CAAF decided the Air Force case of United States v. Hale, __ M.J. __, No. 18-0162/AF (CAAFlog case page) (link to slip op.), on February 6, 2019. Addressing the limited (though recently expanded) UCMJ jurisdiction over members of the reserve components and the prosecution’s use of evidence of conduct that occurred outside of those limits in this case, a majority of CAAF finds the evidence was properly used to prove intent associated with conduct that was subject to UCMJ jurisdiction, and it affirms the findings, sentence, and decision of the Air Force CCA.

Judge Sparks writes for the court joined by all but Judge Ohlson, who dissents in part (disagreeing with the core holding of the majority opinion).

CAAF then granted review of two issues and specified a third:

Granted Issues:
I. The lower court found as a matter of law that personal jurisdiction does not exist outside of the hours of inactive-duty training. The lower court proceeded to find personal jurisdiction existed over Appellant because he was “staying” with his in-laws. Was this error?

II. Whether the lower court erred when it concluded the military judge correctly instructed the members they could convict Appellant for conduct “on or about” the dates alleged in each specification.

Specified Issue:
III. Whether the lower court erred in concluding the court-martial had jurisdiction over specification 2 of additional charge 1, as modified to affirm the lesser included offense of attempted larceny.

Lieutenant Colonel (O-5) Hale – an Air Force reservist – was convicted of multiple specifications of larceny and attempted larceny, and also of making a false official statement. He was sentenced to confinement for one month, total forfeitures, and a dismissal.

The convictions relate to Hale’s submission of fraudulent travel claims involving his reserve service. Hale stayed (lodged) with relatives while performing reserve duty (which is allowed), he submitted travel claims for reimbursement for expenses incurred while lodging with those relatives (that’s not allowed), the claimed expenses were fictitious (also not allowed), and he forged lodging receipts as evidence of the fictitious expenses (an offense in its own right).

Some of Hale’s conduct, however, occurred at times when he was not subject to the UCMJ because he was not performing reserve duty. The version of Article 2(a)(3) in effect at the time of Hale’s conduct limited jurisdiction over reservists to time periods while the reservist is performing inactive-duty training (IDT). Notably absent was the time between periods of IDT. Such training typically occurs in four-hour blocks, with breaks during lunch and overnight that create jurisdictional gaps, and some of Hale’s conduct occurred during such gaps. The Military Justice Act of 2016 changed the statute – effective on and after January 1, 2019 – to include the time between IDT periods on the same or consecutive days and during associated funded travel.

Considering that limited jurisdiction, the Air Force CCA reversed one of Hale’s larceny convictions because he did not receive the proceeds of the fraudulent claim while subject to the UCMJ. Nevertheless, the CCA affirmed a conviction of attempted larceny for that offense, and it affirmed other convictions of attempted larceny, on the basis that Hale’s conduct during periods when he was not subject to the UCMJ could be used to show his intent behind conduct when he was subject to the UCMJ.

Additionally, Hale was charged with committing offenses on or about certain dates, and the military judge instructed the members that they could convict him if they found the acts occurred on or about those dates. That charging decision and instruction also implicated time periods when Hale was not subject to the UCMJ, though Hale did not object at trial.

Judge Sparks’ majority explains that a conviction of attempt requires more than that the accused intended to commit a specific offense; the accused must also have taken “a substantial step toward committing the crime.” Slip op. at 6. A substantial step “unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.” Slip op. at 6 (marks and citations omitted).

The substantial step at issue in CAAF’s review was Hale staying with his relatives. Judge Sparks explains:

Appellant takes issue with the lower court’s interpretation of the concept of staying with his in-laws. Appellant’s view is that he was only staying with his in-laws when he was physically in their home, for example on days off or during the evenings between his IDT blocks. Therefore, under his view, the act of staying with the in-laws could only occur during periods he was not subject to court-martial jurisdiction. The Government counters that the plain meaning and ordinary usage of the term “staying” in this context means “to live for awhile” or “to live in a place for a short time as a visitor” (internal quotation marks omitted) (citations omitted). Therefore, staying is not strictly limited to the period of time when a guest is physically present but rather spans the full scope of time encompassing a given visit. We also adopt the common understanding of the term staying. We therefore conclude that the act of staying with the in-laws spanned the entire period of time during which Appellant resided with them, including both the actual IDT blocks and the gaps between them.

