Petition for Writ of Certiorari — James M. Hale, Petitioner v. United States

No. ________

IN THE

Supreme Court of the United States

__________

JAMES M. HALE,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

MAJOR ALLEN S. ABRAMS

Circuit Defense Counsel

Air Force Legal

Operations Agency

United States Air Force

1 Washington Circle

Central Circuit

Joint Base

San Antonio-Randolph,

TX 78150

(202) 631-4827

allen.s.abrams.mil@mail.mil

LIEUTENANT COLONEL

ANTHONY D. ORTIZ

Counsel of Record

Appellate Defense Counsel

Air Force Legal

Operations Agency

United States Air Force

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD

20762

(240) 612-4770

anthony.d.ortiz10.mil@mail.mil

Counsel for Petitioner

QUESTIONS PRESENTED

Judicial deference “‘is at its apogee’ when

reviewing congressional” decisions related to military

discipline. Weiss v. United States, 510 U.S. 163, 177

(1994) (quoting Rostker v. Goldberg, 453 U.S. 57, 70

(1981)).

Congress exercised its constitutional

authority over such matters to narrowly limit courtmartial jurisdiction to try reserve members of the

military. U.S. CONST. art. I, § 8, cl. 14; 10 U.S.C.

§ 802(a).

In this case, the trial judge instructed that a

conviction for attempted larceny could rest on any or

all of three overt acts, two of which fell outside those

jurisdictional limits. The Court of Appeals found no

prejudice because the evidence pertaining to the third

overt act was “sufficient.”

The Questions Presented are:

1. Whether the Court of Appeals erred in relying

on factual sufficiency of the evidence to resolve

a question of plain error, where the alleged

error related to a legal defect in jurisdiction.

2. Whether instructions focusing “on or about” the

charged dates invited a general verdict based

on conduct outside of the court-martial’s

jurisdiction.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................ i

TABLE OF AUTHORITIES ............................................... iii

PETITION FOR A WRIT OF CERTIORARI .......................... 1

OPINIONS BELOW ......................................................... 1

JURISDICTION ............................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................................... 1

STATEMENT OF THE CASE ............................................. 4

A. Procedural History ..................................... 4

B. Factual Background ................................... 6

C. Legal Background ....................................... 9

REASONS FOR GRANTING THE PETITION ..................... 13

I.

This Case Presents an Important

Question About the Impact of

Jurisdictional Bars on

Instructions ......................................... 13

II.

This Case is a Good Vehicle

Crystallizing Issues that Will

Continue to Arise................................. 17

CONCLUSION .............................................................. 19

APPENDIX ................................................................... 1a

United States Court of Appeals

for the Armed Forces, Decision

(Feb. 6, 2019) .............................................. 1a

United States Air Force

Court of Criminal Appeals, Decision

(Jan. 19, 2018) .......................................... 34a

ii

TABLE OF AUTHORITIES

Cases

Allen v. United States,

603 F.3d 423 (8th Cir. 2010) ................................... 4

Brecht v. Abrahamson,

507 U.S. 612 (1993) ............................................... 10

Duncan v. Usher,

23 M.J. 29 (C.M.A. 1986) ................................ 12, 18

EV v. United States,

75 M.J. 331 (C.A.A.F. 2016) ............................ 11, 14

Gilliam v. United States,

80 A.3d 192 (D.C. 2013) ............................ 11, 14, 18

Griffin v. United States,

502 U.S. 46 (1991) ....................................... 9, 10, 16

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) ................................................. 2

