Petition for Writ of Certiorari — Solorio v. United States
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i Supreme oun, .
85-1582) ee
MAR 26 1986
No.
Le ™
K
— :
Jn the Supreme Court of the Unated. States
OCTOBER TERM, 1985
RICHARD SOLORIO
YEOMAN First Cuiass, U.S. Coast GUARD. PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT.
’
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF MILITARY APPEALS
ROBERT W. BRUCE, JR.
Lieutenant Commander
U.S. Coast Guard
2100 Second Street, S.W.
Washington, D.C. 20593
(202) 426-0273
Counsel for Petitioner
March 1986
I,
IT.
QUESTIONS PRESENTED
May a court find that an offense committed off-base
at a place where there is no military post or enclave
is service-connected simply because of the civilian
dependent status of the victim?
May a court depart from its precedents setting out
the constitutional limits of court-martial jurisdiction
over offenses against civilian dependents and apply
a more expansive interpretation in the very same
case?
(1)
TABLE OF CONTENTS
Page
Eee eeu a ences ceseccesss I
coat esc eceeeeses
Constitutional and Regulatory Provisions
Ne cee wecense: 2
EE cv cca ccneccccccecenscs 3
Reasons for Granting the Writ ............... 8
eas occ cess cece eens 20)
EE Saws eccccccsesececs: la
ENC EGG yo weeccscocccacccs 18a
eee eine bacco ssccececees 43a
aks ewes cen cescecccss 49a
Ee 55a
es cece ucsecscscess 62a
TABLE OF AUTHORITIES
Cases:
Abney v. United States, 431 U.S.651....... 19
Bouie v. City of Columbia, 378 U.S. 347 .... 10, 12
Cohen v. Beneficial Industrial Loan Corp.,
es ks cas cece cesses: 19
Cox Broadcasting Corp. v. Cohn, 420 U.S.
ee ek enone cc cesccccss 18, 19
Gillespie v. United States Steel Corp., 379
Cees eee ceccsccecccc. 19
Marks v. United States, 430 U.S. 188 ...... 10
Murray v. Haldeman, 16 M.J. 74 (C.M.A.
ee Dale os cece ceneccc. 8
O'Callahan v. Parker, 395 U.S. 258 .. 2.2... 8,9
11-14, 16-19
Relford v. Commandant, 401 U.S. 355 ... 8-17, 19
Stack v. Boyle, CE
United States v. Henderson, 18 U.S.C.M.A.
601, 40 C.M.R. 313 (1969) ..............
(il)
1Y
Cases-Continued: Page
United States v. Johnson, 17 M.J. 73 (C.M.A.
ai ante ee Cee ae
United States v. Lockwood, 15 M.J. 1 (C.M.A.
RR Pa ee payers eine nanan fs
United States v. McGonigal, 19 U.S.C.M.A.
04, 41 C.M.R. 94(19G8)............2.-.
United States v. Scott, 21 M.J. 345 (C.M.A.
SES GE arene a at oC
United States v. Shockley, 18 U.S.C.M.A.
G10, 40 U.B.R. 322 (19G0) ... cee
United States v. Trottier, 9 M.J. 337 (C.M.A.
| RRC UT TT TT CTT ee Perr Trees 5, a
Constitution, Statutes and Rules:
U.S. Const.:
Po A ee ee ere eee
pe OD eee ae
ee tree ed ere are
ec oe ho eas
U.S. Code:
ne IR ns. arora
Uniform Code of Military Justice, 10 U.S.C.
S01 et seq.:
Art. 67(h), 10 U.S.C. 867(h) 2.00...
age. GO, FO UA GBD nnn ccc ccc uweces
Part. BOB, BO UA. GE occ cccccccccncs
pe ae a ee ”
Rules for Court-Martial, Manual for Courts-
Martial, United States (1984):
RM Me
Eee Se are ne rere aa eRe Ong 16,
Lo
16
16
Miscellaneous:
Everett, O'Callahan v. Parker — Milestone or
Millstone in Military Justice?, 1969 Duke
L.J. 853
Tomes, The Imagination of the Prosecutor:
The Only Lim itation to Off-Post Jurisd ie-
tion Now, Fifteen Years After O'Callahan
v. Parker, 25 A.F. L.Rev. 1 (1985)
as
Jn the Supreme Court of the Gnited States
OCTOBER TERM, 1985
No.
RICHARD SOLORIO
YEOMAN First CLAss, U.S. CoAsStT GUARD, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF MILITARY APPEALS
Petitioner, Richard Solorio, respectfully prays that a
writ of certiorari issue to review the judgment and opin-
ion of the United States Court of Military Appeals
entered in this proceeding on January 27, 1986.
OPINIONS BELOW
The opinion of the Court of Military Appeals is
reported at 21 M.J. 251 (C.M.A. 1986) (Appendix
la-17a). The opinion of the Coast Guard Court of
Military Review appears at 21 M.J. 512 (C.G.C.M.R.
1985) (Appendix 18a-42a).
JURISDICTION
The judgment of the Court of Military Appeals was
entered on January 27, 1986, affirming the Coast Guard
(1)
2
Court of Military Review’s decision granting the
government's appeal and reversing the trial judge’s rul-
ing dismissing several charges and specifications for
lack of subject matter jurisdiction. The jurisdiction of
this Court is invoked under 28 U.S.C. §1259.
CONSTITUTIONAL AND REGULATORY
PROVISIONS INVOLVED
The Constitution of the United States provides:
Article III, §2, C1. 3: “The Trial of all Crimes, ex-
cept in Cases of Impeachment, shall be by Jury;
Amendment V: “No person shall be held to answer
for a capital, or otherwise infamous crime, unless
on a presentment of indictment of a Grand Jury, ex-
cept in cases arising in the land or naval forces, or
in the Militia, when in actual! service in time of War
or public danger; nor shall any person be... de-
prived of life, liberty, or property, without due
process of law;...”
Amendment VI: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district
wherein the crime shall have been committed, . . .”
The Rules for Courts-Martial, Manual for Courts-
Martial, United States, 1984, provide as follows:
Rule 201(b): “Requisites for court-martial jurisdic-
tion. A court-martial always has jurisdiction to
determine whether it has jurisdiction. Otherwise,
for a court-martial to have jurisdiction:
~ * *
(5) The offense must be subject to court-martial
jurisdiction.
Discussion
See R.C.M. 203. The judgment of a court-martial
without jurisdiction is void and is entitled to no
legal effect... .”
Ruie 203: “Jurisdiction over the offense. To the ex-
tent permitted by the Constitution, courts-martial
may try any offense under the code and, in the case
of general courts-martial, the law of war.”
The discussion and analysis of Rule 203, are attached
as Appendix 43a-48a and Appendix 49a-54a, respective-
ly.
STATEMENT OF THE CASE
The petitioner, an enlisted man in the Coast Guard,
was charged with fourteen specifications alleging inde-
cent liberties, lascivious acts and indecent assault in
violation of Article 134, Uniform Code of Military
Justice [UMCJ],' six specifications alleging assault in
violation of Article 128, UCMJ,? and one specification
alleging attempted rape in violation of Article 80,
UCMJ.* The court-martial invoked jurisdiction under
Article 2, UCMJ, 10 U.S.C. §802. At a pre-trial hearing
on June 3 and 4, 1985, petitioner made a motion to
dismiss all the charges and specifications alleging
assaults and attempted rape, and seven of the specifica-
tions alleging indecent liberties, lascivious acts and in-
decent assault in violation of Article 134, UCMJ, for
lack of subject matter jurisdiction.
110 U.S.C. §934.
210 ULS.C, $928.
310 U.S.C. §8so.
The fourteen specifications petitioner moved to
dismiss all alleged offenses at Juneau, Alaska. The
seven remaining specifications alleged similar, but un-
related, offenses at Governors Island, New York, a
Coast Guard base.
After hearing evidence and argument on the motion.
the trial judge dismissed the fourteen specifications
alleging offenses at Juneau and the charges of violating
Article 128 and Article 80, UCMJ, because the offenses
lacked service-connection. The trial judge made findings
of fact’ on the record (Appendix 55a-61a) and prior to
authenticating the record attached supplemental find-
ings of fact (Appendix 62-63a).
The dismissed charges and specifications allege of-
fenses against two girls. United States v. Solorio, 21
M.J. 512, 514 (C.G.C.M.R. 1985). The fathers of these
girls were, like petitioner, active duty members of the
Coast Guard assigned to the staff of the Commander,
Seventeenth Coast Guard District. Jd. All the offenses
allegedly occurred in petitioner’s privately owned home
eleven miles from the Federal Office Building in down-
town Juneau where he worked. Jd. The alleged victims
and their families also lived in civilian housing, there be-
ing no government quarters in Juneau for anyone other
than the District Commander. Jd.
In Juneau at the tine of the alleged offenses, there
was no Coast Guard controlled post or enclave where
many service personnel lived and worked. Jd. at n.1.
The closest equivalent in Juneau was the Coast Guard
Station, a 1.3 acre facility with a complement of four-
teen enlisted persons. Jd. Over two hundred Coast
Guard military personnel were assigned to the district
office, occupying four of the nine floors of the Juneau
* Rule 905(d), Rules for Court-Martial, Manual for Courts:
Martial, United States, 1984, requires the military judge to state
his essential findings of fact on the record when factual issues are
involved in determining a motion.
D
Federal Office Building, where other Federal agencies
are also located. Jd. The Coast Guard Marine Safety Of-
fice situated in a building adjacent to the Federal Office
Building had a military complement of seventeen per-
sons. Jd. With the possible exception of some of the com-
plement of six officers and forty-nine enlisted personnel
on the buoy tender berthed at the Coast Guard Station,
all of the approximately three hundred Coast Guard
military personnel in Juneau lived in the civilian com-
munity. Id.
A friendship had grown between petitioner and the
families of the alleged victims, grounded in one case on
the common sporting interests of bowling and basket-
ball, and in the other, on the fortuity of living next door.
Id. at 514. The alleged victims came to petitioner’s home
on a regular basis to visit with his two sons. Jd. Both
girls at one time played on a soccer team coached by
petitioner and they bowled in a league in which he was
active. Id. These associations were much more signifi-
cant than any military relationship between petitioner
and the fathers of the alleged victims, which the trial
judge found to be de minimis. Record at 131 and Appen-
dix at 58a.
There was no evidence that any of the allegations
have become common knowledge, even among the
Coast Guard personnel, at Juneau. No allegations were
made against petitioner until all parties had been per-
manently transferred to duty stations outside Alaska.
United States v. Solorio, 21 M.J. 512, 514 (C.G.C.M.R.
1985). Petitioner was stationed at Juneau from Novem-
ber 1980 to June 1984. Appellate Exhibit 1V. Warrant
Officer Johnson and his family, including Amber
Johnson, left Juneau in June 1983. Record at 43 and Ap-
pellate Exhibit VI. Amber did not make any allegations
against petitioner until March 1985. Record at 47. Petty
Officer Grantz and his family, including Jennifer
6
Grantz, left Juneau in June 1984. Record at 60. Jennifer
did not make any allegations against petitioner until
about April 1985. Record at 63.
The Alaska prosecutor, in a letter to the Coast Guard,
stated “that at this time, subject to future evaluation or
developments, that the Department of Law, Criminal
Division, State of Alaska, will defer prosecution of
Yeoman First Class Richard Solorio, United States
Coast Guard, to the legal prosecutional arm of the Coast
Guard.” Appellate Exhibit IX. However, there was also
evidence that the State of Alaska had recently pros-
ecuted two similar cases involving members of the
Coast Guard with results highly satisfactory to the
Coast Guard. Appellate Exhibit X. And at trial. Special
Agent Gary Smith testified that the State of Alaska was
continuing to investigate allegations that the accused
had sexually abused the children of other civilians still
living in Juneau. Record at 87.
The accused is presently assigned to Coast Guard
Group New York at Governors Island, New York,
where he lives in Government quarters and where the
instant general court-martial was convened. United
States v. Solorio, 21 M.J. 512, 514 (C.G.C.M.R. 1985).
In his findings of fact, the trial judge addressed the
twelve Relford factors® and the nine additional Relford
considerations,® and found that none of them supported
a finding of service-connection. Additionally, the
military judge considered, among other things, the
military relationship between petitioner and the service-
member fathers of the alleged victims, the effect of the
alleged offenses on morale, discipline or effectiveness
within the military community in Juneau, the reputation
of the Coast Guard with the civilian community in
® See Relford v. Commandant, 401 U.S. 355 (1971), and Appendix
at 44a-46a.
8 Td.
7
Juneau, the relation of the offenses alleged to have been
committed in Alaska to the offenses alleged to have
been committed in New York, and the impact of the
alleged offenses on the servicemember fathers of the
alleged victims and through them on the service. The
military judge found that the asserted impact upon the
service was too remote and indirect to support service-
connection.’
The government appealed the military judge’s ruling
to the Coast Guard Court of Military Review and that
court granted the government’s appeal, reversing the
military judge. Before the Coast Guard Court of
Military Review petitioner argued, in opposition to the
government’s appeal, that the military judge had prop-
erly applied the service-connection test required by
O'Callahan v. Parker, 395 U.S. 258 (1969), and Relford
v. Commandant, 401 U.S. 355 (1971), and properly
found that the facts of this case did not support subject
matter jurisdiction.
The United States Court of Military Appeals granted
review of the Coast Guard Court’s decision and af-
firmed. In his petition for grant of review, petitioner
argued that the Court of Military Review's decision was
incorrect because it had not properly applied the
service-connection test required by O’Callahan, and
Relford, and because the military judge had properly
found that the facts did not support subject matter
jurisdiction.
7“In this case there is no direct impact on the service. The in-
direct impact that exists is not sufficient to create service-
connection. That indirect impact consists of servicemember-
parents’ preoccupation with family situation affecting the
members’ performance, some initial counseling and referral from
persons whose position it is to take such action, and time to par-
ticipate in proceedings under the U.C.M.J.” Military Judge’s Sup-
plemental Findings of Fact, Appendix at 62a-63a and United States
v. Solorio, 21 M.J. 251, 253 (C.M.A. 1986).
8
Petitioner made a motion to the Court of Military Ap-
peals to stay the court-martial proceedings to permit
him to petition for a writ of certiorari. By its order
dated February 5, 1986, the Court of Military Appeals
. denied the motion. Petitioner then made application to
Chief Justice Warren E. Burger for a stay of the court-
martial proceedings pending timely filing and dis-
position of a petition for a writ of certiorari. The Chief
Justice denied the application on February 10, 1986.
The court-martial proceedings went forward on
February 18, 1986, and on March 11, 1986, petitioner
was convicted of eight of the fourteen specifications
alleging offenses in Alaska. Petitioner was also con-
victed of four of the seven specifications alleging of-
fenses in New York.
REASONS FOR GRANTING THE WRIT
There is good cause to grant this petition for a writ of
certiorari because the United States Court of Military
Appeals’ decision in this case conflicts with this
Honorable Court’s decisions in O'Callahan v. Parker,
395 U.S. 258 (1969), and Relford v. Commandant, 401
U.S. 355 (1971). The Court of Military Appeals’ decision
expands court-martial subject matter jurisdiction far
beyond the constitutional limits spelled out in
O'Callahan and Relford.
In this case, the Court of Military Appeals has ob-
viously employed its flexible subject matter jurisdiction
analysis;* an analysis that is not bound by the result that
* The United States Court of Military Appeals began its depar-
ture froin what it termed a “slavish” application of the Reljord
criteria in United States v. Trottier, 9 M.J. 337 (C.M.A. 1980). It
has continued this trend in its decisions in United States v.
