United States v. Scott

21 M.J. 345, 1986 CMA LEXIS 18810
CourtUnited States Court of Military Appeals
DecidedFebruary 24, 1986
DocketNo. 48202; NMCM 83-4045
StatusPublished
Cited by35 cases

This text of 21 M.J. 345 (United States v. Scott) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Scott, 21 M.J. 345, 1986 CMA LEXIS 18810 (cma 1986).

Opinions

Opinion of the Court

EVERETT, Chief Judge:

A general court-martial consisting of a military judge alone tried appellant on Charge I with three specifications alleging violations of Article 133, Uniform Code of Military, 10 U.S.C. § 933; and on Charge II with five specifications preferred under Ar-tide 134, UCMJ, 10 U.S.C. § 934. Consistent with his pleas, Scott was convicted of three specifications under each charge. The specifications under the two charges are parallel. Thus, specification 1 of Charge I sets forth certain acts which constituted conduct unbecoming an officer and gentleman; and specification 1 of Charge II describes the same acts but alleges that, in committing them, appellant had taken “improper liberties ... with the intent to gratify ... [his] sexual desires.”

The military judge sentenced Scott to dismissal from the Marine Corps, confinement for 18 months, total forfeitures, and loss of all lineal precedence. The convening authority approved the findings and the sentence, except for the confinement; and in a per curiam opinion, the Court of Military Review affirmed. This Court granted review on two issues assigned by appellant and three specified by the Court.1 18 M.J. 10.

I

The three findings of guilty under each charge concern these three incidents involving girls under the age of 16 years: (a) On March 18, 1983, wrongful display to three girls of “a magazine containing material appealing to prurient interest” and wrongful exposure of “his private parts to” them; (b) on March 28, 1983, wrongful exposure of “his private parts to” two other young [347]*347girls; and (c) on April 1,1983, showing two girls “a magazine designed to appeal to the prurient interest, to wit: a pornographic magazine containing pictures of nude women.”

Under the rationale of our precedents, we conclude that each of these incidents could not be enlarged into two separate crimes merely by alleging in one specification that the conduct was unbecoming an officer and in another that it constituted “improper liberties ... with the intent to gratify the sexual desires of the” accused. See, e.g., United States v. Timberlake, 18 M.J. 371 (C.M.A.1984); United States v. Rodriquez, 18 M.J. 363 (C.M.A.1984). The most complete way to solve the multiplicity problem in this case would be to consolidate each pair of parallel specifications into a single specification alleging an Article 133 violation. However, because the Article 134 specifications contain more descriptive allegations as to Scott’s mens rea, the simplest solution is to set aside the convictions under Charge I, dismiss that Charge, and affirm the findings under Charge II. We are satisfied that appellant was not prejudiced as to sentence by this multiplicity.

II

The offenses of March 28 and April 1 occurred at Camp Lejeune, and there is no question about court-martial jurisdiction over them. Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). However, the incident on March 18 took place at Jacksonville, North Carolina; and this Court specified an issue as to the court-martial’s subject-matter jurisdiction.

Of course, at trial appellant pleaded guilty; and, upon inquiry by the military judge, his counsel specifically represented:

I have studied this matter in some detail and it is my professional opinion that based on the attendant circumstances and all the other facts surrounding this case that there is no real subject matter problem. And we certainly don’t raise any kind of issue in that regard.

This concession and the plea of guilty are not conclusive as to subject-matter jurisdiction, but they justify drawing every inference against appellant and in favor of the court’s jurisdiction. United States v. Lockwood, 15 M.J. 1 (C.M.A.1983).

Furthermore, although we have not accepted a theory of “pendent jurisdiction,” the pendency of other related charges for trial by the same court-martial calls into play certain considerations which tend to support jurisdiction. Id. at 7. Here the offenses are closely related with respect to time and place, and are similar in many ways. Indeed, the similarity is so great that evidence of the off-post offense might be admissible to help prove commission of the on-post offenses. See Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1969 (Revised edition). Moreover, as was specifically alleged concerning the off-post offense, “there is a military interest in having all the alleged offenses tried by court-martial at the same time so that they can be disposed of together without delay.”

Other factors relied on by the Government to establish court-martial jurisdiction were these: (1) the on-base and off-base offenses were “parts of the same course of conduct”; (2) “the reputation and morale of the Marine Corps” were “injured”; (3) the two female victims were “daughters of a retired Marine Corps noncommissioned officer”; (4) “Jacksonville, North Carolina, is immediately contiguous to Camp Lejeune”; (5) Scott “committed this offense while he was only briefly away from his place of duty”; and (6) the Marine Corps “has a higher interest in disciplining officer misconduct as alleged than does the civilian sector of society.”

The existence of these circumstances is indeed persuasive as to the presence of service-connection. Moreover, appellate government counsel contend that Scott’s status as an officer established jurisdiction because all officer misconduct is by its very nature service-connected. Under this view, just as offenses committed by servicemembers on post or overseas are al[348]*348ways subject to military jurisdiction, see, e.g., Relford v. Commandant, supra, so also are any misdeeds by an officer — by reason of his commissioned status — always subject to court-martial jurisdiction.

We recognize that officers have a special role in the armed services. This is attested to by the very existence of Article 133, which makes special provision for the punishment of officer misconduct. Moreover, our precedents have acknowledged the unique responsibility of officers. United States v. Means, 10 M.J. 162 (C.M.A.1981). Additionally, because of his position an officer’s misconduct is likely to receive special publicity and thereby to result in injury to the reputation of the service to which he belongs. However, in this case we need not decide whether it would be consistent with O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), to hold that an officer’s misdeeds — no matter where or when they occur — are subject automatically to trial by court-martial because a variety of factors — including his commissioned status — convince us that Scott’s off-post misconduct was service-connected.

Ill

According to the allegations on the charge sheet, Scott took “improper liberties with” two females under 16 years of age “by exposing to them his private parts with the intent to gratify ...

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21 M.J. 345, 1986 CMA LEXIS 18810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scott-cma-1986.