Hedgpeth v. Pulido,

555 U.S. 57 (2008) (per curiam) ............................ 10

Kokkonen v. Guardian Life

Ins. Of America,

511 U.S. 375 (1994) ............................................... 12

O'Callahan v. Parker,

395 U.S. 258 (1969) ................................................. 4

Ortiz v. United States,

138 S. Ct. 2165 (2018) ........................................... 12

People v. Giordano,

663 N.E.2d 588 (N.Y. 1995) ...................... 11, 14, 18

Reid v. Covert,

354 U.S. 1 (1957) ................................................... 12

iii

Richardson v. United States,

526 U.S. 813 (1999) ................................................. 9

Robinson v. Shell Oil Company,

519 U.S. 337 (1997) ............................................... 13

Rostker v. Goldberg,

453 U.S. 57 (1981) .............................................. i, 12

Schad v. Arizona,

501 U.S. 624 (1991)

(plurality opinion) ................................................. 10

Skilling v. United States,

561 U.S. 358 (2010) ............................................... 16

Sochor v. Florida,

504 U.S. 527 (1992) ..................................... 9, 14, 17

Solorio v. United States,

483 U.S. 435 (1987) ........................................... 2, 12

Steel Co. v. Citizens for a

Better Environment,

523 U.S. 83 (1998) ..................................... 11, 14, 16

Turner v. United States,

396 U.S. 398 (1970) ................................................. 9

United States v. Andrews,

77 M.J. 393 (C.A.A.F. 2018) ............................ 10, 17

United States v. Denedo,

556 U.S. 904 (2009) ............................................... 11

United States v. Gaudin,

515 U.S. 506 (1995) ......................................... 11, 14

United States v. Hale,

78 M.J. 268 (C.A.A.F. 2019) .................................... 1

iv

United States v. Hale,

77 M.J. 598 (A.F. Ct. Crim.

App. 2018) ................................................................ 1

United States v. Hardy,

46 M.J. 67 (C.A.A.F. 1997) ...................................... 4

United States v. McDonagh,

14 M.J. 415 (C.M.A. 1983) ...................................... 2

United States v. Marcus,

560 U.S. 258 (2010) ............................................... 10

United States v. Morita,

74 M.J. 116 (C.A.A.F. 2015) .................. 2, 12, 13, 17

United States v. Nealy,

71 M.J. 73 (C.A.A.F. 2012) ...................................... 2

United States v. Olano,

507 U.S. 725 (1993) ............................................... 10

United States v. Oliver,

57 M.J. 170 (C.A.A.F. 2002) .................................... 2

United States v. Phillips,

58 M.J. 217 (C.A.A.F. 2003) .................................... 2

United States v. Tunstann,

72 M.J. 191 (C.A.A.F. 2013) ............................ 10, 17

United States v. White,

405 F.3d 208 (4th Cir. 2005) ..................... 11, 17, 18

United States v. Wolpert,

75 M.J. 777 (A. Ct. Crim.

App. 2018) .............................................................. 13

United States v. Verbitskaya,

406 F.3d 1324 (11th Cir. 2005) ............................. 18

Weiss v. United States,

510 U.S. 163 (1994) ...................................... i, 12, 15

v

Yates v. United States,

354 U.S. 298 (1957) ........................................... 9, 16

Constitutional Provisions

U.S. CONST. art. I, § 8, cl. 3....................................... 18

U.S. CONST. art. I, § 8, cl. 14 .............................. i, 1, 12

U.S. CONST. art. I, § 8, cl. 18 ....................................... 1

Statutes, Regulations, and Court Rules

10 U.S.C. § 802 ...................................................... 2, 13

10 U.S.C. § 802(a) .................................................. i, 15

10 U.S.C. § 802(a)(1) ................................... 2, 6, 12, 15

10 U.S.C. § 802(a)(3) ..........................................passim

10 U.S.C. § 859(a) ............................................. 4, 8, 10

10 U.S.C. § 866(b)(1) ................................................... 4

10 U.S.C. § 867(a)(3) ................................................... 5

10 U.S.C. § 880 ........................................................ 3, 4

10 U.S.C. § 907 ............................................................ 4

10 U.S.C. § 921 ........................................................ 3, 4

18 U.S.C. § 1951(a) ................................................... 18

28 U.S.C. § 1259(3) ..................................................... 1

National Defense Authorization Act for

Fiscal Year 2017,

Pub. L. No. 114-328, 130 Stat. 2000

(2016) ................................................................. 3, 17

Air Force Instruction 36-2254V1

Reserve Personnel Participation,

¶ 4.1.1 (May 26, 2010) ........................................... 13

Fed. R. Crim. Pro. 52(b) ............................................ 10

vi

MANUAL FOR COURTS-MARTIAL,

UNITED STATES

pt. IV, ¶ 4.b (2012 ed.) ......................................... 3, 7

Other Authorities

Jessica A. Roth,

The Divisibility of Crime,

64 Duke L.J. Online 95 (2015) .............................. 13

vii

PETITION FOR A WRIT OF CERTIORARI

Lieutenant Colonel James M. Hale, a reserve

member of the U.S. Air Force, respectfully petitions

for a writ of certiorari to review the judgment of the

U.S. Court of Appeals for the Armed Forces.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

78 M.J. 268 (C.A.A.F. 2019). It is reprinted in the

Appendix at Pet. App. 1a-31a. The opinion of the U.S.

Air Force Court of Criminal Appeals is reported at 77

M.J. 598 (A.F. Ct. Crim. App. 2018). It is reprinted in

the Appendix at Pet. App. 32a-64a.

