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

APPENDIX

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

__________

APPENDIX TO THE 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

(I)

Appendix

Table of Contents

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) ........................................................ 15a

(II)

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

UNITED STATES

Appellee

v.

James M. HALE

Lieutenant Colonel (O-5), U.S. Air Force, Appellant

No. 18-0162

Crim. App. No. 39101

Argued October 23, 2018—Decided February 6, 2019

Military Judges: Mark W. Milam and Shelly W.

Schools

For Appellant: Major Allen S. Abrams (argued);

Lieutenant Colonel Anthony D Ortiz.

For Appellee: Captain Peter F. Kellett (argued);

Colonel Julie L. Pitvorec, Lieutenant Colonel Joseph J.

Kubler, and Mary Ellen Payne, Esq. (on brief).

Judge SPARKS delivered the opinion of the Court, in

which Chief Judge STUCKY and Judges RYAN and

MAGGS joined. Judge OHLSON filed a separate

opinion concurring in part and dissenting in part.

(1a)

Judge SPARKS delivered the opinion of the Court.

This case arises out of the general court-martial of

a reserve officer, Lieutenant Colonel (O-5) James M.

Hale (Appellant). Contrary to his pleas, members of

the court-martial convicted Appellant of four

specifications of attempted larceny, one specification

of making a false official statement, and three

specifications of larceny in violation of Articles 80,

107, and 121 Uniform Code of Military Justice

(UCMJ), §§ 10 U.S.C. 880, 907, 921. Appellant was

sentenced to one month of confinement, dismissal, and

forfeiture of all pay and allowances. The convening

authority approved the sentence. Upon review, the

United States Air Force Court of Criminal Appeals set

aside one larceny conviction and instead affirmed the

lesser included offense (LIO) of attempted larceny.1

The lower court then affirmed the modified findings

and the reassessed sentence.

The lower court found as a matter of law that

personal jurisdiction does not exist outside of the

hours of inactive-duty training. Here, we review the

lower court’s conclusion that the court-martial had

sufficient jurisdiction over Appellant for two

attempted larceny specifications: Specification 3 of

Additional Charge II and Specification 2 of Additional

Charge 1 (affirmed as the LIO, attempted larceny).

Appellant also questions whether the military judge

erred in instructing the members that they could

1 The lower court also altered the date in another

larceny specification by exceptions and substitutions.

(2a)

convict Appellant for conduct “on or about” the dates

alleged in a number of the charged specifications.2

We hold that the lower court did not err in

upholding the two attempted larceny convictions. The

members were entitled to consider evidence of conduct

that occurred while Appellant was not subject to

court-martial jurisdiction and this circumstantial

evidence, coupled with evidence of Appellant’s actions

when he was subject to jurisdiction, proved sufficient

2 This Court granted review of the following

assigned issues:

I. The lower court found as a matter of law that

personal jurisdiction does not exist outside of

the hours of inactive-duty training. The lower

court proceeded to find personal jurisdiction

existed over Appellant because he was

“staying” with his in-laws. Was this error?

II. Whether the lower court erred when it

concluded the military judge correctly

instructed the members they could convict

Appellant for conduct “on or about” the dates

alleged in each specification.

And the following specified issue:

III. Whether the lower court erred in concluding

the court-martial had jurisdiction over

Specification 2 of Additional Charge I, as

modified to affirm the lesser included offense

of attempted larceny.

(3a)

to uphold both attempted larceny convictions. We also

conclude that, regardless of whether the military

judge erred by including the “on or about” language in

the instructions to the members, Appellant failed to

carry his burden to prove that any material prejudice

to his substantial rights resulted from such

instructions.3

Background4

Appellant was an Air Force reserve officer living in

Colorado but attached to a squadron in San Antonio,

Texas. Between June 26, 2011, and November 19,

2013, Appellant traveled from Colorado to Texas for

seven periods of reserve duty. While in Texas,

Appellant was engaged in either active duty or

inactive duty training (IDT). IDTs consisted of two

four-hour work blocks in a given day, from 8:00 a.m.

through noon and from 1:00 p.m. through 5:00 p.m.

(with the final day of the tour sometimes consisting of

just one 8:00 a.m. through noon block). For each four3 With respect to the jurisdiction issues (Issues I

and III), Appellant’s specific prayer for relief asks that

we set aside the findings of guilty for Specification 2

of Additional Charge I and Specification 3 of

Additional Charge II. As for the instructions issue,

Appellant’s specific prayer for relief requests that we

set aside the findings of guilty for Charge II and its

specification, Specifications 1 and 2 of Additional

Charge I, and Additional Charge II and its

specifications.

Here we rely extensively on the lower court’s

clear and detailed factual description of the case.

4

(4a)

hour block, Appellant was paid and received one point

towards retirement.

In Texas, Appellant stayed with his in-laws, Mr.

and Mrs. Vernon. The charges in question stem from

Appellant’s claims for lodging reimbursement for

these stays, despite the fact that the Joint Federal

Travel Regulations (JFTR) at the time prohibited

reimbursement for lodging with family. Following

each stay, Appellant created false receipts indicating

payment to either Mr. Vernon or “Vernon Guest

Suites.” He submitted these receipts along with travel

vouchers seeking reimbursement for lodging

expenses. Appellant’s in-laws never charged him to

stay with them. Instead, he would give Mr. Vernon a

check for each stay which Mr. Vernon eventually

returned to Appellant uncashed. Appellant later

deposited these checks into the Vernon’s bank account

himself and then wired the money back into his own

account. As the investigation into Appellant

progressed, the timing of these deposits aligned with

critical stages in the investigation as officials noted

the absence of or requested copies of the canceled

checks. The government paid Appellant for five of the

seven stays, a total of $25,071.00.

Appellant was charged with eight specifications.

The charging language in each specifies alleged

conduct committed “on or about” a certain date or

dates. When the military judge instructed members

on the elements of each charge, he used the same “on

or about” language.

Further facts relevant to the specific charges are

developed below.

(5a)

Analysis

Jurisdiction

Relevant Law

We conduct a de novo review of jurisdiction

questions. EV v. United States, 75 M.J. 331, 333

(C.A.A.F. 2016). When challenged, the government

must prove jurisdiction by a preponderance of

evidence. United States v. Morita, 74 M.J. 116, 121

(C.A.A.F. 2015) (citing United States v. Oliver, 57 M.J.

170, 172 (C.A.A.F. 2002)).

“An inquiry into court-martial jurisdiction focuses

on … whether the person is subject to the UCMJ at

the time of the offense.” United States v. Ali, 71 M.J.

256, 261 (C.A.A.F. 2012). Court-martial jurisdiction is

determined by Article 2, UCMJ, 10 U.S.C. § 802

(2012).5 Morita, 74 M.J. 116, helped to lay down a

5 The jurisdictional questions in this petition will

have limited application given changes by Congress

concerning Article 2(a)(3)’s jurisdiction over IDTs. The

changes extend jurisdiction to (1) members traveling

to and from the IDT training site; (2) intervals

between consecutive periods of IDT on the same day,

pursuant to orders or regulations; and (3) intervals

between IDTs on consecutive days, pursuant to orders

or regulations. National Defense Authorization Act

(NDAA) for Fiscal Year 2017, Pub. L. No. 114-328, §

5102, 130 Stat. 2000, 2921 (2016). These changes go

into effect in January 2019 (first day of the first

calendar month that begins no later than two years

after the NDAA date of enactment). Id. § 5542.

(6a)

baseline for when jurisdiction exists over reserve

members. In Morita, id. at 120, this Court clarified

that, for reservists, jurisdiction hinges on satisfying

Article 2(a) or Article 2(c), UCMJ. Article 2(c)

“require[s] that the reservist be, as a threshold

matter, ‘serving with’ the armed forces at the time of

the misconduct, and meet the other four criteria set

forth in the statute.”6 74 M.J. at 118. Jurisdiction

continues until “active service has been terminated.”

Article 2(c), UCMJ. Article 2(a)(3), UCMJ, in relevant

part, extends jurisdiction to “[m]embers of a reserve

component while on inactive-duty training.” In

Morita, this Court determined that the military did

not have jurisdiction over a reservist when he had

forged his active duty and IDT orders, stating that

simply being a member of a reserve component “is not

sufficient to find that Appellee was ‘serving with’ the

armed forces.” 74 M.J. at 123. In United States v.

Phillips, this Court concluded that jurisdiction over a

reservist did cover the travel day prior to her

reporting for active duty. 58 M.J. 217, 220 (C.A.A.F.

2003). The decision emphasized that determining

whether someone is serving with the military requires

a “case-specific analysis of the facts” and requires a

“more direct relationship than simply accompanying

the armed forces in[to] the field.” Id.

6 The other four Article 2(c), UCMJ, criteria are:

(1) submitted voluntarily to military authority;

(2) met mental competency and minimum age

qualifications …;

(3) received military pay or allowances; and

(4) performed military duties.

(7a)

Article 121(a)(1), UCMJ, in relevant part,

identifies larceny as wrongfully taking, obtaining, or

withholding “with intent permanently to deprive or

defraud another person of the use and benefit of

property or to appropriate it to his own use.”

Article 80, UCMJ, defines an attempted offense as

“[a]n act, done with specific intent, to commit an

offense … amounting to more than mere preparation

and tending, even though failing, to effect its

commission.” The elements include:

(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.

United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014)

(citation omitted). More than mere preparation is

interpreted as requiring that the accused take a

“substantial step” toward committing the crime. Id.

This Court has distinguished attempt as going beyond

“devising or arranging the means or measures

necessary for the commission of the offense” and,

instead, engaging in a “direct movement toward the

commission after the preparations are made.” United

States v. Schoof, 37 M.J. 96, 103 (C.M.A. 1993)

(internal quotation marks omitted) (citation omitted).

