United States v. Lee

43 M.J. 794, 1995 CCA LEXIS 366, 1995 WL 790286
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 22, 1995
DocketNMCM 95 00023
StatusPublished
Cited by4 cases

This text of 43 M.J. 794 (United States v. Lee) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lee, 43 M.J. 794, 1995 CCA LEXIS 366, 1995 WL 790286 (N.M. 1995).

Opinion

DeCICCO, Senior Judge:

A general court-martial composed of a military judge alone convicted the appellant in accordance with his guilty pleas of the theft of various military allowances totalling over [794]*794$18,000.00 in violation of Article 121, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 921. The appellant was sentenced to confinement for 18 months, reduction to the lowest enlisted grade, forfeiture of all pay and allowances and a dishonorable discharge. The sentence, as approved by the convening authority, included confinement for 12 months, the reduction in grade, a $5,000.00 fine and a bad-conduct discharge. The appellant raises three issues in this appeal.1 We find no merit in them and affirm.

Facts

Pursuant to the solicitation of his supervisor, the appellant entered into a “marriage of convenience” in Las Vegas in May of 1990 with a Filipino national for the purpose of preventing her deportation from the United States. The appellant received compensation for entering into this marriage. According to plan, both he and his new wife then went their separate ways immediately after the wedding and were divorced about 6 months later.

Not being satisfied with the money he received for the sham marriage and the fraud perpetrated on immigration authorities, the appellant also decided to defraud the Navy. He purchased a blank rental agreement, filled it out and submitted it along with his marriage certificate to military payroll authorities, thereby falsely declaring that he was maintaining a residence in Los Angeles for his wife while he was assigned to duty aboard USS OLDENDORF in San Diego. He never informed payroll authorities of his divorce. Until 30 June 1993, the appellant claimed and was paid Family Separation Allowance [FSA], Basic Allowance for Quarters [BAQ] and Variable Housing Allowance [VHA] to which he was not entitled.

On 7 July 1993, the Naval Criminal Investigative Service [NCIS] opened an investigation into the appellant’s possible BAQ/ VHA/FSA fraud based upon an anonymous tip from a caller who was later identified as the appellant’s ex-girlfriend. This investigation was still in progress when the appellant left his ship on terminal leave on 17 September 1993. His discharge date was 20 October 1993, and his detaching endorsement reflected a separation hour of 1600 on that date. When the appellant left the ship on 17 September, the administrative clerk gave him his orders, the detaching endorsement, and his DD Form 214, which also stated the date of discharge as 20 October. .The appellant did not receive a final accounting of pay.

During the week of 11 October 1993, an NCIS agent informed the appellant’s executive officer of the investigation. The NCIS agent told the executive officer of the appellant’s possible “serious wrongdoing” and requested the appellant’s address and telephone number. On 18 October, the NCIS agent telephoned the appellant, who was still on terminal leave in San Francisco, told him of the investigation, and asked him to return to San Diego for questioning. NCIS briefed the executive officer of these developments. Because he knew he had done something wrong and wanted to deal with it, the appellant drove back to San Diego on his own. He reported to the NCIS office on 20 October and was advised of his rights at 1356. By 1545, NCIS began taking his written confession which the appellant signed at 1750. Following the interview, the appellant returned to his ship, where he was restricted, and appropriate documentation was completed to place him on legal hold beyond his discharge date. NCIS closed its investigation on 21 October 1993. The charge of [795]*795larceny was not preferred until the following February.

The Jurisdiction Issue

Both at trial and now on appeal, the appellant claims that the military had no jurisdiction to try him by court-martial because he had been given his discharge papers, and his discharge became effective at 1600, 20 October 1993, before any apprehension or preferral of charges took place.

The military judge, in denying the motion to dismiss for lack of jurisdiction at trial, made essential findings and conclusions of law. Appellate Ex. IX. His rationale to deny the motion was twofold: that the appellant’s enlistment had been validly extended before the discharge took effect, and that the Government had taken sufficient official action prior to ihe discharge date with a view towards prosecuting the accused to preserve military jurisdiction. He concluded that such action signalled the Government’s intent to “impose its legal processes” upon the appellant.

Rule for Courts-Martial [R.C.M.] 202(c) provides:

(1) In general. Court-martial jurisdiction attaches over a person when action with a view to trial of that person is taken. Once court-martial jurisdiction over a person attaches, such jurisdiction shall continue for all purposes of trial, sentence, and punishment, notwithstanding the expiration of that person’s term of service or other period in which that person was subject to the code or trial by court-martial. When jurisdiction attaches over a service-member on active duty, the service-member may be held on active duty over objection pending disposition of any offense for which held and shall remain subject to the code during the entire period.
(2) Procedure. Actions by which court-martial jurisdiction attaches include: apprehension; imposition of restraint, such as restriction, arrest, or confinement; and preferral of charges.

In United States v. Self, 13 M.J. 132, 137-38 (C.M.A.1982), the Court of Military Appeals, in considering a similar issue under R.C.M. 202(c)’s predecessor, paragraph lid of the 1969 Manual for Courts-Martial, held that investigative actions can fulfill the requirements of the rule even though no charges have been preferred. The Court stated that for military jurisdiction to exist, the investigation must have reached the point where the guilt of a particular suspect is particularly clear and it is likely that he will be prosecuted.

Similarly, this Court, in United States v. Benford, 27 M.J. 518 (N.M.C.M.R.1988), found that an investigator’s advisement to a suspect that he was going to take him to the office to question him about stolen property and his actual transportation to that office were sufficient to show official action with a view towards trial. The Court quoted the Court of Military Appeals in Self for the proposition that the list of examples in paragraph lid were not all-inclusive and that meaningful investigatory steps may suffice:

Any acts of military officials which authoritatively presage a court-martial, when viewed in the light of surrounding circumstances, are surely sufficient under paragraph lid of the Manual for Courts-Martial to authorize retention on active duty for purposes of trial. Even if a trial by court-martial does not eventuate for one reason or another, clairvoyant positiveness has never been required.

27 M.J. at 521, quoting Self, 13 M.J. at 138. See also United States v. Batchelder, 40 M.J. 655 (N.M.C.M.R.), aff'd, 41 M.J. 337 (1994).

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Cite This Page — Counsel Stack

Bluebook (online)
43 M.J. 794, 1995 CCA LEXIS 366, 1995 WL 790286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lee-nmcca-1995.