CAAFlog » October 2018 Term » United States v. Hale

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Hamilton, No. 18-0135/AF (CAAFlog case page): Oral argument audio.

United States v. Hale, No. 18-0162/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. Hale, No. 18-0162/AF (CAAFlog case page), on Tuesday, October 23, 2018, after the argument in Hamilton. The case involves jurisdiction over offenses committed by a drilling reservist, and CAAF 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, and 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, and he submitted fraudulent travel claims for lodging expenses with his in-laws.

The granted issues present fact-specific challenges to some of Hale’s convictions based on a unique facet of jurisdiction over reservists. Members of reserve components are subject to the UCMJ, but only when actually performing reserve duty. For example, Article 2(a)(3) limits jurisdiction to:

Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

Notably absent is the time between periods of inactive-duty training. Such training typically occurs in four-hour blocks, with breaks during lunch and overnight that create jurisdictional gaps. Hale’s convictions cross some of those gaps.

But Congress eliminated those jurisdictional gaps in the Military Justice Act of 2016, amending Article 2(a)(3) to specifically include:

(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.

(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.

(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.

Sec. 5102, National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2894, 2895 (Dec. 23, 2016).

But for Hale those gaps still matter, and CAAF’s review will determine whether some of his convictions involve conduct during periods when he was not subject to the UCMJ.

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

Members of reserve components are subject to the UCMJ, but only when actually performing reserve duty. For example, Article 2(a)(3) limits jurisdiction to:

Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

Notably absent is the time between periods of inactive-duty training. Such training typically occurs in four-hour blocks, with breaks during lunch and overnight (creating interesting jurisdictional questions when reservists commit misconduct during a break). Congress eliminated those jurisdictional gaps in the Military Justice Act of 2016, amending Article 2(a)(3) to specifically include:

(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.

(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.

(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.

Sec. 5102, National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2894, 2895 (Dec. 23, 2016).

But back in January the Air Force CCA issued a published decision in a case involving the current rule. In United States v. Hale, 77 M.J. 598 (A.F. Ct. Crim. App. Jan 19, 2018) (link to slip op.), a three-judge panel explained:

This case is essentially about a reserve officer who committed travel fraud. The principal issue on appeal is Appellant’s status at the time of each offense and whether the court-martial had jurisdiction over each of the specifications for which Appellant was convicted. As a threshold matter, we find that the court-martial lacked jurisdiction over one of the larceny specifications, but had jurisdiction over the lesser-included offense of attempted larceny. We also modify part of the charged time-frame of a second larceny specification by exception and substitution.

The convictions relate to lodging reimbursements for periods when the appellant (a lieutenant colonel) stayed with relatives but created and submitted receipts for lodging expenses (in violation of regulations and despite the appellant incurring no actual expense). The jurisdiction issue, however, arises from the fact that it’s not clear when the appellant committed some of the misconduct; whether during a four-hour period of inactive-duty training or not.

On Wednesday CAAF granted review:

No. 18-0162/AF. U.S. v. James M. Hale. CCA 39101. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues raised by appellate defense counsel:

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

And the following issue specified by the Court:

III. WHETHER THE LOWER COURT ERRED IN CONCLUDING THE COURT-MARTIAL HAD JURISDICTION OVER SPECIFICATION 2 OF ADDITIONAL CHARGE I, AS MODIFIED TO AFFIRM THE LESSER INCLUDED OFFENSE OF ATTEMPTED LARCENY.

Briefs will be filed under Rule 25.