Lockwood, 15 M.J. 1 (C.M.A. 1983); Murray v. Haldeman, 16 M.J.
74 (C.M.A. 1983); United States »v. Johnson, 17 M.J. 73 (C.M.A.
1983); and in the instant case.
9
application of the Relford factors and considerations re-
- quires, and that does not set any limits on other criteria
that may be considered. This analysis renders the
service-connection test so pliable it is meaningless and it
provides servicemembers no protection of their con-
stitutional rights. It gives military courts a completely
free hand to find that service-connection exists on the
basis of any single factor or combination of factors,
tangible or intangible, proven or presumed. Moreover,
by rejecting the Relford factors and considerations as
controlling, the Court of Military Appeals’ decision, at
the very least, sets the law of service-connection back to
the time, after O'Callahan but before the Relford deci-
sion, when the “infinite permutations of possibly rele-
vant factors”? created doubt and confusion about the
limits of subject matter jurisdiction.
Clearly, however, the Court of Military Appeals’ flexi-
ble service-connection test is being used, case by case,
to eviscerate the O'Callahan and Relford decisions. In
United States v. Trottier, 9 M.J. 337 (C.M.A. 1980), the
Court of Military Appeals extended military subject
matter jurisdiction to all drug offenses. In this case it
has extended military subject matter jurisdiction to all
sex offenses against dependents. In its latest subject
matter jurisdiction case, the Court of Military Appeals
has indicated that it may be willing to accept the posi-
tion that all offenses committed by officers are service-
connected. United States v. Scott, 21 M.J. 345 (C.M.A.
1986).
Another strong reason to grant this petition is that
the record does not and cannot support subject matter
jurisdiction. Petitioner submits that the trial judge was
correct in finding that the Coast Guard lacked subject
* O'Callahan v. Parker, supra at 284 (Harlan, J., dissenting).
10)
matter jurisdiction over the charges and specifications
he dismissed. There is no Coast Guard post or enclave,
in the usual sense of those terms, at Juneau and the of-
fenses have not become public knowledge in Juneau;
therefore, any impact of these offenses on the Coast
Guard has been remote and indirect as the trial judge
properly found.
The Court of Military Appeals’ decision does not ad-
dress the Relford factors and considerations, or the fact
that the trial judge considered all of them and did not
find a single one that supported service-connection. In-
stead, the decision relies principally on a holding that,
as a matter of law, the impact of the dismissed offenses
on the fathers of the alleged victims caused an impact
on the Coast Guard sufficient to support subject matter
jurisdiction. This holding bases jurisdiction solely on the
dependent status of the victims and is inconsistent with
the trial judge’s finding of fact that the impact of the
dismissed offenses on the fathers of the alleged victims
had only a remote and indirect impact on the Coast
Guard. See note 7, supra.
The Court of Military Appeals’ application of its ex-
pansive subject matter jurisdiction test to petitioner is
grounds for summary reversal. Whether or not that
Court’s interpretation of the reach of the Uniform Code
of Military Justice conflicts with this Court's decisions,
its application to petitioner in this case violates Fifth
Amendment due process. Marks v. United States, 430
U.S. 188 (1977); Bouie v. City of Columbia, 378 U.S. 347
(1964).
In Marks, this Court held that the application of a
decision expanding the constitutional reach of a statute,
that proscribed conduct in sweeping language, to con-
duct that occurred before the decision was improper. In
that case, the constitutional limits on statutes proserib-
ing obscenity were relaxed in a decision rendered after.
the defendants had allegedly transported obscene 4
1]
terial in interstate commerce. The application of the
more expansive standard for obscenity to the defend-
ants there was held to violate the Due Process Clause
because it would have the same effect as an ex post facto
law.
Here, the Court of Military Appeals has relaxed the
constitutional limits on the reach of the Uniform Code
of Military Justice, and in particular Articles 80, 128
and 134, 10 U.S.C. §§80, 128 and 134, as they relate to
off-base sex offenses against civilian dependents. Those
statutes proscribe conduct of servicemembers in sweep-
ing language that this Court has confined within con-
stitutional limits in O'Callahan and Relford. This deci-
sion is contrary to the Court of Military Appeals’ own
precedents which held that conduct like that involved
here was beyond the reach of the Uniform Code of
Military Justice. United States v. MecGonigal, 19
U.S.C.M.A. 94, 41 C.M.R. 94 (1969); United States v.
Shockley, 18 U.S.C.M.A. 610, 40 C.M.R. 322 (1969);
United States v. Henderson, 18 U.S.C.M.A. 601, 40
C.M.R. 313 (1969).
The Court of Military A, peals, however, did not ad-
dress the due process issue in this case. The Court mere-
ly stated that:
Admittedly, our precedents involving off-base sex
offenses against civilian dependents of military per-
sonnel would point to a different conclusion. See,
e.g., United States v. McGonigal, 19 U.S.C.M.A. 94,
41 C.M.R. 94 (1969); United States v. Shockley, 18
U.S.C.M.A. 610, 40 C.M.R. 322 (1969); United
States v. Henderson, 18 U.S.C.M.A. 601, 40 C.M.R.
313 (1969). However, as we made clear in United
States v. Trottier, 9 M.J. 337 (C.M.A. 1980), which
concerned drug activity, some of our earlier opin-
ions on service-connection should be reexamined in
light of more recent conditions and experience.
[Footnote omitted].
United States v. Solorio, 21 M.J. 251, 254 (C.M.A. 1986).
el
12
The comment in a case concerning drug activity that
“some” earlier opinions on service-connection need to be
reexamined certainly cannot have satisfied the peti-
tioner’s right to fair warning about the reach of military
statutes proscribing sex offenses. For one thing, the
most significant rationale for the Trottier decision was
that, because of their impact on military readiness, “it is
necessary and proper in today’s world that court-
martial jurisdiction over most drug offenses be invoked
as a proper exercise of the war powers.” United States v.
Trottier, supra, at 352. There has been no suggestion
that off-base sex offenses similarly affect military
readiness or are otherwise related to authority stem-
ming from the war power.
Furthermore, the expansion of the reach of the
Uniform Code of Military Justice to these offenses
deprives petitioner of constitutional trial rights that
even Congress could not retroactively strip from him.
Such a law would be an ex post facto law. If Congress
cannot pass such a law, the Court of Military Appeals
cannot achieve the same result by jud‘cial construction.
Bouie v. City of Columbia, supra at 353-354. Of course,
Congress has not attempted to legislatively expand
military jurisdiction over off-base sex offenses, even
prospectively.
Although this case can be disposed of by a summary
reversal, this Court should address the subject matter
jurisdiction issues presented. Clearly, the military
courts, following the lead of the Court of Military Ap-
peals, are going to continue to find jurisdiction in every
significant case until this Court reaffirms O'Callahan
and Reljord as the law, or sets some other reasonable
limits on the criteria that can support military jurisdic-
tion.
13
This Court observed in O'Callahan and Relford that
Article I, §8, c1.14 and the Fifth Amendment allow Con-
gress to create military courts which need not provide
all the procedural safeguards essential in an Article ill
court. On the other hand, the Court found that in cases
not subject to courts-martial, Article III, §2, 1.3, the
Sixth Amendment, and possibly the Fifth Amendment,
guarantee the rights to indictment by grand jury and
trial by jury before a civilian court.
This Court has clearly stated that it intends the
service-connection test to balance these constitutional
rights of servicemembers against the military’s interest
in trying the case at a court-martial. While acknowledg-
ing that the special needs of the military justify a
separate military justice system, the Court recognized
that “expansion of military discipline beyond its proper
domain carries with it a threat to liberty.” O'Callahan v.
Parker, supra, at 265. Moreover, the Court observed
“the constitutional power of Congress to authorize trial
by court-martial presents another instance calling for
limitation to the ‘least possible power adequate to the
end proposed.’ ” Jd. (citing Toth v. Quarles, 350 U.S. 11,
22-23 (1955)).
The Court of Military Appeals’ decision, however,
does not give proper consideration to the interests of
servicemembers. It suggests that any asserted impact
upon the military, regardless of how remote or indirect,
will be sufficient to outweigh the servicemember’s con-
stitutional rights. The Court of Military Appeals seems
to have embraced the position of one writer who has
suggested that the imagination of the government is the
only limitation on court-martial subject matter jurisdic-
tion.!°
” Tomes, The Imagination of the Prosecutor: The Only Limita-
tion to Off-Post Jurisdiction Now, Fifteen Years After O'Callahan
v. Parker, 25 A.F.L.Rev. 1 (1985).
14
The Court of Military Appeals’ decision sets this area
of the law back to the time before Relford explicitly
spelled out clear standards for deciding whether or not
subject matter jurisdiction exists. Justice Harlan,
dissenting in O'Callahan v. Parker, supra, stated:
the Court suggests no general standard for deter-
mining when the exercise of court-martial jurisdic-
tion is permissable. . .. Congress and the military
are at least entitled to know with some certainty
the allowable scope of court-martial jurisdiction.
Otherwise, the infinite permutations of possibly
relevant factors are bound to create confusion and
proliferate litigation over the jurisdiction issue in
each instance.
Id. at 284. He concluded, “the Court has thrown the law
in this realm into a demoralizing state of uncertainty.”
Id. at 275.
In Relford, this Court reiterated that a crime must be
service-connected to be tried by court-martial, but
acknowledged that the O'Callahan decision had met
with some generally critical comments including those
of, then, Professor Everett. Jd. at 357. The Court noted
that some of the criticism expressed concern, as had
Justice Harlan’s dissent, about the confusion that
O'Callahan might cause.'' Id. Therefore, in Relford this
Court clearly set out its analysis of the service-
connection issue and that analysis has served as a model
which has been followed by lower courts for more than
'' Chief Judge Everett wrote in his article, O'Callahan v.
Parker —Milestone or Millstone in Military Justice?, 1969 Duke
L.J. 853, at 869, “[cJriticism of the majority opinion would be more
muted if it had given a clearer test for deciding when military
jurisdiction exists.”
15
ten years. That service-connection analysis has elim-
inated the potential for confusion in this area of the law
by limiting the “infinite permutations of possibly rele-
vant factors” to the twelve “Relford factors” and nine
additional considerations.
Prior to the Relford decision, it was those who favored
expansive military jurisdiction that seemed most con-
cerned about the unlimited factors that could be con-
sidered in deciding whether or not an offense was
service-connected. They were concerned that military
interests would not receive proper consideration. Now
it is the servicemember who is concerned that his in-
dividual interests are not being protected. While reject-
ing the Relford factors and considerations as too inflexi-
ble, the Court of Military Appeals has not placed any
limitations on other factors that can support subject
matter jurisdiction. In this case, and in others,'* the
Court of Military Appeals has indicated that any single
factor or combination of factors, tangible or intangible,
proven or presumed, may be sufficient to find that an of-
fense is service-connected.
The Coast Guard Court of Military Review’s decision
in this case is a perfect example of how ready military
courts are to exercise and expand this freedom to find
jurisdiction based on the flimsiest claim of military in-
terest. That decision bases subject matter jurisdiction
primarily on the potential impact on petitioner's
military neighbors at Governors Island. The impact was
inferred entirely from the nature of the alleged of-
fenses, even though the offenses allegedly occurred
many months before they were disclosed and thousands
of miles from Governors Island. Although the govern-
ment had the burden of proving jurisdiction by a pre-
ponderance of the evidence, see Rules for Courts-
12 See note 8, supra.
nail teenie teenie
16
Martial (R.C.M.) 905(c\(1), and 905(c\2\B), Manual for
Courts-Martial, United States, 1984 (MCM 1984), the
Coast Guard Court inferred the potential impact
without any proof of actual impact on Governors Island.
As this obviously suggests, the Court of Military Ap-
peals’ flexible analysis permits military courts to broad-
ly infer impact from the nature of the offense. As a
result, an offense may be found to be service-connected
per se, in violation of this Court’s requirement for a fact
based determination of service-connection. See Relford
v. Commandant, supra at 365-366. The Court of
Military Appeals’ decision, in this case, certainly implies
that every sex offense committed by a servicemember
against a child dependent is per se service-connected.
United States v. Solorio, 21 M.J. 251, 256 (C.M.A. 1986).
No previous case has held that the dependent status of
a victim is sufficient to support subject matter jurisdic-
tion over an offense that has no significant and direct
impact on the military. The dependent status of the vic-
tims was one of the factors supporting jurisdiction in
Relford; but there were other significant factors, in-
cluding the fact that the offenses were committed on a
military post. In this case, however, the offenses oc-
curred in the petitioner’s private home in the civilian
community, at a place where there is no military post at
which servicemembers and their families live. Further-
more, the offenses have never become public
knowledge, even among servicemembers, at the place
where they occurred.
By Executive Order, the law of O'Callahan, and
Relford, have been incorporated into the regulations
that govern courts-martial. Rule 201(b), R.C.M., MCM
1984, states that courts-martial only have jurisdiction
over offenses that are subject to court-martial jurisdic-
tion. Rule 203, R.C.M., MCM 1984, makes any offense
under the Uniform Code of Military Justice subject to
17
court-martial jurisdiction, to the extent permitted by
the Constitution.
The Discussion and Analysis of Rule 203 were pub-
lished by the Department of Defense in conjunction with
the Department of Transportation. They are nonbind-
ing, but they are entitled to great deference and weight
because they set forth the drafters’ views of the state of
the law of subject matter jurisdiction. The Discussion of
Rule 203 clearly reflects the continuing vitality of this
Court’s decisions in O'Callahan and Relford.
The section on “Determining service-connection” in
the Discussion of Rule 203, begins with a recitation of
the twelve factors and the nine additional considera-
tions enumerated in Relford. See Appendix at 44a-46a.
There is no hint in either the Discussion or the Analysis
of Rule 203 that the dependent status of a victim is, by
itself, sufficient to establish service-connection.
Therefore, the Court of Military Appeals’ decision, not
only fails to follow this Court’s decisions in O'Callahan
and Relford, it conflicts with the settled law of subject
matter jurisdiction, as understood and described by the
drafters of Rule 203.
The Court of Military Appeals’ has erred in sug-
gesting that developments in the military and in society
since the O'Callahan and Relford decisions justify rejec-
tion of its own precedents which properly applied those
decisions. United States v. Solorio, 21 M.J. 251, 254
(C.M.A. 1986). The need to limit court-martial jurisdic-
tion to its proper domain is as great now as it was when
O'Callahan and Relford were decided.
Our society’s increased concern for the victims of
crime is no more reason to take the right to a civilian
trial away from servicemembers than it is a reason for
subjecting civilians to trial by court-martial. Any victim
who felt that “a military trial is marked by the age-old
18
manifest destiny of retributive justice”!* might prefer a
trial by court-martial. That does not, in any way, justify
depriving an accused of constitutionally protected trial
rights.
Increased concern for victims is not a singularly
military phenomenon. State officials would have been
equally interested in protecting the victims’ rights, if
this case had been tried in state court. As the Court of
Military Appeals has pointed out, Congress and state
legislatures have made changes in civilian criminal
systems to protect more fully the rights of victims.
United States v. Solorio, 21 M.J. 251, 254-255 (C.M/A.
1986). Civilian courts, certainly, have not interpreted
such changes as authority for the abridgment of con-
stitutionally protected trial rights.
Although this petition for a writ of certiorari results
from the affirmance of a decision granting a govern-
ment appeal, the petition should be granted at this time.
