United States v. Williams

4 M.J. 336, 1978 CMA LEXIS 12160

• Court: United States Court of Military Appeals
• Decided: April 3, 1978
• Docket: No. 34,159; SPCM 12031
• Status: Published

Opinions

Opinion of the Court

PERRY, Judge:

Upon his conviction by a special court-martial of larceny by false pretense, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921, the appellant was sentenced to a bad-conduct discharge, confinement at hard labor for 100 days, forfeiture of $240 pay per month for 4 months, and reduction to the lowest enlisted grade. The convening authority approved the findings and the sentence. The United States Army Court of Military Review has affirmed the findings and so much of the sentence that did not include the punitive discharge. United States v. Williams, 3 M.J. 555 (A.C.M.R.1977). However, we agree with the appellant that the charge must be dismissed, for the court-martial lacked jurisdiction over the offense. 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).

When a fellow serviceman, whom the appellant knew to have been a drug dealer and whom the appellant correctly suspected then was an informant for the Criminal Investigation Division (CID), approached the appellant for some lysergic acid diethylamide (LSD) or some amphetamines, the appellant manufactured some fake “windowpane acid” by cutting squares of clear celluloid and packaging them between strips of cellophane tape. Later, the appellant told the informant that he had purchased some LSD, but that he feared he had been “ripped off.” Upon testing the substance, the informant agreed that it simply was plastic. About two days later, however, the informant approached the appellant and asked whether he still had the counterfeit drug. The appellant responded affirmatively. The informant then suggested that the appellant bring it with him when the two of them went “downtown.” The informant indicated that he had a possible purchaser. Once in town, the exchange occurred outside the informant’s van between the appellant and an undercover criminal investigator, the appellant receiving $85 in exchange for the purported LSD. The appellant was apprehended nearly one month later. The instant conviction for larceny by false pretense ensued.¹

Primarily relying upon United States v. Moore, 1 M.J. 448 (C.M.A. 1976), the Court of Military Review concluded that there was service connection vis-a-vis the charged larceny by trick. Specifically, the court opined that “[t]he factors found determinative of jurisdiction in Moore are equally persuasive here.” United States v. Williams, supra at 557. Moore, as a foundation for this ruling, however, is infirm, for as the court itself recognized, “the appellant’s ability to obtain money from Government sources did not rest, as in the case of a death gratuity [in Moore], on legal entitlement flowing from military status.” Id.

The other basis for the opinion of the Court of Military Review is implicit in the following language of its opinion:²

Moreover, despite the appellant’s argument to the contrary, it is quite clear that the plans and activities leading to the offense occurred in barracks at Fort Carson. Cf. United States v. Hedlund, 25 U.S.C.M.A. 1, 54 C.M.R. 1, 2 M.J. 11 (1976); see also United States v. McCarthy, 25 U.S.C.M.A. 30, 54 C.M.R. 30, 2 M.J. 26 (1976).

The appellant challenges this factual conclusion as not being supported by any evidence of record. However, this need not detain us, for the legal importance of it as the predicate for a conclusion of jurisdiction under the circumstances of this case is de minimis. It must be remembered that the offense under scrutiny is larceny, not conspiracy to commit larceny. See United States v. Hedlund, 2 M.J. 11 (C.M.A. 1976), where this Court found court-martial jurisdiction over a charged conspiracy completed on post (that is, both the agreement and an act in furtherance thereof occurred on the military installation), but ruled that the court-martial lacked subject-matter jurisdiction over the substantive offense which was the object of that conspiracy, which occurred off-post.

In consideration of the 12 criteria and the 9 affirmative considerations discussed in Relford v. Commandant, supra, 401 U.S. at 365 and 367-69, 91 S.Ct. 649, we conclude that the court-martial lacked jurisdiction to try the appellant for larceny by false pretense.³

The decision of the United States Army Court of Military Review is reversed. The findings and the sentence are set aside. The charge is dismissed.

Chief Judge FLETCHER concurs.

1 . The appellant was also charged with attempting to violate Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, by possessing, selling, and transferring a substance that he believed to be LSD. That charge was withdrawn and dismissed after all the evidence had been presented by both sides.

2 . United States v. Williams, 3 M.J. 555, 557 (A.C.M.R. 1977).

3 . This ruling renders unnecessary discussion of the other two issues this Court granted for review.