United States v. Stewart

1 M.J. 750, 1975 CMR LEXIS 672
CourtU S Air Force Court of Military Review
DecidedDecember 5, 1975
DocketACM 21871
StatusPublished
Cited by8 cases

This text of 1 M.J. 750 (United States v. Stewart) is published on Counsel Stack Legal Research, covering U S Air Force 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. Stewart, 1 M.J. 750, 1975 CMR LEXIS 672 (usafctmilrev 1975).

Opinion

DECISION

HERMAN, Judge:

The accused, a United States Air Force Academy cadet, was convicted, consistent with his pleas of guilty, of eleven specifications of larceny and six of forgery, in violation of Articles 121 and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 923, by a military judge sitting as a general court-martial. He was sentenced to dismissal, confinement at hard labor for two years, and total forfeitures; the convening authority approved the sentence and suspended the confinement until 1 July 1976.

Each of the larcenies described in the specifications of Charge I consisted of the taking of a wallet and its contents, or a checkbook indicating the owner by printed name and address. The forgery specifications of Charge II allege the making of checks with intent to defraud; the checks were some of those described in Charge I. All but one of the forgeries were alleged to have been made in the city of Colorado Springs, Colorado (the evidence shows they were made in a car or a supermarket), the other at the United States Air Force Academy. The victims of the larcenies and forgeries were all fellow cadets at the Air Force Academy.

Appellate defense counsel have invited our attention to seven errors asserted on behalf of the accused by trial defense counsel, which are ably argued in his brief. Each error assigned was the subject of a motion prior to the accused’s plea of guilty, or prior to final argument on sentence, as was appropriate. We shall discuss these, as we find the others adequately treated in the post-trial review and properly resolved against the accused, or without merit.

We first consider the claim that the court-martial was without subject-matter jurisdiction over the five forgeries made in Colorado Springs, argued under the principles enunciated in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), and further explained in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). We decide jurisdiction was appropriately exercised under these circumstances.

The requirement for “service-connecting” circumstances to establish a military interest in an offense, instituted in the O’Callahan case, naturally stimulated a great deal of literature and interpretive case law shortly after its announcement. See the citations in Relford v. Commandant, supra, in the notes at pages 356-359, 91 S.Ct. 649. [752]*752Among these early cases, the principle was developed that there is sufficient “service-connection” in the military status of the victim in the off-base offenses of housebreaking and larceny, United States v. Rego, 19 U.S.C.M.A. 9, 41 C.M.R. 9 (1969), regardless of whether the accused knew that his victim was a military member. United States v. Camacho, 19 U.S.C.M.A. 11, 41 C.M.R. 11 (1969). Other cases upheld the exercise of court-martial jurisdiction over an off-base car theft, United States v. Cook, 19 U.S.C.M.A. 13, 41 C.M.R. 13 (1969), and an off-base robbery, United States v. Plamondon, 19 U.S.C.M.A. 22, 41 C.M.R. 22 (1969), on the basis of the victim’s military status.

Where an offense committed on base provides the subject matter for a different, off-base offense, this Court has found sufficient service-connection for the exercise of jurisdiction over the off-base offense. United States v. Rock, 49 C.M.R. 235 (A.F.C.M.R.1974), pet. denied, 23 U.S.C.M.A. 632,-C.M.R.-, 23 Dec. 1974 (off-base destruction of civilian pay telephone stolen from on base); United States v. Brown, 44 C.M.R. 569 (A.F.C.M.R.1971), pet. denied, 44 C.M.R. 939 (1971) (off-base forgery of military paychecks stolen from a mailroom on base, the payees being service members). The United States Army Court of Military Review has taken the same view in similar cases. United States v. Sims, 50 C.M.R. 401 (A.C.M.R.1975); United States v. Snyder, No. 421134 (A.C.M.R. 21 Aug. 1969) cited in Sims, id. at 407.

On the other hand, the United States Court of Military Appeals has held that a court-martial is without jurisdiction to try an off-base violation of the Dyer Act, 18 U.S.C. § 2312, by transporting a known stolen vehicle across state boundaries, although the vehicle had been stolen on an Army post from another serviceman. United States v. Wills, 20 U.S.C.M.A. 8, 42 C.M.R. 200 (1970).1

The early cases concerned with off-base forgeries found adequate service-connection where a military address appeared on the check with the forged indorsement, United States v. Hallahan, 19 U.S.C.M.A. 46, 41 C.M.R. 46 (1969), or where the person cashing the check relied upon the accused’s representation that he was a serviceman, United States v. Morisseau, 19 U.S.C.M.A. 17, 41 C.M.R. 17 (1969). See also United States v. Frazier, 19 U.S.C.M.A. 40, 41 C.M.R. 40 (1969); United States v. Sims, supra. The essential difference between these cases and the present one is that in each of the cases cited, some form of uttering the instrument off-base was charged. This act of offering the instrument to a person or entity off-base necessarily raises a substantial civilian interest in the matter. It is only when the civilian community fails to rely upon the military status of the accused or some other military person or entity identified on the instrument that we can state with assurance that there are insufficient service-connecting circumstances to warrant the exercise of court-martial jurisdiction over the off-base offense. Where, as here, the charge is one solely of making a forged instrument, the locus of the physical act of the false writing becomes irrelevant,2 taking into consideration all of the other military connections: (1) the checks were stolen on base; (2) the victims of the thefts were servicemen; (3) the victims of the false making of the checks were also the same servicemen whose names appeared thereon. Furthermore, in two of the five forgeries herein considered, the drawee bank, Air Academy [753]*753National Bank, was physically located on the military installation, and it could also be considered a potential victim of the forgeries. That the drawer and the drawee bank are victims is founded in the common law definition of forgery, “the fraudulent making or alteration of a writing to the prejudice of another’s rights.” 3 Those who were prejudiced by the making of these checks were the owners whose names appear thereon and whose signatures were falsely made, and the drawee banks which would ultimately suffer the losses.4 Under these circumstances, the fact that the false writing took place off-base pales into insignificance as the military service had the only rational interest in the exercise of jurisdiction over these forgeries.5

Counsel next assert that a proliferation of specifications of larceny and forgery exists beyond the policy guidance set forth in paragraph 3-2, Air Force Manual 111-1 (2 July 1973), Military Justice Guide, which provides:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Albrecht
38 M.J. 627 (U S Air Force Court of Military Review, 1993)
United States v. Falcon
16 M.J. 528 (United States Court of Military Appeals, 1983)
United States v. Brauchler
15 M.J. 755 (U S Air Force Court of Military Review, 1983)
United States v. Lowery
13 M.J. 961 (U S Air Force Court of Military Review, 1982)
United States v. Payne
9 M.J. 681 (U S Air Force Court of Military Review, 1980)
United States v. Sowards
5 M.J. 858 (U S Air Force Court of Military Review, 1978)
United States v. Gillingham
1 M.J. 1193 (U.S. Navy-Marine Corps Court of Military Review, 1976)
United States v. Harvey
2 M.J. 856 (U.S. Army Court of Military Review, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
1 M.J. 750, 1975 CMR LEXIS 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stewart-usafctmilrev-1975.