The subject matter jurisdiction issues are collateral to,
and separable from, the merits of petitioner’s court-
martial. They have already been completely developed,
and resolved in a fully dispositive decision. Clearly, the
most campelling reason for granting the petition now is
that petitioner may never again be able to ask this Court
to consider this case, except by a collateral attack or a
petition for extraordinary relief, even though he has
been convicted and sentenced to a bad conduct dis-
charge and a year of confinement.
This is a case where immediate review should be
allowed because the question of jurisdiction has been
finally decided, with further proceedings on the merits
subsequently completed, but in which later review of the
jurisdiction issue may be frustrated, despite the
ultimate outcome of the case. See Cox Broadcasting
Corp. v. Cohn, 420 U.S. 469, 481 (1975). There is no
13 O'Callahan v. Parker. supra at 266.
19
question of the Court’s jurisdiction to review the case at
this time. Under 28 U.S.C. §1259 and Article 67(h), UC-
MJ, 10 U.S.C. §867(h) (1984), this Court may review any
decision of the Court of Military Appeals, whether final
or not, except for a decision not to grant a petition for
review.
On the other hand, in the normal course of appellate
review this Court will have no jurisdiction to review this
case unless the Court of Military Appeals reviews it
again. The Court of Military Appeals, of course, reviews
only a small fraction of the cases eligible for review.
Therefore, this may be the last opportunity for the
United States Supreme Court to address the important
issues presented, in this case.
Moreover, failure to grant the petition at this time
poses a threat of serious erosion of the important rights
underlying the O'Callahan and Relford decisions; the
servicemember’s right, against subjection to excessive
assertions of military jurisdiction, and to trial by a
civilian court. If immediate review is not permitted, the
Court of Military Appeals can ignore this Court's
precedents with impunity, and continue to expand sub-
ject matter jurisdiction, in cases brought to it on
government appeals.
This Court has often recognized the need t. review
judgments that have not terminated the proceedings.
See Abney v. United States, 431 U.S. 651 (1977), Stack v.
Boyle, 342 U.S. 1 (1951) (both on appeal from pretrial
orders in federal criminal proceedings); Gillespie v.
United States Steel Corp. 379 U.S. 148 (1964), Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)
(both on appeal from decisions in federal civil actions
while further proceedings were pending); Cox Broad-
casting Corp. v. Cohn, supra (on appeal from decision in
state court while further proceedings were pending).
dititeenesiacmccenieaimiiatitiaiiniiti tite
20
The question of military jurisdiction in this case will
not be meaningfully reviewed again in the military
courts. All of the relevant facts were marshaled at the
pre-trial hearing on jurisdiction. Petitioner’s trial on the
merits has not produced any additional facts that could
affect the military courts’ decisions on jursidiction, since
those decisions are essentially based on just the depend-
ent status of the victims or the general nature of the of-
fenses. Therefore, immediate appeal should be per-
mitted.
CONCLUSION
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the United States
Court of Military Appeals.
Respectfully submitted,
ROBERT W. BRUCE, JR.
Lieutenant Commander
U.S. Coast Guard
2100 Second Street, S.W.
Washington, D.C. 20593
(202) 426-0273
Counsel for Petitioner
March 1986
APPENDIX
APPENDIX A
UNITED STATES, Appellee,
Ve
RICHARD SOLORIO, YEOMAN First CLASS
U.S. Coast GUARD, Appellant.
No. 53603.
CGCM Misc. No. 004-85.
U.S. Court of Military Appeals.
Jan. 27, 1986.
Accused, yeoman first class, United States coast
guard, was charged with numerous sex offenses involv-
ing minor female dependents of fellow coast guards-
man, which offenses allegedly occurred in Alaska and
subsequently at Governor’s Island. The military judge
dismissed charges and specifications concerning Alaska
offenses. The Coast Guard of Military Review, 21 M.J.
512, reversed. Accused petitioned for review. The Court
of Military Appeals, Everett, C.J., held that service con-
nection existed notwithstanding that offenses occurred
off base while accused was properly absent from his unit
and in a place not under military control.
Afiirmed.
1. Military Justice §1411
A military judge’s fact-finding power under Article 62
cannot be superseded by a Court of Military Review in
an appeal under Article 62. UCMJ, Art. 62, 10 U.S.C.A.
§ 862.
2. Military Justice )555
Off-base sex offenses allegedly committed by accused
on minor daughters of fellow coast guardsman assigned
(la)
Ee
Za
to the same district office as accused were subject of
court-martial jurisdiction, notwithstanding that accused
was properly absent from his unit and that offenses oc-
curred in a place not under military control; departing
from United States v. McGonigal, 19 U.S.C.M.A. 94, 41
C.M.R. 94; United States v. Shockley, 18 U.S.C.M.A.
610, 40 C.M.R. 322; United States v. Henderson, 18
U.S.C.M.A. 601, 40 C.M.R. 313. UCMJ, Arts. 39(a), 80,
128, 134, 10 U.S.C.A. §§ 839(a), 880m, 928, 934.
3. Military Justice § 552
Lack of in personam jurisdiction over a civilian who
commits a crime having great impact on service person-
nel does not mean that there would be no court-martial
jurisdiction over the same crime if committed by a serv-
ice member.
4. Military Justice § 555
Sex offenses against young dependents of military
personnel have a continuing effect on the victims and
their families and ultimately on the morale of any
military unit or organization to which the family
member is assigned and such effects tend to establish
service connection necessary for court-martial of serv-
ice member who perpetrates the offenses.
5. Military Justice § 555
Because accused’s transfer from Alaska, where al-
leged sex offenses on minor daughters of fellow service
member occurred, to Governor’s Island, where accused
allegedly perpetrated similar offenses on minor
daughter of another service member, was a routine mat-
ter and in no way undertaken with a view to creating
court-martial jurisdiction, it was appropriate, in deter-
mining service connection, to consider the situation as it
presently existed and not merely as it existed in Alaska
3a
when the crimes were committed but before they were
discovered; same observation applied with respect to
the Governor’s Island offenses as regards consideration
of similar offenses committed some months after
charged offenses.
6. Military Justice § 552
Pendency of subsequent offenses for trial by general
court-martial is relevant in determining service connec-
tion of prior, similar offenses.
For Appellant: Liewtenant Commander Robert Bruce
(argued).
For Appellee: Lieutenant Commander Thomas J.
Donlon (argued).
Opinion of the Court
EVERETT, Chief Judge:
Yeoman First Class Richard Solorio was charged
under Articles 80, 128, and 134 of the Uniform Code of
Military Justice, 10 U.S.C. §§ 880, 928, and 934, respec-
tively, with numerous sex offenses involving females
under the age of 16, each of whom was the daughter of a
Coast Guardsman. Fourteen specifications alleged
misconduct occurring at Juneau, Alaska, between
March 1982 and June 1984; and seven specifications
concerned misconduct at Governor’s Island during the
period from November 20, 1984, to January 5, 1985. In
a session under Article 39(a), UCMJ, 10 U.S.C. § 839(a),
prior to trial, the defense moved to dismiss all the
charges and specifications concerning the alleged of-
fenses committed in Alaska on the grounds that they
were not subject to court-martial jurisdiction. See
Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28
L.Ed.2d 102 (1971); O'Callahan v. Parker, 395 U.S. 258,
89 S.Ct. 1683, 23 L.Ed.2d 291 (1969). After receiving
4a
evidence and hearing argument, the military judge
made findings of fact; and, based on those findings, he
granted the motion to dismiss.
The Government appealed from this ruling pursuant
to Article 62, UCMJ, 10 U.S.C. § 862, and the Coast
Guard Court of Military Review reversed the military
judge’s ruling. 21 M.J. 512 (1985). In turn, Solorio peti-
tioned this Court for review and moved for a stay in his
trial, which meanwhile had been set for December 3,
1985. A hearing took place on this motion and on the
petition, at which time counsel for the parties ably
argued their respective contentions as to the court-
martial’s jurisdiction over the offenses dismissed by the
military judge. We now conclude that the decision of the
Court of Military Review was correct, and the Govern-
ment should be allowed to proceed to trial on the
specifications involving alleged misconduct at Juneau,
Alaska.
I
At trial, counsel for the parties marshaled all available
evidence and presented cogent arguments in support of
their respective positions; and the military judge con-
scientiously made findings of fact as he sought to apply
the criteria relevant in determining the issue of service-
connection. See Relford v. Commandant, supra. Accord-
ing to these findings, Solorio
was properly absent from his unit at the time of
each . . . [offense in Juneau].
-Each offense . . . occurred away from any military
base at the accused’s residence in the civilian com-
munity.
-Each offense... occurred in a place not under
military control.
5a
[T]here was no connection between the accused's
military duties and the alleged offenses.
~The victims were not service members and were not
involved in military duties or military supported or
sponsored activities at the time of any of the alleged
offenses.
~ Civilian courts are present [in Alaska] and available
to adjudicate the offenses. While the State of Alaska
has presently deferred prosecution in light of this pro-
ceeding, the State has not waived prosecution, nor
declined to prosecute.
~— Accused was not in uniform and in no way flouted
military authority at the time of the alleged offenses.
—None of the alleged offenses posed a threat to any
military installation . . . [or] resulted in any violation
of military property.
— All the alleged offenses are of the type traditionally
prosecuted by civilian courts and are specifically of
the type the Coast Guard has recently consented to
have civilian courts prosecute Coast Guard members
for in Alaska.
* x a * * *
There has been no demonstrated impact of the of-
fenses on morale, discipline, the reputation or the in-
tegrity of the Coast Guard in Juneau, the personnel
assigned there, nor on military operations or mis-
sions. The impact apparent in this case, that is, on the
parents and the victims themselves is no different
than that which would be produced by civilian
perpetrator.
” * * ~ ~ *
There has been no showing of diminished morale,
discipline, or effectiveness within the military com-
munity in Juneau, Alaska. As to the effect of the
alleged incidents toward the Coast Guard within the
6a
civilian community, there has been speculation by
military personnel, but little more.... There is no
evidence that these alleged offenses were known by
anyone in the community to have taken place, outside
of law enforcement circles. I find no adverse impact
on the reputation of the Coast Guard in Juneau has
resulted from these incidents. . .. The impact of the
alleged offenses, primarily reflected in the testimony
of the service member parents of the victims, is that
which might be expected of the victim of any crime of
a similar nature, and while that impact may manifest
itself ii the work situation of those members, it does
not rise to the level to compel the exercise of court-
martial jursidiction in these circumstances. In this
regard, I note the increased caution of the parents
victims may now exercise over their children, the re-
quirements for counseling, anxiety, and time away
from work for legal proceedings. These concerns
would be the same whether the status of the offender
were military or civilian. There has been no impact on
transfer of military personnel within the meaning of
the Personnel Manual provisions which have been
taken judicial notice of. There have been transfers of
all involved parties without restrictions.
Among supplementary findings subsequently made by
the judge were these:
4. Crime has an impact. The impact is felt on the vic-
tim and on those close to the victim. It is also
reflected in the greater society of which the victim
and offender are a part. Impact may be direct or in-
direct. In this case there is no direct impact on the
service. The indirect impact that exists is not suffi-
cient to create service connection. That indirect im-
pact consists of servicemember-parents’ preoccupa-
tion with family situation affecting the members’ per-
formance, some initial counseling and referral from
Ta
persons whose position it is to take such action, and
time to participate in proceedings under the U.C.M.J.
Good order, discipline, morale and welfare of service-
members have not been directly impacted. Service
reputation has not been adversely affected and those
attributes of service reputation in a community which
have been testified about, for example, credit worthi-
ness, job stability for spouses, members’ and families’
access to community activities; would not be
negatively impacted if these offenses were to come to
light.
x * * * * *
6. The offenses alleged to have occurred in Alaska are
significantly remote in time and place from those
alleged to have occurred in New York.
The Court of Military Review concluded that in his
findings the judge had erred in several important
respects. For one thing,
it was error for the judge to base his assessment of
impact on the Juneau command solely on the ob-
served effect after departure of all parties.
A more relevant finding in this area would pertain
to the impact of these offenses on morale and
discipline at Governors Island, where the accused is
now stationed and living on base. The judge made no
specific findings, however, with respect to the possi-
ble effect of the offenses on morale, good order and
discipline within any command at Governors Island or
on personnel under the authority and responsibility of
the convening authority, Commander, Third Coast
Guard District.
21 M.J. at 519. The Court of Military Review also
disagreed
with the judge’s conclusion that the concern of the
parents in this case “would be the same whether the
Taian ieee
Sa
status of the offender were military or civilian.” Such
a conclusion overlooked the possible unique and
distinct effect from the discovery by the fathers that a
fellow Coast Guardsman may have committed viola-
tive offenses, of the nature alleged, upon their
daughters and the natural expectation of the fathers
that those in positions of authority and responsibility
within the Coast Guard would take appropriate action
to vindicate the outrage felt from such a grievous
breach of faith by one shipmate towards another.
Finally, the court below disputed a finding by the
military judge “that ‘there has been no evidence sug-
gesting a potential lessened interest, concern or capaci-
ty of civil courts to vindicate the military’s disciplinary
interest in prosecuting these offenses.’” A letter from
the Office of the District Attorney in Juneau indicated
that state officials would “defer” to prosecution of
Solorio by the Coast Guard. The Court of Military
Review concluded that “[t]here is no assurance,
however, that upon reconsideration the Alaskan
authorities will decide to prosecute these offenses, even
if the judge’s dismissal for lack of military jurisdiction is
allowed to stand upon final review.” Jd. at 520.
[1, 2] A military judge’s factfinding power under Arti-
cle 62 cannot be superseded by a Court of Military
Review in an appeal under Article 62, see United States
v. Burris 21 M.J. 140 (C.M.A. 1985.) To some extent
the Court of Military Review may have erred in this
direction; but any such error is immaterial, because, on
the basis of undisputed facts, we conclude that the of-
fenses in Alaska were service-connected.
Admittedly, our precedents involving offbase sex of-
fenses against civilian dependents of military personnel
would point to a different conclusion. See, e.g., United
Ya
States v. McGonigal, 19 U.S.C.M.A. 94, 41 C.M.R. 94
(1969); United States v. Shockley, 18 U.S.C.M.A. 610, 40
C.M.R. 322 (1969); United States v. Henderson, 18
U.S.C.M.A. 601, 40 C.M.R. 313 (1969). However, as we
made clear in United States v. Trottier, 9 M.J. 337
(C.M.A. 1980), which concerned off-base drug activity,
some of our earlier opinions on service-connection
should be reexamined in light of more recent conditions
and experience.! |
In so holding, we were not trying to rewrite the
Supreme Court’s opinion in O'Callahan. Instead, we
sought to apply O’Caliahan — as amplified by Relford —to
conditions as they now exist. Our premise was that
O'Callahan permitted us to consider later developments
in the military community and in the society at large
and to take into account any new information that
might bear on service-connection. Cf Home Bldg &
Loan Ass’n v. Blaisdell, 290 U.S. 398, 442-43, 54 S.Ct.
231, 241-42, 78 L.Ed. 413 (1934); Village of Euclid v.
Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 118,
71 L.Ed. 303 (1926).
One recent development in our society has deen an in-
crease in the concern for victims of crimes. See, e.g.,
President’s Task Force on Victims of Crime, Final
Report (Dec. 1982); Goldstein, Defining the Role of the
Victim in Criminal Prosecution, 52 Miss.L.J. 515
(1982). Thus, Congress? and state legislatures* have
‘The doctrine of stare decisis should never be applied to
perpetuate a view which no longer has a sound basis. See United
States v. Jacoby 11 U.S.C.M.A. 428, 430, 29 C.M.R. 244, 246 (1960).