The explanation section of Article 80, UCMJ, states

that “[t]he overt act need not be the last act essential

to the consummations of the offense.” Manual for

(8a)

Courts-Martial, United States pt. IV, para. 4.c.(2)

(2012 ed.) (MCM).

In United States v. Winckelmann, this Court

highlighted the “elusive line separating mere

preparation from a substantial step.” 70 M.J. 403, 407

(C.A.A.F. 2011) (internal quotation marks omitted)

(citation omitted). We favorably quoted several

federal cases concerning the contours of a substantial

step:

Federal courts of appeals have defined a

“substantial step” as “more than mere

preparation, but less than the last act

necessary before actual commission of

the crime.” See, e.g., United States v.

Chambers, 642 F.3d 588, 592 (7th Cir.

2011). We have adopted a similar

approach. See, e.g., United States v.

Byrd, 24 M.J. 286, 290 (C.M.A. 1987)

(“‘[A] substantial step must be conduct

strongly corroborative of the firmness of

the defendant's criminal intent.’”) ….

Accordingly, the substantial step must

“‘unequivocally demonstrat[e] that the

crime will take place unless interrupted

by independent circumstances.’” United

States v. Goetzke, 494 F.3d 1231, 1237

(9th Cir. 2007).

Id. (alterations in original) (citations omitted). We

recognized that a substantial step could be comprised

(9a)

of something as benign as travel, arranging a meeting,

or making hotel reservations. Id.7

Specification 3 of Additional Charge II

In Specification 3 of Additional Charge II,

Appellant was charged with and convicted of

attempting to commit larceny on or about November

19, 2013. Appellant completed a series of IDTs,

working from 8:00 a.m. through noon and again from

1:00 p.m. through 5:00 p.m. on November 4 through 8;

November 12 through 15; and November 18 through

19, 2013, and working a single 8:00 a.m. through noon

block on November 20. He stayed with his in-laws

during this time and wrote them a check for his stay

dated November 20, though the Government was not

able to establish exactly what time of day the check

was written. On December 3, Appellant submitted his

final travel voucher8 with a receipt he had

7 In Winckelmann, this Court ultimately decided

that a sentence written during an online chat reading

“u free tonight” was “simply too preliminary” to

constitute a substantial step towards underage

enticement. 70 M.J. at 408 (internal quotation marks

omitted) (citation omitted).

The submitted voucher lists lodging dates

between October 3 and October 20. However, because

Appellant’s duty orders cover the period from

November 3 to November 20, we assume that the

incorrect month listed was a clerical error. The lower

court found that on December 3, 2013, Appellant

created a receipt for his stay and submitted that

receipt with his claim for reimbursement.

8

(10a)

manufactured for “Vernon Guest Suites” requesting

reimbursement for $1,870.00.

We agree with the lower court’s finding that, based

on Article 2, UCMJ, and supporting case law, no

authority existed at the time of the offenses to extend

military status to Appellant while engaged in IDTs

beyond the designated four-hour blocks of IDT time.

Article 2(a)(3) very clearly extends jurisdiction to

“[m]embers of a reserve component while on inactiveduty training.” (Emphasis added.) As the lower court

reasoned:

Unlike other types of reserve duty, an

IDT is not a tour but a block of time.

Specifically, it is a designated “four-hour

period of training, duty or instruction.”

Air Force Instruction (AFI) 36-2254V1,

Re-serve Personnel Participation, ¶ 4.1.1

(26 May 2010). The member performing

the IDT is paid for and receives a point

for that designated four-hour block of

time. Appellant was no exception. He

was not receiving “regular pay” as the

Government suggests. Rather, he

received pay and points solely for the

IDT blocks he was authorized to

complete.

United States v. Hale, 77 M.J. 598, 604 (A.F. Ct. Crim.

App. 2018); see also United States v. Wolpert, 75 M.J.

777 (A. Ct. Crim. App. 2016) (jurisdiction does not

exist over a reserve member who committed criminal

acts between periods of IDT).

(11a)

The lower court determined that Appellant’s

pattern of previous behavior (this was his seventh

stay with his in-laws, with the previous six resulting

in fraudulent requests for reimbursement for lodging)

taken as a whole demonstrated the “firmness of

Appellant’s criminal intent.” Hale, 77 M.J. at 605

(internal quotation omitted) (citation omitted). The

lower court concluded that this evidence of Appellant’s

intent, coupled with the act of staying with his in-laws

while he completed his IDTs, constituted the

substantial step necessary for an attempted larceny.

Id. at 605–06.

Appellant takes issue with the lower court’s

interpretation of the concept of staying with his inlaws. Appellant’s view is that he was only staying with

his in-laws when he was physically in their home, for

example on days off or during the evenings between

his IDT blocks. Therefore, under his view, the act of

staying with the in-laws could only occur during

periods he was not subject to court-martial

jurisdiction. The Government counters that the plain

meaning and ordinary usage of the term “staying” in

this context means “to live for awhile” or “to live in a

place for a short time as a visitor” (internal quotation

marks omitted) (citations omitted). Therefore, staying

is not strictly limited to the period of time when a

guest is physically present but rather spans the full

scope of time encompassing a given visit.9 We also

9 When questioned during the command-directed

investigation, Appellant himself agreed that he did

“stay” with his in-laws every time he came to San

(12a)

adopt the common understanding of the term staying.

We therefore conclude that the act of staying with the

in-laws spanned the entire period of time during

which Appellant resided with them, including both

the actual IDT blocks and the gaps between them.

We agree with the lower court that simply staying

with the in-laws, by itself, would not be enough to

establish a substantial step. However, we believe that

Appellant’s other actions taken during periods he was

not subject to the UCMJ could have been considered

by the members to establish Appellant’s intent while

staying with his in-laws. This is similar to how

members are permitted to consider evidence of other

acts admitted under Military Rule of Evidence 404(b)

to prove the requisite intent for an offense. See MCM

pt. IV, para. 46.c.(1)(f)(ii) (2012 ed.) (“An intent to

steal may be proved by circumstantial evidence.”). In

order to establish attempted larceny, it is not

necessary that every step leading up to or following

that attempt occur at times where the Appellant is

subject to the UCMJ, so long as some element of the

offense occurs during such times. All that Article 80,

UCMJ, requires is commission of a single act during

IDT or active duty, provided that the act is done with

the specific intent of committing a larceny, that the

act amounts to more than mere preparation, and that

the act tends to effect the commission of a larceny. Cf.,

United States v. Kuemmerle, 67 M.J. 141, 144

(C.A.A.F. 2009) (finding jurisdiction over the

appellant’s distribution of child pornography offense

Antonio for reserve duty and that he did “stay” for the

entire time period of his reserve duty.

(13a)

where one of the two acts necessary to establish the

offense (i.e., posting the image) occurred prior to the

appellant entering active duty because his subsequent

decision to keep the image posted occurred while he

was subject to the UCMJ).

For this offense, the related evidence the members

could have considered on the issue of Appellant’s

intent included the false receipt Appellant created for

a stay at “Vernon Guest Suites,” the travel voucher

submitted December 3, and a check he wrote to

Randall Vernon on November 20, 2013. The members

also could have considered evidence of the six other

occasions upon which Appellant followed a similar

pattern: staying with his in-laws and then submitting

false receipts and travel vouchers in order to claim

lodging reimbursement for which he was not eligible.

Thus, the act of staying with his in-laws with the

intent to defraud the government was more than

simply an isolated and unimportant circumstance. It

was the sine qua non for Appellant’s travel fraud

scheme.

Specification 2 of Additional Charge I

In Specification 2 of Additional Charge I,

Appellant was charged with and convicted of

committing larceny on or about May 16, 2012, and

September 30, 2012. Between May 16, 2012, and

September 30, 2012, Appellant was on active duty

orders. He stayed with his in-laws during that time

period and, prior to going on active duty, set up a

series of automatic interim partial payments to

reimburse him for lodging expenses. Four interim

payments were then deposited into his bank account

(14a)

during his active duty period (June 14, July 16,

August 13, and September 12). He submitted a pretravel authorization form on May 3, 2012, and created

a receipt for the stay with his in-laws on September

30, 2012. He also wrote checks to his in-laws dated

June 30, August 31, and September 30, 2012.

Appellant then performed IDT duties, working 8:00

a.m. through noon and 1:00 p.m. through 5:00 p.m.

blocks between October 1 through 5, October 9

through 12, and October 15 through 17. Appellant

submitted his travel voucher and the receipt to his

supervisor on October 2 and he received his final

payment on October 12.

The lower court found that, as with the November

19, 2013, offense, jurisdiction did not exist when

Appellant was engaged in IDTs except during the

four-hour working blocks. The court therefore

concluded that, because the receipt of interim

payments and staying with his in-laws that occurred

during the active duty period were not sufficient to

constitute a completed larceny, the court-martial did

not have jurisdiction to sustain the larceny conviction.

However, the lower court did conclude that

jurisdiction existed for the lesser included offense of

attempted larceny and affirmed a finding of guilty of

that offense.

This specification requires a substantial step

analysis similar to the one conducted above. Here,

Appellant not only stayed with his in-laws—on this

occasion the third stay for which he claimed lodging

reimbursement—but also received automatic partial

interim lodging payments from the military and

created a fraudulent receipt for his stay with the

(15a)

Vernons, all while on active duty. In addition, the

members were entitled to consider as circumstantial

evidence events that took place while Appellant was

not subject to jurisdiction. This additional evidence

included submission of the travel voucher and receipt

of final payment as well as arranging for interim

payments prior to going on active duty. We conclude

that all this evidence, considered together, is

sufficient to establish the requisite substantial step

towards commission of the offense of attempted

larceny.

Improper Instruction

“The military judge shall give the members

appropriate instructions on findings.” Rule for CourtsMartial 920(a). “This Court presume[s] that the panel

followed the instructions given by the military judge.”

United States v. Haverty, 76 M.J. 199, 208 (C.A.A.F.

