Petition for Writ of Certiorari — Lauderbaugh v. United States

69 1921 DE 15 1999

OFFICE

No. OG TMS @uznx

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

ROBERTO LAUDERBAUGH

YEOMAN THIRD CLASS

U.S. NAVAL RESERVE

Petitioner,

Vv.

UNITED STATES OF AMERICA

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

DALE OWEN HARRIS

Lieutenant

Judge Advocate General’s Corps

U.S. Naval Reserve

Counsel for Petitioner

U.S. Navy-Marine Corps

Appellate Defense Division

Washington Navy Yard, Bldg. 111

716 Sicard St. SE, Suite 1000

Washington, D.C. 20374-5047

(202) 433-4161

36 PY

QUESTIONS PRESENTED

Whether nearly 500,000 members of the Individual Ready

Reserve, who do not participate in military drills or receive

any pay or benefits, are subject to court-martial jurisdiction

for offenses committed during prior active duty service.

Whether Articles 2 and 3 of the Uniform Code of Military

Justice unconstitutionally encroach upon the jurisdiction of

Article III courts, by extending court-martial jurisdiction

over inactive members of the Individual Ready Reserve.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Murphy v. Dalton,

Sh Fee Pee Ce es Daas icsaccdeckdsekases 9, 10, 13

Murphy v. Garrett, 29 M.J. 469 (C.M.A. 1990) ...9, 14-15

eed Vv. Conde’, 354 ULB, FESO io iccidiickieaksss aks 8

Toth v. Quarles, 350 U.S. 11 (1955)............ S. 42.55; 16

United States v. Caputo,

18 MS .255 MA aii eae 10, 14

United States ex rel. Hirshberg v. Cooke,

SAO Me REED iincacdaincssavadancvbadekssseiaasecateaeane 13

Willenbring v. Neurauter,

Oe PAS. BIR CES iv sitnindercaedivdccaias 8, 10, 11, 13, 15, 16

Constitutional Provision:

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Statutes:

10 U.S.C. § 10UA)(1) .........c.cccccecsccccccscsecescccocccces 10

10. U.S.C. § 802G0)...........cccrccceceeseces 2-4, 9, 10, 14, 16

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10 USC. 6 GAB eicicks cect ccc edcecdiceonetissosesesscssansnes 15

10. U.S.C. § BGO oo iccseccccacccccssecsccccsesencccssscssosssosecses 7

2B U.S.C. § 1259(3) .....cccsccscccccccccccsccccccscesscovccscoces 2

Other Authority:

Department of Defense Directive 1215.6........---..:s++ee0 5

Department of Defense Selected Manpower Statistics,

Weed Wile FOU ask iiccca ca davcscnicdcenschedscs pees vacsscs 11-12

H.R. Rep. No. 99-718 (1986) ..........eeeceeeeeeeeeeereeenees 14

S. Rep. No. 102-352 (1992) .........seceserseeeereerereeenees 13

Secretary of Defense, Annual Report to the President

and the Comgress (1997) .........scseseseeeeeneeesesereeeees 13-14

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

ROBERTO LAUDERBAUGH

YEOMAN THIRD CLASS

U.S. NAVAL RESERVE

Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

Yeoman Third Class Roberto Lauderbaugh, U.S.

Naval Reserve, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Armed Forces in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Armed Forces (App. A, infra, 1a) is not yet

reported. The decision of the United States Navy-Marine

Corps Court of Criminal Appeals (App. B, infra, 3a) is

unpublished.

(1)

JURISDICTION

The United States Court of Appeals for the Armed

Forces entered its judgment on September 17, 1999. This

Court’s jurisdiction is invoked under 28 U.S.C. §1259(3).

CONSTITUTIONAL PROVISION

INVOLVED

Article I, Section 8, Clause 14 of the US.

Constitution provides, in relevant part:

The Congress shall have Power . . . To make

Rules for the Government and Regulation of

the land and naval Forces[.]

STATUTORY PROVISIONS

INVOLVED

Article 2(d), Uniform Code of Military Justice

[UCMJ], 10 U.S.C. § 802(d) (1998) provides, in relevant

part:

(1) A member of a reserve component who is

not on active duty and who is made the

subject of proceedings . . . with respect to an

offense against this chapter may be ordered

to active duty involuntarily for the purpose

of

3

(A) investigation under section 832 of

this title (article 32);

(B) trial by court-martial; or

(C) nonjudicial punishment under

section 815 of this title (article 15).

(2) A member of a reserve component may

not be ordered to active duty under

paragraph (1) except with respect to an

offense committed while the member was

(A) on active duty; or

(B) on inactive-duty training... .

(3) Authority to order a member to active

duty under paragraph (1) shall be exercised

under regulations prescribed by the

President.

(4) A member may be ordered to active duty

under paragraph (1) only by a person

empowered to convene general courts-martial

in a regular component of the armed forces.

(5) A member ordered to active duty under

paragraph (1), unless the order to active duty

was approved by the Secretary concerned,

may not

(A) be sentenced to confinement; or

4

(B) be required to serve a punishment

consisting of any restriction on liberty

during a period other than a period of

inactive-duty training or active duty

(other than active duty ordered under

paragraph (1)).

Article 3, UCMJ, 10 U.S.C. § 803 (1998) provides,

in relevant part:

(a) Subject to section 843 of this title (article

43), a person who is in a status in which the

person is subject to this chapter and who

committed an offense against this chapter

while formerly in a status in which the

person was subject to this chapter is not

relieved from amenability to the jurisdiction

of this chapter for that offense by reason of a

termination of that person’s former status.

* *

(d) A member of a reserve component who is

subject to this chapter is not, by virtue of the

termination of a period of active duty or

inactive-duty training, relieved from

amenability to the jurisdiction of this chapter

for an offense against this chapter committed

during such period of active duty or inactive-

duty training.

STATEMENT OF THE CASE

A. The Facts

The Individual Ready Reserve [IRR] is a

“manpower pool comprised principally of individuals

having had training, having served previously in the [active

duty component] or in the Selected Reserve', and having

some period of their [service obligation] remaining.” See

Department of Defense Directive 1215.6 (Dec. 18, 1990) at

Enclosure 2, page 3. Members of the IRR are generally not

entitled to pay or other military benefits, such as medical

care or commissary privileges. Members of the IRR are

not required to participate in any regularly scheduled

military drills. Their sole military obligations are to report

for one day of duty every two years for medical and

administrative screening, and to notify the military of any

change in their recall address. Jd. at 8.

In September 1990, Petitioner enlisted in the United

States Naval Reserve for a period of 8 years. (App. Ex. I-

a). Pursuant to this agreement, Petitioner agreed to serve

24 months on active duty and 72 months in the Individual

Ready Reserve [IRR]. 7d. On June 7, 1991, Petitioner

increased his active duty obligation to four years. (App. Ex.

I-b). In doing so, his remaining reserve obligation (48

months) was relegated to service in the IRR.

On December 27, 1995, Petitioner fulfilled his

' The Selected Reserve consists primarily of the traditional “drilling”

reservists, who typically spend one weekend per month and two weeks

per year on active duty.

6

active duty commitment and was released from active duty,

receiving his Form DD 214. (App. Ex. I-c). As part of the

revised enlistment contract, he was immediately transferred

to the IRR. (App. Ex. I-d).? Consequently, between his

release from active duty in December 1995, and his recall

to active duty in May 1996, Petitioner did not participate in

any military drills nor did he receive any pay from the

Navy.

On April 5, 1996, pursuant to Article 2(d), Uniform

Code of Military Justice [UCMJ], 10 U.S.C. § 802(d)

(1998), the Commander, Naval Reserve Force, New

Orleans, Louisiana, recalled Petitioner to active duty for the

purposes of a pretrial investigation into events occurring

prior to his release from active duty. See Article 32,

UCMJ, 10 U.S.C. § 832 (1998). In compliance with this

order, Petitioner reported for duty to Naval Air Systems

Command, Arlington, Virginia, on May 6, 1996. As a

result of the subsequent investigation, the Commander of

Naval Air Systems Command convened a general court-

martial to dispose of several charges. The original charges

referred against Petitioner alleged misconduct that occurred

prior to his release from active duty. Additional charges,

involving events that occurred after his recall to active

duty, were referred several weeks later.

: Shortly thereafter, Petitioner requested a paid position (with a

corresponding drilling requirement) in the Naval Reserve. That request

was approved; however, Petitioner subsequently changed his mind and

was transferred back to the IRR, without ever participating in any drill

periods, on March 21, 1996. (App. Ex. I-e and I-f).

> The versions of the applicable statutory provisions then in effect are

identical to the current versions.

B. Proceedings Below

Petitioner was tried by general court-martial,

comprised of a military judge alone, beginning on August

29, 1996. Prior to the entry of pleas, Petitioner moved to

dismiss the charges and specifications before the court-

martial, asserting a lack of personal jurisdiction. The

military judge denied that motion. Petitioner sought

interlocutory review of this ruling by filing a petition for

extraordinary relief with the United States Navy-Marine

Corps Court of Criminal Appeals. That petition was denied

without comment or written opinion.

Following the interlocutory litigation and pursuant

to a negotiated pretrial agreement, Petitioner then entered

pleas of guilty to larceny of a checkbook, forgery of a

check, writing checks with insufficient funds, and wrongful

use of cocaine. On December 16, 1996, Petitioner was |

found guilty in accordance with his pleas and sentenced to

confinement for 22 months, forfeiture of all pay and

allowances, reduction to pay grade E-1, and a bad-conduct

discharge. The convening authority (Commander, Naval

Air Systems Command) approved the sentence as adjudged.

See Article 60, UCMJ, 10 U.S.C. § 860 (1998). Pursuant

to the pretrial agreement, all confinement in excess of

twelve months was suspended for a period of twelve

months.

On appeal, Petitioner again asserted a lack of

personal jurisdiction due to his status in the IRR. The

United States Navy-Marine Corps Court of Criminal

Appeals [NMCCA] rejected that argument and affirmed the

findings and sentence in an unpublished decision, relying

upon the decision of the United States Court of Appeals for

8

the Armed Forces [CAAF] in Willenbring v. Neurauter, 48

M.J. 152 (1998). See United States v. Lauderbaugh, No.

96-2071 (N.M. Ct. Crim. App. Jan. 29, 1999), Appendix

B. Petitioner then filed a Petition for Grant of Review at

CAAF on April 5, 1999. That court granted review and

summarily affirmed the decision of NMCCA. See United

States v. Lauderbaugh, _ M.J. _ (C.A.A.F. Sep. 17,

1999), Appendix A. In its summary disposition, CAAF

also relied upon its prior holding in Willenbring v.

Neurauter.

REASONS FOR GRANTING THE PETITION

I. This case presents this Court with an

opportunity to resolve a conflict between

the Court of Appeals for the Third Circuit

and the Court of Appeals for the Armed

Forces

Civilian courts are “the normal repositories of

power to try persons charged with crimes against the

United States.” Reid v. Covert, 354 U.S. 1, 21 (1957). The

jurisdiction of military tribunals, however, is very limited

and was intended to be only “a narrow exception to the

normal and preferred method of trial in courts of law.” Id.

(footnote omitted). Accordingly, any expansion of court-

martial jurisdiction necessarily encroaches upon the

jurisdiction of federal courts established under Article III of

the Constitution. See Toth v. Quarles, 350 U.S. 11, 15

(1955). This Court has held that neither civilian ex-

servicemembers nor dependent family members of active

duty personnel can be tried by courts-martial. See Toth v.

Quarles, 350 U.S. at 23; Reid v. Covert, 354 U.S. at 32.

a '

9

This case poses a related question: whether the military can

exercise court-martial jurisdiction over a servicemember

who leaves active duty, but retains an inactive affiliation

with the military as a member of the Individual Ready

Reserve.

As a question of statutory construction, the

resolution of this issue hinges on the meaning of the term

“active duty.” In Murphy v. Garrett, 29 M.J. 469, 471

(C.M.A. 1990), the then-U.S. Court of Military Appeals

(now the U.S. Court of Appeals for the Armed Forces)

examined whether the term “active duty” in Article

2(d)(2)(A), UCMJ, describes only those periods of active

duty while a servicemember is in a reserve component, or

whether it includes all periods of the member’s time in an

active duty status. That court concluded that “active duty”

encompasses active service in both the regular and reserve

components. Jd. at 471. Accordingly, under CAAF’s

interpretation, an active duty servicemember who completes

his service commitment and leaves active duty would still

be subject to court-martial jurisdiction if he remains a

member of the reserves.

The same issue, in the same case, was later

examined by the U.S. Court of Appeals for the Third

Circuit in Murphy v. Dalton, 81 F. 3d 343 (3rd Cir. 1996),

but with a different conclusion. The Third Circuit found

the term “active duty” to be unclear in the statute, and

turned to the legislative history for its meaning. Jd. at 351.

The Third Circuit conctuded that in enacting Article 2(d),

UCMJ, Congress intended to allow the military to retain

court-martial jurisdiction only over drilling reservists who

regularly enter active duty to participate in weekend drill

periods, and who are then released from active duty at the

10

conclusion of the drill period.

According to the Third Circuit, Article 2(d) (and

presumably Article 3(d) as well) thus confers jurisdiction

over all periods of a reservist’s active duty time in the

reserves, and specifically addresses the jurisdictional gap

recognized by CAAF’s predecessor in United States v.

Caputo, 18 M.J. 259 (C.M.A. 1984). Id. In Caputo, the

then-Court of Military Appeals held that, under the laws

and regulations then in effect, personal jurisdiction over a

reservist for offenses committed during a period of active

duty training terminates upon the reservist’s release from

active duty. See Caputo, 18 M.J. at 266-68.

Thus, under the Third Circuit’s analysis, an active

duty servicemember would only be subject to court-martial

jurisdiction for offenses occurring during his active duty

commitment, and not during a subsequent period of service

in the reserves. Likewise, a member of the reserves would

only be subject to court-martial jurisdiction for offenses

occurring during his drill periods in the reserves, not those

that occurred during any prior periods of full-time active

duty service.

CAAF revisited this issue in Willenbring v.

Neurauter, again concluding that the meaning of “active

duty” was clear on its face. 48 M.J. at 172. In

Willenbring, however, CAAF also relied upon the statutory

definition of the term, which ostensibly makes no

distinction between the regular and reserve components of

the armed forces. Jd. at 173; 10 U.S.C. § 101(d)(1)

(1992). CAAF specifically rejected the Third Circuit’s ©

analysis in Murphy v. Dalton, stating that the Third

Circuit’s decision “fails to address the consequences of

11

treating prior-service offenses in the Reserves differently

from prior-service offenses in the regular components.”

Willenbring, 48 M.J. at 174. There is thus a clear split

between these two courts. A reserve servicemember

residing in the Third Circuit could now be simultaneously

subjected to conflicting precedents.

The Third Circuit correctly addressed this issue,

realizing that the reserve community is fundamentally

different from the active duty community. The conduct of

an active duty servicemember has an obvious and

pronounced impact on good order and discipline in the

armed forces. A reserve servicemember, however, is a true

“citizen soldier,” whose life outside the military must be

balanced against the needs of good order and discipline.

The Third Circuit’s analysis merely recognizes the obvious:

when a servicemember leaves active duty but remains in the

reserves, court-martial jurisdiction must be strictly limited

to reflect this change in status. This observation is

particularly relevant when the servicemember’s reserve

time is “inactive,” and the servicemember no longer has

any noticeable impact on good order and discipline in the

armed forces.

Il. This case presents an important question

of court-martial jurisdiction, potentially

affecting hundreds of thousands of former

servicemembers in the Individual Ready

Reserve

The Individual Ready Reserve (IRR) consists of

nearly 500,000 servicemembers in the Army, Navy, Marine

Corps, Air Force, and Coast Guard. See Department of

12

Defense Selected Manpower Statistics, Fiscal Year 1998,‘

at Table 5-4.° In 1993, the total number of personnel in the

IRR was over 750,000. Although these personnel have

some contacts with the military, they are essentially full-

time civilians. Their military obligations are extremely

limited and wholly administrative in nature, and they do not

qualify for most military benefits.

This Court has ruled that the Constitution does not

permit military jurisdiction over civilian ex-servicemembers

who have severed all relationships with the military. See

Toth v. Quarles, 350 U.S. at 14. Additionally, this Court

expressed its preference for a civilian jury trial when such

an option is available. As this Court noted:

There are dangers lurking in military trials

which were sought to be avoided by the Bill

of Rights and Article 3 of our Constitution.

Free Countries of the world have tried to

restrict military tribunals to the narrowest

jurisdiction deemed absolutely essential to

maintaining discipline among troops in active

service.

Toth, 350 U.S. at 22-23. Moreover, the original version of

Article 3(a), UCMJ, afforded court-martial jurisdiction

Over certain servicemembers only for serious offenses and

where the accused would otherwise not be subject to state

* This publication is no longer available in hard copy form, but can be

accessed via the internet at:

<http://webi.whs.osd.mil/mmid/m01/fy98/m01fy98.pdf > .

* As of September 30, 1998, there were 459,636 personnel in the IRR,

distributed as follows: Army: 226,479; Navy: 113,138; Marine Corps:

58,276; Air Force: 56,459; Coast Guard: 5284.

| Seo ETON eR REPO NEE FO NEONMEEON GRRE CEN

13

or federal jurisdiction. See Murphy v. Dalton, 81 F.3d at

349; Willenbring v. Neurauter, 48 M.J. at 159-160. The

current version of Article 3(a), was enacted “to ensure that

a court-martial has jurisdiction over a servicemember for

offenses committed during a prior enlistment.” See S. Rep.

No. 102-352, at 278 (1992).

This language strongly suggests that the changes to

Article 3(a) were meant to clarify and address the continued

impact of United States ex rel. Hirshberg v. Cooke, 336

U.S. 210 (1949). In Hirshberg, this Court held that

military jurisdiction over an enlistment period lapses after a

discharge for that enlistment, even where the member

subsequently re-enlists. See Murphy v. Dalton, 81 F.3d at

347. The original version of Article 3(a) was intended to

“clos[e] the loophole” identified in Hirshberg. See

Willenbring v. Neurauter, 48 M.J. at 161 (citation omitted).

Notwithstanding these changes to the UCMJ, “Hirshberg

remains binding precedent.” Murphy v. Dalton, 81 F.3d at

347 (citations omitted). Thus, the changes to Article 3(a)

made all offenses from a prior enlistment subject to court-

martial jurisdiction, rather than only serious offenses that

could not be tried in civilian court. Nothing in the

legislative history of Article 3(a) or its amendments

indicates that Congress ever intended to expand court-

martial jurisdiction over inactive reservists who no longer

participate in active military service.

The practical differences between the various

reserve components also support Petitioner’s position.