2 See, e.g., the Victim and Witness Protection Act, Pub.L. No.
97-291, 96 Stat. 1248 (codified at 18 U.S.C. § 1501 note, 1503,
1505, 1510, 1512 note, 1512-1515, 3146, 3579 note, 3580, Fed.R.
Crim.P. 32(c\2) (1982); Goldstein, The Victim and Prosecutorial
Discretion: The Federal Victim and Witness Protection Act of 1982,
47 Law & Contemp.Probs. 225 (1984).
$ Gittler, Expanding the Role of Victim in a Criminal Action: An
Overview of Issues and Problems, 11 Pepperdine L.Rev. 117 (Sym-
posium issue 1984).
10a
sought to protect more fully the rights of victims; courts
have attempted to make less onerous the participation
of victims in criminal trials;* and in sentencing, judges
have increasingly been willing to consider information
about the psychological impact of various crimes on
their victims.§
In the present case, the alleged victims were two
young girls, each of whom was the daughter of a Coast
Guardsman assigned ‘to the same district office as
Solorio. It is well-recognized that children are especially
susceptible to lasting psychological harm as a result of
various types of sexual offenses. Indeed, this probably is
the main reason for the enactment of laws to prevent
the sexual expioitation of children, see, e.g. 18 U.S.C. §§
2251-55, and for judicial decisions upholding such laws.
See, e.g., New York v. Ferber, 458 U.S. 747, 102 S.Ct.
3348, 73 L.Ed.2d 1113 (1982). Not surprisingly, the
child victims in this case began to receive psychological
counseling after the crimes came to light.
When young children are sexually molested, parents
also are in many ways victims of the crime. This seems
especially true in the present case, for the parents were
also receiving psychological counseling. Moreover,
these parents were victimized financially, for they
would have the legal responsibility to pay for any
necessary medica! and psychiatric treatment for their
daughters—except to the extent that, as military
dependents, the victims were entitled to medical care at
government expense.
* See, e.g., Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617,
75 L.Ed.2d 610 (1983); Fed.R. Evid. 412 (rape shield).
5 United States v. Hammond, '7 M.J. 218 (C.M.A.1984); United
States v. Marshall, 14 M.J. 157 (C.M.A.1982). See also Victim and
Witness Protection Act, supra, \ 3, 96 Stat. 1249; Fed.R.Crim.P.
32(c\{2).
lla
(3] The military judge found that “(t]he impact. . . on
the parents” was “no different than that which would be
produced by [a] civilian perpetrator.” The Court of
Military Review questioned this conclusion because it
“overlooked the possible unique and distinct effect from
the discovery by the fathers that a fellow Coast Guards-
man may have committed violative offenses, of the
nature alleged, upon their daughters.” 21 M.J. at 520.
However, even if the judge’s finding was correct, it is
not decisive as to court-martial jurisdiction. The lack of
in personam jurisdiction over a civilian who commits a
crime having great impact on service personnel does not
mean that there would be no court-martial jurisdiction
over the same crime if committed by a servicemember.
O’Callahan’s primary concern is with the impact of
crimes on the armed services and their missions. Unless
there is such impact, no reason exists not to allow a
servicemember the right to a jury trial and grand-jury
indictment which he generally would enjoy if tried in a
civilian court. In seeking to demonstrate impact, the
Government offered evidence that, because of the
trauma resulting from learning of the offenses against
their daughters, the fathers could not function as effec-
tively in their Coast Guard duty assignments as they
had previously.
Of course, prior to discovery of the offenses, Solorio
had been transferred from Alaska and was no longer
serving with them. However, if this had not occurred, it
obviously would have been difficult—if not im-
possible — for the victims’ fathers to continue to serve in
the District Office with him. Indeed, it is unlikely that
Solorio and the two fathers could ever again be satisfac-
torily assigned together in one of the small units which
is typical of the Coast Guard organization. Further-
more, because of the widespread hostility towards the
offender that usually results from this type of sex of-
fense, it would appear that Solorio’s’ future
j |
12a
assignments would be greatly limited due to the ten-
sions that his presence would create in an organization.
[4] Obviously, not every off-base offense against a
servicemember’s dependent is service-connected. For
example, an off-post larceny from a dependent usually
would not have the continuing effects which would
cause it to be classified as service-connected. However,
sex offenses against young children — offenses like those
. alleged in the charges against Solorio—have a continu-
ing effect on the victims and their families and ultimate-
ly on the morale of any military unit or organization to
which the famiiy member is assigned. This continuing
effect tends to establish service-connection.
In O'Callahan, the Supreme Court ruled that, despite
a servicemember’s military status, he could not be tried
by a court-martial for offenses that were not service-
connected. This result was based on the premise that
such offenses were not within the legislative power “[t]o
make rules for the Government and Regulation of the
land and naval Forces.” See U.S. Const. art. I, § 8, el. 14.
It would seem to be a necessary corollary that Congress
could not prohibit conduct that lacked service-con-
nection, even if violations of the prohibition were to be
tried in Federal District Court, where every constitu-
tional safeguard clearly would be avaiiable to defend-
ants.
On this premise, the determination of service-con-
nection should be made only in light of the conditions ex-
isting when the alleged misconduct occurred, because,
unless service-connection existed at that time, the con-
duct falls outside Congress’ power to punish and no
crime has been committed. Accordingly, events which
occurred after commission of an alleged offense would
be immaterial to the issue of jurisdiction. This means
that, for example, in determining service-connection of
a service-member’s off-post crime, only the likelihood
and feasibility of civilian prosecution at the time of the
13a
crime could be considered-—even if the crime were not
discovered for some time after its occurrence; and
subsequent changes in State law and policy which might
increase or decrease that likelihood would be disre-
garded.
However, it appears to us that the emphasis in
O'Callahan was not on the scope of substantive congres-
sional power to regulate a servicemember’s off-duty,
off-post conduct,® but instead was on assuring that, as
far as feasible, servicemembers would retain their con-
stitutional right to grand-jury indictment and trial by
petit jury. Thus, in Gosa v. Mayden, 413 U.S. 665, 93
S.Ct. 2926, 37 L.Ed.2d 873 (1973), the Court declined to
appy O'Callahan retroactively, even though it appears
somewhat anomalous to sustain convictions for violat-
ing rules which Congress had no power to prescribe.
If factors such as the probability of trial in a civilian
court are relevant in determining service-connection,
then we should consider whether as a practical matter
there is any likelihood that, if the charges are dismissed,
Solorio will be prosecuted in an Alaskan court. The let-
ter from the District Attorney’s Office, which indicated
that the State would defer prosecution in favor of a
military trial, was given little weight by the military
judge. Even though the Court of Military Review
criticized him in this regard, we also would not attach
great significance to such a document. Otherwise,
military authorities anxious to try a servicemember by
court-martial might endeavor to persuade civilian pros-
6 It would seem that some acts on the part of servicemembers
cannot be prohibited by Congress, no matter what might be the
method for trying and punishing violations of the prohibition. C/-
United States v. Nation, 9 U.S.C.M.A. 724, 26 C.M.R. 504 (1958);
United States v. Wysong, 9 U.S.C.M.A. 249, 26 C.M.R. 29 (1958);
Unites States v. Milldebrandt, 8 U.S.C.M.A. 635, 25 C.M.R. 139
(1958).
Os iaaiaceealasnnaienenie elle
l4a
ecutors to drop cases that they normally would pros-
ecute, in an effort to create court-martial jurisdiction
that otherwise would not exist.
[5, 6] On the other hand, we recognize that in cases
like this, where the prospective defendant and the vic-
tims have left the State and moved to distant loca-
tions—Solorio to Governors Island; one of the victims
and her father to the Washington, D.C. area; and the
other to California—State officials are less likely to be
interested in prosecuting. Moreover, if for some reason,
the victims decide that they do not wish to go back to
Alaska and undergo the trauma of testifying, it will be
difficult to compel their attendance. Therefore, because
Solorio’s transfer to Governors Island was a routine
matter and in no way undertaken with a view to
creating court-martial! jurisdiction, we conclude that it
is appropriate to consider the situation as it now exists
and not merely as it existed at Juneau when the crimes
were committed but before they were discovered.
The same observation applies with respect to the com-
mission of subsequent offenses at Governors Island. If
service-connection must be determined solely in terms
of events as they existed at the time of an alleged of-
fense, then we could not take into account other of-
fenses committed some months later. However, as we
have indicated, O'Callahan — despite its reliance on Arti-
cle I, section 8, cl. 14 of the Constitution—does not re-
quire that. service-connection be evaluated in such a
limited context. Accordingly, the pendency of the sub-
sequent offenses for trial by general court-martial is
relevant in determining service-connection.
In United States v. Lockwood, 15 M.J. 1 (C.M.A.1983),
we declined to apply to the doctrine of “pendent jurisdic-
tion” in deciding whether a court-martial was entitled to
try certain offenses. Nonetheless, we observed that
some of the factors which underlie that doctrine also
15a
tend to establish service-connection. We noted the ad-
vantages in having all charges disposed of in a single
proceeding and commented:
The Government has an interest in assuring that a
servicemember receives an appropriate punishment
for his crimes and that, if feasible, he is
rehabilitated. When the responsibility for punishing
a course of criminal conduct is divided between
civilian and military authorities, these goals may be
hindered. For one thing, the servicemember is sub-
ject to two convictions rather than one and this may
carry adverse collateral consequences which make it
more difficult for the accused to be rehabilitated.
Since two trials must take place, rather than only
one, the accused may undergo two ordeals and re-
main uncertain about his fate until the second trial
is concluded. Commencing a successful rehabilita-
tion program is more difficult until it becomes cer-
tain what the accused’s punishment ultimately will
be; so the commencement of successful rehabilita-
tion may be delayed while awaiting the results of a
second trial. Also, the military sentencing and cor-
rectional authorities may differ from their civilian
counterparts in methodology and in goals; and these
differences may complicate the rehabilitation pro-
cess.
Further, we remarked:
The “practical reasons of dispatch” which have led
to the military practice of joining all known offenses
in a single trial also help support the conclusion that
where related on-base and off-base offenses are in-
volved, there is a military interest in having all the
offenses tried by court-martial, so that they can be
disposed of together without delay. The existence of
this interest, in turn, helps us provide a basis for
finding service connection for the off-base offenses.
Id. at 8.
Admittedly, in the present case, the offenses in
Juneau are not “related” in time or place to those at
Governors Island. On the other hand, they are of a
ee
l6a
similar type and probably result from the same underly-
ing motive or predisposition. Indeed, the similarity is
such that, even if not before the court-martial for trial,
the offenses in Alaska might be admissible under Mil.R.
Evid. 404(b); and apparently, if the military judge’s rul-
ing is upheld, the Government will seek to use evidence
of these offenses pursuant to that rule. Moreover, the
method of rehabilitation employed would seem to be the
same for the Alaska and the Governors Island offenses;
and the likelihood of successful rehabilitation for the lat-
ter offenses would be small if the others were sti!l pend-
ing for trial. From the standpoint of the two girls and
their parents, there also is the advantage that the trial
by court-martial at Governors Island will promptly
dispose of the offenses allegedly committed in Alaska
and will eliminate the possibility that on two occasions,
rather than one, the victims will have to give “public
testimony about a humiliating and degrading ex-
perience such as was involved here.” Morris v. Slappy,
461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).
Under these circumstances, there exists here “a military
interest in having all the offenses tried by court-martial,
so that they can be disposed of together without delay,”
and “this interest, in turn, helps provide a basis for find-
ing service connection for the off-base offenses.”
When we consider the continuing effects of
appellant’s off-base misconduct on the servicemember
fathers of the two victims, the resulting effect on other
Coast Guardsmen and on that service, the unfeasibility
of an Alaskan prosecution, and the importance to the
Coast Guard of disposing of all the offenses promptly in
a single trial, we are convinced that service-connection
exists and that the court below correctly reversed the
military judge.
The petition for grant of review is granted. The mo-
tion for a stay is denied, and the motion to strike the af-
fidavits is dismissed as moot.
The decision of the United States Coast Guard Court
of Military Review is affirmed.
Judge COX concurs.
APPENDIX B
UNITED STATES COAST GUARD COURT OF
MILITARY REVIEW
Washington, DC
UNITED STATES
Vv.
RICHARD SOLORIO
YEOMAN First Cuiass, U. S. Coast GUARD
Mise. Docket 004-85
24 SEPTEMBER 1985
LCDR Rosert E. Bruce, USCG
APPELLATE DEFENSE COUNSEL
LCDR Tuomas L. DonLon, USCG
APPELLATE GOVERNMENT COUNSEL
GOVERNMENT FROM DISMISSAL OF CHARGES AND
SPECIFICATIONS BY THE TRIAL JUDGE
BAUM, Chief Judge:
This is the Coast Guard’s first action under Article 62,
UCMJ, 10 USC § 862, which became effective August 1,
1984 and authorizes appeals by the Government from
certain orders and rulings of a military judge not
amounting to findings of not guilty. The ruling from
which the Government has appealed grants defense
counsel’s motion to dismiss various charges and
specifications for lack of jurisdiction. In so ruling, the
trial judge applied to the facts the doctrine of “service
connection,” first proclaimed in O'Callahan v. Parker,
(18a)
19a
395 U.S. 258, 89 S. Ct. 1683 (1969) and amplified later
in Relford v. Commandant, 401 U.S. 355, 91 S. Ct. 649
(1971) and Schlessinger v. Councilman, 420 U.S. 738, 95
S. Ct. 1300 (1975).
In O'Callahan v. Parker, supra, the U. S. Supreme
Court, analyzed the reach of court-martial jurisdiction
for offenses committed within United States territorial
limits during peacetime and rejected the Government-
advanced argument that liability for trial by court-
martial is simply “a question of ‘status’—‘whether the
accused in the court-martial proceeding is a person who
can be regarded as falling within the term ‘land and
naval forces.’ ” 395 U.S. 267, 89 S. Ct. 1688. Instead,
the Court said, “that is merely the beginning of the in-
quiry, not its end. ‘Status’ is necessary for jurisdiction;
but it does not follow that ascertainment of ‘status’ com-
pletes the inquiry, regardless of the nature, time, and
place of the offense.” Id. The Court went on to say, “the
crime to be under military jurisdiction must be service
connected... .” 395 U.S. 272, 89 S. Ct. 1690. Since
then, for offenses during peacetime committed inside
the territorial limits of the United States, both person
and offense must be found to be within a court-martial’s
ambit in order for there to be a trial. In making such
determinations, military courts to this day have
repeatedly faced the question of what must be shown to
establish “service connection.” See generally the recent
eases of U.S. v. Griffin, MJ , ACM 24752
(AFCMR 5 September 1985); U.S. v. Wilson, Mise Dkt
No. 85-08, (NMCMR 20 August 1985); U.S. v. Benedict,
___ MJ___, ACM 24444 (AFCMR 14 August 1985);
U.S. v. Roa, 20 MJ 867 (AFCMR 1985); U.S. v. Kyles, 20
MJ 571 (NMCMR 1985); U.S. v. Holman, 19 MJ 784
(ACMR 1984), U.S. v. Wojciechowski, 19 MJ 577
(NMCMR 1984).
j |
20a
Assistance in making that judgment was provided in
1971 in Relford v. Commandant, supra, when the
Supreme Court established a guideline for finding “serv-
ice connection” and in the process carved out a service
connected area where courts-martial are always ap-
propriate, holding, “that when a serviceman is charged
with an offense committed within or at the geographical
boundary of a military post and violative of the security
of a person or of property there, that offense may be
tried by a court-martial.” 401 U.S., 369, 91 S. Ct. 657.