2017) (alteration in original) (internal quotation

marks omitted) (citation omitted).

“Whether a panel was properly instructed is a

question of law reviewed de novo.” United States v.

Medina, 69 M.J. 462, 465 (C.A.A.F. 2011) (internal

quotation marks omitted) (quoting United States v.

Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)). In this case,

the military judge instructed the members on the

elements of the charged offenses, including the “on or

about” language. Defense counsel did not object to the

instructions at the time they were given. “Where there

was no objection to the instruction at trial, we review

for plain error.” United States v. Tunstall, 72 M.J. 191,

193 (C.A.A.F. 2013).

(16a)

Under plain error review, “Appellant has the

burden of establishing (1) error that is (2) clear or

obvious and (3) results in material prejudice to his

substantial rights.” United States v. McClour, 76 M.J.

23, 25 (C.A.A.F. 2017) (internal quotation marks

omitted) (quoting United States v. Knapp, 73 M.J. 33,

36 (C.A.A.F. 2014)). “[T]he failure to establish any one

of the prongs is fatal to a plain error claim.” Id.

(alteration in original) (internal quotation marks

omitted) (citation omitted). We determine that

Appellant has failed to carry his burden with regard

to the third prong. Whether or not the military judge

erred in giving instructions on the “on or about”

language, Appellant has not proven any material

prejudice to his substantial rights.

In his prayer for relief, Appellant asks that this

Court set aside findings for five specifications due to

instructional error: Charge II and its specification;

Additional Charge I, Specifications 1 and 2; and

Additional Charge II, and its specifications.

Additional Charge I, Specification 1, is a larceny

conviction. The others are attempted larceny

convictions.

Appellant has not established that the military

judge’s instructions in any way impacted the

members’ decision-making process on these offenses.

Though there were multiple steps involved in

orchestrating the taking of the money, the dates of

those steps were well documented through travel

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

which were admitted into evidence. Those dates were

not ambiguous and the members were not relying on

witness testimony that was open to interpretation.

(17a)

The members were not asked to consider a separate

crime that may have occurred outside the scope of the

court’s jurisdiction. Rather, the charges here involved

concrete acts occurring on concrete dates. Appellant

provided no reason to suspect the members did not

adhere to the admitted evidence when reaching their

verdict.

With regard to the attempted larceny convictions,

our decision above on issues I and III establishes that

Appellant staying with his in-laws, coupled with

circumstantial evidence of acts committed when he

was not subject to jurisdiction, is sufficient to

constitute a substantial step towards completed

larceny. Nothing in Appellant’s argument or in the

record suggests that members considered other,

impermissible, evidence.

With regard to Additional Charge I, Specification

1, the larceny conviction, the charge sheet reads

“between on or about 26 June 2011 and on or about 30

September 2011.” Appellant was on active duty and

therefore under military jurisdiction from June 26,

2011, through September 30, 2011. While he was on

active duty, Appellant stayed with his in-laws. He also

received interim payments on July 26, August 25, and

September 26. He wrote a check to the Vernons on

September 27 and created a false receipt for lodging

dated September 29. We consider all this evidence

sufficient to support a conviction of a completed

larceny. Any assumption that the members based

their conviction on other evidence of acts taking place

when Appellant was not subject to jurisdiction would

be purely speculative.

(18a)

Both parties spent some time analyzing to what

degree the Government depended upon the “on or

about” language in its closing argument. The

Government did reference the “on or about” language.

However, given the above points and the fact that the

members were clearly instructed that arguments are

not evidence, we are not convinced that the remarks

made during closing arguments played a significant

enough role to have prejudiced Appellant.

Decision

We conclude that the court-martial had sufficient

jurisdiction over Appellant to support both challenged

attempted larceny convictions. In addition, Appellant

has failed to prove any material prejudice stemming

from the military judge’s instructions to the members.

The decision of the United States Air Force Court

of Criminal Appeals is affirmed.

(19a)

Judge OHLSON, concurring in part and dissenting

in part.

Thankfully, the jurisdictional puzzle confounding

the Court in the instant case soon will be sorted out.

The Military Justice Review Group (MJRG), which

was so ably chaired by Senior Judge Andrew Effron,

recognized the vagaries inherent in a system whereby

jurisdiction over reservists performing inactive duty

training (IDT) could—like an office light switch—turn

on and off several times during the course of a single

work day.1 See Office of the General Counsel, Dep’t of

Defense, Report of the Military Justice Review Group

154–55 (Dec. 22, 2015), http://ogc.osd.mil/mjrg.html.

Therefore, upon the MJRG’s recommendation,

Congress amended Article 2(a)(3), Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 802(a)(3), so as

Although this brief and episodic form of

jurisdiction may seem quite odd, this is not a point on

which the majority and I disagree. As the majority

correctly notes in its opinion, “[N]o authority existed

at the time of the offenses to extend military status to

[servicemembers who were] engaged in [inactive duty

training] beyond the designated four-hour blocks of

IDT time.” United States v. Hale, __ M.J. __ (7)

(C.A.A.F. 2019). The majority opinion also favorably

and correctly cites a United States Army Court of

Criminal Appeals decision that holds that

“jurisdiction does not exist over a reserve member who

committed criminal acts between periods of IDT.” Id.

at __ (8) (citing United States v. Wolpert, 75 M.J. 777

(A. Ct. Crim. App. 2016)).

1

(20a)

to eliminate jurisdictional gaps that previously arose

within the interstices of blocks of time dedicated to

inactive

duty

training.

National

Defense

Authorization Act for Fiscal Year 2017, Pub. L. No.

114-328, § 5102, 130 Stat. 2000, 2894–95 (2016). Thus,

some much needed rationality is now in the process of

being imposed regarding court-martial jurisdiction

over reservists.

In the instant case, however, the old jurisdictional

rules apply. As explained below, in construing those

rules, and in applying the law to the relevant facts, I

conclude that the jurisdictional light switch, so to

speak, was in the “off” position at the time Appellant

took the steps necessary for the commission of one of

the attempted larceny offenses. Further, I conclude

that the military judge’s “on or about” instruction

constituted plain error because it directly implicated

jurisdictional issues in this case and improperly

authorized the panel members to convict Appellant of

the attempted larceny charge even if the offense

occurred when he was not in a military status.

Accordingly, unlike my colleagues in the majority, I

would hold that Appellant’s conviction for that offense

must be set aside and the specification must be

dismissed. Therefore, I respectfully dissent.

OVERVIEW

This travel fraud case resulted in Appellant being

charged with a number of larceny and attempted

larceny offenses. One of these attempted larceny

offenses is charged in Specification 3 of Additional

Charge II. This specification alleges that Appellant

“did within the continental United States, on or about

(21a)

19 November 2013 attempt to steal money, military

property, of a value of over $500.00, the property of

the United States Government,” in violation of Article

80, UCMJ, 10 U.S.C. § 880 (2012). At the time of this

charged misconduct, Appellant, an Air Force

reservist, was on IDT for multiple four-hour blocks of

time between November 3, 2013, and November 20,

2013. Central to this case is the fact that while

performing his IDT at Joint Base San AntonioLackland, Texas, Appellant elected to lodge at the

home of his in-laws.

A panel of officer members sitting as a general

court-martial convicted Appellant of several offenses,

including the attempted larceny offense cited above.

The members reached their verdict after the military

judge instructed them as follows:

[Y]ou must be convinced by legal and

competent evidence beyond reasonable

doubt:

(1) That, on or about 19 November

2013 … the accused did a certain act,

that is: stay at the private residence of

his in-laws, …, write a check to [his

father-in-law], and/or create a lodging

receipt reflecting his stay at the [in-laws’]

residence;

….

(3) That the acts amounted to more

than mere preparation, that is, they

were a substantial step and a direct

(22a)

movement toward the commission of the

intended offense.

(Emphasis added.)

The majority concludes that: (1) there was courtmartial jurisdiction over the attempted larceny

offense charged in Specification 3 of Additional

Charge II (Issue I); and (2) the military judge’s “on or

about” instruction with respect to this specification

did not amount to plain error (Issue II). As outlined

below, I part ways with both of these conclusions.

I.

Turning first to Issue I, this Court must determine

whether the court-martial had jurisdiction over the

attempted larceny offense that was alleged to have

occurred “on or about” November 19, 2013. “[C]ourtsmartial may only exercise jurisdiction over a

servicemember ‘who was a member of the Armed

Services at the time of the offense charged.’ ” United

States v. Kuemmerle, 67 M.J. 141, 143 (C.A.A.F. 2009)

(emphasis added) (quoting Solorio v. United States,

483 U.S. 435, 451 (1987)). Stated differently, “Article

2(a), UCMJ, jurisdiction for a reservist hinges on

whether the charged events occurred during active

duty status or IDTs.” United States v. Morita, 74 M.J.

116, 120 (C.A.A.F. 2015) (emphasis added). I interpret

these precedents to mean that a reservist is not

subject to UCMJ jurisdiction if the reservist leaves a

military status before all of the elements of a criminal

offense are met.

(23a)

In terms of the attempted larceny offense at issue

in the instant case, this Court has identified “four

elements of attempt,” including “that the act

amounted to more than mere preparation.” United

States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014) (citing

Manual for Courts-Martial, United States pt. IV, para.

4.b (2012 ed.)). In other words, Appellant must “ha[ve]

taken a substantial step—some overt act, beyond

mere preparation—toward accomplishing” the

larceny. United States v. Schoof, 37 M.J. 96, 102

(C.M.A. 1993). There is no “litmus test” for

determining whether a substantial step exists, and

the line between preparation and substantial step is

“elusive.” Id. at 103 (citation omitted) (internal

quotation marks omitted). However, the Supreme

Court has stated that “the mere intent to violate a

federal criminal statute is not punishable as an

attempt unless it is accompanied by significant

conduct.” United States v. Resendiz- Ponce, 549 U.S.

