United States v. Matthews

15 M.J. 622, 1982 CMR LEXIS 749
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedDecember 28, 1982
DocketNMCM 82 0464
StatusPublished
Cited by4 cases

This text of 15 M.J. 622 (United States v. Matthews) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Matthews, 15 M.J. 622, 1982 CMR LEXIS 749 (usnmcmilrev 1982).

Opinion

MICHAEL, Judge:

Appellant, pursuant to mixed pleas, was convicted at a general court-martial, military judge alone, of five specifications alleging violations of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886; one specification alleging violation of Article 95, UCMJ, 10 U.S.C. § 895; three specifications alleging violations of Article 107, UCMJ, 10 U.S.C. § 907; fourteen specifications alleging violations of Article 123, UCMJ, 10 U.S.C. § 923; forty-four specifications alleging violations of Article 123a, UCMJ, 10 U.S.C. § 923a; and three specifications alleging violations of Article 134, UCMJ, 10 U.S.C. § 934. The military judge sentenced appellant to confinement at hard labor for fifteen months, total forfeitures, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the findings and sentence as adjudged.

Several assignments of error are raised by appellant for consideration by this Court. We will address the errors presented seriatim, with the exception of Assignment of Error IV, which is rendered moot by our decision regarding Assignment of Error I, and Assignments of Error VI, VII, VIII, and IX, which we summarily reject.

I

Appellant asserts in his first assignment of error that the military tribunal that tried him improperly exercised subject-matter jurisdiction over the offense alleged in specification 5 of Charge VII. That specification charged appellant with receipt of stolen money orders in violation of- Article 134, [624]*624UCMJ. It is clear from the record of trial that the stolen money orders were purchased by appellant off-base in the vicinity of Washington Boulevard, Baltimore, Maryland. These money orders were subsequently negotiated on board various military installations in the Washington, D.C., area.

The Supreme Court in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), set forth the requirement that an offense must be “service connected” for a military court to exercise subject-matter jurisdiction over that offense.

[The issue of service connection] turns in major part on gauging the impact of an offense on military discipline and effectiveness, on determining whether the military interest in deterring the offense is distinct from and greater than that of civilian society and on whether the distinct military interest can be vindicated adequately in civilian courts. These are matters of judgment that often will turn on the precise set of facts in which the offense has occurred.

Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 1314, 43 L.Ed.2d 591 (1975); United States v. Trottier, 9 M.J. 337, 343 (C.M.A.1982); United States v. Shea, 14 M.J. 882 (N.M.C.M.R.1982). While the Supreme Court in Schlesinger v. Councilman, supra, “acknowledges a less-restrictive view of the limits of court-martial jurisdiction,” the factors and considerations enumerated in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649,28 L.Ed.2d 102 (1971), remain intact as the analysis to employ in determining whether the criterion of Schlesinger is met. See United States v. Shea, supra.

In analyzing the facts and circumstances of the instant case under the guidelines of Relford v. Commandant, supra, and Schlesinger v. Councilman, supra, we adopt for purposes of analysis the following factors from appellant’s brief:

a) appellant may have been in an unauthorized absence status (no actual date of purchase was ever established);
b) the purchase of the money orders was committed off-base;
c) the purchase was not done at a place under military control;
d) the commission of the offense was within the territorial limits of the United States and [not] in an occupied zone of a foreign country;
e) its commission was in peacetime and had no relation to the war-making powers;
f) the purchase of the money orders was unrelated to the appellant’s military duties;
g) the victim was not in the performance of any military duty;
h) civilian courts were present and open in Baltimore to try this offense;
i) the purchase of the stolen money orders was unrelated to military authority and involved no flouting thereof;
j) the offense may have posed a threat to the security of a military base if the appellant, at the time of the purchase, had intended to cash all of the money orders at various military exchanges;
k) the purchase of the money orders did not involve the violation of any military property;
l) the offense of knowingly purchasing stolen property is one traditionally prosecuted in civilian courts and is not one peculiarly military in nature.1

In our view, considering the above-listed factors under the circumstances of this case, primary jurisdiction to try appellant for receipt of the stolen money orders lies with the civilian community. Here, the victim of the theft (a commercial enterprise) was unrelated to the military, the unknown thief (ves) and seller(s) of the money orders have no established military connection, and the location of the sale was unquestionably outside military jurisdiction. On these facts we believe that the civilian courts have the paramount interest in deterring this type of criminal activity which, other than for appellant’s involvement, had no connection with military authority or the [625]*625performance of military duty. Schlesinger v. Councilman, supra. Furthermore, the receipt of the stolen property, by itself, had no lingering or reflecting-back effect on the military community which impacted negatively on morale, or on the efficient and effective administration of the armed forces, or on mission performance. Compare United States v. Shea, supra, with United States v. Howard, 14 M.J. 988 (N.M.C.M.R.1982). No preconceived design to negotiate the stolen money orders at military facilities was established at trial.

It is evident from the record, however, that appellant did, in fact, make and utter (or caused to be made and uttered) the stolen money orders at military-base facilities using military personnel and identification. These offenses are clearly within the court-martial jurisdiction of the naval service.

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15 M.J. 622, 1982 CMR LEXIS 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-matthews-usnmcmilrev-1982.