United States v. Mosley

14 M.J. 852, 1982 CMR LEXIS 816
CourtU.S. Army Court of Military Review
DecidedOctober 29, 1982
DocketCM 442016
StatusPublished
Cited by2 cases

This text of 14 M.J. 852 (United States v. Mosley) is published on Counsel Stack Legal Research, covering U.S. Army 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. Mosley, 14 M.J. 852, 1982 CMR LEXIS 816 (usarmymilrev 1982).

Opinion

OPINION OF THE COURT

BADAMI, Judge:

This case is before us for review pursuant to Articles 66 and 69, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 866 and 869, to determine whether appellant’s court-martial had jurisdiction as the offenses charged were committed prior to his honorable discharge and reenlistment.

On 15 October 1980, a Specialist Four Cleghorn purchased four U.S. postal money orders from Specialist Four Kelly, a postal clerk at the Benjamin Franklin Village (BFV) Post Office in Mannheim, Germany. Specialist Kelly kept the four postal money orders and gave only the receipts to Specialist Cleghorn. Between 15 and 29 October 1980, the appellant, working as a postal clerk also at the BFV Post Office, received one of the money orders, forged the name of “John Maloy” and made other writings on the money order in the amount of $100.00. He then cashed the money order through his own finance window.

The appellant’s initial enlistment in the Army ran from 7 June 1977 until 26 July 1981, during which time the offenses of which he was eventually convicted were committed. The appellant reenlisted on 27 July 1981 in Germany, for a term of three years. Subsequently, on 16 September 1981, the appellant was charged with forgery of a U.S. postal money order and receipt of a stolen U.S. postal money order in violation of Articles 123 and 134, UCMJ, 10 U.S.C. §§ 923 and 934 (1976). Pursuant to his pleas the military judge found the appellant guilty of both charges. A general court-martial, composed of officer and enlisted members sentenced appellant to forfeiture of $100.00 pay per month for six months, and reduction to Private E-l. The convening authority approved the sentence.

Appellant contends that the court-martial lacked jurisdiction over both offenses because they were committed during a prior enlistment and neither survives the twin [854]*854tests of Article 3(a), UCMJ, 10 U.S.C. § 803.1 We agree.

Once a service member is discharged from the armed forces, that discharge operates as a bar to a subsequent trial for offenses occurring prior to discharge, except in those situations expressly saved by Article 3(a), of the Code.2 United States v. Clardy, 13 M.J. 308 (C.M.A.1982). See also United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621 (1949). Article 3(a) is intended to cover cases where the accused reaches the end of his obligated service and re-enlists. See Hearings on H.R. 2498 Before a Subcommittee of the House Committee on Armed Services, 81st Cong., 1st Sess., Index and Legislative History, Uniform Code of Military Justice, pp. 880-83 (1949); United States v. Clardy, supra at 313, n. 19.

Article 3(a), UCMJ, may be invoked to retain jurisdiction provided that the offense committed is “punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States.... ” (Emphasis added.) In the case sub judice, the maximum imposable period of confinement for forgery is five years and for receipt of stolen property one year. Hence, as the receipt of stolen property failed the first part of the bifurcated test of Article 3(a), UCMJ, the court-martial clearly lacked jurisdiction over this offense.

We turn our analysis to the forgery charge and the extraterritoriality of the applicable federal statute, 18 U.S.C. § 500 (1972).3 That statute makes punishable the counterfeiting and forgery of United States postal service money orders. However, there is no express language in the statute providing for, or excluding, extraterritorial application. Without evidence of contrary intent, congressional legislation may generally be presumed to apply only intraterritorially. See American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L. Ed. 826 (1909); United States v. Gladue, 4 M. J. 1 (C.M.A.1977); United States v. Pizzarusso, 388 F.2d 8 (2d Cir.1968), cert. denied 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968). The absence of express language [855]*855giving extraterritorial application to a statute does not necessarily mean that it does not apply. United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922). Rather, the Court must examine the thrust of the statute to determine whether the congressional intent is to protect a governmental rather than private interest. In United States v. Gladue, supra at 5, the Court of Military Appeals analyzed Bowman 4 as distinguishing between classes of criminal statutes:

(1) statutes punishing crimes against the peace and good order of the community (which apply only to acts committed within the territorial jurisdiction of the United States unless Congress had specifically directed otherwise); and
(2) statutes punishing fraud or obstructions against the United States Government (which include by implication acts which were committed in foreign countries).

On its face the primary thrust of 18 U.S.C. § 500 is the protection of the U.S. postal service from various acts of counterfeiting and forgery of postal money orders, especially from acts committed by its employees, United States v. Dupee, 569 F.2d 1061 (9th Cir.1978). The United States Government has an absolute duty to maintain the integrity of the U.S. postal system which includes its postal money orders both within its borders and in foreign countries. Additionally, the Government has to be protected especially from the criminal activities of its agents and officers. Appellant’s position as a postal clerk facilitated his crime and must be considered one of the controlling factors. It is reasonable to assume that Congress was aware that the integrity of the postal system and its money orders would be threatened abroad as well as at home, and it is proper to infer that Congress intended to protect the Government against forgery of these papers wherever the postal system operated. See United States v. Birch, 470 F.2d 808 (4th Cir. 1972).

In an analogous statute concerning the embezzlement and theft of public money, property, or records, 18 U.S.C.

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Bluebook (online)
14 M.J. 852, 1982 CMR LEXIS 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mosley-usarmymilrev-1982.