102, 107 (2007) (emphasis added). Indeed, this Court

has recognized that the “substantial step must

unequivocally demonstrat[e] that the crime will take

place

unless

interrupted

by

independent

circumstances.” United States v. Winckelmann, 70

M.J. 403, 407 (C.A.A.F. 2011) (emphasis added)

(citation omitted) (internal quotation marks omitted).

Applying the above law to the relevant facts, I

conclude that Appellant’s facially benign act of

staying with his in-laws while performing IDT does

not constitute “a substantial step.” After all, Appellant

needed a place to stay for his temporary duty, and he

was permitted to stay with family members—

although he could not legally seek reimbursement for

this stay. This single facially benign act while in a

(24a)

military status did not “unequivocally demonstrat[e]

that the crime [would] take place unless interrupted

by independent circumstances.” Id. (citation omitted)

(internal quotation marks omitted); see also United

States v. Presto, 24 M.J. 350, 352 (C.M.A. 1987)

(concluding that conduct “tend[ing] to corroborate

appellant’s criminal intent” did not constitute a

substantial step).

I recognize, as the majority and the lower court

point out, that six other larcenies or attempted

larcenies occurred when Appellant previously stayed

with his in-laws. However, because Appellant was

authorized to stay with family for his IDT, his mere

act of staying with his in-laws in November 2013—

which was unaccompanied by any other conduct

during his time in military status that was consistent

with committing a larceny—does not demonstrate the

firmness of his intent to commit that offense. I also

recognize that Appellant engaged in acts outside of his

military status that, if taken during his IDT, would

have established a substantial step while he was

subject to court-martial jurisdiction. However, there is

no court-martial jurisdiction if the acts necessary to

commit a crime occur after an accused has left his

military status; to be subject to court-martial

jurisdiction, the substantial step must occur during

an accused’s IDT status.

In this particular case, it logically follows that

because Appellant did not take a substantial step

towards commit ting a larceny offense during IDT,

this element of the attempt offense was not satisfied—

and thus an attempted larceny was not completed—

during the time that Appellant was in a military

(25a)

status. Therefore, there was no court-martial

jurisdiction for this attempt offense. See Morita, 74

M.J. at 120 (“Article 2(a), UCMJ, jurisdiction for a

reservist hinges on whether the charged events

occurred during … IDTs.” (emphasis added)).

Accordingly, I would set aside the findings with

respect to Specification 3 of Additional Charge II and

dismiss the specification.

II.

Even if the majority is correct that there is courtmartial jurisdiction over the attempted larceny

offense alleged in Specification 3 of Additional Charge

II, I conclude that the finding of guilty for this

specification should be set aside because the military

judge plainly erred by instructing the members that

Appellant could be convicted if he committed the

larceny “on or about 19 November 2013.”

The use of “on or about” in a military judge’s

instructions “generally connote[s] any time within a

few weeks of the ‘on or about’ date.” United States v.

Brown, 34 M.J. 105, 110 (C.M.A. 1992), overruled on

other grounds by United States v. Reese, 76 M.J. 297

(C.A.A.F. 2017). In the instant case the problem with

the military judge’s “on or about” instruction arises

because it was given in the context of a specification

where court-martial jurisdiction was clearly

implicated. Court-martial jurisdiction is a binary

proposition—it is either there or it is not. Morita, 74

M.J. at 120 (“[A]ctive duty is an all-or-nothing

condition.” (citation omitted) (internal quotation

marks omitted)). Therefore, the military judge needed

to focus his instructions on the precise dates when

(26a)

Appellant was on IDT. Cf. United States v. Thompson,

59 M.J. 432, 440 (C.A.A.F. 2004) (requiring a military

judge “to provide the members with instructions that

focused their deliberations on a much narrower period

of time” to ensure they did not convict on an offense

that fell outside of the statute of limitations).

Because the military judge’s “on or about”

instructional language did not limit the attempt

offense to the IDT period when the court-martial had

jurisdiction, the military judge permitted the

members to convict Appellant of an attempted larceny

even if it occurred when he was no longer in a military

status (i.e., when the military had no court-martial

jurisdiction over Appellant). This point is underscored

by the fact that the military judge’s instruction listed

three acts as part of the attempted larceny offense

with which Appellant was charged—staying with his

in-laws, writing a check to his father-in-law, and

creating a fraudulent lodging receipt. However, the

evidence in the record fails to establish that two of

these acts occurred while Appellant was in an IDT

status.2 Indeed, the Government’s appellate brief

2 In the context of the military judge’s and lower

court’s jurisdictional analyses, neither the military

judge nor the lower court found that the writing of the

check or the creation of the lodging receipt occurred

while Appellant was in a military status. The majority

opinion similarly recognizes that the Government did

not establish the time of day that Appellant wrote the

check. Thus, there is no evidentiary basis to conclude

that all of the necessary acts for the commission of an

(27a)

appears to concede that Appellant’s acts of writing a

check and creating a lodging receipt occurred after he

was no longer in an IDT status and therefore not

subject to the UCMJ. Under these circumstances, the

instructions improperly permitted the members to

convict Appellant of an attempted larceny that was

not actually completed until after Appellant had left

his military status.3 Therefore, I conclude that the

military judge clearly or obviously erred when

instructing the members in this manner.

I further conclude that this clearly erroneous “on

or about” instruction prejudicially impacted the

members’ deliberations. See United States v. Lopez, 76

M.J. 151, 154 (C.A.A.F. 2017) (explaining there is

material prejudice for plain error analysis when there

is a reasonable probability that the outcome would

have been different absent the error). The

Government did not rely solely on Appellant’s act of

staying with his in-laws when seeking a conviction for

the attempted larceny offense. Instead, trial counsel’s

findings argument pointed to conduct that occurred

when Appellant was not in a military status—writing

attempted larceny offense occurred when the military

had court-martial jurisdiction over Appellant.

Because the military judge’s “on or about”

instruction specifically allowed the members to

consider conduct when Appellant was no longer in a

military status, the military judge’s general

instruction about court-martial jurisdiction did not

remedy the error of allowing the members to convict

for an offense completed after Appellant left his

military status.

3

(28a)

a check, creating a lodging receipt, and creating and

submitting the final claim for reimbursement. And, as

already stated, the military judge also instructed the

members that they could consider two of these acts in

determining whether there was “more than mere

preparation”—despite the fact that these two acts

occurred during a period when Appellant was not in a

military status. The members were thereby

incorrectly left with the impression that they could

find a substantial step based on acts that occurred

after Appellant had left his military status. This

stands in direct contradiction with the jurisdictional

requirement that the substantial step, and thus the

crime of attempted larceny, must have been completed

while Appellant was in a military status.

Finally, as suggested by my discussion of Issue I,

it is not a foregone conclusion that the members would

have found that Appellant’s facially benign act of

staying with his in-laws by itself constituted a

substantial step.4 Because the military judge’s “on or

about” instruction improperly authorized the

members to find a substantial step based on conduct

that occurred after Appellant had left a military

status, and because trial counsel’s findings argument

also relied on such conduct in seeking a conviction,

there is a reasonable probability that, but for the

instructional error, the members would have reached

a different outcome. Therefore, even if there is courtmartial jurisdiction over Specification 3 of Additional

4 At oral argument, the Government even conceded

that the mere act of staying at the in-laws without

more is legally insufficient to constitute an attempt.

(29a)

Charge II, Appellant has established that the military

judge plainly erred in providing the “on or about”

instruction with respect to this specification.5

III.

For the reasons set forth above, I respectfully

dissent from two portions of the majority opinion.6

First, I conclude that the court-martial lacked

jurisdiction over the attempted larceny offense

charged at Specification 3 of Additional Charge II and

therefore dissent from the majority’s resolution of

Issue I. On these grounds I would set aside

Appellant’s conviction for that offense and dismiss the

specification. Second, even assuming the courtmartial had jurisdiction over Specification 3 of

Additional Charge II, I conclude that the military

Although I find plain instructional error with

respect to Specification 3 of Additional Charge II, I

concur with the majority’s conclusion that the

instructional error was not plainly erroneous as to the

other charges and specifications because Appellant

has failed to establish that the “on or about”

instruction led to convictions for conduct that occurred

when he was not in a military status. Cf. United States

v. Royal, 972 F.2d 643, 649 (5th Cir. 1992) (concluding

that “on or about” instruction did not constitute plain

error because “the facts of the case eliminate the

possibility that the jury could have convicted the

Defendant for acts barred by the statute of

limitations”).

5

6 I concur with the result reached by the majority

for Issue III.

(30a)

judge plainly erred in providing an “on or about”

instruction for this specification and there-fore

dissent from the majority’s resolution of Issue II

insofar as it concerns Specification 3 of Additional

Charge II. On these grounds I would set aside

Appellant’s conviction for that offense and authorize a

rehearing.

(31a)

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39101

________________________

UNITED STATES

Appellee

v.

James M. HALE

Lieutenant Colonel (O-5), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial

Judiciary

Decided 19 January 2018

________________________

Military Judge: Shelly W. Schools (arraignment);

Mark W. Milam.

Approved sentence: Dismissal, confinement for 1

month, and forfeiture of all pay and allowances.

Sentence adjudged 5 March 2016 by GCM convened

at Joint Base San Antonio-Lackland, Texas.

(32a)

For Appellant: Major Allen S. Abrams, USAF.

For Appellee: Major Amanda L.K. Linares, USAF;

Major Mary Ellen Payne, USAF; Major Meredith L.

Steer, USAF; Gerald R. Bruce, Esquire.

Before JOHNSON, MINK, and DENNIS, Appellate

Military Judges.

Judge DENNIS delivered the opinion of the court, in

which Senior Judge JOHNSON and Judge MINK

joined.