Servicemembers in the Selected Reserve (i.e., drilling

reservists) are “called upon more frequently and for longer

periods in peacetime than ever before... .” See

Willenbring v. Neurauter, 48 M.J. at 156 (quoting

14

Secretary of Defense, Annual Report to the President and

the Congress (1997)). Accordingly, drilling reservists can

and do have a pronounced impact on good order and

discipline within the armed forces. In contrast, members of

the IRR are merely a repository of former servicemembers

who could be recalled during a time of war or national

emergency. Members of the IRR thus have little or no

impact upon the day-to-day functions of a military unit.

This distinction is readily apparent in the legislative

history to the 1986 Amendments to the UCMJ, which added

Articles 2(d) and 3(d) to the Code. The catalyst for the

amendments was the integration of the reserve forces into

the active-component mission, including joint training

exercises and augmentation of active duty units. H.R. Rep.

No. 99-718, at 226-27 (1986). The amendments evinced a

legislative intent to “ensure morale and discipline within a

command” and to “bridge the jurisdictional gap” identified

in United States v. Caputo, 18 M.J. 259 (C.M.A. 1984).

Id. Expanding court-martial jurisdiction over inactive

reservists advances neither of these stated objectives.

The then-Court of Military Appeals, in dicta,

tangentially addressed the potential question of court-

martial jurisdiction over IRR members in Murphy vy.

Garrett, 29 M.J. 469 (C.M.A. 1990). In the lead opinion,

Judge Cox wrote:

Because of [Murphy’s] continuing active

contacts with the United States Marine Corps

through the regular period of inactive-duty

training and the nature of the charges against

him, we need not address this issue [the

constitutional limitations of trying civilians

15

by courts-martial]. . Likewise, we do not

decide the constitutional question of whether

a member of the inactive reserve who has

had no contacts with an armed force could be

ordered to active duty [to stand trial].

Murphy, 29 M.J. at 471 (emphasis added and in original).

Chief Judge Everett, in his concurring opinion, also stated

that Murphy’s case was “not the case of a person who, after

leaving active duty, has remained in the inactive reserve but

has not participated in military drills or training.” Id. at

472. Likewise, in Willenbring v. Neurauter, the accused

was again a member of the Selected Reserve and

participated in regularly scheduled drills. 48 M.J. at 154.

Inexplicably, when Petitioner’s case presented the exact

question envisioned, and deliberately left unanswered, by

the Murphy court, CAAF merely relied upon these earlier

decisions and affirmed jurisdiction over Petitioner.

Under CAAF’s analysis, servicemembers who fulfill

their active duty obligations but must remain members of

the Individual Ready Reserve for several additional years

would be subject to recall for any offenses committed while

on active duty. The statute of limitations for most military

offenses is five years. See Article 43, UCMJ, 10 U.S.C. §

843 (1998). Thus, a servicemember would be subject to

involuntary recall to active duty and trial by court-martial

even after several years of wholly civilian life. This

interpretation is simply not consistent with this Court’s

rationale in Toth v. Quarles.

Courts-martial “are similar in many respects to

civilian proceedings, but it is well-established” that such

tribunals do not afford the same procedural rights as Article

16

III courts. Willenbring v. Neurauter, 48 M.J. at 157. For

example, civilian juries must reflect a representative cross-

section of the community, while courts-martial members are

selected by the military commander who convenes the

court-martial. Jd. at n.3 (citations omitted). Military

judges do not possess life tenure or guaranteed salaries like

their Article III counterparts. See Toth v. Quarles, 350

U.S. at 17. There is no Fifth Amendment right to

indictment by grand jury in the military justice system. Id.

at 14n.5. As this Court stated, “military tribunals have not

been and probably never can be constituted in such way that

they can have the same kind of qualifications that the

Constitution has deemed essential to fair trials of civilians

in federal courts.” Jd. at 17.

In this case, Petitioner is in essentially the same

position as the accused in Toth v. Quarles. Petitioner had

almost no contact with the Navy between his release from

active duty on December 27, 1995 and his recall to active

duty pursuant to Article 2(d), UCMJ. Petitioner received

his Form DD 214 releasing him from active duty and

maintained his inactive status in the IRR solely as a result

of his initial reserve obligation. While Petitioner had

minimal military obligations as a member of the IRR, he

did not attend any drills, receive any pay or benefits, or

wear a uniform. Nor was he authorized to use a military

commissary, exchange, or medical facility. Petitioner’s

military service in the Individual Ready Reserve was

merely serving as a name on a list, ready to return to duty

in the event of an emergency mobilization.

Therefore, for all practical purposes, petitioner

obtained “civilian status” and had only a nominal

connection to the military at the time of his recall. The DD

ne ee eee nae Tee

17

214 form that released Petitioner from active duty thus

operated as the functional equivalent of a full discharge,

with a continuing service obligation only in the event of a

national emergency. Extending court-martial jurisdiction

over former servicemembers in the Individual Ready

Reserve is neither what Congress intended nor what the

Constitution permits.

CONCLUSION

Wherefore, the petition for a writ of certiori should

be granted.

Respectfully submitted,

DALE OWEN HARRIS

Lieutenant

Judge Advocate General’s Corps

U.S. Naval Reserve

Counsel for Petitioner

U.S. Navy-Marine Corps

Appellate Defense Division

Washington Navy Yard, Bldg. 111

716 Sicard St. SE, Suite 1000

Washington, D.C. 20374-5047

(202) 433-4161

December 1999

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

USCMA Dkt. No. 99-0516/NA

Crim.App. Dkt. No. 97-2071

UNITED STATES,

APPELLEE

V.

ROBERTO LAUDERBAUGH,

APPELLANT

On consideration of the petition for grant of review

of the decision of the United States Navy-Marine Corps

Court of Criminal Appeals, we conclude that the action

taken by the court below was correct as a matter of law.

Our decision in Willenbring v Neurauter, 48 M.J. 152

(1998) supports the finding that the court-martial had

personal jurisdiction over the appellant. Accordingly, it is

by the Court, this 17th day of September, 1999,

ORDERED:

That the petition is hereby granted; and

That the decision of the United States Navy-Marine

Corps Court of Criminal Appeals is affirmed.