JURISDICTION

The Court of Appeals granted Petitioner’s petition

for review on May 9, 2018, United States v. Hale, 77

M.J. 420 (C.A.A.F. 2018) (mem.), and issued a final

decision on February 6, 2019. This Court therefore

has jurisdiction under 28 U.S.C. § 1259(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Make Rules Clause authorizes Congress “[t]o

make Rules for the Government and Regulation of the

land and naval Forces.” U.S. CONST. art. I, § 8, cl. 14.

The Necessary and Proper Clause grants Congress

the power “[t]o make all laws which shall be necessary

and proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this

Constitution in the Government of the United States,

or in any Department or Officer thereof.” U.S. CONST.

art. I, § 8, cl. 18.

1

Article 2, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 802 (2012), details the “[p]ersons

subject to” military law.

Congress authorized court-martial jurisdiction1

over “[m]embers of a regular component of the armed

forces, including . . . persons lawfully called or ordered

into, or to duty in or for training in, the armed forces

from the dates when they are required by the terms of

the call or order to obey it.” 10 U.S.C. § 802(a)(1)

(2012).

As applicable to Petitioner, Congress also

authorized court-martial jurisdiction over “[m]embers

of a reserve component while on inactive-duty

training.” Article 2(a)(3), UCMJ, 10 U.S.C. § 802(a)(3)

(2012).

Subsequent amendments took effect on

January 1, 2019, and extended jurisdiction, pursuant

to orders or regulations, to (1) servicemembers

This pleading uses the term “court-martial

jurisdiction” because of the split authorities on

whether a military member’s status should be deemed

personal or subject-matter jurisdiction. The operative

statute refers to “[p]ersons subject to” the UCMJ, 10

U.S.C. § 802, and, in this case, the Court of Appeals

used the term “personal jurisdiction.” Pet. App. 2a;

accord. Hamdan v. Rumsfeld, 548 U.S. 557, 575 n.16

(2006); United States v. Nealy, 71 M.J. 73, 75 (C.A.A.F.

2012); United States v. Phillips, 58 M.J. 217, 218

(C.A.A.F. 2003); United States v. McDonagh, 14 M.J.

415, 415 (C.M.A. 1983). Other cases have referred to

subject-matter jurisdiction. Solorio v. United States,

483 U.S. 435, 451 n.18 (1987); United States v. Morita,

74 M.J. 116, 117 n.1 (C.A.A.F. 2015); United States v.

Oliver, 57 M.J. 170, 172 (C.A.A.F. 2002).

1

2

traveling to and from the inactive-duty training site,

(2) intervals between consecutive periods of inactiveduty training on the same day, and (3) intervals

between inactive-duty trainings on consecutive days.

National Defense Authorization Act for Fiscal Year

2017, Pub. L. No. 114-328, §§ 5102, 5542, 130 Stat.

2000, 2921 (2016).

Through Article 80, UCMJ, Congress proscribed

the offense of attempt. 10 U.S.C. § 880 (2012). The

four elements of attempt are:

(1) That the accused did a certain overt

act;

(2) That the act was done with the

specific intent to commit a certain

offense under the code;

(3) That the act amounted to more than

mere preparation; and

(4) That the act apparently tended to

effect the commission of the intended

offense.

MANUAL FOR COURTS-MARTIAL, UNITED STATES, pt. IV,

¶ 4.b (2012 ed.).

Congress codified the offense of larceny under the

UCMJ in 10 U.S.C. § 921 (2012). The offense occurs

when a person subject to court-martial jurisdiction

“wrongfully takes, obtains, or withholds, by any

means, from the possession of the owner or of any

other person” property “with intent permanently to

deprive or defraud another person of the use and

benefit of property or to appropriate it to his own use.”

Id. at § 921(a).

3

On appeal, “[a] finding or sentence of court-martial

may not be held incorrect on the ground of an error of

law unless the error materially prejudices the

substantial rights of the accused.” 10 U.S.C. § 859(a)

(2012).

STATEMENT OF THE CASE

A. Procedural History

Petitioner, a Lieutenant Colonel in the Air Force

Reserve, was tried by a general court-martial

composed of officer court members.2 Pet. App. 2a.

Contrary to his pleas, Petitioner was convicted of four

allegations of attempted larceny of military property,

one allegation of making a false official statement, and

three allegations of larceny of military property, in

violation of Articles 80, 107, and 121 of the UCMJ, 10

U.S.C. §§ 880, 907, 921. Id. Only one of those

convictions, for attempted larceny on or about

November 19, 2013, is the subject of the Questions

Presented.

Because Petitioner’s sentence included a

dismissal, the Judge Advocate General referred the

case to the Air Force Court of Criminal Appeals

(AFCCA). Id.; 10 U.S.C. § 866(b)(1) (2012). Petitioner

raised five claims in his appeal to the AFCCA.