________________________

PUBLISHED OPINION OF THE COURT

________________________

DENNIS, Judge:

A general court-martial comprised of officer

members found Appellant guilty, contrary to his

pleas, of four specifications of attempted larceny, one

specification of making a false official statement, and

three specifications of larceny, in violation of Articles

80, 107, and 121, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 880, 907, 921. The adjudged and

approved sentence consisted of a dismissal,

confinement for one month, and forfeiture of all pay

and allowances.

(33a)

This case is essentially about a reserve officer who

committed travel fraud. The principal issue on appeal

is Appellant’s status at the time of each offense and

whether the court-martial had jurisdiction over each

of the specifications for which Appellant was

convicted. As a threshold matter, we find that the

court-martial lacked jurisdiction over one of the

larceny specifications, but had jurisdiction over the

lesser-included offense of attempted larceny. We also

modify part of the charged timeframe of a second

larceny specification by exception and substitution.

The remaining assignments of error challenge

whether the military judge erred in admitting

summarized evidence pursuant to Military Rule of

Evidence (Mil. R. Evid.) 1006; whether the military

judge’s instruction that Appellant, as a reservist,

could be convicted for conduct “on or about” the dates

alleged; and whether the evidence supporting

Appellant’s convictions are legally and factually

sufficient to prove that the money stolen was military

property and that Appellant had the intent to deceive

and permanently deprive.1 For reasons set forth

below, we find no prejudicial error in these remaining

assignments of error.

We modify the affected specifications, reassess the

sentence, and affirm.

1 Appellant alleges legal and factual insufficiency of

the evidence establishing “intent to permanently

deprive” pursuant to United States v. Grostefon, 12

M.J. 431 (C.M.A. 1982).

(34a)

I. BACKGROUND

Appellant was a member of the United States Air

Force Reserves, living in Colorado but attached to the

33d Network Warfare Squadron at Joint Base San

Antonio-Lackland (JBSA-Lackland), Texas. Between

26 June 2011 and 19 November 2013, Appellant

traveled to San Antonio to complete a total of seven

periods of reserve duty. These periods of duty included

annual tours, military personnel appropriations

tours, and inactive-duty training (IDT). For each

period of duty, Appellant decided to stay with his inlaws, Mr. and Mrs. Vernon, and claim lodging

reimbursement. This decision proved problematic for

two reasons. First, the Joint Federal Travel

Regulations (JFTR) in effect at the time of Appellant’s

conduct prohibited reimbursement for lodging with

friends or family. Second, Appellant’s in-laws never

actually charged him to stay in their home.

Nevertheless, at the conclusion of each stay,

Appellant.2 Although Appellant never advised his inlaws what to do with the checks, his bank account

balances were insufficient to cover the checks at the

time they were written.

Following each of his seven stays, Appellant

created a custom receipt reflecting payment. Receipts

for the first four stays were signed by Mr. Vernon at

Appellant’s request. Two receipts were written for the

fifth stay: the first receipt contained a generic

2 The record is unclear as to when the checks were

returned.

(35a)

“Lodging Receipt” title, and the second appeared to be

an official receipt from “Vernon Guest Suites”

containing itemized charges. The receipts for the final

two stays were similar to the “Vernon Guest Suites”

receipt, but added reference numbers for each night’s

stay. Appellant attached and submitted the receipts

he created along with a travel voucher seeking

reimbursement for his “lodging expenses” a total of

seven times. The Government ultimately paid

Appellant for five of his seven stays, totaling

$25,071.00.

When submitting his seventh claim for

reimbursement, Appellant attached a Microsoft Word

version of the receipt he had created, which caught the

attention of processing officials. Appellant had

written but not provided a check to his in-laws at the

end of his seventh stay. When asked for a copy of the

cancelled check, Appellant took it upon himself to

deposit the check he had written into the Vernon

account in order to provide the requested information.

Several days later, unbeknownst to his in-laws,

Appellant wired the money back into his own account.

Appellant’s process of independently depositing

checks into the Vernon account and wiring the money

back into his own account continued, each time

aligning with three critical stages in the evolving

proceedings against him: The first check was

deposited in December of 2013 when the processing

officials requested a copy of the cancelled check. Two

additional checks were deposited in April 2014 when

Appellant was being interviewed as a subject in the

command-directed investigation (CDI). The final six

checks were deposited in September 2014 after the

(36a)

CDI’s investigating officer—noting Appellant’s

inability to provide copies of the cancelled checks—

substantiated seven allegations of travel fraud

against Appellant.

II. DISCUSSION

A. Jurisdiction

As a member of the United States Air Force

Reserves, Appellant is subject to limited military

jurisdiction. See Article 2, UCMJ, 10 U.S.C. § 802.

Appellant identifies three offenses over which he

claims the military did not have the requisite

jurisdiction: (1) the attempted larceny alleged in

Specification 3 of Additional Charge II; (2) the larceny

alleged in Specification 2 of Addition-al Charge I; and

(3) the larceny alleged in Specification 3 of Additional

Charge I. As we explain in detail below, we find that

the court-martial properly exercised jurisdiction over

Specification 3 of Additional Charge II and

Specification 3 of Additional Charge I. We find that

the

court-martial

lacked

jurisdiction

over

Specification 2 of Additional Charge I.

We review questions of jurisdiction de novo. United

States v. Kuemmerle, 67 M.J. 141, 143 (C.A.A.F. 2009).

The Government bears the burden of proving

jurisdiction by a preponderance of the evidence.

United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F.

2002); see also Rule for Courts-Martial (R.C.M.)

905(c)(2)(B).

Courts-martial jurisdiction requires that the

accused is subject to the UCMJ at the time of the

(37a)

alleged offenses. United States v. Ali, 71 M.J. 256,

261–62 (C.A.A.F. 2012) (citing Solorio v. United

States, 483 U.S. 435 (1987)). Whether a member is

subject to the UCMJ is defined by Article 2, UCMJ. As

applied to the facts of Appellant’s case, Article 2

identifies the following classes of persons subject to

the UCMJ:

Article 2(a)(1)

Members of a regular component of the

armed forces . . . and other 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.

Article 2(a)(3)

Members of a reserve component while

on inactive-duty training; and

Article 2(c)

Notwithstanding any other provision of

law, a person serving with an armed

force who—

(1) submitted voluntarily to military

authority;

(2) met the mental and minimum age

qualifications . . . at the time of voluntary

submission to military authority;

(38a)

(3) received

allowances; and

military

pay

or

(4) performed military duties.

See 10 U.S.C. § 802.

Each of these provisions has been the subject of

various interpretations. “For the purposes of Article

2(a), UCMJ, jurisdiction, ‘active duty is an all-ornothing condition.’” United States v. Morita, 74 M.J.

116, 120 (C.A.A.F. 2015) (quoting Duncan v. Usher, 23

M.J. 29, 34 (C.M.A. 1986)). Article 2(a)(1), UCMJ,

jurisdiction has primarily been interpreted to attach

from the date of activation when lawfully called or

ordered into duty. Id. Interpretations of Article

2(a)(3), UCMJ, jurisdiction are limited, but courts

have consistently applied the plain language meaning

of “while on inactive-duty training.” See Morita, 74

M.J. at 120; see also United States v. Wolpert, 75 M.J.

777, 780–81 (A. Ct. Crim. App. 2016) (finding no

Article 2(a)(3) jurisdiction where offense occurred

during the evening between IDT periods). Subject to

the limitations of the UCMJ, service regulations may

also set forth rules exercising court-martial

jurisdiction authority over reserve component

personnel under Article 2(a)(3), UCMJ. Manual for

Courts-Martial, United States, R.C.M. (2012 ed.)

(2012 MCM), pt II, R.C.M. 204(a).

The most often cited interpretation of Article 2(c)

jurisdiction is from United States v. Phillips, 58 M.J.

217 (C.A.A.F. 2003). In Phillips, the United States

Court of Appeals for the Armed Forces (CAAF) found

jurisdiction was established pursuant to Article 2(c),

UCMJ, for Lieutenant Colonel (Lt Col) Phillips, a

(39a)

reserve officer who used marijuana after traveling to

her assigned reserve location but before her orders

officially began. CAAF noted the question of whether

the person is “serving with” the armed forces “is

dependent upon a case specific analysis of the facts

and circumstances of the individual’s particular

relationship with the military.” Id. at 220. CAAF

found jurisdiction under Article 2(c), UCMJ, based on

its analysis of six factors present in Phillips:

(1) the member was a member of a reserve

component on the day in question;

(2) the member traveled to a base pursuant

to military orders or was reimbursed for

travel expenses by the armed forces;

(3) the orders were issued for the purpose of

performing active duty;

(4) the member was assigned to military

officers’

quarters,

occupied

those

quarters, and committed the pertinent

offense in those quarters;

(5) the member received military service

credit in the form of a retirement point

for service on the day in question; and

(6) the member received base pay and

allowances for that date.

(40a)

Id.

Nearly 12 years later, CAAF rejected a claim that

Article 2(c), UCMJ, applied to a reserve officer who

had forged orders and committed travel fraud using

the forged orders. Morita, 74 M.J. at 122–23. Finding

only one of the Phillips factors met, the court noted

that “[a]ctions incident to status as a reservist without

more are simply insufficient to confer jurisdiction so

broadly.” Id. at 123, n.6.

Having

outlined

these

jurisdictional

interpretations, we turn to the jurisdictional errors

asserted by Appellant, addressing each in turn.

1. Attempted Larceny, Specification 3 of

Additional Charge II

Between 3 November 2013 and 20 November 2013,

Appellant completed a series of IDTs. On each day

between 3 November 2013 and 19 November 2013,

Appellant completed two four-hour blocks from 08001200 hours and 1300-1700 hours. On 20 November

2013, Appellant completed only one four-hour block

from 0800-1200 hours. For each four-hour block,

Appellant was paid and received one point toward

retirement in accordance with military reserve

retirement system protocols. Appellant’s Air Force

Form 40A, Record of Individual Inactive Duty

Training, indicated that he was also authorized

lodging and subsistence during this period.

When his IDT began on 3 November 2013,

Appellant stayed with his in-laws, as he had during

his previous six periods of duty. He continued to stay

with his in-laws during the entire period he was

(41a)

completing his IDTs through 20 November 2013. Prior

to leaving, Appellant followed his custom of writing a

check to his in-laws for his stay. The Government

could not establish what time the check was created.

Although the check was dated 19 November 2013,

Appellant told the CDI’s investigating officer “I made

out the check on 20 November 2013, but didn’t see Mr.

Vernon on [the] 20th before I left. I then travelled

home and deposited the check myself into his account

on 11 December 2013 (as reflected on my previously

provided bank statement).” On 3 December 2013,

Appellant created a receipt for his stay and submitted

the receipt and a copy of the 19 November 2013 check

with a Standard Form 1164, Claim for

Reimbursement for Expenditures on Official Duty, to

his supervisor. Appellant was ultimately charged with

the following:

In that, LIEUTENANT COLONEL

JAMES HALE . . . did with-in the

continental United States, on or about 19

November 2013, attempt to steal money,

military property, of a value over

$500.00, the property of the United

States Government.

Appellant asserts, as he did unsuccessfully at trial,

that the military lacks jurisdiction over this

specification because the Government cannot prove

the check was written during one of the four-hour

blocks of IDTs Appellant completed. Appellant’s

argument poses one central question: Does Article

2(a)(3), UCMJ, governing IDTs require proof that a

reserve member was in a military status on a given

day or at a given time? We believe it is the latter.

(42a)

We first look to whether Article 2(a)(3), UCMJ,

contains plain and unambiguous language regarding

the dispute in the case. Morita, 74 M.J. at 120 (citing

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).

We agree with our superior court that while the

statute “has not been the subject of much analysis,

little analysis is required to conclude that the

operative statutory language refers to, and thus is

limited to, a member of a reserve component while on

inactive-duty training.” Id. (internal quotations

omitted).

Unlike other types of reserve duty, an IDT is not a

tour but a block of time. Specifically, it is a designated

“four-hour period of training, duty or instruction.” Air

Force Instruction (AFI) 36-2254V1, Reserve Personnel

Participation, ¶ 4.1.1 (26 May 2010). The member

performing the IDT is paid for and receives a point for

that designated four-hour block of time. Appellant

was no exception. He was not receiving “regular pay”

as the Government suggests. Rather, he received pay

and points solely for the IDT blocks he was authorized

to complete. While he was entitled to be reimbursed

lodging expenses, such an entitlement does not alone

confer jurisdiction. In fact, at the time of Appellant’s

offenses, no authority existed to extend a reserve

member’s military status “while on inactive duty

training” beyond the designated block of time listed on

the AF Form 40A.3

At the time of Appellant’s offenses, the only

authority directly addressing jurisdiction during the

IDT blocks listed on AF Form 40A was AFI 362254V3, Reserve Personnel Telecommuting/Advanced

(43a)

3

Accordingly, we find that as it existed at the time

of Appellant’s trial, Article 2(a)(3), UCMJ, did not

subject Appellant to the UCMJ.4

Distributed

Learning

(ADL).

AFI

51-201,

Administration of Military Justice (6 Jun. 2013), ¶

2.9.1., provides that “[r]eserve members performing

continuous duty in an inactive duty for training status

overseas are subject to UCMJ jurisdiction from the

commencement to the conclusion of such duty.”

(Emphasis added.) It is worth noting, however, that

both Congress and the Secretary of the Air Force acted

to change Article 2(a)(3)’s jurisdiction over IDTs.

Congress recently added three subgroups to Article

2(a)(3), UCMJ: (1) members traveling to and from the

IDT training site; (2) intervals between consecutive

periods of IDT on the same day, pursuant to orders or

regulations; and (3) intervals between IDTs on

consecutive days, pursuant to orders or regulations.

National Defense Authorization Act for Fiscal Year

2017, Pub. L. No. 114-328, § 5102, 130 Stat. 2000,

2921 (2016). Similarly, AFI 51-201, Administration of

Military Justice, was rewritten and published on 8

December 2017. Paragraph 2.14 of the rewritten

instruction removes the word “overseas” and provides

that “Air Force Reserve members performing

continuous du-ty in an inactive duty training status

are subject to UCMJ jurisdiction from the

commencement to the conclusion of such duty.” AFI

51-201, Administration of Military Justice, ¶ 2.14 (8

Dec. 2017).

4 In 2014, this court addressed the issue of whether a

reserve officer’s forged IDT orders could establish

(44a)

Notwithstanding our finding as to Article 2(a)(3),

UCMJ, jurisdiction, there remains the question of

whether Article 2(c), UCMJ, jurisdiction applies.

Applying the Phillips factors, we find that it does not.

Unlike Lt Col Phillips, Appellant was only authorized

reimbursement for lodging rather than full travel per

diem. Nor did Appellant receive base pay and

allowances “for the day.” Instead, Appellant was

assigned a unique pay code to be paid and awarded

points only for the blocks of IDT completed. We find

this evidence insufficient to meet the threshold

“serving with” requirement of Article 2(c), UCMJ.

We now turn to Specification 3 of Additional

Charge II.

The military judge found that even if the

Government could not establish jurisdiction at the

time Appellant wrote the check, the specification

would survive because staying “at the Vernon house

during his stated duty hours” constituted a

“substantial step in his attempt to steal from the Air

Force.” We agree.

jurisdiction. Morita, 73 M.J. at 548. We did not

specifically ad-dress whether the offenses occurred

during a specific period of IDT, but held that the

appellant was in military status on the days of his

forged IDT orders. CAAF later overruled our finding

that forged documents can establish jurisdiction

under Article 2(a)(3). See Morita, 74 M.J. at 122. We

now squarely address jurisdiction over conduct

occurring outside a block of IDTs and agree with our

sister court’s interpretation in Wolpert, 75 M.J. at 781.

(45a)

As he had done six times previously, Appellant

stayed with his in-laws during the entire period he

was completing IDTs. Had this been his first time

staying with his in-laws during a period of duty at

JBSA-Lackland, this alone might not have been

sufficient to establish a substantial step and his intent

to defraud the Government. However, Appellant’s

pattern of behavior—staying with his in-laws and

then claiming reimbursement for funds he had never

actually paid—is sufficient when taken as a whole to

demonstrate “the firmness of [Appellant’s] criminal

intent.” United States v. Byrd, 24 M.J. 286, 290

(C.M.A. 1987) (internal quotation marks omitted).

When Appellant’s intent is combined with the overt

act of staying with his in-laws during his seventh

consecutive period of duty at JBSA-Lackland, Texas,

it constitutes more than mere preparation. It

constitutes attempted larceny.

Accordingly, we find the court-martial properly

exercised jurisdiction over Specification 3 of

Additional Charge II.

2. Larceny, Specification 2 of Additional

Charge I

Between 16 May 2012 and 30 September 2012,

Appellant was placed on active duty orders to JBSALackland, Texas. Prior to entering active duty status,

Appellant set up an interim voucher which, once

approved, automatically disbursed “scheduled partial

payments” into Appellant’s account. Appellant

received three of these scheduled partial payments, all

while in active duty status. Appellant, again staying

with his in-laws, provided them three checks during

(46a)

this period. At the conclusion of his stay, he created a

receipt and attached the receipt to the travel voucher

he created on 30 September 2012. Appellant did not

sign and submit the travel voucher until 2210 hours

on 2 October 2012, a day on which he completed one

IDT between 0800–1200 hours and another between

1300–1700 hours. Because Appellant’s scheme had

not yet been discovered, his voucher was processed

without incident. Appellant was paid at 2018 hours on

12 October 2012, a day on which he completed one IDT

between 0800-1200 hours and another between 13001700 hours.5 Appellant was ultimately charged with

the following:

In that, LIEUTENANT COLONEL

JAMES HALE . . . did within the

continental United States, between on or

about 16 May 2012 and on or about 30

September 2012, steal money, military

property, of a value over $500.00, the

property

of

the

United

States

Government.

Appellant asserts for the first time on appeal that

the Government cannot establish that Appellant

completed the offense of larceny while subject to the

UCMJ. We agree.

5 We note that the text on Prosecution Exhibit 11 of

the original record is missing from pages 21–29. We

are nevertheless confident that the record is complete

for our review as those pages are found in Appellate

Exhibit XVII, pages 145–153.

(47a)

There is no question that Appellant committed

larceny. The only question is whether Appellant’s

larceny is one over which the military has jurisdiction.

“The gravamen of the issue before us is the point at

which [Appellant’s] fraudulent scheme reached

fruition.” United States v. Seivers, 8 M.J. 63, 64–65

(C.M.A. 1979). Appellant was not subject to the UCMJ

at three critical points during his travel fraud scheme:

(1) when his scheme was set in motion on 3 May 2012;

(2) when he submitted his final travel voucher at 2210

hours on 2 October 2012; and (3) when he received his

final payment at 2018 hours on 12 October 2012.

Conversely, Appellant received three payments

while in active duty status prior to filing his final

voucher.6 The Government argues that these

payments completed the larceny and render the

timing of Appellant’s final payment immaterial. Had

Appellant scheduled his interim payments or filed his

final voucher while he was in status, we might be

inclined to agree with the Government. But those are

not the facts of this case. The only actions Appellant

took while in status under Article 2, UCMJ, were

Appellant was permitted to schedule automatic

partial payments using the Defense Travel System

(DTS) because his temporary duty (TDY) was longer

than 45 days. According to the testimony at trial, once

Appellant’s approving official certified the scheduled

payments, no additional action was required by

Appellant. Rather, DTS generated automatic

payments to him every 30 days in accordance with his

orders. Appellant was not required to substantiate his

expenses until filing his final voucher.