(la)

2a

For the Court,

/s/Thomas F. Granahan

Clerk of the Court

cc: The Judge Advocate General of the Navy

Appellate Defense Counse! (HARRIS)

Appellate Government Counsel (GRIMES)

. ae oe Pe

3a

APPENDIX B

IN THE UNITED STATES NAVY-MARINE CORPS

COURT OF CRIMINAL APPEALS

BEFORE

R.B. LEO R.H.TROIDL D.A. ANDERSON

UNITED STATES

V.

ROBERTO LAUDERBAUGH, 277-80-4878

Yeoman Third Class (E-4),

U.S. Naval Reserve

NMCM 96 2071 Decided 29 January 1999

Sentence adjudged 16 December 1996.

Military Judge: R.L. Rodgers.

Review pursuant to Article 66(c), UCMJ, of General Court-

Martial convened by Commander, Naval Air Systems

Command, Arlington, VA.

LT DALE O. HARRIS, JAGC, USNR, Appellate Defense

Counsel

LT JAMES E.GRIMES, JAGC, USNR, Appellate Govern-

ment Counsel

AS AN UNPUBLISHED DECISION, THIS OPINION

DOES NOT SERVE AS PRECEDENT.

4a

PER CURIAM:

We have examined the record of trial, the appellant's

assignments of error, and the Government's response. With

the exception of Specification 1 of Charge I, larceny of

military property, we conclude that the findings are correct in

law and fact and that no error materially prejudicial to the

substantial rights of the appellant was committed. Articles

59(a) and 66(c), Uniform Code of Military Justice, 10

U.S.C. §§ 859(a) and 866(c)(1994) [hereinafter UCMSJ}].

With respect to the sentence, we will take corrective action in

our decretal paragraph as a result of our action with respect

of the above charge.

The appellant was convicted, in accordance with his

pleas, at a general court-martial before a military judge alone

of the wrongful use of cocaine, larceny. of military property,

forgery, fraudulently making and uttering a check, and three

counts of dishonorably failing to maintain sufficient funds in

his checking account, in violation of Articles 112a, 121, 123,

123a, and 134, UCMJ. He was sentenced to a bad conduct

discharge, confinement for 22 months, total forfeitures, and

reduction to E-1. In accordance with the provisions of the

pretrial agreement, the convening authority approved the

sentence, but suspended all confinement in excess of 12

months for 12 months from the date of his action.

I.

In his first assignment of error, the appellant contends

that the court-martial lacked personal jurisdiction over him

because he was an inactive reservist who was no longer on

active duty and who had no other contacts with the military.

This assignment of error is without merit.

Sa

On 17 September 1990, the appellant enlisted in the

United States Naval Reserve for eight years. He served on

active duty for four years and was released from active duty

on 27 December 1995 to serve out the balance of his

enlistment in the Individual Ready Reserve [hereinafter IRR].

As a member of the IRR, the appellant was not required to

drill, nor did he receive any military pay.

However, on 5 April 1996, he was involuntarily

recalled to active duty for purposes of a pretrial investigation

into offenses allegedly committed prior to his earlier

discharge from active duty. The investigation resulted in this

court-martial. At trial, the appellant moved to dismiss the

charges for lack of personal jurisdiction. The military judge

denied the motion and set forth his findings of fact and legal

conclusions in Appellate Exhibit III.

In his brief, the appellant urges this court to follow as

precedent the holding of Murphy v. Dalton, 81 F.3d 343 (3d.

Cir. 1996), wherein the Federal Court of Appeals for the

Third Circuit concluded that Article 2(d)(2)(A), 10 U.S.C. §

802(d)(2)(A)(1988) does not permit a reservist's involuntary

recall to active duty for offenses committed while on active

duty in a regular component of the armed forces, but only for

offenses committed during "those periods of active duty

served by a reservist while performing duty in [a reserve

component]." Jd. at 352. We disagree.

Shortly, after the appellant filed his brief, our

superior court rejected the Third Circuit's restrictive

interpretation of the statute. Willenbring v. Neurauter, 48

M.J. 152, 172 n.13. Concluding that "Articles 2(d), 3(a),

and 3(d) should be read in harmony," the court held that

6a

"Article 2(d) authorizes a reservist to be ordered to active

duty to face trial by court-martial for both current-service

and prior-service offenses, including offenses committed

while a member of the regular component." Jd. at 175.

Appellant next argues that jurisdiction over a

discharged servicemember can only be extended where the

member has continuing active duty contacts with the military.

Since he did not take part in weekend drills and was subject

to recall only in the event of a presidentially-declared

national emergency, personal jurisdiction could not attach.

We again disagree.

The statutory provisions of Articles 2 and 3, UCMJ,

do not differentiate between different classes of reservists.

As a reservist in the IRR, the appellant was subject, by

statute, to court-martial jurisdiction due to his military status

alone and not the extent of his military contacts. See Art.

3(a) and 3(d), UCMJ. Accordingly, we find that there was

personal jurisdiction over the appellant in this court-martial

and that the military judge did not err in denying the

appellant's motion to dismiss for lack of personal

jurisdiction.

Il.

In his second assignment of error, the appellant

contends that the military judge erred by finding that the

initial review officer's decision to continue pretrial

confinement was not an abuse of discretion and by denying

the appellant's motion at trial to be released from pretrial

confinement. This assignment of error is without merit.

A servicemember may not be detained in pretrial

7a

confinement unless there is probable cause to believe that he

committed a court-martial offense, that pretrial confinement

is necessary to ensure his presence for trial or to preclude

serious criminal misconduct from occurring while awaiting

trial, and that less severe forms of restraint are inadequate.

RULE FOR COURTS-MARTIAL 305(h)(2)(B), MANUAL FOR

COURTS-MARTIAL, UNITED STATES (1998 ed.).. A neutral

and detached officer is appointed to review the initial basis

for confining the member and to determine if continued

pretrial confinement is warranted. Upon motion, the military

judge determines whether the review officer abused his

discretion by not releasing the detainee from pretrial

confinement and whether the detainee's confinement should

continue. On appeal, we examine the decisions of the review

officer and the military judge for abuse of discretion.°

United States v. Gaither, 45 M.J. 349, 351-52.

The appellant was placed in pretrial confinement on

18 September 1996, as a result of additional charges of drug

use, making and uttering personal checks with the intent to

defraud, and dishonorably failing to pay just debts while he

was awaiting trial by court-martial on other charges. Exhibit

A of Appellate Exhibit IV.’ The initial review was

® An abuse of discretion occurs where "the military judge's findings of

fact are clearly erroneous or his decision is influenced by an erroneous

view of the law." United States v. Kelley, 45 M.J. 275, 280 (1996).