Relevant to this appeal, Petitioner argued to the

Though not the same, a court-martial panel

composed of court members functions like a civilian

jury in those respects relevant to the Questions

Presented. O’Callahan v. Parker, 395 U.S. 258, 26364 (1969); United States v. Hardy, 46 M.J. 67, 73

(C.A.A.F. 1997); Allen v. United States, 603 F.3d 423,

426 (8th Cir. 2010).

2

4

AFCCA that his court-martial lacked jurisdiction for

some of the convictions because certain acts took place

when he was not in a military status, and that the

military judge’s instructions asking the court-martial

panel to base its findings on conduct “on or about” the

charged dates constituted plain and materially

prejudicial error by inviting the court members to

convict Petitioner for conduct that occurred when he

was not in a military status.3 Pet. App. 34a.

Agreeing with some of Petitioner’s jurisdictional

assertions, a three-judge AFCCA panel granted relief

in part. Pet. App. 33a-34a. The AFCCA panel

modified two of the findings, affirmed the findings as

modified, reassessed the sentence to that adjudged at

trial, and affirmed the sentence. Pet. App. 63a.

The Court of Appeals granted review, 10 U.S.C.

§ 867(a)(3) (2012), of the AFCCA’s decision and heard

argument about whether the court-martial had

jurisdiction to try Petitioner for two of the alleged

offenses and whether the “on or about” instructions

constituted plain error. Pet. App. 3a n.2.

After full briefing and oral argument on the merits

of Petitioner’s challenges, the Court of Appeals

divided in part and issued an opinion affirming the

AFCCA’s decision. Pet. App. 1a-31a.

Before the AFCCA, Petitioner also raised claims

relating to the admission of two exhibits, as well as

the factual and legal sufficiency of his convictions.

Pet. App. 34a. Those claims are not at issue here.

3

5

B. Factual Background

The charges stemmed from reimbursement for

lodging obtained when Petitioner stayed with his inlaws during seven separate periods of reserve duty

performed across 2011 and 2013. Pet. App. 9a. Each

taking involved “multiple steps . . . through travel

vouchers, duty orders, checks, bank statements, etc.”

Pet. App. 17a.

The prosecution’s charging scheme purported to

distinguish charging Petitioner with completed

larceny and attempted larceny based on whether

Petitioner was subject to court-martial jurisdiction

throughout the duration of the taking at issue. Tr.

847.

Attuned to the issue of jurisdiction, the trial judge

gave instructions that implicated court-martial

jurisdiction at three pertinent junctures.

First, ignoring the statutory distinction between

jurisdiction grounded in “active duty” under 10 U.S.C.

§ 802(a)(1) versus “inactive-duty training” under 10

U.S.C. § 802(a)(3), the trial judge provided an

instruction applicable to all offenses advising that

jurisdictional matters were already settled:

You

have

heard

evidence

that

[Petitioner] was not on active duty when

certain vouchers were paid. I have

previously found that the Government

has established that this court-martial

has jurisdiction to try [Petitioner] for the

charged offenses.

In considering

whether [Petitioner] was on active duty,

you are not to consider that information

for whether this court-martial has

6

jurisdiction to try [Petitioner] for the

charged offenses.

Tr. 822-23.

Second, the trial judge instructed the court

members that a conviction required them to find the

charged misconduct occurred “on or about” and

“between on or about . . . and on or about” the dates

set out in the allegations. Tr. 781, 784, 786, 789, 790,

794, 795, 799, 800, 803, 805, 807, 809, 812.

Third, as raised here, the instructions for the

November 19, 2013, attempted larceny advised that

any of three actions could satisfy the first element

requiring an overt act.

MANUAL FOR COURTSMARTIAL, UNITED STATES, pt. IV, ¶ 4.b (2012 ed.). The

three actions were that (1) Petitioner stayed at the

private residence of his in-laws, (2) wrote a check to

his father-in-law, “and/or” (3) created a lodging

receipt. Tr. 809-10; see also Pet. App. 22a-23a

(Ohlson, J. dissenting in part). The instructions went

on that “the acts” could then evince the requisite

specific intent and substantial step towards the

intended offense. Id.

Addressing the allegation that Petitioner

attempted larceny on or about November 19, 2013, the

prosecution argued the court-martial panel should

convict based on all three overt acts about which the

trial judge instructed. Tr. 849.

During the relevant timeframe, Petitioner worked

two four-hour inactive-duty training blocks on

November 4 through 8, November 12 through 15, and

November 18 through 19, 2013, with a single fourhour inactive-duty training block on the morning of

November 20, 2013. Pet. App. 10a. The timing of this

7

work proved important during the consideration of

this conviction in the appellate courts below.

