United States v. Solorio

21 M.J. 251, 1986 CMA LEXIS 19308
CourtUnited States Court of Military Appeals
DecidedJanuary 27, 1986
DocketNo. 53603; CGCM Misc. No. 004-85
StatusPublished
Cited by31 cases

This text of 21 M.J. 251 (United States v. Solorio) 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. Solorio, 21 M.J. 251, 1986 CMA LEXIS 19308 (cma 1986).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Yeoman First Class Richard Solorio was charged under Articles 80, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 880, 928, and 934, respectively, with numerous sex offenses involving females under the age of 16, each of whom was the daughter of a Coast Guardsman. Fourteen specifications alleged misconduct occurring at Juneau, Alaska, between March 1982 and June 1984; and seven specifications concerned misconduct at Governors Island during the period from November 20, 1984, to January 5, 1985. In a session under Article 39(a), UCMJ, 10 U.S.C. § 839(a), prior to trial, the defense moved to dismiss all the charges and specifications concerning the alleged offenses committed in Alaska on the grounds that they were not subject to court-martial jurisdiction. See Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971); O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). After receiving evidence and hearing argument, the military judge made findings of fact; and, based on those findings, he granted the motion to dismiss.

The Government appealed from this ruling pursuant to Article 62, UCMJ, 10 U.S.C. § 862, and the Coast Guard Court of Military Review reversed the military judge’s ruling. 21 M.J. 512 (1985). In turn, Solorio petitioned this Court for review and moved for a stay in his trial, which meanwhile had been set for December 3, 1985. A hearing took place on this motion and on the petition, at which time counsel for the parties ably argued their respective contentions as to the court-martial’s jurisdiction over the offenses dismissed by the military judge. We now conclude that the decision of the Court of Military Review was correct, and the Government should be allowed to proceed to trial on the specifications involving alleged misconduct at Juneau, Alaska.

I

At trial, counsel for the parties marshaled all available evidence and presented cogent arguments in support of their respective positions; and the military judge conscientiously made findings of fact as he sought to apply the criteria relevant in determining the issue of service-connection. See Relford v. Commandant, supra. According to these findings, Solorio

was properly absent from his unit at the time of each ... [offense in Juneau].
—Each offense ... occurred away from any military base at the accused’s residence in the civilian community.
—Each offense ... occurred in a place not under military control.
[T]here was no connection between the accused’s military duties and the alleged offenses.
—The victims were not service members and were not involved in military duties or military supported or sponsored activities at the time of any of the alleged offenses.
—Civilian courts are present [in Alaska] and available to adjudicate the offenses. While the State of Alaska has presently deferred prosecution in light of this proceeding, the State has not waived prosecution, nor declined to prosecute.
—Accused was not in uniform and in no way flouted military authority at the time of the alleged offenses.
—None of the alleged offenses posed a threat to any military installation ____ [or] resulted in any violation of military property.
—All the alleged offenses are of the type traditionally prosecuted by civilian courts and are specifically of the type the Coast Guard has recently consented to [253]*253have civilian courts prosecute Coast Guard members for in Alaska.
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There has been no demonstrated impact of the offenses on morale, discipline, the reputation or the integrity of the Coast Guard in Juneau, the personnel assigned there, nor on military operations or missions. The impact apparent in this case, that is, on the parents and the victims themselves is no different than that which would be produced by civilian perpetrator.
* * * ‘M * *
There has been no showing of diminished morale, discipline, or effectiveness within the military community in Juneau, Alaska. As to the effect of the alleged incidents toward the Coast Guard within the civilian community, there has been speculation by military personnel, but little more .... There is no evidence that these alleged offenses were known by anyone in the community to have taken place, outside of law enforcement circles. I find no adverse impact on the reputation of the Coast Guard in Juneau has resulted from these incidents ____ The impact of the alleged offenses, primarily reflected in the testimony of the service member parents of the victims, is that which might be expected of the victim of any crime of a similar nature, and while that impact may manifest itself in the work situation of those members, it does not rise to the level to compel the exercise of court-martial jurisdiction in these circumstances. In this regard, I note the increased caution of the parents victims may now exercise over their children, the requirements for counseling, anxiety, and time away from work for legal proceedings. These concerns would be the same whether the status of the offender were military or civilian. There has been no impact on transfer of military personnel within the meaning of the Personnel Manual provisions which have been taken judicial notice of. There have been transfers of all involved parties without restrictions.

Among supplementary findings subsequently made by the judge were these:

4. Crime has an impact. The impact is felt on the victim and on those close to the victim. It is also reflected in the greater society of which the victim and offender are a part. Impact may be direct or indirect. In this case there is no direct impact on the service. The indirect impact that exists is not sufficient to create service connection. That indirect impact consists of servicemember-parents’ preoccupation with family situation affecting the members’ performance, some initial counseling and referral from persons whose position it is to take such action, and time to participate in proceedings under the U.C.M.J. Good order, discipline, morale and welfare of service-members have not been directly impacted. Service reputation has not been adversely affected and those attributes of service reputation in a community which have been testified about, for example, credit worthiness, job stability for spouses, members’ and families’ access to community activities; would not be negatively impacted if these offenses were to come to light.
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Bluebook (online)
21 M.J. 251, 1986 CMA LEXIS 19308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-solorio-cma-1986.