All the dismissed offenses in the instant case were
violations of the security of persons but they were not
committed within or at the geographical boundary of a
military post. They allegedly occurred in the accused’s
privately owned home eleven miles from the Federal Of-
fice Buidling in downtown Juneau, Alaska where he
worked on the staff of Commander, Seventeenth Coast
Guard District. The charges and specifications allege
various offenses against two young girls, including at-
tempted rape; indecent and simple assaults; lascivious
acts; and indecent liberties. The alleged victims were
between the ages of ten and twelve during the period
when the ofienses supposedly occurred. The fathers of
these girls were also active duty members of the Coast
Guard and they, too, were assigned to the Coast Guard
District Commander’s staff. They, also, lived in civilian
housing, one next door to the accused and his family and
the other a half mile away, there being no government
quarters in Juneau for anyone other than the District
Commander.!
' We judicially note that in Juneau there was no base or post for
Coast Guard personnel of the kind referred to in O'Callahan and
Relford, supra, that is, a large military controlled enclave where
many service personnel live and work. The closest equivalent in
Juneau was the Coast Guard Station, a small 1.3 acre facility witha
complement of fourteen enlisted persons, without berthing and
\
2la
A friendship had grown between the accused and both
of the other families, grounded in one case, on the com-
mon sporting interests of bowling and basketball, and,
in the other, on the proximity of living next door. The
alleged victims came to the accused’s home on a regular
basis to visit with his two sons. Both girls at one time
played on a soccer team coached by the accused and
they also bowled in a league in which the accused was
active. During their stay in Juneau, the girls displayed
behavioral changes that concerned and perplexed their
parents and, as a result, counseling was commenced for
one girl. Whatever was causing such changes remained
undetermined at the time, and the girls never made
known the acts allegedly committed by the accused
while they were in Juneau. It was not until all parties
had been permanently transferred to different Coast
Guard duty stations outside Alaska that any offenses
came to light. They were first revealed when one of the
girls confided in a school counselor. After that, the mat-
messing accommodations, but including, at the time in question: a
pier for two boats and a Coast Guard buoy tender; one building for
watchstanders which also housed a small exchange and two recrea-
tional clubs; and one open structure utilized as a covered work area
for boat crews. Over two hundred Coast Guard military personnel
were assigned to the District Commander’s staff, occupying four of
the nine floors of the Juneau Federal Office Building, where
Federal court spaces, along with offices for various other Federal
civilian agencies, were also located. The Coast Guard Marine Safe-
ty Office situated in a building adjacent to the Federal Office
Building had a military allowance of seventeen persons. With the
possible exception of some of the complement of six officers and
forty-nine enlisted personnel on the buoy tender, all of the approx-
imately three hundred Coast Guard military personnel in Juneau
lived in the civilian community. This Coast Guard presence in
Juneau is far less than the military concentrations found at typical
installations of the other services, but not an insignificant number
by Coast Guard standards, despite the lack of a base or post to
house them.
Ve
22a
ter was reported to Coast Guard authorities and an in-
vestigation was commenced. Initially, the other girl,
who happened to be the one who received counseling in
Juneau, refused to discuss the events with lier parents.
She continued to be silent with them, until she and her
parents went to New York for the Article 32, UCMJ in-
vestigation hearing which had been convened to deter-
mine whether a general court-martial was warranted.
Both of the girls and their parents are now undergoing
counseling/therapy as a result of the matters alleged to
have occurred.
The accused is assigned to Commander, Coast Guard
Group New York at Governors Island, New York, a
Coast Guard base, where he lives in Government
quarters and where the iastant general court-martial
was convened by the senior Coast Guard officer at
Governors Island, Commander, Third Coast Guard
District. In addition to the charges which have been
dismissed, eight similar offenses, involving two other
minor dependent daughters of Coast Guardsmen, were
also referred to trial. These remaining offenses are
alleged to have occurred in quarters on base at Gover-
nors Island after the accused’s transfer from Juneau.
The Assistant District Attorney, Criminal Divi-
sion/First Judicial District, State of Alaska, writing for
the Attorney General, has stated in appellate exhibit IX
of the record, “that the Department of Law, Criminal
Division, State of Alaska, will defer the prosecution of
Yeoman First Class Richard Solorio, United States
Coast Guard, to the legal prosecutional arm of the Coast
Guard,” citing as one of the reasons for this action, the
expense and difficulty involved in investigating and
prosecuting a case where the alleged victims have been
transferred from Alaska.
With this factual setting, we now must determine
whether or not the judge was correct in dismissing the
charges. In answering that question, two recent Court
23a
of Military Review decisions bear consideration. In U.S.
v. Wilson, supra, the Navy-Marine Corps Court of
Military Review also faced an appeal by the Govern-
ment from a military judge’s ruling dismissing charges
for lack of subject matter jurisdiction. In that case, the
Court reversed the trial judge, finding there to be “serv-
ice connection” in the off-base forcible sodomy and
assault by a sailor on his active duty Army wife.
Distinguishing features of fact prevent us from relying
on the action of that Court, but we do agree with the
emphasis placed by the Court on finding a distinct and
greater interest in prosecuting by the military when
compared with the interest of civilian authorities. The
Air Force case of U.S. v. Benedict, supra, is closer to
ours factually, involving, as it did, off-base indecent acts
with a ten year old daughter of Air Force active duty
parents, which the civilian authorities passed to the
military for prosecution. The only significant difference
between Benedict, and our case is the posture of review.
In Benedict, the trial judge found “service connection”
and the case was before the Air Force Court in the nor-
mal course of review under Article 66, UCMJ, permit-
ting factual determinations at the appellate level, if
necessary. On the other hand, we are bound by certain
facts found at the trial level unless we determine that
the judge’s findings were incorrect as a matter of law.”
2 Article 62(b), UCMJ, 10 USC § 862(b), provides that on appeal
by the United States of an order or ruling of the military judge,
“the Court of Military Review may act only with respect to matters
of law, notwithstanding section 866(c) of this title (Article 66(c)).”
This latter article authorizes Courts of Military Review, in the
course of acting on findings of guilty and sentences, to “weigh the
evidence, judge the credibility of witnesses, and determine con-
troverted questions of fact... .” Article 66(c), UCM.
Ditiinncsicsmnmmaeiaiininieiee
24a
With respect to the legal issue of service connection, the
Court in Benedict rejected, as controlling, a series of
early decisions by the Court of Military Appeals that
found no “service connection” for off-base sexual of-
fenses involving civilian dependents of military person-
nel. U.S. v. McGonigal, 19 USCMA 94, 41 CMR 94
(1969); U.S. v. Shockley, 18 USCMA 610, 40 CMR 322
(1969); U.S. v. Henderson, 18 USCMA 601, 40 CMR 313
(1969). The Air Force Court based its rejection of these
cases on more receat Court of Military Appeals and
Courts of Military Review opinions which it saw as
dramatically redefining the scope and parameter of
military jurisdiction. Murray v. Halderman, 16 MJ 74
(CMA 1983); U.S. v. Lockwood, 15 MJ 1 (CMA 1983);
U.S. v. Trottier, 9 MJ 337 (CMA 1980); U.S. v. Shorte.
18 MJ 518 (AFCMR 1984) affirmed by USCMA sum-
mary disposition on August 13, 1985; U.S. v. Roa,
supra. We agree with the Air Force Court that these
cases support an expanded view of court-martial
jurisdiction. Howey ~, we believe it useful to turn,
again, to the basic guidance provided by the Supreme
Court in Relford.
In addition to the 12 elements inherent in the
O'Callahan holding, the Court in Relford, supra,
stressed nine other important criteria for consideration
in making “service connection” determinations on a case
by case basis. Quoting from Relford, with footnotes and
citations ommitted, those nine factors are:
(a) The essential and obvious interest of the
military in the security of persons and of property
on the military enclave.
(b) The responsibility of the military commander
for maintenance of order in his command and his
authority to maintain that order.
25a
(c) The impact and adverse effect that a crime
committed against a person or property on military
base, thus violating the base’s very security, has
upon morale, discipline, reputation and integrity of
the base itself, upon its personnel and upon the
military operation and the military mission.
(d) The conviction that Article I, § 8, Cl. 14,
vesting in the Congress the power “To make Rules
for the Government and Regulation of the land and
naval Forces.” means, in appropriate areas beyond
the purely military offense, more than the mere
power to arrest a serviceman-—offender and turn
him over to the civil authorities. The term “Regula-
tion” itself implies, for those appropriate cases, the
power to try and to punish.
(e) The distinct possibility that civil courts, par-
ticularly non-federal courts, will have less than
complete interest, concern, and capacity for all the
eases that vindicate the military’s disciplinary
authority within its own community.
(f) The very positive implication in O'Callahan
itself, arising from its emphasis on the absence of
service-connected elements there, that the
presence of factors such as geographical and
military relationships have important contrary
significance.
(g) The recognition in O'Callahan that, historical-
ly, a crime against the person of one associated
with the post was subject even to the General Arti-
cle. The comment from Winthrop, supra, [W. Win-
throp, Military Law and Precedents (2d ed. 1896,
1920 Reprint] at 724:
“Thus such crimes as theft from or robbery of
an officer, soldier, post trader, or camp-
follower * * * inasmuch as they directly affect
military relations and prejudice military disci-
26a
pline, may properly be—as they frequently
have been—the subject of charges under the
present Article. On the other hand, where such
crimes are committed upon or against
civilians, and not at or near a military camp or
post, or in breach or violation of a military duty
or order, they are not in general to be regarded
as within the description of the Article, but are
to be treated as civil rather than military of-
fenses.” (Footnotes omitted.)
cited both by the Court in O'Callahan, 395 U.S., at
274 n. 19, 89 S. Ct., at 1691 and by the dissent at
278-279, 89 S. Ct., at 1693-1694, certainly so in-
dicates and even goes so far as to include an offense
against a civilian committed “near” a military post.
(h) The misreading and undue restriction of
O'Callahan if it were interpreted as confining the
court-martial to the purely military offenses that
h ‘eno counterpart in nonmilitary criminal law.
(i) Our inability appropriately and meaningfully to
draw any line between a post’s strictly military
areas and its nonmilitary areas, or between a serv-
iceman-defendant’s on-duty and off-duty activities
‘and hours on the post.
401 U.S. 367-369, 91 S. Ct. 656, 657.
At the completion of its analysis, the Court in Relford
said:
“We recognize that any ad hoc approach 'eaves
outer boundaries undetermined. O'Callahan marks
an area, perhaps not the limit, for the concern of
the civil courts and where the military may not
enter. The case today marks an area, perhaps not
the limit, where the court-martial is appropriate
and permissible. What lies between is for decision
at another time.”
401 U.S. 369, 91 S. Ct. 657.
27a
Thus, the question for this Court is whether the facts
surrounding the instant offenses, lying somewhere be-
tween O'Callahan and Relford, provide sufficient 7n-
dicia of “service connection” to allow trial by court-
martial. The Air Force with similar facts, as noted, said,
“yes,” in U.S. v. Benedict, supra. The military judge
here said, “no,” finding facts which indicated to him a
lack of service connection. Now, we must determine
whether his conclusion was correct or incorrect as a
matter of law. In approaching this task, we must look
carefully at the facts he found and, in the process, apply
the Relford yardstick. Also of help in this regard is a
statement by the Supreme Court in the later case of
Schlesinger v. Councilman, supra, which placed par-
ticular emphasis on certain of the Relford factors. In
that case the Court said:
(The service connection] issue turns in major part
on gauging the impact of an offense on military
discipline and effectiveness, on determining
whether the military interest in deterring the of-
fense is distinct from and greater than that of
civilian society, and on whether the distinct
military interest can be vindicated adequately in
civilian courts. These are matters of judgment that
often will turn on the precise set of facts in which
the offense has occurred.
420 U.S. 760, 95 S. Ct. 13814.
In evaluating the judge’s findings of fact, as stated
earlier, we are not free to exercise our normal fact find-
ing authority. Instead, we are limited to acting only
“with respect to matters of law.” This, of course, is the
same standard of review applicable to the U.S. Court of
Military Appeals in every case considered by that Court,
since Article 67(d), UCMJ says “The Court of Military
Appeals shall act only with respect to matters of law.”
28a
Accordingly, that Court’s approach to issues in which
questions of fact are integral and must, of necessity, be
evaluated, should apply to this Court’s process of review
for Government appeals. In that regard, the standard
set forth in U.S. v. Middleton, 10 MJ 123 (CMA 1981),
while relating to the facts surrounding an issue of
search and seizure and the question whether an accused
had consented to the search, seems particularly perti-
nent to the evaluation we must make of the facts
relating to the legal conclusion of “service connection.”
In Middleton, the Court said:
Whether consent was given must “be determined
from the totality of all the circumstances.” 412 U.S.
at 227, 93S. Ct. at 2047. Frequently, it poses issues
of fact; but the ultimate question of the existence of
consent involves application of a legal standard and
so is subject to appellate review. See United States
v. Faruolo, 506 F.2d 490, 496 (2nd Cir. 1974)
(Newman, Dist. J., concurring). Thus, while always
viewing the facts in the light most favorable to the
Government, [the prevailing party at the trial level]
see United States v. Lowry, 2 MJ 55 (C.M.A. 1976),
this Court has appropriately concerned itself with
whether those facts in any given case support the
conclusion of consent. See, e.g., United States v.
Gillis, 8 MJ 118 (C.M.A. 1979); United States v.
Aros, 8 MJ 121 (C.M.A. 1979); United States v.
Mayton, 1 MJ 171 (C.M.A. 1975); United States v.
Vasquez, 22 U.S.C.M.A. 492, 47 C.M.R. 798 (1973).
Nonetheless, to give due deference to the trial
bench, a conclusion of consent reached below
should not be disturbed unless it is unsupported by
the evidence of record or was clearly erroneous.
United States v. Williams, 604 F.2d 1102 (8th Cir.
1979); United States v. McCaleb, supra; United
29a
States v. Tolias, 548 F.2d 277 (9th Cir. 1977);
United States v. Griffin, 530 F.2d 739 (7th Cir.
1976). See United States v. Vasquez, supra.
Accordingly, we will give due deference to the findings
of the trial judge, viewing the facts and evidence in a
light most favorable to the accused who prevailed at
trial, and will not disturb the judge’s findings or “service
connection” conclusion unless unsupported by the
evidence or clearly erroneous. Accord U.S. v. Postle, 20
MJ 632 (NMCMR 1985).
Based on the evidence considered, the judge at trial
found as fact that there was “a de minimus military
relationship between the accused and the military
fathers of the victims.” He concluded that their relation-
ship was “founded primarily upon the ages and activities
of the children and additionally upon common sporting
interests, common spousal interest and employment
and neighborly relationships.” The judge also included
the following in his statement of “essential findings of
fact”:
None of the alleged offenses posed a threat to any
military installation. .. .
* * * *
There is no essential interest of the military in
the security of person or property on post in this
case.
* * * *
No issue challenges the Commander's respon-
sibility and authority to maintain order.
There has been no demonstrated impact of the of-
fenses on morale, discipline, the reputation or the
integrity of the Coast Guard in Juneau, the person-
nel assigned there, nor on military operations or
missions. The impact apparent in this case, that is,
30a
on the parents and the victims themselves is no dif-
ferent than that which would be produced by [a]
civilian perpetrator.