As settled during the course of the appeal, the

prosecution could not prove court-martial jurisdiction

over two of the three overt acts about which the trial

judge instructed—the check to Petitioner’s father-inlaw and the lodging receipt—because of a dearth of

absence these acts occurred during a block of inactiveduty training. Pet. App. 10a, 27a-28a (Ohlson, J.,

dissenting in part), 45a; see also infra p. 13. Before

the Court of Appeals, the government’s brief appeared

even to concede that conclusion, and was followed by

a concession at oral argument that the act of staying

at the in-laws’ residence was insufficient to constitute

an attempt without more. Pet. App. 27a, 29a n.4

(Ohlson, J., dissenting in part).

Trial defense counsel had objected to jurisdiction

over the November 19, 2013, attempted larceny, but

not to the instructions.4 Appellate Ex. XXIV; Pet. App.

16a. Evaluating for plain error and deciding the case

on the absence of material prejudice to a substantial

right, see 10 U.S.C. § 859(a), the Court of Appeals

played down the jurisdictional flaws embedded in the

“on or about” instruction. Pet. App. 16a-19a. The

Court of Appeals did so because “the charges here

In relevant part, the trial judge found courtmartial jurisdiction for this offense by interpreting 10

U.S.C. § 802(a)(3) as establishing jurisdiction for the

entire day, a construction that was uniformly rejected

on appeal. Compare Appellate Ex. XXIV ¶ 15, with

Pet. App. 11a, 44a-45a n.4. Court-martial jurisdiction

over this offense was one of the issues considered by

the Court of Appeals. Pet. App. 3a n.2, 10a-14a.

4

8

involved concrete acts occurring on concrete dates,”

resulting in “no reason to suspect the members did not

adhere to the admitted evidence when reaching their

verdict.” Pet. App. 18a.

Ultimately, the Court of Appeals found a lack of

prejudice because the sole jurisdictionally viable overt

act was “sufficient.” Id. “Nothing in [Petitioner]’s

argument or in the record suggests that members

considered other, impermissible evidence” beyond the

overt act of Petitioner staying with his in-laws

combined with other circumstantial evidence

demonstrating his intent. Id.

C. Legal Background

In Griffin v. United States, 502 U.S. 46, 59 (1991),

this Court “establishe[d] a clear line” rendering

convictions invalid when jurors “have been left the

option of relying upon a legally inadequate theory.”

The Griffin Court “reasoned that although a jury

is unlikely to disregard a theory flawed in law, it is

indeed likely to disregard an option simply

unsupported by the evidence.” Sochor v. Florida, 504

U.S. 527, 538 (1992) (citing Griffin, 502 U.S. at 59-60

(distinguishing Turner v. United States, 396 U.S. 398

(1970), from Yates v. United States, 354 U.S. 298

(1957))). But the focus for jurors is whether the

codified elements of the charged offense are met by

sufficient evidence, not unanimous agreement on

“which of several possible means the defendant used

to commit an element of the crime.” Richardson v.

United States, 526 U.S. 813, 817 (1999).

To avoid the risk of a conviction that may be based

on a legally infirm theory of liability, “it would

generally be preferable for the court to give an

9

instruction removing that theory from the jury’s

consideration.” Griffin, 502 U.S. at 60. Heightened

specificity in jury verdicts when dealing with multiple

means of committing an offense is also advisable,

albeit not constitutionally required. Schad v. Arizona,

501 U.S. 624, 645 (1991) (plurality opinion).

Erroneous instructions that permit a conviction on

a legally impermissible theory are tested for “whether

the flaw in instructions ‘had substantial and injurious

effect or influence in determining the jury’s verdict.’”

Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per

curiam) (quoting Brecht v. Abrahamson, 507 U.S. 612,

623 (1993)). In the absence of an objection to such

instructions, the instructions are tested for plain

error. United States v. Marcus, 560 U.S. 258, 266

(2010).

Drawing on Federal Rule of Criminal Procedure

52(b), this Court’s test for plain error ordinarily asks

whether (1) there is error, (2) the error is plain, (3) the

error affected the defendant’s substantial rights, and

(4) the error implicates the fairness, integrity, or

public reputation of judicial proceedings. United

States v. Olano, 507 U.S. 725, 732 (1993). In light of

legislation unique to military jurisprudence, a

modified approach to Olano for courts-martial based

on 10 U.S.C. § 859(a) considers whether (1) there was

error, (2) it was plain or obvious, and (3) the error

materially prejudiced a substantial right of the

defendant. United States v. Tunstann, 72 M.J. 191,

196 n.7 (C.A.A.F. 2013).

In certain instances of plain error, prejudice should

be presumed. Olano, 507 U.S. at 739. Although a

settled test to discern when prejudice should be

presumed is lacking, determining the type of error

10

involved and, in turn, the right affected bears

consideration in the circuit courts of appeals. See

United States v. White, 405 F.3d 208, 218 (4th Cir.

2005) (distinguishing approaches used to assess

whether to presume prejudice); see also United States

v. Andrews, 77 M.J. 393, 402 (C.A.A.F. 2018) (“Before

determining whether Appellant was prejudiced, we

must ask whether [the prosecutor]’s arguments

amounted to plain or obvious error—or whether they

were improper arguments—in the first place.”).

Instructions involving the consideration of alleged

acts outside of a court’s jurisdiction have resulted in

concerns that the prohibition on a conviction grounded

in a legally infirm theory would be violated. See

Gilliam v. United States, 80 A.3d 192, 209-10 (D.C.

2013) (explaining the proper instruction on remand

about conduct in Maryland related to a conspiracy to

commit murder allegedly committed in the District of

Columbia); cf. People v. Giordano, 663 N.E.2d 588,

594-95 (N.Y. 1995) (treating geographical jurisdiction

as a factual determination).

Jurisdiction to hear a case is a question of law to

be determined by the court, not the fact-finder. See

Steel Co. v. Citizens for a Better Environment, 523 U.S.

83, 94-95 (1998); EV v. United States, 75 M.J. 331, 333

(C.A.A.F. 2016); but cf. United States v. Gaudin, 515

U.S. 506, 512-13 (1995) (recognizing jurors in criminal

cases regularly resolve mixed questions of law and

fact).

The prosecution bears the burden of

establishing jurisdiction. See United States v. Denedo,

556 U.S. 904, 909 (2009).

In the court-martial context, the touchstone of

jurisdiction has long been the status of the accused as

a military member. Military status was the focus in

11

“an unbroken line of cases from 1866 until 1960” and

was entrenched as the central determination by this

Court in 1987. Solorio v. United States, 483 U.S. 435,

439, 450 (1987) (citations omitted). As this Court

succinctly reiterated last term, “Military courts . . .

exercise power over discrete individuals—i.e.,

members of the armed forces.” Ortiz v. United States,

138 S. Ct. 2165, 2179 (2018).

Court-martial jurisdiction cannot extend to

individuals beyond the “land and naval Forces,” U.S.

CONST. art. I, § 8, cl. 14, because “[u]nder the grand

design of the Constitution civilian courts are the

normal repositories of power to try persons charged

with crimes against the United States.” Reid v.

Covert, 354 U.S. 1, 20-21 (1957); see also Kokkonen v.

Guardian Life Ins. Of America, 511 U.S. 375, 377

(1994) (citing the presumption against federal subjectmatter jurisdiction). However, judicial deference “‘is

at its apogee’ when reviewing congressional

decisionmaking” related to military discipline. Weiss

v. United States, 510 U.S. 163, 177 (1994) (quoting

Rostker v. Goldberg, 453 U.S. 57, 70 (1981)).

Congress exercised its discretion in this area by

limiting the bounds of court-martial jurisdiction

applicable to reserve members of the Armed Forces.

United States v. Morita, 74 M.J. 116, 120 (C.A.A.F.

2015). Relevant to this appeal, one basis is when the

reservist is lawfully called or ordered to active duty.

10 U.S.C. § 802(a)(1). “[T]he [UCMJ] makes no

provision for jurisdiction over someone who is

‘essentially’ on active duty. . . . [A]ctive duty is an allor-nothing condition.” Duncan v. Usher, 23 M.J. 29,

34 (C.M.A. 1986).

12

The other relevant basis limits court-martial

jurisdiction to a reserve member “while on inactiveduty training.” 10 U.S.C. § 802(a)(3). The governing

regulation in Petitioner’s case defined inactive-duty

training as a block of time: a “four-hour period of

training, duty or instruction.” Air Force Instruction

36-2254V1, Reserve Personnel Participation, ¶ 4.1.1

(May 26, 2010). Though not fully clarified until this

appeal, this statute means what its plain language

says, limiting court-martial jurisdiction to that block

of inactive-duty training. Pet. App. 11a; Morita, 74

M.J. at 120 (citing Robinson v. Shell Oil Company, 519

U.S. 337, 340 (1997)); see also United States v.

Wolpert, 75 M.J. 777, 778 (A. Ct. Crim. App. 2018)

(finding no jurisdiction between periods of inactiveduty training).