6

(48a)

lodging with his in-laws and receiving interim

payments. Such actions are insufficient to constitute

a completed larceny.7

Accordingly, we find the court-martial lacked

jurisdiction over Specification 2 of Additional Charge

I as charged and set it aside. We nevertheless find

that jurisdiction did exist over the lesser-included

offense of attempted larceny in violation of Article 80,

UCMJ, and that the evidence demonstrates

Appellant’s guilt of that offense beyond a reasonable

doubt.

3. Larceny, Specification 3 of Additional

Charge I

Between 22 October 2012 and 2 November 2012,

Appellant was placed on active duty orders to JBSALackland, Texas. This tour was immediately followed

by active duty orders between 3 November 2012 and 3

December 2012. Appellant stayed with his in-laws

during both periods of duty. During this period,

Appellant provided Mr. Vernon a check, created a

We would be remiss not to acknowledge the

Government’s legitimate policy concerns about the

prosecutorial challenges presented by our holding.

Echoing our superior court, we note that these

understandable policy concerns cannot be “dispositive

of the legal question before us.” Morita, 74 M.J. at 122.

“That only reservists who meet the statutory

requirements are subject to the UCMJ reflects

Congress’s determination that for other misconduct

they are subject to the jurisdiction of the civilian

courts.” Id.

7

(49a)

receipt of payment, and submitted the receipt along

with his travel voucher seeking reimbursement for

lodging expenses.

Appellant

following:

was

originally

charged

with

the

In that, LIEUTENANT COLONEL

JAMES HALE . . . did within the

continental United States, between on or

about 1 October 2012 and on or about 1

January 2013, steal money, military

property, of a value over $500.00, the

property

of

the

United

States

Government.

Noting the misalignment between the dates

alleged and the dates Appellant was in a military

status, the initial disposition of charges recommended

the dates in the specification be modified to “between

on or about 22 October 2012 and on or about 3

December 2012.” The special court-martial convening

authority concurred with the recommendation and

directed the correction. For reasons that are unclear,

the 1 October 2012 date was modified to 20 October

2012, rather than 22 October 2012 as the convening

authority had directed. The 20 October 2012 date

remained unchanged.

Unlike the two previous jurisdictional claims,

Appellant’s third and final jurisdictional claim focuses

not on the time of the offense, but on the charged

timeframe. Specifically, Appellant asserts that

because the charged timeframe includes 20 and 21

October 2012, dates on which Appellant was not on

active duty orders, the court-martial lacks

(50a)

jurisdiction. We agree that the inclusion of 20 and 21

October 2012 is erroneous, but we are not persuaded

that the court-martial lacked jurisdiction over the

offense.

As previously discussed, the test for jurisdiction is

one of status at the time of the offense. See Solorio,

483 U.S. at 439; see also R.C.M. 203 Discussion. The

record makes clear that Appellant was in a military

status subject to the UCMJ at the time he committed

the offense of larceny. Still, the specification of which

Appellant was convicted exceeds the scope of time over

which the court-martial had jurisdiction.

Under Article 66(c), UCMJ, this court “may affirm

only such findings of guilty . . . as it finds correct in

law and fact and determines, on the basis of the entire

record, should be approved.” Article 66(c), UCMJ, 10

U.S.C. § 866(c). This power provides us the authority

to make exceptions and substitutions to the findings

on appeal, so long as we do not amend a finding on a

theory not presented to the trier of fact. R.C.M.

918(a)(1); see United States v. McCracken, 67 M.J.

467, 468 (C.A.A.F. 2009); United States v. Riley, 50

M.J. 410, 415 (C.A.A.F. 1999).

Here, although trial counsel referenced the 20

October 2012 date during his closing argument, the

Government focused its argument on the date

Appellant was paid. Because the record makes clear

the offense alleged in Specification 3 of Additional

Charge I occurred while Appellant was subject to the

UCMJ, this court will exercise its authority to amend

the specification to align with the dates of jurisdiction.

(51a)

Notwithstanding our modification, we find that the

court-martial properly exercised jurisdiction over

Specification 3 of Additional Charge I.

B. The “On

Instruction

or

About”

Language

in

the

The military judge provided oral and written

findings instructions to the members. The

instructions included the elements of the offenses,

many of which included the phrase “on or about” a

given date. Appellant now asserts that, based on the

court’s limited jurisdiction over Appellant, the

military judge’s instruction that the members could

convict him for conduct merely “on or about” the dates

alleged was prejudicial error. Under the facts of this

case, we disagree.

Prior to providing these instructions to the

members, the military judge provided a copy to trial

and defense counsel. Trial defense counsel, despite

having made other objections to the instructions, did

not challenge the military judge’s use of the phrase

“on or about” as stated on the charge sheet.

Accordingly, this issue was forfeited and we review for

plain error. R.C.M. 920(f); United States v. Davis, 76

M.J. 224, 230 (C.A.A.F. 2017).

“Under this Court’s plain error jurisprudence,

Appellant has the burden of establishing (1) error that

is (2) clear or obvious and (3) results in material

prejudice to his substantial rights.” United States v.

Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citing United

States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)).

“[T]he failure to establish any one of the prongs is

(52a)

fatal to a plain error claim.” United States v. Bungert,

62 M.J. 346, 348 (C.A.A.F. 2006).

We begin with the first prong and consider

whether the military judge erred by instructing panel

members that among the elements the Government

was required to prove was that an offense occurred “on

or about” a given date. R.C.M. 920(a) requires the

military judge to give the members “appropriate

instructions on findings.” Appellant relies on United

States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004), for

the proposition that, given the court’s limited

jurisdiction, the military judge was required to

narrow the panel’s focus to “on” rather than “on or

about” a given date. In Thompson, the military judge

instructed the members to consider lesser-included

offenses which were barred by the statute of

limitations. When the members convicted the

appellant of the lesser-included offense, the military

judge attempted to resolve the issue by pointing to

evidence in the record which could support the

finding. CAAF held that “[w]hen the evidence

reasonably raises issues concerning a lesser-included

offense or the statute of limitations, the military judge

is charged with specific affirmative responsibilities” to

focus deliberations on a “narrower period of time.” Id.

at 439–40.

The Thompson case, while informative, is

markedly different than the facts presented here. The

evidence in Appellant’s case did not raise the issue

that a lesser-included offense occurred during a time

Appellant was not subject to the UCMJ. Rather,

through a plethora of documentation, the evidence

consistently pointed to actions occurring within the

(53a)

charged timeframe. Unlike Thompson, this was not a

case where the members could have used “on or about”

to choose from a wide period of time. This was a case

involving very specific events either occurring or not

occurring on very specific dates and at very specific

times. The prospect of the panel convicting Appellant

during a time over which he was not subject to the

UCMJ was not “reasonably raised by the evidence.”

There is therefore no error to correct.

In light of Appellant’s failure to establish the first

prong of the plain error test, we find that the military

judge did not commit plain error when he instructed

the members to consider whether an offense occurred

“on or about” a certain date.

C. Admission of Evidentiary Summaries

During motions practice, trial counsel sought to

admit three summaries of Appellant’s financial

records and travel vouchers. Prosecution Exhibit 54

was a summary of Prosecution Exhibits 2–35.

Prosecution Exhibit 55 was a summary of Prosecution

Exhibits 41–53. Prosecution Exhibit 56 was a

summary of Appellant’s bank records, only some of

which were also admitted as prosecution exhibits.

Trial defense counsel objected to the summaries on

several grounds. With respect to Prosecution Exhibit

54, trial defense counsel conceded that the records

were voluminous and “inconvenient to the trier of

fact.”

The military judge was able to resolve some but not

all of trial defense counsel’s objections. He ultimately

admitted the summaries after finding that “the

records cannot be conveniently examined in court”

(54a)

under Mil. R. Evid. 1006. Appellant asserts that the

military judge abused his discretion in admitting

Prosecution Exhibits 54 and 55. Based on the

principles outlined below, we disagree.

As a starting point, we review a military judge’s

ruling on the admissibility of evidence for an abuse of

discretion. United States v. Nieto, 76 M.J. 101, 105

(C.A.A.F. 2017). A military judge abuses his discretion

when: (1) the findings of fact upon which he bases his

ruling are not supported by the evidence of record; (2)

he uses incorrect legal principles; or (3) his application

of the correct legal principles to the facts is clearly

unreasonable. United States v. Ellis, 68 M.J. 341, 344

(C.A.A.F. 2010) (citing United States v. Mackie, 66

M.J. 198, 199 (C.A.A.F. 2008)). “The abuse of

discretion standard is a strict one, calling for more

than a mere difference of opinion. The challenged

action must be arbitrary, fanciful, clearly

unreasonable, or clearly erroneous.” United States v.

Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010) (citations and

quotation marks omitted). “[T]he abuse of discretion

standard of review recognizes that a judge has a range

of choices and will not be reversed so long as the

decision remains within that range.” United States v.

Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).

Having set forth our standards for review, we next

examine the Rule upon which the military judge

relied. Mil. R. Evid. 1006 states:

The proponent may use a summary,

chart, or calculation to prove the content

of voluminous writings, recordings, or

photographs which cannot conveniently

(55a)

be examined in court. The proponent

must make the originals or duplicates

available for examination or copying, or

both, by other parties at reasonable time

and place. The military judge may order

the proponent produce them in court.

Mil. R. Evid. 1006.

The Rule contains two requirements for admission:

that the contents of the records be voluminous, and

that the records be made available for examination.

Id. Both of these requirements were met at trial. Yet,

Appellant now contends that the military judge held

an erroneous view of the law in admitting Prosecution

Exhibits 54 and 55 as summaries under Mil. R. Evid.

1006 when they were actually “demonstrative aids

distilling documents that were already in evidence.”