’ In a memorandum to the review officer, the appellant's commanding

officer stated: "YN3 Lauderbaugh has a demonstrated pattern of serious

disciplinary problems. He should be retained in pretrial confinement to

lessen the opportunity for further serious misconduct and ensure good

order and discipline. Additionally, due to the continual addition of

charges, he is considered a potential flight risk." Exhibit B of Appellate

Exhibit IV.

8a

conducted on 23 September, and the review officer

concluded, without explanation, that continued confinement

was warranted. On 8 October, the appellant moved to have

the military judge release him from confinement contending

that the review officer's decision constituted an abuse of

discretion. After making findings of fact, the military judge

denied the appellant's motion for release from confinement.

He held that the review officer did not abuse his discretion

and that the appellant should remain in confinement in light

of a continuing pattern of serious misconduct since his recall

to active duty and his command's observation over several

months that lesser restraint would not preclude the likelihood

of future misconduct of this nature. Record at 53-56.

The premise of the appellant's argument is that the

appellant's additional offenses, which involved bad checks

and drug use, do not constitute serious criminal misconduct

as to warrant pretrial confinement and, even if they are

serious, lesser forms of restraint could have been used.

Therefore, he argues, the review officer and the military

judge erred. We disagree.

The appellant's misconduct evidenced a pattern of

disregard for military authority. The offenses which

precipitated his placement in pretrial confinement are not

minor military infractions. They included the use of cocaine

and the issuance with the intent to defraud of three checks

totaling over $4,500. Therefore, it would not be

unreasonable for the review officer and the military judge to

conclude that the appellant would hardly feel constrained

from engaging in further misconduct by an oral or written

order directing him to remain within specified limits of a

military base. Accordingly, we find that neither the review

officer, nor the military judge, abused his discretion on this

9a

matter.

Ii.

In his third assignment of error, the appellant

contends that his plea of guilty to larceny of military property

(Specification 1 of Charge I) was improvident because a

social fund checkbook is not military property. We agree.

During the providence inquiry the military judge

advised the appellant that "'[mlilitary property' is real or

personal property owned, held, or used by one of the armed

forces of the United States which either has a uniquely

military nature, or is used by an armed force in the

furtherance of its mission." Record at 77. The appellant

admitted that the book of 25 checks which he took was

military property belonging to the Naval Air Systems

Command Reserve Program. Record at 85-86. The checks

belonged to an account used to make purchases for members

of the Reserve Program, such as farewell plaques and

flowers for special occasions. The members contributed

funds to the account. Record at 87-88.

In reviewing a post-trial claim that the appellant's

guilty plea is improvident, the standard of review is that there

must be a "substantial basis for finding a conflict with his

plea" before we will reject the military judge's acceptance of

the plea. United States v. Logan, 22 C.M.A. 349, 351, 47

C.M.R. 1,3 (1973); United States v. Prater, 32 M.J. 433

(C.M.A. 1991). However, the mere fact that the appellant

agrees to legal conclusions elicited through leading questions

from the military judge is insufficient if the factual basis for

the guilty plea is lacking. United States v. Urban, 45 M.J.

528, 530 (N.M.Ct.Crim.App. 1996); United States v.

10a

Dunning, 40 M.J. 641, 646 (N.M.C.M.R. 1994),

The character of property as "military property" is a

specific sentence escalator to be pleaded under Article 121,

UCMJ. Consequently, it is an element that must be proven

beyond a reasonable doubt before an accused can be found

guilty of the offense of stealing military property. In United

States v. Sneed, 43 M.J. 101 (1995), our superior court ruled

that items of privately owned property held by the military

police in an evidence locker for potential use in court-martial

proczedings were “military property" for purposes of

Articles 108 and 121, UCMJ. It stated that "the function to

which property is put as evidence in courts-martial,

notwithstanding that it is privately owned, qualifies that

property as ‘military property of the United States’ while it is

held in the exclusive custody of a service pending termination

of its need by that service." Jd. at 104. Unlike Sneed, the

checkbook (and the account to which it belonged) was not

utilized in furtherance of a military purpose or function.

Accordingly, we find, as a matter of law, that a checkbook

for what appears to be a unit social fund is not military

property. We will take corrective action in our decretal

paragraph.

IV.

In his fourth assignment of error, the appellant

contends that the staff judge advocate's recommendation

(hereinafter SJAR] was not properly served on the appellant

or his counsel. This assignment of error is without merit.

A copy of the SJAR must be served upon an

accused's counsel before the convening authority can act on a

case. R.C.M. 1106(f)(1). If the accused's counsel is

lla

relieved or not reasonably available, a substitute military

counsel shall be appointed to act in his or her stead. R.C.M.

1106(f)(2).

At trial, the appellant requested that his copy of the

SJAR be delivered to his trial defense counsel, Lieutenant

Ferdenzi. Record at 157. On 1 April 1997, Ferdenzi

commenced terminal leave as a prelude to his release from

active duty. Appended to the record is a cover letter dated

21 April 1997, from the staff judge advocate that delivers the

SJAR to the Senior Defense Counsel, Naval Legal Service

Office, National Capital, because the detailed counsel is no

longer on active duty. An acknowledgement of receipt

appears to be initialed at the bottom of the cover letter by

Lieutenant Brown. Lieutenant Thomas was appointed on 5

May 1998 as substitute military counsel for the appellant.

Attachment (2) to LT Thomas affidavit of 4 August 1998.

Thomas submitted two reconsideration requests for clemency

to the convening authority on 27 May 1998, in which he

references a SJAR dated 21 April 1997.* We can reasonably

infer from this paper trail that the SJAR was properly served

on the appellant's substitute counsel.

V.

In his final assignment of error, the appellant

contends that he was denied effective assistance counsel at

the post-trial stage of the proceedings. This assignment of

* We note that the SJAR appended to the record is dated 6 May, rather

than 21 April. In view of the fact that the record also includes a cover

letter dated 21 April 1997, delivering the SJAR to the Senior Defense

Counsel, we assume that the original SJAR of 21 April was later amended

on 6 May.

12a

error is without merit.

The standard of review for a claim of ineffective

assistance of counsel, as applied to courts-martial, is found in

United States v. Scott, 24 M.J. 186 (C.M.A. 1987)(citing

Strickland v. Washington, 466 U.S. 668 (1984)). The

competence of an accused's counsel is presumed. Jd. at 188.