This Court has yet to apply the rule applicable to

verdicts grounded in a legally flawed theory to a case

where instructions cross jurisdictional lines. This

Petition raises the legality of such instructions

through the lens of the limited view of court-martial

jurisdiction mandated by the Constitution and by

Congress through 10 U.S.C. § 802. Moreover, when

such instructions are not the subject of an objection at

trial, this Petition raises the appropriate framework

for applying plain-error review.

REASONS FOR GRANTING THE PETITION

I.

This Case Presents an Important Question

About the Impact of Jurisdictional Bars

on Instructions.

Determining whether a conviction rests on a

legally flawed theory has proven difficult to discern.

Jessica A. Roth, The Divisibility of Crime, 64 Duke

13

L.J. Online 95, 109-11 (2015). The instructions in this

case exacerbated that quandary and illustrate that

clarification is warranted to convey to trial judges the

precision required in their instructions.

The Court of Appeals’ resolution of the challenge to

the trial judge’s “on or about” instruction

demonstrates the importance of the Questions

Presented because the Court of Appeals in effect

treated what is customarily a question of law—

jurisdiction—as a matter of factual sufficiency of the

evidence. See Steel Co., 523 U.S. at 94-95; EV, 75 M.J.

at 333.

Depending on the allegation at issue,

jurisdiction-related aspects of the case, such as

geographic location, may serve as factual elements

that must be proved beyond a reasonable doubt. See

Gilliam, 80 A.3d at 209-10; Giordano, 663 N.E.2d at

594-95; accord. Gaudin, 515 U.S. at 512-13. As such,

this case presents an avenue to draw the line between

when jurisdictional matters addressed in instructions

should be treated as the source of a legal flaw as

opposed to merely the sufficiency of the evidence.

That line should be drawn based on a simple

metric: whether the trial judge’s instructions correctly

addressed jurisdiction. If jurors have been instructed

on jurisdiction correctly, then all that is left for them

to do is apply the facts to the law, which is well within

their capabilities. See Sochor, 504 U.S. at 538. But if

the instructions related to jurisdiction are wrong, then

their consideration of the facts is confounded and the

risk of material prejudice is substantial.

In the context of this case, correct instructions

based on the limits of court-martial jurisdiction

demanded more than just avoiding the “on or about”

instructions. Rather, correct instructions would have

14

delineated exact dates, and, for the inactive-duty

training times implicated in the November 19, 2013,

allegation, exact times.

Such instructions were

required because of the deference owed to Congress in

setting the bounds of court-martial jurisdiction.

Weiss, 510 U.S. at 177. Congress set clear starting

and stopping points for jurisdiction. 10 U.S.C.

§ 802(a). While those starts and stops could arise

multiple times each day when jurisdiction derived

from inactive-duty training, as was the case here, that

was the decision Congress made and it had to be

respected. Pet. App. 6a, 20a (Ohlson, J., dissenting in

part); 10 U.S.C. § 802(a)(3).

Yet the Court of Appeals passed on this error,

instead characterizing the trial judge’s instructions as

something the court members could parse for

themselves.

Such reasoning holds water when

instructions are correct and all that remains are

questions of sufficiency of the evidence. But that was

not the case here for three reasons.

First, if the timing of the “concrete acts” were as

clear as the Court of Appeals indicated, there is little

reason to explain why the trial judge did not tailor his

instructions accordingly. See Pet. App. 18a. Instead,

the trial judge muddied the waters, instructing that

he had already resolved jurisdictional matters about

whether Petitioner was on “active duty,” and, in doing

so, blurring the codified distinction between active

duty under 10 U.S.C. § 802(a)(1) inactive-duty

training under 10 U.S.C. § 802(a)(3). See Tr. 822-23.

Second, the instructions focused on dates, whereas

the exact hours of inactive-duty training were what

mattered for the two overt acts outside the courtmartial’s jurisdiction. The deliberateness with which

15

the trial judge did so is underscored by the trial

judge’s erroneous interpretation of 10 U.S.C.

§ 802(a)(3) as broadly establishing jurisdiction for the

whole of November 19, 2013, instead of the limited

four-hour blocks of inactive-duty training. Appellate

Ex. XXIV ¶ 15. Indeed, this interpretation of the

statute at issue was not settled until Petitioner’s

appeal narrowly construed 10 U.S.C. § 802(a)(3). Pet.

App. 11a, 44a-45a n.4.

Third, the prosecution exploited the erroneous “on

or about” instruction to ask the court members to

convict based on conduct on those surrounding dates,

without reference to or focus on time. Tr. 849.