Unlike its federal counterpart, Mil. R. Evid. 1006

has had little analysis in military jurisprudence. See

generally United States v. Reynoso, 66 M.J. 208, 211

(C.A.A.F. 2008) (summary admissible under Mil. R.

Evid.

1006

may

include

information

not

independently admissible if that information is

reasonably relied upon by the expert creating the

summary). Because Mil. R. Evid. 1006 wholly adopted

Fed. R. Evid. 1006, we look to interpretations of the

federal rule to address the issue raised by Appellant.

See Reynoso, 66 M.J. at 211.

In United States v. Milkiewicz, 470 F.3d 390 (1st

Cir. 2006), the First Circuit Court of Appeals provided

a comprehensive overview of the commonly

misunderstood distinction between two types of

summarized evidence. The first type is a summary

(56a)

that fairly represents a voluminous set of documents.

The second type is commonly referred to as a

“pedagogical device” used to assist the court in the

mode of presenting evidence. Id. at 396–97 (citing Fed.

R. Evid. 611(a)). “A summary chart used as a

pedagogical device must be linked to evidence

previously admitted and usually is not itself admitted

into evidence.” Id. (citing United States v. Janati, 374

F.3d 263 (4th Cir. 2004)) (additional citations

omitted).

In most cases, practitioners seeking to admit a

summary of a voluminous set of documents do so

without also admitting the underlying documents.

Milkiewicz, 470 F.3d at 397 (citing United States v.

Bakker, 925 F.2d 728, 736–37 (4th Cir. 1991)

(additional citations omitted)). Others, however, seek

to admit both in order to provide the members with

“easier access to . . . relevant information.” Id. (citing

United States v. Green, 428 F.3d 1131, 1134–35 (8th

Cir. 2005)) (additional citations omitted). Though the

admission of both the summary and the underlying

evidence has been scrutinized, “the fact that the

underlying documents are already in evidence does

not mean that they can be ‘conveniently examined in

court.’” United States v. Stephens, 779 F.2d 232, 239

(5th Cir. 1985).

The key distinction between these two types of

summaries is the purpose for which they are offered.

Here, the Government offered the documents to

reflect complex transactional records but also used

colors and headings to illustrate their theory of the

case. In response to trial defense counsel’s objections,

the military judge assessed the document, in

(57a)

painstaking detail, to make clear what parts of the

summary would be admissible under Mil. R. Evid.

1006. Only after ensuring that the summaries

“accurately reflect[ed]… the underlying information,”

did the military judge admit Prosecution Exhibits 54

and 55. Contrary to Appellant’s assertions, the

admitted summaries were not demonstrative aids.

They were, in fact, accurate summaries of documents

already in evidence. Mil. R. Evid. 1006 does not

preclude the admissibility of underlying evidence.

Accordingly, we find that the military judge did not

abuse the great discretion he is given in admitting the

summaries and providing them to the panel for

consideration in their deliberations.

D. Legal and Factual Sufficiency

In his final assignment of error, Appellant asserts

that the evidence was legally and factually

insufficient to prove: (1) that the property at issue in

seven specifications was military property; and (2)

that Appellant’s actions were taken with the requisite

specific intent. We disagree.

We review issues of both legal and factual

sufficiency de novo, but the test for each is distinct.

“The test for legal sufficiency is ‘whether, after

weighing the evidence in the light most favorable to

the prosecution, a reasonable fact-finder could have

found all the essential elements beyond a reasonable

doubt.’” United States v. Humpherys, 57 M.J. 83, 94

(C.A.A.F. 2007) (quoting United States v. Turner, 25

M.J. 324, 325 (C.M.A. 1987)). “The test for factual

sufficiency ‘is whether, after weighing the evidence

and making allowances for not having personally

(58a)

observed the witnesses, [we ourselves are] convinced

of the [appellant]’s guilt beyond a reasonable doubt.’”

United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000)

(quoting Turner, 25 M.J. at 325). In this unique

appellate role, we apply neither the presumption of

innocence nor guilt, but rather make our own

“independent determination as to whether the

evidence constitutes proof of each required element

beyond a reasonable doubt.” United States v.

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

We apply these principles to the issues raised by

Appellant in turn.

1. Military Property

At trial, Appellant was convicted of three

specifications of larceny and four specifications of

attempted larceny. Each of these specifications

alleged that the money stolen by Appellant was

military property. Appellant asserts that the

Government failed to meet its burden to prove the

money alleged to have been stolen was military

property. We disagree.

Whether property is “military property” is a

question of law. United States v. Sneed, 43 M.J. 101,

103 (C.A.A.F. 1995). There are two factors we consider

in resolving that question: (1) the “uniquely military

nature of the property itself”; and (2) “the function to

which it is put.” Id. (citing United States v. Schelin, 15

M.J. 218, 220 (C.A.A.F. 1983)).

Applying these factors, we conclude that the

Government met its burden to prove the money stolen

was, in fact, military property. As Appellant correctly

(59a)

notes, the evidence introduced was not a particular

witness testifying on the “nature” of the money

involved. Nevertheless, the record is replete with

evidence that the money was used for a military

purpose. We identify three pieces of evidence to

illustrate the point. First, the Government introduced

evidence of Appellant’s orders at trial, which included

reference to the purpose of his period of duty, such as

an annual tour or military personnel appropriation.

To ensure Appellant’s ability to fulfill his assigned

mission, these orders authorized Appellant travel

expenses. Second, the Government introduced AF

Form 40s indicating that Appellant was performing

various military functions during his IDT period such

as mission support and support for military

operations. Appellant, whose home of record was in

Colorado, was authorized travel expenses to ensure he

could fulfill these assigned missions as well. Finally,

there is significant testimony describing how a

voucher is processed and ultimately paid through the

Defense and Reserve Travel Systems to facilitate

travel for regular component and reserve personnel.

The evidence provided is sufficient to prove that the

money stolen was military property.

2. Specific Intent

The false official statement specification against

Appellant requires that he had the “intent to deceive.”

“‘Intent to deceive’ means to purposely mislead, to

cheat, to trick another, or to cause another to believe

as true that which is false.” Military Judges’

Benchbook, Dept. of the Army Pamphlet 27-9 at 350

(10 Sep. 2014). Each larceny and attempted larceny

specification against Appellant requires proof that he

(60a)

stole the money with the “intent permanently to

deprive.” This intent may be proven by circumstantial

evidence. 2012 MCM, pt. IV, ¶ 46.c.(1)(f)(ii).

As he did at trial, Appellant maintains that the

errors in filing his travel voucher were due to

ignorance, not intention. The record does not support

Appellant’s contention. Although Appellant’s decision

to stay with his in-laws may have been reasonable, it

was not reasonable for Appellant to essentially force

his in-laws to accept a check from him—a check they

did not request nor ultimately cash. Despite never

having actually paid his in-laws for lodging, Appellant

submitted travel vouchers seeking “reimbursement.”

If Appellant’s goal was to ensure they were

reimbursed for their “time and inconvenience,” it does

not follow that Appellant would never ensure the

checks were, in fact, cashed by them when he was

“reimbursed” by the Government. Instead, Appellant

collected the checks that had been returned and

deposited them only after the Government became

suspicious of his claims, eventually returning the

funds to his own accounts. These facts are more than

sufficient to establish an intent to deceive and

permanently deprive.

Drawing “every reasonable inference from the

evidence of record in favor of the prosecution,” the

evidence is legally sufficient to support Appellant’s

conviction beyond a reasonable doubt. United States

v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001). Moreover,

after taking a fresh, impartial look at the evidence,

making our own independent determination as to

whether the evidence constitutes proof of the required

elements of the offenses with which Appellant was

(61a)

charged, and making allowances for not having

personally observed the witnesses, we are convinced

of Appellant’s guilt beyond a reasonable doubt.

E. Sentence Reassessment

As a final matter, we consider the need to reassess

Appellant’s sentence after having modified some of

the findings on which Appellant was convicted. This

court has “broad discretion” in deciding to reassess a

sentence to cure error and in arriving at the

reassessed sentence. United States v. Winckelmann,

73 M.J. 11, 15 (C.A.A.F. 2013). We may reassess a

sentence only if able to reliably determine that, absent

the error, the sentence would have been “at least of a

certain magnitude.” United States v. Harris, 53 M.J.

86, 88 (C.A.A.F. 2000). Our review is guided by the

following factors:

(1) Whether there has been a dramatic

change in the penalty landscape or

exposure;

(2) Whether sentencing was by members

or a military judge alone;

(3) Whether the nature of the remaining

offenses captures the gravamen of

criminal conduct included within the

original offenses and whether significant

or aggravating circumstances addressed

at the court-martial remain admissible

and relevant to the remaining offenses;

(62a)

(4) Whether the remaining offenses are

of the type with which appellate judges

should have the experience and

familiarity to reliably determine what

sentence would have been imposed at

trial.

Winckelmann, 73 M.J. at 15–16.

Applying these principles to the totality of the

circumstances, we are confident we can reassess

Appellant’s sentence. Given the nature of Appellant's

remaining convictions, we are confident that

Appellant would have received a sentence of at least

one month confinement forfeiture of all pay and

allowances, and a dismissal.

III. CONCLUSION

The finding of guilty as to larceny in Specification

2 of Additional Charge I is set aside; the lesserincluded offense of attempted larceny is affirmed.

The finding of guilty as to Specification 3 of

Additional Charge I is affirmed, excepting the figure

“20” and substituting therefor the figure “22.” The

excepted figure is set aside. The substituted figure is

affirmed.

The findings, as modified, and the sentence, as

reassessed, are correct in law and fact and no error

materially prejudicial to the substantial rights of

Appellant occurred. Articles 59(a) and 66(c), UCMJ,

10 U.S.C. §§ 859(a), 866(c).

(63a)

Accordingly, the findings, as modified, and the

sentence, as reassessed, are AFFIRMED.

FOR THE COURT

KATHLEEN M. POTTER

Acting Clerk of the Court

(64a)