# Petition for Writ of Certiorari — Lauderbaugh v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1019

## Text

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
RUNNIN PIII Sy basis s c 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:
.

* 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0579%3A1. Public record. Not legal advice.