U.S. v. Henderson, 59 M.J. 350

First Principles: Jurisdiction: Of Trial Court

1. Article 19, UCMJ, provides that special courts-martial have jurisdiction to try persons for any noncapital offense, and, under such regulations as the President may prescribe, for capital offenses; R.C.M. 201(f)(2)(C), a regulation prescribed by the President, withholds jurisdiction over mandatory capital cases from special courts-martial, but does provide for jurisdiction over non-mandatory capital offenses under two circumstances: (1) when permitted by an officer exercising general court-martial jurisdiction over the command which includes the accused; and (2) when authorized by regulation by the Secretary concerned
2. in United States v. Bancroft, 3 C.M.A. 3, 11 C.M.R. 3 (1953), this Court held that where neither the officer exercising general court-martial jurisdiction over the accused nor the Secretary of the Navy had authorized the referral of a non-mandatory capital offense to trial by special court-martial, the special court-martial lacked jurisdiction to try such an offense, and the findings and sentence on that charge were void; we take this occasion to reaffirm our holding in that case
3. the situation in the present case is strikingly similar to Bancroft; as in Bancroft, the officer making the referral here exercised only special court-martial jurisdiction and referred a capital charge, willfully hazarding a vessel, to a special court-martial without authorization to do so from the officer exercising general court-martial jurisdiction over the accused or the Secretary of the Navy; we therefore find that the court-martial in the present case lacked jurisdiction over the capital charge
4. the case before us involves a challenge to the jurisdiction of a special court-martial to try a non-mandatory capital offense in the absence of authorization from either the officer exercising general court-martial jurisdiction over the accused or from the Secretary of the Navy - - it is not simply a challenge to the “form” of the referral; under the circumstances found in this case, the special court-martial lacked jurisdiction ab initio; when a criminal action is tried before a court which does not have jurisdiction, the entire proceedings are a nullity
5. the primary distinction between this case and Bancroft is that appellant was not convicted of a capital offense but only of a noncapital, lesser-included offense; that distinction, however, does not change the result; because the offense of negligently hazarding a vessel never achieved the status of an independent charge, the court’s jurisdiction over it derived only from the improperly referred capital offense of willfully hazarding a vessel, and thus rises and falls with the jurisdiction over the greater offense; to recognize the pretrial agreement in this case as the functional equivalent of a new referral would require this Court to find jurisdiction where it does not otherwise exist; this we cannot do
6. appellant’s special court-martial had no jurisdiction to try a capital charge without authorization from either the officer exercising general court-martial jurisdiction over the accused or from the Secretary of the Navy; since the lesser-included charge of negligently hazarding a vessel was never formally referred under R.C.M. 601, it was dependent on the greater charge and was fatally tainted by the lack of jurisdiction
7. jurisdiction over a charge unrelated to a jurisdictionally-defective charge or a lesser-included offense of the unrelated charge remains valid; only the finding and sentence related to the defective charge are a nullity

Core Criminal Law Subjects: Crimes: Article 110 - Improper Hazarding of Vessel Pre-2019 offenses

1. the elements of Article 110, UCMJ, improper hazarding of vessel, are (1) that a vessel of the armed forces was hazarded in a certain manner; and (2) that the accused by certain acts or omissions, willfully and wrongfully, or negligently, caused or suffered the vessel to be hazarded; willfully hazarding a vessel is a non-mandatory capital offense, punishable by death or such other punishment as a court-martial may direct; negligently hazarding a vessel is a lesser-included, noncapital offense, punishable by dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the jurisdiction of a special court-martial over a non-mandatory capital offense is a legal question which we review de novo