There has been no evidence suggesting a poten-
tial lessened interest, concern or capacity of civil
courts to vindicate the military’s disciplinary in-
terest in prosecuting these offenses. To the con-
trary, Appellate Exhibit X [a Coast Guard message
reporting conviction and sentencing in Alaska
State Courts of two Coast Guardsmen on charges
of sexual abuse of minors] suggests that civil courts
in Alaska have recently produced results highly
satisfactory to the military in similar cases. . . .
* ~ * *
....There has been no showing of diminished
morale, discipline, or effectiveness within the
military community in Juneau, Alaska.... |
acknowledge a certain amount of logic in the
judicial economy argument put forth by the
Government and that political or economic con-
siderations may support exercise by this Court of
jurisdiction. However, those factors along with all
others have not demonstrated a superior military
interest in handling these offenses. . . . The impact
of the alleged offenses, primarily reflected in the
testimony of the service member parents of the vic-
tims, is that which might be expected of the victim
of any crime of a similar nature, and while that im-
pact may manifest itself in the work situation of
those members, it does not rise to the level to com-
pel the exercise of Court-Martial jurisdiction in
these circumstances. In this regard, I note the in-
creased caution of [sic] the parents [of the] victims
may now exercise over their children, the re-
quirements for counseling, anxiety, and time away
sla
from work for legal proceedings. These concerns
would be the same whether the status of the of-
fender were military or civilian... .
* * * *
.... In light of the facts as found and in par-
ticular the reach of the Coast Guard Family Ad-
. vocacy Program, I find that the Coast Guard in-
) terest in deterring these offenses in not distinct
+... from that of civilian society and is less than that of
civilian society, and what little if any distinct
military interest there may be, can be adequately
vindicated in civilian courts.
. The judge supplemented these findings later and in so
; doing said inter alia:
4. Crime has an impact. The impact is felt on the
victim and on those close to the victim. It is also
reflected in the greater society of which the victim
and offender are a part. Impact may be direct or in-
direct. In this case there is no direct impact on the
service. The indirect impact that exists is not suffi-
cient to create service connection. That indirect im-
pact consists of servicemember-parents|’] preoc-
cupation with family situation affecting the
members|’] performance, some initial counselling
and referral from persons whose position it is to
take such action, and time to participate in pro-
ceedings under the U.C.M.J. Good order, discipline,
morale and welfare of servicemembers have not
been directly impacted. Service reputation has not
been adversely affected and those attributes of
service reputation in a community which have been
testified about, for example, credit worthiness, job
stability for spouses, membersj’] and families|’]
access to community activities; would not be
negatively impacted if these offenses were to come
to light.
32a
6. The offenses alleged to have occurred in
Alaska are significantly remote in time and place
from those alleged to have occurred in New York.
In arriving at his findings, we believe the judge erred
in several important respects. First, in finding that
there has been no demonstrated impact of the offenses
on morale and discipline in Juneau, he failed to properly
take into account the changed circumstances resulting
from the departure of all directly affected parties before
the offenses became known. For the judge to base his
decision on the observed effect, or lack thereof, in
Juneau after the parties had left, rests the ultimate con-
clusion of whether jurisdiction is to be exercised on a
distorted picture caused by military transfer. A more
realistic reflection of the impact from such offenses
could have been seen if the offenses had come to light
while the accused, the victims and their families were
still in Alaska. If impact on the command at Juneau is to
be considered at all, it should be viewed from the
perspective of the effect such offenses would have had if
discovered at the time the fathers and the accused were
assigned together on the staff of the District Com-
mander. The offenses by their very nature contained
within them the potential for a disrupting effect on good
order and discipline on that staff. Accordingly, it was
error for the judge to base his assessment of impact on
the Juneau command solely on the observed effect after
departure of all parties.
A more relevant finding in this area would pertain to
the impact of these offenses on morale and discipline at
Governors Island, where the accused is now stationed
and living on base. The judge made no specific findings,
however, with respect to the possible effect of the of.
fenses on morale, good order and discipline within any
command at Governors Island or on personnel under
33a
the authority and responsibility of the convening
authority, Commander, Third Coast Guard District. In-
stead, he found the Alaska offenses to be “significantly
remote in time and place from those alleged to have oc-
cured in New York” and he concluded that none of the
alleged Alaska offenses posed a threat to any military
installation nor did they generate an essential military
interest in the security of persons on post. Moreover, he
found that, “[g]ood order, discipline, morale and welfare
of servicemembers have not been directly impacted.”
With these conclusions, we must disagree. The offenses
in Alaska were alleged to have occurred over a period of
time up until June 30, 1984. The offenses in New York
purportedly cornmenced as early as November 20, 1984.
Characterization, of the period between June and
November as “significantly remote” is clearly er-
roneous. To the contrary, the asserted Alaska offenses
were close enough in time and nature to those in New
York to pose a real threat to the accused's military
neighbors with young daughters. As such, they directly
impacted upon good order, discipline, morale and
welfare of servicemembers and their families. Further-
more, we believe, as a result and as a matter of law, the
Coast Guard’s interest in deterring these offenses is
distinct from and greater than that of the Alaskan
authorities and that the judge erred in finding to the
contrary.
We also disagree with the judge’s conclusion that the
concern of the parents in this case “would be the same
whether the status of the offender were military or
civilian.” Such a conclusion overlooked the possible
unique and distinct effect from the discovery by the
fathers that a fellow Coast Guardsman may have com-
mitted violative offenses, of the nature alleged, upon
their daughters and the natural expectation of the
fathers that those in positions of authority and respon-
34a
sibility within the Coast Guard would take appropriate
action to vindicate the outrage felt from such a grievous
breach of faith by one shipmate towards another.
Finally, the judge’s finding that “there has been no
evidence suggesting a potential lessened interest, con-
cern or capacity of civil courts to vindicate the miltiary’s
disciplinary interest in prosecuting these offenses” is
simply contrary to the evidence of record. Appellate ex-
hibit IX, as indicated earlier, fully reflects that there is
more than a potential lessened interest of the civil
authorities; it documents an actual lessened interest
because of the departure from Alaska of all of the in-
terested parties. That is not to say that the appropriate
civil authorities have no interest whatsoever in the case.
In fact, through appellate exhibit XV, a stipulation of
expected testimony of the assistant District Attorney
who signed appellate exhibit IX, it is shown that their
decision is subject to reconsideration. There is no
assurance, however, that upon reconsideration the
Alaskan authorities will decide to prosecute these of-
fenses, even if the judge’s dismissal for lack of military
jurisdiction is allowed to stand upon final review. Ap-
pellate exhibit XV does not change the conclusion to be
drawn from the current decision by Alaskan authorities
deferring prosection to the Coast Guard, i.e., the Coast
Guard’s interest in vindicating its disciplinary authority
within its own community in this instance is greater
than the interest the civilian prosecutors in Alaska may
have in this matter. The judge’s reliance on appellate ex-
hibit X for a contrary conclusion is misplaced. That ex-
hibit merely reveals that in two other cases the civil
authorities successfully prosecuted Coast Guard
members in Alaska State Courts for sexual abuse of
minors, without disclosing whether or not the accused
and the witnesses were residing in Alaska at the time
the offenses became known and without revealing what
;
%
:
|
5
|
(
5
35a
other aspects of service connection may or may not have
been present. In any event, every case must rest on its
own facts. The two prosecutions noted in appellate ex-
hibit X certainly demonstrate that the Alaskan Courts
were open and available but that simply does not change
the facts with respect to the State’s diminished interest
in the case presently before this Court. For this reason,
we conclude that the judge’s finding of fact concerning
that interest is clearly erroneous.
For further evaluation of the judge’s legal conclusion
that there was no “service connection,” we look now to
the Relford criteria enumerated earlier. Viewed from
the perspective of the Coast Guard Commander in
Juneau, it is clear that factors (a), (c), and (i), would not
apply literally to the offenses since these factors relate
to base security and offenses committed on a base. On
the other hand, factor (a) may apply literally to Com-
mander, Third Coast Guard District’s decision to refer
all the charges to trial. He has a legitimate, essential
and obvious interest in the security of persons on the
military enclave at Governors Island, where the accused
now lives. Looking strictly at the offenses when they oc-
curred, however, we note that, while the alleged crimes
were not committed on or at the boundary of a base,
they were violations against persons associated with
one particular Coast Guard command. A command is
more than a physical place or property; it is an organiza-
tion of people. The commander’s responsibility and
authority for maintaining good order within his com-
mand relates to people, without regard to the physical
attributes and location of the command. Accordingly, if
we were to substitute the term “command” for “post” or
“base” everywhere that those words appear in the nine
Relford criteria, other than the quotes from Winthrop in
factor (g), and the phrase “associated with a military
command” for the phrases “on a military enclave,” “on a
36a
military, base,” and “on the post” in (a), (c), and (i) respec-
tively, it would then appear that all nine Relford factors
would be relevant to the offenses when they were com-
mitted in Juneau. Such a substitution would seem ap-
propriate in light of the unique facts presented here—a
military presence without the traditional base—and in
light of the language and thrust of the remaining six
felford factors, particularly factor (g) with its reference
to categories of persons who accompany the military. It
is unnecessary to make this substitution, however,
which we leave for consideration to other courts and
other opinions, because we believe the remaining
criteria provide reason enough to conclude that there
was service connection in this case as a matter of law.
In light of the earlier quoted statement from Schles-
inger v. Councilman, supra, we believe this Court is
justified in placing overriding importance on Relford
factors (b) and (e), with their emphasis on the respon-
sibility and authority of a military commander for
maintenance of order in the command and the need to
have court-martial jurisdiction to support that authority
and responsibility when there is the possibility that civil
courts, particularly non-federal courts, will have less
than complete interest, concern or capacity for vin-
dicating that authority. Here, the officer who convened
this court-martial was confronted with allegations of
sexual offenses against four minor Coast Guard
dependents. The offenses against two of the girls occur-
red on a base under the authority of Commander, Third
Coast Guard District, thereby, bringing into play all of
the Relford factors that validate his authority to main-
tain good order, discipline, and morale within his com-
mand through the exercise of court-martial jurisdiction.
The similarity of the alleged on-base Governors Island
offenses and the alleged off-base Juneau offenses, when
viewed together, presents a pattern of behavior which
37a
poses a real threat to families now living in close prox-
imity to the offender on-base at Governors Island. That
threat and the impact it has upon morale, good order
and discipline on the base challenges the responsibility
and authority of the military commander for
maintenance of order in his command. Thus, we
disagree as a matter of law, with the judge’s statement
that in this case, “No issue challenges the Commander's
responsibility and authority to maintain order,” as well
as the judge’s conclusion that the factors presented in
this case do not demonstrate “a superior military in-
terest in handling these offenses,” and his finding that
there was “no direct impact on the service.” The
military commander in the situation encountered here
has a compelling interest in determining as soon as
possible whether the accused is guilty or not of all the
alleged offenses and, if guilty, of ensuring that the prop-
er forum takes appropriate action.’ The only forum that
can try all of these offenses is a court-martial. Alaskan
courts have no jurisdiction over the Governors Island of-
fenses. Moreover, the Commander with authority over
that base could justifiably conclude that the interest of
authorities in Alaska is less than complete with respect
to the offenses committed there. Even without a letter
so indicating, such a conclusion could be drawn easily
enough from the knowledge that the accused and his
alleged victims are no longer members of the Alaskan
community. The paramount interest of the Coast Guard
is clear from the fact that all of the parties were and still
3 See also RCM 203, MCM, 1984, where in subsection (b) of the
discussion pertaining to that rule it is stated that, “where related
on-base and off-base offenses are involved, there is a military in-
terest in having all the offenses tried by court-martial, so that they
can be disposed of together without delay. The existence of this in-
terest helps provide « basis for finding service-connection for the
off-base offenses.”
38a
are members of the Coast Guard community. Com-
mander, Third Coast Guard District, as third ranking
officer in the Coast Guard,‘ is in a position to safeguard
the overall interests of the Coast Guard in this matter,
as well as the unique concerns of his particular com-
mand at Governors Island. For all of these reasons, we °
. have concluded as a matter of law that there is “service
connection” with its resultant court-martial jurisdiction.
In arriving at this conclusion, we have accepted all
facts found by the judge, not directly in conflict with our
holding and not expressly rejected as unsupported or er-
roneous. As noted, however, the judge failed to make
findings concerning the impact of the offenses on
morale, good order, and discipline at Governors Island.
In this regard, we believe that the impact is self evident
from the nature of the offenses, the relationships of the
parties and the accepted facts of record.
Our ultimate legal conclusion, we reiterate, is based
on the following determinative factors: the common
thread among all offenses of victims who are young
dependent daughters accompanying and residing with
their Coast Guard parents; the violative nature of the
offenses which invokes the responsibility and authority
of the military commander for maintaining security,
order, morale and discipline within his command: and
the less than complete interest, concern and capacity of
civil authorities in vindicating the military commander’s
responsibility and authority in this regard. These fac-
tors impel us to conclude that the offenses are “service
connected” and that the judge’s ruling dismissing for
want of jurisdiction must be reversed.
* We judicially note that, Commander, Third Coast Guard District,
VADM Paul A. Yost, USCG, is the third senior officer in the Coast
Guard, ranking directly after the Commandant and the Vice Com-
mandant of the U.S. Coast Guard.
3
7
:
:
39a
Having reached this conclusion, the Government's ap-
peal is resolved. In so doing, we have treated certain
supplemental findings of fact as validly entered into the
record by the judge. The judge, after dismissing the
charges and announcing his essential findings of fact in
open session at Governors Island, New York, on June 4,
1985 also stated, “Subject to amendment and correction
at the time of authentication those should constitute the
essential findings of fact on that motion.” Later, on
June 20, 1985 at Washington, D.C., he signed a docu-
ment denominated “Supplemental Essential Findings of
Fact” and attached it to the record of trial sometime
before authenticating the record on June 29, 1985. A
copy was then provided to the trial counsel and defense
counsel. Appellate Government Counsel challenges this
document as not a proper part of the record of trial
because it memorializes an invalid act outside a session
of court and also that RCM 908, MCM, 1984, precludes
further sessions of court with respect to the judge’s rul-
ing, after written notice of appeal is filed. In support of
its argument that further proceedings were foreclosed,
the Government cites U.S. v. Browers, 20 MJ 542
(ACMR 1985), a case where the Army Court of Military
Review voided a finding of not guilty made by the judge
after notice of appeal by the Government had been filed.
We do not believe that the supplemental findings of fact
in this ease rise to the level of prohibited proceedings as
found in Browers. Furthermore, we see no requirement
for presenting the findings in open session as long as all
parties are provided copies in a timely fashion. Accord-
ingly, we do not agree with the Government that the
supplemental findings in this case are invalid. We do
agree, however, that adding such afterthoughts to the
record can impede the expeditious filing by the Govern-
ment of its appeal and brief. That did not happen in this
case, as the Government filed its pleadings in a full and
40a
timely manner. In an appropriate case, however, late
additional findings of fact may justify granting an
enlargement of time for filing of the appeal by the
Government, or other appropriate action.
The ruling of the military judge dismissing charges
and specifications alleging offenses in Juneau, Alaska is
reversed and those offenses are reinstated. The record
is returned in order that the trial may proceed with the
charges and specifications thus restored, along with the
other charges and specifications that were not affected
by the judge’s ruling.
Judges Burgess, Lynn and Grace concur.
Judge Bridgman concurring in part and dissenting in
part.
