United States v. Booker

5 M.J. 246, 1978 CMA LEXIS 10824

• Court: United States Court of Military Appeals
• Decided: July 17, 1978
• Docket: No. 33,002; NCM 76-1088
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

We granted reconsideration of that part of an earlier opinion which limited summary court-martial subject-matter jurisdiction “solely . . . [to] minor military offenses unknown in the civilian society.” United States v. Booker, 5 M.J. 238, 242 (C.M.A.1977). We now conclude the limitation is not required by the Constitution or by any explication thereof by the United States Supreme Court and is contrary to a valid provision of the Uniform Code of Military Justice. Accordingly, we rescind the ruling and reaffirm that “with the exception of capital crimes, nothing whatever precludes the exercise of summary court-martial jurisdiction over serious offenses” in violation of the Uniform Code of Military Justice. United States v. Moore, 5 U.S.C. M.A. 687, 697, 18 C.M.R. 311, 321 (1955).

Constitutionally, not all offenses in violation of the Code are triable by court-martial. As determined by the United States Supreme Court, a violation of the Code that occurs in the civilian community and is a crime cognizable in an American civilian court is not triable by court-martial unless the circumstances of the offense impart to it a military significance or service connection. Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971); United States v. McCarthy, 2 M.J. 26 (C.M.A.1976). That limitation, however, is not involved here. What is at issue is whether the Constitution prohibits Congress from authorizing, as it has by Article 20, UCMJ, 10 U.S.C. § 820,¹ trial by a summary court-martial of a service-connected offense that would be regarded as serious if tried by a civil court in the civilian community.²

No provision of the Constitution denies to Congress the right to delimit the subject-matter jurisdiction of any military tribunal created by it pursuant to its constitutional authority to “make Rules for the Government and Regulation” of the armed forces. U.S.Const., Art. I, § 8, cl. 14. No case decided by the Supreme Court before Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), commanded any such curtailment of congressional authority. In this Court’s first assessment of the Supreme Court’s action in Middendorf, it perceived “underlying themes” that “mandated” the limitation propounded in Booker.

Middendorf, itself, gave no hint that a constitutional limitation of the kind postulated in Booker inhered in the constitutional doctrines discussed in the case. Both the majority opinion and the principal dissenting opinion acknowledged that, as presently empowered by Congress, a summary court-martial could try any service-connected, noncapital offense in violation of the Code and that approximately 14 per cent of the offenses tried by those courts are nonmilitary in nature.³ Given these acknowledgements, one would suppose that some of the seven justices participating in the opinions would have commented on the matter, had they perceived it as a necessary result of the “themes” of the opinions. The silence of all leads ineluctably to the conclusion that none discerned the Booker limitation. Consequently, neither in text nor in inference, did Middendorf cast doubt on the constitutional power of Congress to allow summary courts-martial, with their limited power of sentence, to try such service-connected offenses as Congress deems appropriate.⁴

To escape the effect of removal of the Booker perceived mandate of Middendorf, we are urged to reaffirm Booker’s precept on the basis of our supervisory authority as the highest court in the military justice system. In McPhail v. United States, 1 M.J. 457, 463 (C.M.A.1976), we held that our supervisory authority comprehended power “to require compliance with applicable law from all courts and persons purporting to act” pursuant to the authority of the Code. To say that this Court has power to compel compliance with the Code from others subject to it does not free the Court from its own duty to comply with lawful provisions of the Code. We, too, cannot disregard a valid directive of Congress because we believe a different course may be wiser. United States v. Ware, 1 M.J. 282 (C.M.A.1976).

That part of the Booker decision is vacated which limits the jurisdiction of a summary court-martial “solely . . . [to] minor military offenses unknown in the civilian society.”

Judge PERRY concurs.

1 . In material part, Article 20, Uniform Code of Military Justice, 10 U.S.C. § 820, provides that ‘summary courts-martial have jurisdiction to try persons subject to [the Code, with specified exceptions] for any noncapital offense made punishable by” the Code. The legislative hearings indicate that Congress was fully informed, and understood, that while a summary court-martial was not likely to have many serious cases referred to it for trial because of its very limited sentence authority, under the language of the article, “a case even of murder” could be tried by it. Hearings on H.R. 2498 Before a Subcomm. of the House Comm, on Armed Services, 81st Cong., 1st Sess., p. 973 (1949).

2 . The Manual for Courts-Martial, United States, 1969 (Revised edition), promulgated by the President, provides for certain restraints on the exercise by a commander of his general authority to refer a charge to a summary court-martial for trial. See Manual, supra, paragraphs 30g and 33h.

3 . 425 U.S. 25, 40, n. 17, 96 S.Ct. 1281, 47 L.Ed.2d 556, 425 U.S. at 57-8 nn. 7 and 8, 96 S.Ct. 1281 (Marshall, J., dissenting); see also 425 U.S. at 50 n. 1, 96 S.Ct. 1281 (Powell, J., concurring).

4 . In a separate opinion in which he was joined by Justice Blackmun, Justice Powell alluded to a difference between offenses that were “petty,” in terms of civilian law, and those that were “serious, civil felonies,” but his comments concerned the right of an accused to counsel, not to the power of Congress to authorize a summary court-martial to try an offense that was serious in civilian as well as military law. 425 U.S. at 50 n. 1, 96 S.Ct. 1281.