United States v. Oliver

55 M.J. 763, 2001 WL 1153502
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedSeptember 13, 2001
DocketNMCM 200000659
StatusPublished
Cited by2 cases

This text of 55 M.J. 763 (United States v. Oliver) 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. Oliver, 55 M.J. 763, 2001 WL 1153502 (N.M. 2001).

Opinion

PRICE, Judge:

The appellant was tried on various dates in March, April, and May of 1998, by a special court-martial composed of officer and enlisted members. Contrary to his pleas, he was convicted of making a false claim, presenting a false claim, and using an altered lodging receipt in support of that same claim, in violation of Article 132, Uniform Code of Military Justice, 10 U.S.C. § 932. The approved sentence was confinement for 30 days, reduction to E-l, and a bad-conduct discharge.

We have examined the record of trial, the assignments of error, and the Government’s response. The findings and sentence are correct in law and fact and no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Facts

The appellant is a member of the Marine Corps Reserve, with a total of about 18 years of combined active and reserve service as of the date of trial. On 25 August 1997, he reported for a period of active duty at Camp Lejeune, North Carolina that was to continue until 27 September 1997. On that same day, he checked into the Bachelor Enlisted Quarters (BEQ), where he stayed until 7 September. On 11 September, he checked back into the BEQ and remained there until 29 September.

On 29 September 1997, he filed a travel claim for his period of active duty. In doing so, he claimed $1,888.00 for lodging expenses and attached a supporting receipt indicating that he stayed at a nearby hotel from 23 August until 11 September. It was apparent that the computer-generated hotel receipt had been altered by hand in several significant aspects: the middle initial of the name of the patron was written as “A,” the month of arrival was written as “Aug,” the date of departure was written as “11 Sept,” and the room rate was written as “1888.00.” Thus, as altered, the receipt indicated that a Laurence A. Oliver from York, PA stayed at the hotel from 23 August 1997 until 11 September 1997 and incurred charges totaling $1,888.00. The receipt was also computer-printed with this notation: “(DUPLICATE).” Prosecution Exhibit 6, page 1.

Officials at the disbursing office reviewed the claim package and notified the Naval Criminal Investigative Service (NCIS) of these apparent irregularities. Special Agent Ball was assigned to the investigation. He testified that during an interrogation of 28 October 1997, he advised the appellant that he was suspected of forgery, false official statement and fraud, advised him of his rights and obtained a waiver. During the subsequent conversation, the appellant admitted that: (1) he was on active duty, (2) he did not stay at the hotel, (3) he made the marks on the hotel receipt, and (4) that he submitted the travel claim. He also explained that the marks on the receipt were a mistake. When asked if he would put that information in writing, the appellant refused, and asked to speak to a lawyer. The interrogation ended at that point.

A front desk manager from the hotel testified that a Lawrence T. Oliver stayed there for three nights in June 1997 but that, after checking their records for the last two years, Larry A. Oliver had never stayed there. She also testified that hotel employees don’t normally write on the receipts, but that if they do, they would always initial that handwriting. In response to a member’s ques[766]*766tion, she added that the hotel does not ask for identification if somebody requests a copy (or duplicate) of a receipt. If somebody asks for a receipt copy, one is provided.

Lack of Jurisdiction

The appellant contends that the Government “failed to demonstrate any factual basis for the exercise of subject matter jurisdiction” over the submission of the travel claim in question. Appellant’s Brief of 16 Mar 2001. He explains that, under the terms of the appellant’s orders, his active duty ended on 27 or 28 September 1997, depending on whether one day of travel time is included. Since the evidence consistently established that, as charged, the claim was made and presented, and the receipt submitted, on 29 September 1997, the appellant argues that he was not on active duty on the date of the alleged offenses. He concludes that the alleged false claim was submitted by an individual who, at the time, was not subject to the UCMJ.

The Government responds that an averment of jurisdiction was made by the prosecution, without objection, and that the Government therefore had no obligation to affirmatively prove jurisdiction. It also asserts that various medical documents show that the appellant, in fact, was extended on active duty on 28 September 1997 for medical observation and treatment, and that this extension of active duty continued well past the date of arraignment.1

In the trial counsel’s opening statement, he referred to the appellant as “a reservist who had been on active duty orders,” and said that the evidence would show that the appellant admitted that he “was on active duty.” Record at 99-100. In the opening statement of the trial defense counsel (TDC), we note that he conceded that the appellant was on active duty from 23 August until 27 September 1997 and that “he continues on active duty as a reservist here today.” Record at 101. Notwithstanding these opening statements, we find that the Government did not present any direct and persuasive evidence of personal jurisdiction over the appellant on the charged date of 29 September 1997.

It is black-letter law that, for a court-martial to have jurisdiction in a particular case, the offense(s) charged must be subject to court-martial jurisdiction. Rule for Courts-Martial 201(b)(5), Manual for Courts-Martial, United States (1995 ed.). This is commonly referred to as “subject matter jurisdiction.” To the extent permitted by the Constitution, special courts-martial may try any offense under the Code. Arts. 18, 19, UCMJ, 10 U.S.C. §§ 818, 819; R.C.M. 203; See Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987).

Likewise, it is beyond cavil that a court-martial must also have jurisdiction over the accused service-member. R.C.M. 201(b)(4). This is commonly referred to as “personal” or “in personam” jurisdiction. A court-martial has jurisdiction over all persons subject to the UCMJ. Art. 17(a), UCMJ, 10 U.S.C. § 817(a); R.C.M. 202(a). A reservist is subject to the Code when “lawfully called or ordered into, or to duty in or for training in, the armed forces.” Art. 2(a)(1), UCMJ, 10 U.S.C. § 802(a)(1).

We view the appellant’s initial reference to subject matter jurisdiction as a confused allusion to the actual issue of personal jurisdiction that he ultimately addresses. Any complaint that this court-martial lacks subject matter jurisdiction is totally without merit.

We now turn our attention to the real issue of personal jurisdiction.

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Related

United States v. Oliver
57 M.J. 170 (Court of Appeals for the Armed Forces, 2002)

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Bluebook (online)
55 M.J. 763, 2001 WL 1153502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oliver-nmcca-2001.