United States v. Barefield

1 M.J. 962, 1976 CMR LEXIS 811

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: June 21, 1976
• Docket: NCM 76 0435
• Status: Published

Opinions

MURRAY, Judge:

Tried to a general court-martial by judge alone, the appellant was convicted, contrary to his pleas, of aggravated assault and was acquitted, in accordance with his pleas, of fraudulent enlistment, in violation respectively, of Articles 128 and 83, Uniform Code of Military Justice, 10 U.S.C. §§ 928, 883. The adjudged sentence to a dishonorable discharge, confinement at hard labor for 15 months, and forfeiture of all pay and allowances was approved by the convening authority without modification or suspension.

The appellant assigns two errors for our consideration.

I.

THE MILITARY JUDGE ERRONEOUSLY DENIED APPELLANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION.

A. IN RULING ON THE MOTION, THE MILITARY JUDGE APPLIED THE WRONG STANDARD AS TO THE GOVERNMENT’S BURDEN OF PROOF.

B. IN VIEW OF HIS FINDING OF NOT GUILTY AS TO THE ADDITIONAL CHARGE OF FRAUDULENT ENLISTMENT, THE MILITARY JUDGE’S RULING ON THE MOTION WAS INCONSISTENT AND CANNOT STAND.

II.

THE STAFF JUDGE ADVOCATE’S REVIEW IS PREJUDICIALLY MISLEADING, INCOMPLETE AND INADEQUATE.

We need not detain ourselves with the issues raised under assignment of error II in light of our disposition of the case under assignment I. Prior to trial, the appellant made a motion to dismiss for lack of jurisdiction. Basically, the appellant contended that the recruiter Master Sergeant L., had instructed the appellant to conceal information which, if revealed, would have prohibited his enlistment and thus, his enlistment would have been void. United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975). The recruiter denied appellant’s allegations. After hearing all of the evidence presented on the motion, the trial judge denied the motion and in doing so, stated:

I have examined all of the evidence offered by both counsel and the citations. I find that the government has carried its burden of the preponderance of the evidence which is the standard I have to apply on the issue, so I deny the motion of the defense. [R. 64].

In my opinion, the trial judge erred as to the burden necessary in such cases. I find the standard to be one related to a constitutional right of an accused to have his case heard in a forum of competent jurisdiction or not at all. Since this is a constitutional right, I consider the standard to be that delineated in my opinion in United States v. Nichols, No. 75 2021 (N.C. M.R. 20 January 1976). In Nichols it was noted that the government’s burden of proof as to jurisdictional issues is a strict one, and I advised:

Since this case reduces itself to which of the oath takers is to be believed, it is incumbent upon us to carefully weigh the standard of conviction of our certitude as to whose sworn statement is to be accepted. That standard imposes on us the mandate that unless we are convinced beyond a reasonable doubt that the appellant falsely testified on the issue, we must find in favor of appellant. We do not have to entertain any reasonable or other doubt as to Chief C.’s assertions, however, for the test is concentrated on the assertions of appellant, and I emphasize that unless we are convinced beyond a reasonable doubt that appellant’s testimony is contrived in its self-serving as-. pects, we must find for him in this conflicting circumstance.

Since I conclude that the trial judge applied the wrong standard as to the quantum of proof necessary to find jurisdiction in this case, I examine as a case of first impression the question in its relationship to the specific facts set forth in the record. In doing so, I am not required to reconcile what is a patent inconsistency between the trial judge’s ruling on jurisdiction and his finding of not guilty in the case of the fraudulent enlistment charge, which finding was predicated on the same factual evidence produced on the motion for dismissal based upon a lack of jurisdiction. While I could not conclude, as the trial judge did, that the appellant’s enlistment was accomplished as a result of his own deception as to his criminal record and other disqualifying background and yet find him not guilty of fraudulent enlistment, I need not address this aspect in detail. This is because I do not share the conviction that the government has met its burden to establish that the appellant actually procured his enlistment by deceiving the recruiter and I am not convinced beyond a reasonable doubt that the appellant falsely testified on the issue. This is not to say that Master Sergeant L. may not be a truth teller, but certitude in this instance does not have to run to Master Sergeant L.’s veracity. Rather it must be concentrated, as I said in Nichols, supra, on the assertions of the appellant. The evidence of record fails to convince beyond a reasonable doubt that the appellant has fabricated his testimony notwithstanding its self-serving posture.

I find a failure of jurisdiction in this instance, and the conviction cannot stand. Accordingly, the findings and sentence are set aside, and the Charge is dismissed.