events. The record leaves little doubt that counsel for both sides were in accord as to the chronology of events necessary to raise and resolve the jurisdictional issue. Moreover, it appears that the military judge accepted the information recited by counsel as a basis for his findings on the jurisdictional issue.

The statements of counsel indicate that on 18 July 1979 the accused received orders directing his separation from the Air Force, pursuant to Air Force Manual 39-12,1 and on the same day the larceny of which the accused stands convicted was committed. On the morning of 20 July 1979, the accused was questioned by security police concerning the offense, and at 1530 hours that afternoon, prior to receipt of a discharge certificate, administrative processing of the separation was halted when the accused was apprehended for the offense and placed on “administrative hold.” By 1700 hours on the 20th, the accused had been informed of sworn charges and restricted to the base by his commander.

[571]*571While acceptance of these statements of counsel as fact would greatly simplify our disposition of the jurisdictional issue, we are constrained to reject them for the following reasons: First, the recitations by counsel did not qualify as an “offer of proof,” and even if they did, they could not be considered as proof of their contents, United States v. Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960). The Manual for Courts-Martial, 1969 (Rev.), paragraph 154c precludes consideration of an offer of proof as a basis of the military judge’s ruling. Specifically, it provides that an offer of proof is received only (1) from the defense, (2) after the court has ruled excluding testimony or evidence which was offered (3) on behalf of the accused. United States v. Boney, 45 C.M.R. 714 (A.F.C.M.R.1972). The sole purpose of an offer of proof is to preserve the issue by allowing reviewing authorities to assess the extent of prejudice to the accused in the event the trial judge’s exclusionary ruling is later determined to have been erroneous.2 Paragraph 57g of the Manual, supra, does not expand the permissible scope of an offer of proof, but merely cautions as to the circumstances of its presentation in court. United States v. Richardson, 21 U.S.C.M.A. 383, 45 C.M.R. 157 (1972).

Second, pretermitting counsel’s characterization, their recitations fail to otherwise qualify as competent evidence since they amounted to neither testimony nor stipulation. Manual, supra, paragraph 138d and 154b (1). Counsel never indicated they were offering a stipulation of fact; the military judge never characterized their recitations as such; and most importantly, there is no affirmative showing that the accused desired to, or did, enter into a stipulation of fact concerning the events relating to the court’s exercise of in personam jurisdiction over him. As stated in paragraph 154b (1), Manual, supra, a stipulation “should not be received in evidence if any doubt exists as to the accused’s understanding of what is involved.” While there is military precedent which sanctions receipt of stipulations without the accused’s express understanding and consent, United States v. Cambridge, 3 U.S.C.M.A. 377, 12 C.M.R. 133 (1953), the better practice is to elicit on the record the accused’s personal response indicating that he understands the stipulation and that he consents to its admission in evidence. United States v. Carter, 1 U.S.C.M.A. 108, 2 C.M.R. 14 (1952); United States v. Herbert, 13 C.M.R. 353 (A.B.R.1953). Failure to adhere to this practice diminishes the appearance of fairness of the accused’s trial, and may result in post-trial attacks on adequacy of representation by defense counsel. E. g., United States v. Field, 27 C.M.R. 863 (N.B.R.1958).3

Third, even though consideration of uncontested and uncontroverted statements of fact by counsel has been sanctioned as a basis for ruling upon certain interlocutory matters,4 clearly the better practice is for counsel to enter into a stipulation of fact with the accused’s consent. [572]*572Manual, supra, paragraphs 44g(l) and 48d. Statements of counsel, even as officers of the court, if inadmissible hearsay, are incompetent as evidence and may not be considered by the court even in the absence of an objection. Manual, supra, paragraph 139 а. Such statements are particularly inappropriate as a basis for determining the fundamental issue of personal jurisdiction. Once that issue is raised, the government has the burden to establish by competent evidence that the trial court properly exercises in personam jurisdiction over the accused. United States v. Russo, 23 U.S.C.M.A. 511, 513, 50 C.M.R. 650, 652 (1975); United States v. Graham, 22 U.S.C.M.A. 75, 77, 46 C.M.R. 75, 77 (1972); United States v. Buckingham, A.C.M. 22575, 9 M.J. 514 (A.F.C.M.R. 17 March 1980).5

In view of the foregoing, we will disregard the statements of counsel and examine the record to determine whether the issue of in personam jurisdiction is raised, and if so, whether there is sufficient competent evidence in the record to satisfy the government’s burden of proof, or whether a further evidentiary hearing may be appropriate. United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).

The evidence touching upon the jurisdictional issue consists of (1) a duly authenticated Request and Authorization for Separation (AF Form 100), dated 18 July 1979 authorizing the accused’s separation from the Air Force effective 20 July 1979, pursuant to AFM 39-12, supra; (2) the accused’s written confession accomplished at 1005 hours on 20 July 1979; (3) the charge sheet (DD Form 458) which was properly sworn to and received for the officer exercising summary court-martial jurisdiction at 1700 hours on 20 July 1976;6 and (4) the accused’s demand, dated 3 August 1979, for immediate discharge based upon the authorization for separation.

The Request and Authorization for Separation is not itself sufficient to raise the issue of in personam jurisdiction because essential to termination of military “status,” United States v. Hout, 19 U.S.C.M.A. 299, 301, 41 C.M.R. 299, 301 (1970);

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Bluebook (online)
9 M.J. 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barbeau-usafctmilrev-1980.