[ agree with the Court’s holding that the trial judge
erred, as a matter of law, in determining the impact of
this offense on the morale and discipline of the Coast
Guard in Juneau and that a determination should have
been made as to the impact, if any, on the accused’s
present command and the Coast Guard community as a
whole. In addition to the matters discussed in the ma-
jority opinion, I note that the judge’s essential findings
may have been based on an erroneous standard, where
the judge stated “the impact of the alleged offenses . . .
does not rise to the level to compel the exercise of Court-
Martial jurisdiction in these circumstances.” [R-132]
(emphasis added).! I also agree that the trial judge
erred, as a matter of law, in his finding that there was
no evidence suggesting a “lessened interest, concern or
capacity” of the civil court in Alaska in the prosecution
of these offenses.
' This may not accurately reflect the standard applied. In the
supplemental essential findings the impact was found “not su/fi-
crent to create service connection” [page 2] (emphasis added).
Pe a ee ee ee
tee Coe
2s dot week ee
4ia
Where I depart from the majority is the holding that
there was “service connection” and therefore jurisdic-
tion, in this case, as a matter of law. As noted by the ma-
jority, the judge made no specific findings with respect
to the possible effect of the offenses at Governors Island
or on personnel under the authority and responsibility
of the convening authority. Even if this case were
before us for review under Article 66(c), UCMJ, 10 USC
§ 866(c), | would hesitate to determine that jurisidiction
exists in light of this omission. Although the Court of
Military Appeals has sanctioned drawing reasonable in-
ferences with respect to factual matters not fully
developed in the record of trial to support court-martial
jurisdiction it has done so where jurisdiction was
challenged for the first time at the appellate level. U.S.
vy. Lockwood, 15 MJ 1 (CMA 1983). Since this case is
before us for review under Article 62(b) UCMJ, 10 U SC
§ 862(b), I do not believe we are empowered to cure an
omission from the essential findings of the trial judge.
Further, I-would distinguish cases such as U.S. v. Bur-
ris, 20 MJ 707 (ACMR 1985) and U.S. v. Poduszczak, 20
MJ 627 (ACMR 1985), where determination that the
trial judge erred, as a matter of law, necessarily com-
pelled a contrary finding of fact.
I am concerned that, in exceeding that which is
necessary to dispose of the Government’s appeal, we
have lessened the requirement “that the Government
fulfill its obligation under the law to meet the letter of
the law.” U.S. v. Trottier, 9 MJ 337 (CMA 1980), (con-
curring opinion at 353). Accordingly, while | would
grant relief to the Government and remand the charges
to the trial court, I would do so without prejudice to the
42a
accused's right to renew his attack at the trial level and
upon any further appellate review of the case. Murray
v. Haldeman, 16 MJ 74 (CMA 1983).
For the Court
/s/ DONNIE HARRIS
DONNIE HARRIS
YN2, U.S. Coast Guard
Clerk of the Court
APPENDIX C
MANUAL FOR COURTS-MARTIAL, UNITED
STATES (1984)
R.C.M. 203
DISCUSSION
(a) In general. Courts-martial have power to try any
offense under the code except when prohibited from
doing so by the Constitution. (Jurisdiction over certain
offenses and individuals may be affected by Article 3;
see R.C.M. 202.) The major constitutional limitation on
the subject-matter jurisdiction of courts-martial was
established by the Supreme Court of the United States
in O'Callahan v. Parker, 395 U.S. 258 (1969), which held
that an offense under the code may not be tried by
court-martial unless it is “service-connected.” Later
decisions by the Supreme Court, the Court of Military
Appeals, and other courts have established standards
for applying the service-connection rule, as well as cer-
tain exceptions to it. Because each case depends on its
own facts, and because these rules are subject to con-
tinuing interpretation, careful attention must be paid to
service-connection in every case. The remainder of this
discussion. provides guidance concerning service-
connection based on judicial decisions.
(b) Pleading and proof. The prosecution should plead
the facts establishing jurisd.tion (see R.C.M. 307(c\K3).
Discussion (F)). If the issue is raised, the prosecution
must prove the disputed facts necessary to establish
jurisdiction over the offense. See R.C.M. 907(b)(1)(A).
Jurisdiction must exist over each offense. The fact that
some offenses with which the accused is charged are
service-connected does not necessarily establish juris-
(43a)
COC
44a
diction over others, even if they are of a similar or
related nature. However, where related on-base and off.
base offenses are involved, there is a military interest in
having all the offenses tried by court-martial, so that
they can be disposed of together without delay. The ex-
istence of this interest helps provide a basis for finding
service-connection for the off-base offenses.
(c) Determining service-connection.
(1) In general. In Relford v. Commandant, 401 U.S.
355 (1971), the Supreme Court identified 12 factors
which may be considered in deciding service-connection.
The factors are-
1. The serviceman’s proper absence from the base.
2. The crime’s commission away from the base.
3. Its commission at a place not under military con-
trol.
4. Its commission within our territorial limits and
not in an occupied zone of a foreign country.
o. Its commission in peacetime and _ its being
unrelated to authority stemming from the war power.
6. The absence of any connection between the
defendant’s military duties and the crime.
7. The victim’s not being engaged in the perform-
ance of any duty relating to the military.
8. The presence and availability of a civilian court in
which the case can be prosecuted.
9. The absence of any flouting of military authority.
10. The absence of any threat to a military post.
11. The absence of any violation of military proper-
ty.
12. The offenses being among those traditionally
prosecuted in civilian courts.
These factors are not exhaustive. The Supreme Court
also described nine additional considerations in Relford:
(1) the essential and obvious interest of the
military in the security of persons and of property
on the military enclave; (2) the responsibility of the
;
45a
military commander for maintenance of order in
the command and the commander’s authority to
maintain that order; (3) the impact and adverse ef-
fect that a crime committed against a person or
property on a military base, thus violating the
base’s very security, has upon the morale,
discipline, reputation and integrity of the base
itself, upon its personnel, and upon the military
operation and the military mission; (4) Article I,
section 8, clause 14 of the Constitution of the
United States, vesting in Congress the power “To
make Rules for the Government and Regulation of
the land and naval Forces,” means, in appropriate
areas beyond the purely military offense, more
than the mere power to arrest a servicemember-
offender and turn that person over to the civil
authorities; (5) the distinct possibility that civil
courts, particularly nonfederal courts, will have
less than complete interest, concern, and capacity
for all the cases that vindicate the military's
disciplinary authority within its own community; (6)
the presence of factors such as geographical and
military relationships which have important
significance in favor of service-connection; (7)
historically, a crime against the person of one
associated with the post was subject even to the
General Article; (8) the misreading and undue
restriction of O'Callahan if it were interpreted as
confining the court-martial to the purely military
offenses that have no counterpart in nonmilitary
criminal law; (9) the inability appropriately and
meaningfully to draw any line between a post's
strictly military areas and its nonmilitary areas, Or
betwen a servicemember’s duty and off-duty ac-
tivities and hours on the post. In addition, the effect
46a
of the offense on the reputation and morale of the
Armed Services is an appropriate consideration in
determining service-connection.
The test is not simply a numerical tally of the presence
or absence of these or other factors. Instead, the factors
identify circumstances which may tend to weigh for or
against service-connection, depending on the facts of
each case. Thus, certain factors will tend to weigh more
heavily than others in given situations. This balancing
test has been described by the Supreme Court:
[The] issue turns in major part on gauging the im-
pact of an offense on military discipline and effec-
tiveness, on determining whether the military in-
terest in deterring the offense is distinct from and
greater than that of civilian society, and on
whether the distinct military interest can be vin-
dicated adequately in civilian courts.
Schlesinger v. Councilman, 420 U.S. 738, 760 (1975).
(2) Military offenses. Military offenses, such as
unauthorized absence, disrespect offenses, and disobe-
dience of superiors, are always service-connected.
(3) Offenses on a military installation. Virtually all of-
fenses which occur on a military base, post, or other in-
stallation are service-connected. Similarly, offenses
aboard a military vessel or aircraft are service-
connected. If an essential part of the offense occurs on a
military installation, service-connection exists even
though the remainder of the offense took place off base.
However, on-base preparation to commit an offense or
introduction onto military installation of the fruits or
instruments of a crime completed off base may not
necessarily be sufficent to prove service-connection
over an off-base offense. An offense which directly
threatens the security of an installation may be service-
connected even though it occurs off base. When an of-
fense is committed near a military installation, the
47a
proximity may support a finding of service-connection,
as when it injures relationships between the military
and civilian communities and makes it more difficult for
servicemembers to receive local support.
(4) Drug offenses. Almost every involvement of service
personnel with the commerce in drugs, including use,
possession, and distribution, is service-connected,
regardless of location. However, examples of situations
in which drug involvement by a servicemember which
after Relford analysis might not be service-connected
include the use of marijuana by a servicemember on a
lengthy leave away from the military, or off-base
distribution by a servicemember of a small amount of il-
legal drugs to a civilian for personal use.
(5) Offenses involving military status and the flouting
of military authority. The fact that the victim of an of-
fense is a servicemember or that the accused used a
military identification card may establish service-
connection, especially in conjunction with other facts in
a case. If the accused’s status, either as a service-
member generally, or as the occupant of a specific posi-
tion, is of central importance to the criminal activity, as
where it is crucial in enabling the accused to commit the
crime, service-connection will normally exist. The fact
that the accused is an officer or military policeman or
was in uniform when the offense was committed does
not necessarily establish service-connection, although
such circumstances may tend to support a finding of
service-connection in conjunction with other facts.
(6) During a declared war, or a period of hostilities as
a result of which Congress 1s unable to meet, virtually
all offenses would be service-connected.
(d) Exceptions to the service-connection requirement.
(1) The overseas exception. Offenses which are com-
mitted outside the territorial limits of the United States
and its possessions, and which are not subject to trial in
48a
the civilian courts of the United States, need not be
service-connected to be tried by court-martial. This ex-
ception depends on the location of the commission of the
offense, not on the location of the trial. Note that the
overseas exception does not apply to all offenses com-
mitted abroad, for some criminal statutes of the United
States apply to its citizens abroad. The offense must be
service-connected in this case because the offense may
also be tried in a civilian court of the United States. The
fact that the offense occurred overseas may be a factor
tending to establish service connection, however, even
_ if potentially subject to trial in Federal! civilian court.
(2) The petty offenses exception. Petty offenses may be
tried by court-martial whether or not they are service-
connected. An offense is petty if the maximum confine-
ment which may be adjudged is 6 months or less and no
punitive discharge is authorized.
APPENDIX D
MANUAL FOR COURTS-MARTIAL,
UNITED STATES (1984)
ANALYSIS
Rule 203. Jurisdiction over the offense
This rule is intended to provide for the maximum
possible court-martial jurisdiction over offenses. Since
the constitutional limits of subject-matter jurisdiction
are matters of judicial interpretation, specific rules are
of limited value and may unnecessarily restrict jurisdic-
tion more than is constitutionally required. Specific
standards derived from current case law are treated in
the discussion.
The discussion begins with a brief description of the
rule under O'Callahan v. Parker, 3995 U.S. 258 (1969). It
also describes the requirements established in United
States v. Alef, 3 M.J. 414 (C.M.A. 1977) to plead and
prove jurisdiction. See also R.C.M. 907(b\(1)(A). The last
three sentences in subsection (b) of the discussion are
based on United States v. Lockwood, 15 M.J. 1 (C.M.A.
1983). The remainder of the discussion reflects the
Working Group’s analysis of the application of service-
connection as currently construed in judicial decisions.
It is not intended as endorsement or criticism of that
construction.
Subsection (c) of the discussion lists the Relford fac-
tors, which are starting points in service-connection
analysis, although the nine additional considerations in
Relford are also significant. These factors are not ex-
haustive. United States v. Lockwood, supra. See also
United States v. Trottier, 9 M.J. 337 (C.M.A. 1980).
(49a)
50a
Relford itself establishes the basis for (c\2) and (c\(3) of
the discussion. It has never been seriously contended
that purely military offenses are not service-connected
per se. See Relford factor number 12. Decisions uniform-
ly have held that offenses committed on a military in-
stallation are service-connected. See, e.g., United States
v. Hedlund, supra; United States v. Daniels, 19
U.S.C.M.A. 529, 42 C.M.R. 131 (1970). See Relford fac-
tors 2, 3, 10, and 11. As to the third sentence in (c\3),
see United States v. Seivers, 8 M.J. 63 (C.M.A. 1979);
United States v. Escobar, 7 M.J. 197 (C.M.A. 1979);
United States v. Crapo, 18 U.S.C.M.A. 594, 40 C.M.R.
306 (1969); Harkcom v. Parker, 439 F.2d 265 (3d Cir.
1971). With respect to the fourth sentence of (c)(3), see
United States v. Hedlund, supra; United States v.
Riehle, 18 U.S.C.M.A. 603, 40 C.M.R. 315 (1969). But ef.
United States v. Lockwood, supra. Although much of the
reasoning in United States v. McCarthy, 2 M.J. 26
(C.M.A. 1976) has been repudiated by United States v.
Trottier, supra, the holding of McCarthy still appears to
support the penultimate sentence in (cX3). See also
United States v. Lockwood, supra; United States v.
Gladue, 4 M.J. 1 (C.M.A. 1977). The last sentence is
based on United States v. Lockwood, supra.
The discussion of drug offenses in (c)(4) is taken from
United States v. Trottier, supra.
As to (c)(5), the first sentence is based on United
States v. Lockwood, supra. Whether the military status
of the victim or the accused’s use of a military identifica-
tion card can independently support service-connection
is not established by the holding in Lockwood. The sec-
ond sentence is based on United States ». Whatley, 5
M.J. 39 (C.M.A. 1978); United States v. Moore, 1 M.J.
448 (C.M.A. 1976). The last sentence is based on L/nited
States v. Conn, supra; United States v. Borys, 18
U.S.C.M.A. 547, 40 C.M.R. 259 (1969) (officer status of
5la
accused does not establish service-connection under Ar-
ticle 134) (note: service-connection of Article 133 of-
fenses has not been judicially determined); United
States v. Saulter, 5 M.J. 281 (C.M.A. 1978; United
States v. Conn, supra (fact that accused was military
policeman did not establish service-connection), United
States v. Armes, 19 U.S.C.M.A. 15, 41 C.M.R. 15 (1969)
(wearing uniform during commission of offense does not
establish service-connection).
Subsection (c)(6) of the discussion indicates that vir-
tually all offenses by servicemembers in time of
declared war are service-connected. There is little case
authority on this point. The issue was apparently not ad-
dressed during the conflict in Vietnam, of course, the
overseas exception provided jurisdiction over offenses
committed in the theater of hostilities. The emphasis in
O'Callahan on the fact that the offenses occurred in
peacetime (see Relford factor number 5) strongly sug-
gests a different balance in time of war. Furthermore,
in Warner v. Flemings, a companion case decided with
Gosa v. Mayden, 413 U.S. 665 (1973), Justice Douglas
and Stewart concurred in the result in uphoiding Flem-
ings’ court-martial conviction for stealing an automobile
while off post and absent without authority in 1944, on
grounds that such an offense, during a congressionally
declared war, is service-connected. The other Justices
did not reach this question. Assigning Relford factor
number 5 such extensive, indeed controlling, weight
during time of declared war is appropriate in view of the
need for broad and clear jurisdictional lines in such a
period.
Subsection (d) of the discussion lists reconized excep-
tions to the service-connection requirement. The
overseas exception was first recognized in United States
». Weinstein, 19 U.S.C.M.A. 29, 41 C.M.R. 29 (1969).