To rebut this presumption, an accused must show satisfy a

two-prong test by showing that (1) his counsel's performance

was deficient, and (2) the deficiency prejudiced his defense.

Id.

The right to effective assistance of counsel applies to

post-trial proceedings. United States v. Cobe, 41 M.J. 654,

655 (N.M.Ct.Crim.App. 1994). The failure of substitute

counsel to enter into an attorney-client relationship with an

accused between the end of trial and the convening

authority's action is error. United States v. Howard, 47 M.J.

104, 105 (1997).

The appellant asserts that he was never contacted by

substitute counsel. Appellant's Brief and Assignment of

Errors at 22; Appellant's Affidavit of 11 June 1998. We

disagree.

His substitute counsel stated that he met with the

appellant at the Marine Corps Base Quantico Brig on 7 May

1997. LT J.A. Thomas Affidavit of 4 August 1998.

Counsel's recollection is supported by a copy of the brig's

visitors log for 7 May 1997, which records his arrival at

1510 hours that day.

The appellant also argues that he did not have an

Opportunity to adequately respond to specific comments in

13a

the SJAR concerning the characterization of his confinement

behavior, his offer to cooperate with law enforcement

officials in drug investigations, and manner in which his

exemplary record of military service should be viewed.

These comments were responses by the staff judge advocate

to matters raised in the clemency letters of 14 January and 19

February 1997, from Lieutenant Ferdenzi. The convening

authority issued his action on 13 May 1997, wherein he

stated that he had considered the clemency letters.

The substitute counsel did not submit a response to

the SJAR or request an extension of time to do so before

the convening authority took his action. Instead, after

conferring with the appellant and requesting additional

information from Ferdenzi, Lieutenant Thomas submitted a

renewed request for clemency and a reconsideration request

for clemency, both dated 27 May 1997, to the convening

authority. However, it appears that he did so before

official notification of the convening authority's action was

received by the appellant and his defense counsel. Request

for Reconsideration of Clemency dated 27 May 1997.

Thus, the convening authority still had the authority to

modify his initial action if he was persuaded by counsel's

plea. R.C.M. 1107(f)(2). In renewing the appellant's

request for clemency, Thomas addressed the same concerns

about the SJAR that the appellant now raises before this

court. Hence, the appellant was able to get these matters

_ before the convening authority for his consideration.

Based upon the facts we have before us, we find that

the actions of substituted counsel were not deficient.

However, even if there was error, we find that the appellant

has failed to make a "colorable showing of possible

prejudice." United States v. Howard, 47 M.J. 104, 107

(1997).

14a

VI.

We affirm the findings of guilty, excepting the words

"military property" in Specification 1 of Charge I. In light of

our action on the findings, we have reassessed the sentence

under the principles contained in United States v. Peoples, 29

M.J. 426, 428-29 (C.M.A. 1990), and United States v.

Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). Having done

so, we conclude that the original sentence was both

appropriate and free of all prejudice caused by the trial error.

See United States v. Cook, 48 M.J. 434 (1998). We,

therefore, affirm the sentence as approved on review below.

R.B. LEO, Senior Judge

R.H. TROIDL, Judge

D.A. ANDERSON, Judge

OPPOSITION

BRIEF —

Supreme Court, U.§

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FRB 15 2000

No. 99-1021 |

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In the Supreme Court of the Gnited States

ROBERTO LAUDERBAUGH, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530

KEVIN M. SANDKUHLER (202) 514-2217-0001

Colonel, U.S. Marine Corps

Director, Appellate Government

Division

JAMES E. GRIMES

Lieutenant, JAGC

U.S. Naval Reserve

Navy-Marine Corps

Appellate Review Activity

Washington, D.C. 20374

QUESTION PRESENTED

Whether petitioner was subject to trial by court-

martial while he was a member of the Individual Ready

Reserve for offenses committed while he was on active

duty in the United States Naval Reserve.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion .......

TABLE OF AUTHORITIES

Cases:

Murphy v. Dalton, 81 F.3d 343 (8d Cir. 1996) .............

United States ex rel. Toth v. Quarles, 350 U.S. 11

(1955)

Willenbring v. Neurauter, 48 M.J.

152 (1998)

Statutes:

Uniform Code of Military Justice, 10 U.S.C. 801

et seq.:

Art. 2(a)(1), 10 U.S.C. 802(a)(1)

Art. 2(d), 10 U.S.C. 802(d)

Art. 2(d)(1)(B), 10 U.S.C. 802(d)(1)(B)

Art. 2(d)(2)(A), 10 U.S.C. 802(d)(2)(A)

Art. 3(a), 10 U.S.C. 803(a)

Art. 3(d), 10 U.S.C. 803(d)

Art. 112a, 10 U.S.C. 912a

Art. 121, 10 U.S.C. 921

Art. 123, 10 U.S.C. 923

Art. 128a, 10 U.S.C. 923a

Art. 134, 10 U.S.C. 934

10 U.S.C. 10141

10 U.S.C. 10144

10 U.S.C. 10149

(IIT)

Or PR NNN ND WHO OR OD lO

Jn the Supreme Court of the United States

No. 99-1021

ROBERTO LAUDERBAUGH, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-2a)

is not yet reported. The opinion of the Navy-Marine

Corps Court of Criminal Appeals (Pet. App. 3a-14a) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 17, 1999. The petition for a writ of certiorari

was filed on December 15, 1999. The jurisdiction of this

Court is invoked under 28 U.S.C. 1259(3).

(1)

STATEMENT

Following trial by a general court-martial, respond-

ent was convicted of the wrongful use of cocaine, lar-

ceny of military property, forgery, fraudulently making

and uttering a check, and three counts of dishonorably

failing to maintain sufficient funds in his checking

account, in violation of Articles 112a, 121, 123, 123a, and

134 of the Uniform Code of Military Justice (UCMJ), 10

U.S.C. 912a, 921, 923, 923a, and 9384. He was sentenced

to confinement for 22 months, forfeiture of all pay and

allowance, a reduction to pay grade E-1, and a bad

conduct discharge. The court of appeals affirmed. Pet.

App. la-2a.