Slip op. at 8-9. Hale merely staying with his relatives, however, is not a sufficiently culpable act to constitute a substantial step to commit a larceny. Slip op. at 9. But, explains Judge Sparks, Hale’s other conduct – at a time when he was not subject to the UCMJ – can be considered in conjunction with that act:

We agree with the lower court that simply staying with the in-laws, by itself, would not be enough to establish a substantial step. However, we believe that Appellant’s other actions taken during periods he was not subject to the UCMJ could have been considered by the members to establish Appellant’s intent while staying with his in-laws. This is similar to how members are permitted to consider evidence of other acts admitted under Military Rule of Evidence 404(b) to prove the requisite intent for an offense. In order to establish attempted larceny, it is not necessary that every step leading up to or following that attempt occur at times where the 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.

For this offense, the related evidence the members could have considered on the issue of Appellant’s intent included the false receipt Appellant created for a stay at “Vernon Guest Suites,” the travel voucher submitted December 3, and a check he wrote to Randall Vernon on November 20, 2013. The members also could have considered evidence of the six other occasions upon which Appellant followed a similar pattern: staying with his in-laws and then submitting false receipts and travel vouchers in order to claim lodging reimbursement for which he was not eligible. Thus, 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.

Slip op. at 9 (citations omitted) (emphasis added).

Judge Ohlson dissents from this holding, reaching the exact opposite conclusion:

Appellant engaged in acts outside of his military status that, if taken during his IDT, would have  established a substantial step while he was subject to court-martial jurisdiction. However, there is no court-martial jurisdiction if the acts necessary to commit a crime occur after an accused has left his military status; to be subject to court-martial jurisdiction, the substantial step must occur during an accused’s IDT status.

Diss. op. at 4 (emphases in original).

Having concluded that Hale’s conduct while not subject to UCMJ jurisdiction could be used to prove that he committed an offense while subject to UCMJ jurisdiction, the majority finds any instructional error harmless. Judge Sparks explains:

our decision above on issues I and III establishes that Appellant staying with his in-laws, coupled with circumstantial evidence of acts committed when he was not subject to jurisdiction, is sufficient to constitute a substantial step towards completed larceny. Nothing in Appellant’s argument or in the record suggests that members considered other, impermissible, evidence.

Slip op. at 12.

Judge Ohlson dissents from that part the majority opinion as well, however, because:

In the instant case the problem with the military judge’s “on or about” instruction arises because it was given in the context of a specification where court-martial jurisdiction was clearly implicated. Court-martial jurisdiction is a binary proposition—it is either there or it is not. Morita, 74 M.J. at 120 (“[A]ctive duty is an all-or-nothing condition.” (citation omitted) (internal quotation marks omitted)). Therefore, the military judge needed to focus his instructions on the precise dates when Appellant was on IDT.

Diss. op. at 5. The dissent is based on Judge Ohlson’s conclusion that the conduct that was not subject to UCMJ jurisdiction could not be used to prove the attempt offense:

the military judge’s instruction listed three acts as part of the attempted larceny offense with which Appellant was charged—

staying with his in-laws,

writing a check to his father-in-law,

and creating a fraudulent lodging receipt.

However, the evidence in the record fails to establish that two of these acts occurred while Appellant was in an IDT status. Indeed, the Government’s appellate brief appears to concede that Appellant’s acts of writing a check and creating a lodging receipt occurred after he was no longer in an IDT status and therefore not subject to the UCMJ. Under these circumstances, the instructions improperly permitted the members to convict Appellant of an attempted larceny that was not actually completed until after Appellant had left his military status. Therefore, I conclude that the military judge clearly or obviously erred when instructing the members in this manner.

Diss. op. at 6 (paragraphing added) (emphasis in original).

Case Links:
• AFCCA decision
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Air Force App. Gov’t Div.) brief
• Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: Conduct while not subject to the UCMJ admissible to prove misconduct in violation of the UCMJ, in United States v. Hale”

  1. Vulture says:

    I’d like to comment on or about this opinion.  But the switch is off, so it would be fraud.
    Judge Ohlson, you sir, have a point.  It’s like that old Missing Persons song.  What ARE words for?