See also United States v. Keaton, 19 U.S.C.M.A. 64, 41
52a
C.M.R. 64 (1969). The overseas exception flows from
O'Callahan’s basic premise: that the service-connection
requirement is necessary to protect the constitutional
right of service members to indictment by grand jury
and trial by jury. While this premise might not be evi-
dent from a reading of O'Callahan alone, the Supreme
Court subsequently confirmed that this was the basis of
the O'Callahan rule. See Gose v. Mayden, supra at 677.
Since normally no civilian court in which the accused
would have those rights is available in the foreign set-
ting, the service-connection limitation does not apply.
The situs of the offense, not the trial, determines
whether the exception may apply. United States v.
Newvine, 23 U.S.C.M.A. 208, 48 C.M.R. 960 (1974):
United States v. Bowers, 47 C.M.R. 516 (A.C.M.R.
1973). The last sentence in the discussion of the
overseas exception is based on United States v. Black. |
M.J. 340 (C.M.A. 1976). See also United States v.
Gladue, 4 M.J. 1 (C.M.A. 1977): United States v.
Lazzaro, 2 M.J. 76(C.M.A. 1976). Some Federal courts
have suggested that the existence of court-martial
jurisdiction over an overseas offense does not depend
solely on the fact that the offense is not cognizable in
the United States civilian courts. See Hemphill v.
Moseley, 443 F.2d 322 (10th Cir. 1971). See also United
States v. King, 6 M.J. 553 (A.C.M.R. 1978), pet. denied,
6 M.J. 290 (1979).
Several Federal courts which have addressed this
issue have also held that the foreign situs of a trial is
sufficient to support court-martial jurisdiction, although
the rationale for this result has not been uniform. See,
é.g., Williams v. Frroehlke, 490 F.2d 998 (2d Cir. 1974);
Wimberly v. Laird, 472 F.2d 923 (7th Cir.), cert. denied.
413 U.S. 921 (1973); Gallagher v. United States, 423
F.2d 1371 (Ct. Cl.), cert. denied, 400 U.S. 849 (1970):
Bell v. Clark, 308 F.Supp. 384 (E.D. Va. 1970), aff'd,
53a
437 F.2d 200 (4th Cir. 1971). As several of these deci-
sions recognize, the foreign situs of an offense is a fac-
tor weighing heavily in favor of service-connection even
without an exception for overseas offenses. See Relford
factors 4 and 8. The logistical difficulties, the disruptive
effect on military activities, the delays in disposing of
offenses, and the need for an armed force in a foreign
country to control its own members all militate toward
service-connection for offenses committed abroad.
Another consideration, often cited by the courts, is the
likelihood that if the service-connection rule were ap-
plied overseas as ‘t is in the United States, the practical
effect would be far more frequent exercise of jurisdic-
tion by host nations, thus depriving the individual of
constitutional protections the rule is designed to pro-
tect.
The petty offenses exception rests on a similar doc-
trinal foundation as the overseas exception. Because
there is no constitutional right to indictment by grand
jury or trial by jury for petty offenses (se Baldwin v.
New York, 399 U.S. 66 (1970); Duncan v. Louisiana,
29] U.S. 145 (1963); Duke v. United States, 801 U.S. 492
(1937)), the service-connection requirement does not ap-
ply to them. United States v. Sharkey, 19 U.S.C.M.A.
96, 41 C.M.R. 26 (1969). Under Baldwin v. New York,
supra, a petty offense ‘s one in which the maximum
sentence is six months confinement or less. Any time a
punitive discharge is included in the maximum punish-
ment, the offense is not petty. See United States v.
Smith, 9 M.J. 359, 360 n. 1(C.M.A. 1980), United States
» Brown, 13 U.S.C.M.A. 333, 32 C.M.R. 333 (1962).
Sharkey relied on the maximum punishment under
the table of maximum punishments 1n determining
whether an offense is petty. It is the view of the Work-
ing Group that offenses tried by summary courts-
martial and special courts-martial at which no punitive
54a
discharge may be adjudged are “petty offenses” for pur-
poses of O'Callahan in view of the jurisdictional limita-
tions of such courts. Whether the jurisdictional limits of
a summary or such special court-martial makes an of-
fense referred to such a court-martial petty has not
been judicially determined.
APPENDIX E
RECORD OF TRIAL PAGES 129 to 133
The 39(a) Session was called to order at 1120 hours, 4
June 1985.
MJ: This Article 39(a) Session will come to order,
please be seated.
TC: Your honor, all parties who were present when
the Article 39(a) Session last recessed are again pres-
ent, no party required to be present is absent, there are
no witnesses or members present.
MJ: lam going to grant the defense motion to dismiss
the Alaska offenses. I’ll make certain comments in sup-
port of that ruling. First, I will compliment counsel for
their excellent briefs and arguments in laying out the
issues on that matter.
I. The considerations, Constitutional; Supreme
Court decisions in O'Callaghan, Relford, Sehlesinger,
the provisions Rule for Court Martial 203 and its discus-
sion and it analysis; The Court of Military Appeals deci-
sions were all cited. Certainly the earlier cases, very
closely on point, as Government pointed out many of
them dated in 1969 and presumably back-logged on the
docket at the time of the O'Callaghan decision, up to and
through Lockwood and even more recently Johnson and
other cases and numerous Court of Military Review
cases that were cited and argued. Pendant jurisdiction
was found to be not applicable to establish jurisdiction in
this case though I have considered it, escpecially in light
of Lockwood. 1 have applied a preponderance of the
evidence standard with the Government having the
burden of persuasion.
II. In simple terms my finding is that the Govern-
ment hasn’t met its burden. I certainly recognize a con-
tinuing evolution of the concept of subject matter
jurisdiction in military jurisprudence. Nevertheless, I
(55a)
56a
recognize what the law is and am not necessarily apply-
ing where it may be going.
III. I adopt as essential findings of fact the stipula-
tion of fact for the jurisdictional motion which has been
entered into by the parties in this case.
With respect to the Relford factors:
—I find that the accused was properly absent
from his unit at the time of each of the alleged of-
fenses.
—Each offense was alleged to have occurred
away from any military base at the accused’s
residence in the civilian community.
—Each offense was alleged to have occurred in a
place not under miltary control.
—Each offense was alleged to have occurred
within the territorial limits of the United States.
—None of the offenses was alleged to have been
committed during time of war and all offenses were
unrelated to authority stemming from the war
power.
—The accused did not use his military position to
commit any of the alleged offenses, nor did he com-
mit any of the alleged offenses while performing his
military duties. In short, there was no connection
between the accused’s military duties and the al-
leged offenses.
—The victims were not service members and
were not involved in military duties or military sup-
ported or sponsored activities at the time of any of
the alleged offenses.
—Civilian courts are present and available to ad-
judicate the offenses. While the State of Alaska has
presently deferred prosecution in light of this pro-
ceeding, the State a not waived prosecution, nor
declined to prosecute.
:
dia
_Accused was not in uniform and in no way
flouted military authority at the time of the alleged
offenses.
_None of the alleged offenses posed a threat to
any military ‘nstallation. None of the alleged of-
fenses resulted in any violation of military proper-
ty.
_ All of the alleged offenses are of the type tradi-
tionally prosecuted by civilian courts and are
specifically of the type the Coast Guard has recent
ly consented to have civilian courts prosecute Coast
Guard members for in Alaska.
With respect to those so-called “additional Relford tas
tors”:
_There is no essential interest of the military in
the security of person or property on post in this
case.
_No issue challenges the Commander's respon-
sibility and authority to maintain order.
_There has been no demonstrated impact of the
offenses on morale, discipline, the reputation or the
integrity of the Coast Guard in Juneau, the per-
sonal assigned there, nor on military operations or
missions. The impact apparent in this case, that is,
on the parents and the victims themselves is no dif-
ferent than that which would be produced by
civilian perpetrator.
_ There has been no evidence suggest ing a poten-
tial lessened interest, concern OF capacity of civil
courts to vindicate the military’s disciplinary in-
terest in prosecuting these offenses. To the con-
trary, Appellate Exhibit X suggests that civil
courts in Alaska have recently produced results
highly satisfactory to the military in similar cases.
58a
~The Constitutional authority of Congress to
authorize Court-Martial trials for other than purely
military offenses is recognized and respected, as
are the precedents of higher level courts.
~The particular geographic situation in Juneau
with access restricted to sea and air is not unlike
that of Hawaii at the time of the offense in
O'Callaghan, and the population of the Coast Guard
in Juneau in relation to the population at large did
not create a relationship of a pseudo-military camp
or instillation. The fortuitous selection of Coast
Guard member’s housing in relative proximity to
one another in the Mendenhall Valley likewise did
not create any relationship between civilians and
the military, calling for the exercise of military
jurisdiction for the offenses allegedly committed
there. Here we do not have a case of inability to
distinguish the military from che non-military area
of a post or between the accused’s on duty versus
off-duty time while on post. These alleged offenses
are off duty and off post.
~The historical fact that Court-Martial jurisdic-
tion has been exercised over offenses which vic-
timized the persons of someone associated with the
military is recognized, as is the fact that
O'Callaghan and other precedents did not intend to
limit Courts-Martial to purely military offenses.
The offenses charged are not purely military offenses.
There was a de minimus military relationship between
the accused and the military fathers of the victims.
Those relationships were founded primarily upon the
ages and activities of the children and additionally upon
common sporting interests, common spousal interest
and employment and neighborly relationships. There
has been no showing of diminished morale, discipline, or
effectiveness within the military community in Juneau,
Alaska. As to the effect of the alleged incidents toward
59a
the Coast Guard within the civilian community, there
has been speculation by military personnel, but little
more. No unfavorable publicity in the Juneau Empire or
otherwise has been introduced into evidence. There is
no evidence that these alleged offenses were known by
anyone in the community to have taken place, outside of
law enforcement circles. I find no adverse impact on the
reputation of the Coast Guard in Juneau has resulted
from these incidents. The on-base association between
the accused and the alleged victims was minimal and did
not provide the accused with the opportunity to commit
the acts giving rise to the charged misconduct. The oc-
cupancy by military personnel and their families of
homes in the Mendenhall Valley area of the City of
Juneau, Alaska, including several military families liv-
ing within close proximity to each other, did not convert
that area into a military base or property otherwise
under military control. The fact that several military
members purchased homes in proximity to one another
did not bring these offenses within the “at or near”
meaning of a military base or otherwise make them on
base. I acknowledge a certain amount of logic in the
judicial economy argument put forth by the Govern-
ment and that political or economic considerations may
support exercise by this court of jurisdiction. However,
those factors along with all others have not
demonstrated a superior military interest in handling
these offenses. The allowances paid by the military and
authorized by Congress for military personnel in
Juneau, Alaska to live off base do not support the exer-
cise of Court-Martial jurisdiction for offenses allegedly
committed in the residential area of the civilian com-
munity by military members, but tend to support a con-
scious choice not to create military enclaves with a
recognition of the authority of civil authorities to exer-
cise jurisdiction in those areas. Again Appellate Exhibit
X provides support in this regard. The impact of the
60a
alleged offenses, primarily reflected in the testimony of
the service member parents of the victims, is that which
might be expected of the victim of any crime of a similar
nature, and while that impact may manifest itself in the
work situation of those members, it does not rise to the
level to compel the exercise of Court-Martial jurisdic-
tion in these circumstances. In this regard, I note the in-
creased caution of the parents victims may now exercise
over their children, the requirements for counseling,
anxiety, and time away from work for legal pro-
ceedings. These concerns would be the same whether
the status of the offender were military or civilian.
There has been no impact on transfer of military per-
sonnel within the meaning of the Personnel Manual pro-
visions which have been taken judicial notice of. There
have been transfers of all involved parties without
restrictions.
With respect to the Coast Guard Advocacy Program,
I find that Commandant Instruction 1750.3 as sup-
ported by the testimony of Captain Caprio, who was a
participant in the founding of that policy specifically ex-
cludes the situation at present from its definition of
child abuse. As defined in that instruction child abuse
relates solely to intra-family type relationships and
family there is defined not to include its broader defini-
tion of the Coast Guard family. The instruction specifies
and in enclosure three that local laws shall govern and
adopts the requirements to report in accordance with
local laws and mentions that local jurisdiction shall con-
trol. Paragraph 4f states a policy to relinquish federal
jurisdiction and specifies in paragraph 4d that the court
action of local authority shall be considered separate
and distinct. Those same considerations that I have
focused on from the Family Advocacy Program instruc-
tion are reflected in the other document taken Judicial
Notice of the pamphlet Charting Your Life in
bla
the Coast Guard primarily those on page 113 and there
abouts where many of the provisions of the instruction
are just repeated. In light of the facts as found and in
particular the reach of the Coast Guard Family Ad-
vocacy Program, | find that the Coast Guard interest In
deterring these offenses ‘s not distinct from that of
civilian society and is less than that of civilian society,
and what little if any distinct military interest there
may be, can be adequately vindicated in civilian courts.
MJ: Subject to amendment and correction at the time
of authentication those should constitute the essential
findings of fact on that motion. Is the defense ready to
proceed with other motions!
APPENDIX F
GENERAL COURT-MARTIAL
UNITED STATES COAST GUARD
UNITED STATES
v,
RiCHARD SOLARIO
549 04 2211
Yeoman First Class, E-6
U.S. Coast Guard
SUPPLEMENTAL ESSENTIAL FINDINGS OF FACT
1. Having reviewed the record of trial, and prior to
authentication, I hereby supplement my essential find-
ings of fact made on 4 June 1985 with the following ad-
ditional essential findings of fact.
2. To the extent that trust had a bearing on the op-
portunity for the alleged offenses, that trust arose out
of friendships between the Solorio and Johnson and
Solorio and Grantz families and not out of the respective
fathers common association as members of the U.S.
Coast Guard. The trust placed in a servicemember in
general, and in the accused in particular, by virtue of
status as a member of the Coast Guard was minimal and
had no direct relationship to the offenses alleged.
3. No on base associations or contacts led to or had
any connection with the alleged offenses.
4. Crime has an impact. The impact is felt on the vic-
tim and on those close to the victim. It is also reflected
in the greater society of which the victim and offender
are a part. Impact may be direct or indirect. In this case
there is no direct impact on the service. The indirect im
pact that exists is not sufficient to create service con-
nection.
(62a)
63a
That indirect impact consists of servicemember-parents
preoccupation with family situation affecting the
members performance, some initial counselling and
referral from persons whose position it is to take such
action, and time to participate in proceedings under the
1.C.M.J. Good order, discipline, morale and welfare of
servicemembers have not been directly impacted. Serv-
ice reputation has not been adversely affected and those
attributes of service reputation in a community which
have been testified about, for example, credit wor-
thiness, job stability for spouses, members and families
access to community activities; would not be negatively
impacted if these offenses were to come to light.
5 If the allezed Alaska offenses were to be made
public, the future reputation of the Coast Guard in the
community of Juneau will be affected only slightly in
view of the solid reputation the service enjoys in that
community. That reputation would be further enhanced
if the alleged military offender were promptly turned
over to local authorities for prosecution.
6 The offenses alleged to have occurred in Alaska
are significantly remote in time and place from those
alleged to have occurred in New York.
Done at Washington, DC
This 20th day of June 1989
Is) PAUL M. BLAYNE’
Paul M. Blayney
Commander, U.S. Coast Guard
Military Judge
Original: Record ot Trial
Copy: Trial Counsel, LCDR F. Couper, USCG
Detailed Defense Counsel, LT A. Hochberg,
USCGR
SOVERNMENT PRINTING OFFICt dot 151-9
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.