United States v. Lazzaro

2 M.J. 76, 1976 CMA LEXIS 6309

• Court: United States Court of Military Appeals
• Decided: December 16, 1976
• Docket: No. 31,691; NCM 75-2870
• Status: Published

Opinion

Opinion of the Court

PER CURIAM:

The appellant was tried by general court-martial at U. S. Fleet Activities Headquarters, Yokosuka, Japan, on August 26, 1975. Pursuant to his pleas, he was convicted of unauthorized absence, conspiracy, larceny, and burglary in connection with the charged theft of Government funds from the Commissioned Officers’ Mess (Open) at the U. S. Fleet Activities, in violation of Articles 86, 81, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 881, 921, and 930. He was sentenced to a bad-conduct discharge, confinement at hard labor for 6 months, and forfeiture of all pay and allowances. The findings and sentence have been affirmed at all prior review levels. This Court granted review of the following issue:

Whether the court-martial lacked jurisdiction over Charge III and its specification [larceny of currency from a commissioned officers’ open mess], considering the possible extraterritoriality of Congressional enactments punishing larceny of government funds and accused’s consequently being subject to trial for his acts in a United States court.

We hold that court-martial jurisdiction over the offense in question was not lacking.

Although the larceny offense at issue occurred in a foreign country, the Government in its brief before this Court appropriately concedes that the automatically jurisdictional “overseas exception” to O’Caliaban ¹ is not applicable to this case, inasmuch as the larceny of the Government funds was in violation of an American civil penal statute² with extraterritorial effect so as to be triable in a United States civil forum. United States v. Black, 1 M.J. 340, 342 (1976).

“Once it is judged that the overseas exception is not present in this case, the inquiry must then advance to the stage of applying the O’Callahan standard and the Relford [Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971)] criteria to determine whether there exists ‘service connection’ so as to vest jurisdiction in the military nonetheless.” United States v. Black, supra, 1 M.J. at 345. The larceny of Government funds from the officers’' club occurred on a military base, and the following language from the Supreme Court’s opinion in Relford thus requires a conclusion of service connection:³

This leads us to hold, and we do so hold, that when a serviceman is charged with an offense committed within or at the geographical boundary of a military post and violative of the security of a person or of property there, that offense may be tried by a court-martial. Expressing it another way: a serviceman’s crime against the person of an individual upon the base or against property on the base, is “service connected,” within the meaning of that requirement as specified in O’Callahan.

Accordingly, the decision of the United States Navy Court of Military Review is affirmed.

1 . The United States Supreme Court held, in O’Callahan v. Parker, 395 U.S. 258, 272, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), that a military court-martial lacked jurisdiction to try a United States serviceperson if the offense in question was not “service connected.”

2 . 18 U.S.C. § 641.

3 . Relford v. Commandant, 401 U.S. 355, 369, 91 S.Ct. 649, 657, 28 L.Ed.2d 102 (1971).