Under the line-drawing test proposed above for

assessing on which side of the Griffin divide

jurisdiction-related instructions fall, the Questions

Presented also call attention to the appropriate

methodology for appellate courts to assess such error.

In this case, the Court of Appeals decided the case

based on the absence of prejudice, even though

discerning prejudice would vary based on whether the

instruction pertained to legal error or sufficiency of

the evidence. See Griffin, 502 U.S. at 59-60; Yates, 354

U.S. at 312; see also Skilling v. United States, 561 U.S.

358, 414 (2010) (leaving for remand an issue about

constitutional error based on a jury instruction that

may have rested on a legally invalid theory).

Prioritizing the type of error when it relates to

jurisdiction would impose little burden on lower

courts given the already-existing requirement to

assure themselves of jurisdiction before reaching the

merits of the case. Steel Co., 523 U.S. at 94-95.

Moreover, determining the type of error, at least in

circumstances such as this where jurisdictional

16

concerns are implicated, facilitates the consideration

of prejudice. White, 405 F.3d at 218; Andrews, 77 M.J.

at 402.

If the instruction presented the court

members with a legally devoid basis to convict, as it

did in this case, the likelihood of prejudice is high. On

the other hand, if the instruction offered only another

factual basis for a conviction, the risk of prejudice is

low as a result of the ability of court members to

adequately assess such factual issues. Sochor, 504

U.S. at 538. As such, the importance of this case

extends to whether the Court of Appeals should have

modified the plain error test, see Tunstann, 72 M.J. at

196, in order to determine how to appropriately assess

prejudice.

II.

This Case is a Good Vehicle Crystallizing

Issues that Will Continue to Arise.

Though the jurisdictional issue in this case stems

from the narrow plain-language construction of the

version of 10 U.S.C. § 802(a)(3) applicable at the time

of Petitioner’s court-martial, the sort of instructional

issues implicated in the Questions Presented are not

limited to that context. Rather, they stand to persist

in courts-martial as well as other criminal

proceedings.

Admittedly, the frequency with which the “office

light switch” was flipped specific to Petitioner’s

inactive-duty training will be erased thanks to the

recent amendments to 10 U.S.C. § 802(a)(3). Pet. App.

20a (Ohlson, J., dissenting in part); Pub. L. No. 114328, § 5102. But just because the switch is now flipped

less often does not mean that court-martial

jurisdiction over military reservists—or, more

generally, military members—fails to turn off with a

similar degree of specificity. See Morita, 74 M.J. at

17

120; Duncan, 23 M.J. at 34. When conduct at issue in

a court-martial rests on those jurisdictional edges, the

same sort of temporal concerns as those presented

here will arise.

Moreover, the confluence of jurisdictional

questions and instructions extend beyond the

temporal and status-related limits of court-martial

jurisdiction.

Instructional issues pertaining to

geographic jurisdiction questions have arisen at the

State level and in the District of Columbia. See, e.g.,

Gilliam, 80 A.3d at 209-10; Giordano, 663 N.E.2d at

594-95. Even crimes arising in federal prosecutions

may implicate matters of geographic jurisdiction

depending on the criminal statute charged. See, e.g.,

United States v. Verbitskaya, 406 F.3d 1324, 1333-34

(11th Cir. 2005), cert denied, 546 U.S. 1095 (2006)

(assessing whether instructions in a prosecution

under 18 U.S.C. § 1951(a) may have run afoul of the

Commerce Clause, U.S. CONST. art. I, § 8, cl. 3).

Certiorari is warranted because Petitioner’s case is

a good vehicle for setting the rule to govern these

issues as they arise in the future. As the Court of

Appeals noted, Petitioner’s case involved “concrete

acts” with dates and times set down in black and

white. Pet. App. 18a. The questions of timing

inherent in the context of jurisdiction under 10 U.S.C.

§ 802(a)(3) are therefore settled facts that are neither

ambiguous nor subject to interpretation. Accordingly,

resolution of the Questions Presented need not turn

on quibbles about factual discrepancies, but instead

can cleanly resolve these persistent questions of law.

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CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

LIEUTENANT COLONEL

ANTHONY D. ORTIZ

Counsel of Record

Appellate Defense Counsel

Air Force Legal

Operations Agency

United States Air Force

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD

20762

(240) 612-4770

anthony.d.ortiz10.mil@mail.mil

MAJOR ALLEN S. ABRAMS

Circuit Defense Counsel

Air Force Legal

Operations Agency

United States Air Force

1 Washington Circle

Central Circuit

Joint Base San Antonio-Randolph,

TX 78150

Counsel for Petitioner

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