1. Article 2(a)(1) of the UCMJ provides that “[mJem-

bers of a regular component of the armed forces * * *

and other persons lawfully called or ordered into, or to

duty in or for training in, the armed forces, from the

dates when they are required by the terms of the call

* * * to obey it” are subject to court-martial juris-

diction. 10 U.S.C. 802(a)(1). Article 2(d) furvuer pro-

vides that “[a] member of a reserve component who is

not on active duty and who is made the subject of

proceedings under * * * section 830 (article 30) with

respect to an offense against this chapter may be

ordered to active duty involuntarily for the purpose of

* * * trial by court-martial” if the member is ordered

to active duty “with respect to an offense committed

while the member was * * * on active duty.” 10

U.S.C. 802(d)(1)(B) and (2)(A). Similarly, Article 3(d) of

the UCMJ provides that “[a] member of a reserve com-

ponent who is subject to this chapter is not, by virtue of

the termination of a period of active duty * * *, relieved

from amenability to the jurisdiction of this chapter for

3

an offense against this chapter committed during such

period of active duty.” 10 U.S.C. 803(d).

2. In September 1990, petitioner enlisted in the

United States Naval Reserve for a period of eight

years. He served on active duty for four years and was

released from active duty on December 27, 1995 to

serve the balance of his enlistment in the Individual

Ready Reserve. Pet. App. 5a.’

On April 5, 1996, petitioner was recalled to active

duty for the purposes of a pretrial investigation regard-

ing offenses he allegedly committed before his release

from active duty. Based on a subsequent investigation,

the Commander of Naval Air Systems Command con-

vened a general court-martial to dispose of the charges.

Pet. App. 5a-6a.

3. The United States Navy-Marine Corps Court of

Criminal Appeals affirmed petitioner’s conviction. Pet.

App. 3a-14a. It concluded that Articles 2(d), 3(a), and

3(d) of the UCMJ, 10 U.S.C. 802(d), 803(a) and (d), per-

mitted petitioner’s involuntary recall to active duty for

offenses committed while he was on active duty as a

reservist. Pet. App. 6a.”

4. The court of appeals summarily affirmed, stating

that “[its] decision in Willenbring v. Neurauter, 48 MJ.

1 As a member of the Individual Ready Reserve, petitioner was

required to be screened periodically to ensure availability for

mobilization. 10 U.S.C. 10149.

2 Article 3(a), 10 U.S.C. 803(a), provides that:

[A] person who is in a status in which the person is subject

to this chapter and who committed an offense against this

chapter while formerly in a status in which the person was

subject to this chapter is not relieved from amenability to the

jurisdiction of this chapter for that offense by reason of a

termination of that person’s former status.

4

152 (1998), supports the finding that the court-martial

had personal jurisdiction over [petitioner].” Pet. App.

la.

ARGUMENT

1. Petitioner contends (Pet. 12-17) that the military

courts lack jurisdiction over his court-martial because

he had obtained “civilian status” when he was released

from active duty in the reserves. That contention lacks

merit.

At the time petitioner committed his offenses, peti-

tioner was on active duty in the reserves. And, at the

time of his involuntary recall into active duty, peti-

tioner was a member of the Individual Ready Reserve

under his eight-year enlistment contract with the mili-

tary. At no time did petitioner’s military service end.’

Thus, under the express terms of 10 U.S.C. 802(d)(1)(B)

and (2)(A) he was subject to be ordered to “active duty

involuntarily for the purpose of * * * trial by court-

martial * * * with respect to an offense committed

while [petitioner] was * * * on active duty.”

3 Petitioner simply transferred from being a member on active

duty in the Navy’s Ready Reserve to a member of the Individual

Ready Reserve. See 10 U.S.C. 10141 (“There [is] in each armed

force a Ready Reserve.”); 10 U.S.C. 10144 (“Within the Ready

Reserve of each of the reserve components there is an Individual

Ready Reserve. The Individual Ready Reserve consists of those

members of the Ready Reserve who are not in the Selected

Reserve or the inactive National Guard.”).

4 Contrary to petitioner’s assertion (Pet. 16), petitioner is not in

“essentially the same position as the accused in Toth v. Quarles,”

in which the Court held Congress could not under its Article I

power extend military jurisdiction to “civilian ex-soldiers who had

severed all relationship with the military.” United States ez rel.

Toth v. Quarles, 350 U.S. 11, 14 (1955). Here, petitioner has not

severed all relationship with the military, since he was a member

5

2. Petitioner also asserts (Pet. 8-11) that this Court

should grant certiorari to resolve a split between the

Third Circuit’s decision in Murphy v. Dalton, 81 F.3d

343 (1996), and Willenbring v. Neurauter, 48 M.J. 152

(1998), cited by the court of appeals below, Pet. App. 1a.

Murphy and Willenbring have reached different con-

clusions regarding whether 10 U.S.C. 802(d)(2)(A)

subjects a reservist to court-martial jurisdiction for

offenses committed while on active duty in the regular

component of the armed forces. Compare 81 F.3d at

351-352 (concluding that Congress did not intend

Article 2(d)(2)(A) “to subject a reservist to court-

martial jurisdiction for offenses committed on active

duty while in the regular component”) with 48 M.J. at

174-175 (“We do not find, in either the express words of

the applicable statutes, the purposes of the legislation,

or the legislative history of Article 2(d), an intent to

create a haven from accountability for those reservists

whose prior service was in a regular rather than a

reserve component.”).

That division of authority, however, has no relevance

to this case, because petitioner was recalled into active

duty with respect to offenses committed while on

active duty in the reserves. Indeed, the Third Circuit in

Murphy explicitly acknowledged that a reservist in

petitioner’s situation would be subject to court-martial

jurisdiction under Article 2(d)(2)(A). Murphy, 81 F.3d

at 352 (“[Wle hold that the term ‘active duty’ in 10

U.S.C. § 802(d)(2)(A) refers to those periods of active

duty served by a reservist while performing such duty

of the Individual Ready Reserves at the time of his recall into

active duty and court-martial. See also ibid. (recognizing Con-

gress’s power “to subject persons actually in the armed forces to

trial by court-martial”).

6

in the reserves.”). Thus, even under the Third Circuit’s

reading of Article 2(d), the military courts had court-

martial jurisdiction to try petitioner for the offenses he

committed while on active duty in the reserves.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

KEVIN M. SANDKUHLER

Colonel, U.S. Marine Corps

Director, Appellate Government

Divisi

JAMES E. GRIMES

Lieutenant, JAGC

U.S. Naval Reserve

Navy-Marine Corps

Appellate Review Activity

FEBRUARY 2000