U.S. v. Hale, 78 M.J. 268

First Principles: Jurisdiction: Generally

1. when challenged, the government must prove jurisdiction by a preponderance of evidence

First Principles: Jurisdiction: In Personam

1. an inquiry into court-martial jurisdiction focuses on whether the person is subject to the UCMJ at the time of the offense
2. court-martial jurisdiction is determined by Article 2, UCMJ
3. beginning in January, 2019, jurisdiction over reservists performing IDTs under Article 2(a)(3) extends to (1) members traveling to and from the IDT training site, (2) intervals between consecutive periods of IDT on the same day, pursuant to orders or regulations, and (3) intervals between IDTs on consecutive days, pursuant to orders or regulations
4. at the time of the offenses in this case, jurisdiction for reservists hinged on satisfying Article 2(a) or Article 2(c), UCMJ; Article 2(c) requires that the reservist be, as a threshold matter, serving with the armed forces at the time of the misconduct, and meet the other four criteria set forth in the statute; jurisdiction continues until active service has been terminated; Article 2(a)(3), UCMJ, in relevant part, extends jurisdiction to members of a reserve component while on inactive-duty training
5. the military does not have jurisdiction over a reservist who had forged his active duty and IDT orders; simply being a member of a reserve component is not sufficient to find that an accused was serving with the armed forces
6. jurisdiction over a reservist covers the travel day prior to the reservist reporting for active duty
7. determining whether someone is serving with the military requires a case-specific analysis of the facts and requires a more direct relationship than simply accompanying the armed forces into the field
8. based on Article 2, UCMJ, and supporting case law, no authority existed at the time of the alleged larceny offenses in this case to extend military status to appellant while engaged in IDTs beyond the designated four-hour blocks of his IDT time; Article 2(a)(3) very clearly extends jurisdiction to members of a reserve component while on inactive-duty training; unlike other types of reserve duty, an IDT is not a tour but a block of time; specifically, it is a designated four-hour period of training, duty or instruction; the member performing the IDT is paid for and receives a point for that designated four-hour block of time; appellant was no exception; rather, he received pay and points solely for the IDT blocks he was authorized to complete

Military Justice Personnel: Military Judge: Instructions

1. the military judge shall give the members appropriate instructions on findings

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. Article 80, UCMJ, defines an attempted offense as an act, done with specific intent, to commit an offense amounting to more than mere preparation and tending, even though failing, to effect its commission; the elements include: (1) that the accused did a certain overt act, (2) that the act was done with the specific intent to commit a certain offense under the code, (3) that the act amounted to more than mere preparation, and (4) that the act apparently tended to effect the com- mission of the intended offense; more than mere preparation is interpreted as requiring that the accused take a substantial step toward committing the crime; an attempt goes beyond devising or arranging the means or measures necessary for the commission of the offense and, instead, engages in a direct movement toward the commission after the preparations are made; the overt act need not be the last act essential to the consummation of the offense; although the line separating mere preparation from a substantial step is elusive, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances
2. appellant’s two attempted larceny convictions for fraudulently requesting reimbursement of lodging could be upheld where the members were entitled to consider evidence of conduct that occurred while appellant was not subject to court-martial jurisdiction and this circumstantial evidence, coupled with evidence of appellant’s actions when he was subject to jurisdiction, proved sufficient to uphold them; the evidence of appellant’s intent based on his pattern of previously submitting fraudulent requests for reimbursement for lodging, coupled with the act of staying with his in-laws while he completed his IDTs, constituted the substantial step necessary for an attempted larceny; the act of staying with his in-laws with the intent to defraud the government was more than simply an isolated and unimportant circumstance; it was the sine qua non for appellant’s travel fraud scheme
3. in order to establish attempted larceny, it is not necessary that every step leading up to or following that attempt occur at times where appellant is subject to the UCMJ, so long as some element of the offense occurs during such times; all that Article 80, UCMJ, requires is commission of a single act during IDT or active duty, provided that the act is done with the specific intent of committing a larceny, that the act amounts to more than mere preparation, and that the act tends to effect the commission of a larceny

Core Criminal Law Subjects: Crimes: Article 121 - Larceny and Wrongful Appropriation Pre-2019 offenses

1. Article 121(a)(1), UCMJ, in relevant part, identifies larceny as wrongfully taking, obtaining, or withholding with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use
2. based on Article 2, UCMJ, and supporting case law, no authority existed at the time of the alleged larceny offenses in this case to extend military status to appellant while engaged in IDTs beyond the designated four-hour blocks of his IDT time; Article 2(a)(3) very clearly extends jurisdiction to members of a reserve component while on inactive-duty training; unlike other types of reserve duty, an IDT is not a tour but a block of time; specifically, it is a designated four-hour period of training, duty or instruction; the member performing the IDT is paid for and receives a point for that designated four-hour block of time; appellant was no exception; rather, he received pay and points solely for the IDT blocks he was authorized to complete

Core Criminal Law Subjects: Evidence: Intent

1. members are permitted to consider evidence of other acts admitted under MRE 404(b) to prove the requisite intent for an offense

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. members are permitted to consider evidence of other acts admitted under MRE 404(b) to prove the requisite intent for an offense

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. when challenged, the government must prove jurisdiction by a preponderance of evidence

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Instructions

1. an appellate court presumes that the panel followed the instructions given by the military judge
2. whether a panel was properly instructed is a question of law reviewed by an appellate court de novo
3. where there was no objection to the instruction at trial, an appellate court reviews for plain error

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. an appellate court presumes that the panel followed the instructions given by the military judge

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. an appellate court presumes that the panel followed the instructions given by the military judge

Trial Stages: Merits: Instructions › Generally

1. the military judge shall give the members appropriate instructions on findings

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the military judge instructed the members on the elements of the charged offenses, including the “on or about” language, and the defense counsel did not object to the instructions at the time they were given; regardless of whether the military judge erred by including the “on or about” language in the instructions to the members, appellant failed to carry his burden to prove that any material prejudice to his substantial rights resulted from such instructions, where (1) appellant did not established that the military judge’s instructions in any way impacted the members’ decision- making process on the offenses, (2) the charges involved concrete acts occurring on concrete dates, and (3) appellant provided no reason to suspect the members did not adhere to the admitted evidence when reaching their verdict

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there was no objection to an instruction at trial, an appellate court reviews for plain error
2. under plain error review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim

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

1. an appellate court conducts a de novo review of jurisdiction questions
2. when challenged, the government must prove jurisdiction by a preponderance of evidence
3. an appellate court presumes that the panel followed the instructions given by the military judge
4. whether a panel was properly instructed is a question of law reviewed by an appellate court de novo
5. where there was no objection to an instruction at trial, an appellate court reviews for plain error
6. under plain error review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim