United States v. Regan

FERRELL, Judge:

Pursuant to his pleas, appellant was found guilty of two offenses of attempted violation of a lawful general regulation and two specifications of violating a lawful general regulation, in violation of Articles 80 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 892. Appellant was sentenced to a bad-conduct discharge, confinement at hard labor for 3 months, forfeiture of $150.00 pay per month for 3 months, and reduction to pay grade E-l. The convening authority, pursuant to a pretrial agreement, approved the sentence but suspended execution of the bad-conduct discharge for 12 months with provision for automatic remission. The supervisory authority remitted part of the confinement and otherwise approved the sentence as approved and partially suspended by the convening authority.

Appellant now assigns two errors to the proceedings below:

I
THE GOVERNMENT FAILED TO AFFIRMATIVELY ESTABLISH SUBJECT MATTER JURISDICTION OVER RENUMBERED SPECIFICATION 2 of CHARGE II.
II
APPELLANT WAS DENIED THE EFFECTIVE POST-TRIAL ASSISTANCE OF COUNSEL.

The appellant pleaded guilty and was found guilty of a violation of Article 92, Uniform Code of Military Justice, by knowingly and deliberately having in his possession in his off-base apartment two (2) pieces of C-4 high explosive, two (2) nonelectric blasting caps and one (1) black fuse cord, property of the United States Government. On the charge sheet, renumbered Specification 2 of Charge II contains a preamble in which the pleader asserts jurisdiction over the offense based on six of the factors enumerated in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), *602to wit: that the crime was committed within U.S. territorial limits and not within an occupied zone of a foreign country; that there is a connection between the accused’s military duties and the crime; that there is no civilian court in which the case can be prosecuted; that there was a flouting of military authority; that the offense is a threat to a military installation; and, that the offense is a violation of military property-

Because there was no defense challenge to the sufficiency of the specification to allege military jurisdiction, which factor was compounded by the plea of guilty, the result is an issue of jurisdiction, unlitigated below, requiring this Court to determine for the first time on appeal whether the specification, on its face, affirmatively demonstrates the jurisdictional basis of the offense.

The specification and the military judge’s Care1 inquiry could have been more illuminating in regard to subject matter jurisdiction; nevertheless, we believe them adequate to pass the test established in Rel-ford.

The United States Court of Military Appeals in United States v. Moore, 1 M.J. 448 (1976) stated:

What Relford makes clear is the need for a detailed, thorough analysis of the jurisdictional criteria enunciated to resolve the service-connection issue in all cases tried by court-martial. .

In making that detailed and thorough analysis in Moore, the Court considered the alleged offenses and their distinctive effect upon military interests. In considering the case sub judice, we are convinced it is appropriate for us to consider and give great weight to the distinctive nature of the Government property involved in applying the criteria established in Relford. The C-4 high explosives, blasting caps and black fuse cord are properties within the military’s distinctive province of weaponry, in which military interests are virtually exclusive of those of the civilian community. A Government pen, typewriter, or wrench may be put to legitimate or illegitimate uses by anyone at any place. No common legitimate use exists, however, for C-4 high explosives outside a military area in conjunction with intended military purposes.

We are of the opinion that the appellant’s status as a Marine subject to the Navy Regulations, and his alleged wrongful possession of Government property having a distinct interest to the military are factors sufficient to clearly establish subject matter jurisdiction in this case.

We reject the second assignment of error. The record reflects that appellant was effectively represented by both detailed and individual counsel, post-trial. Any difficulties experienced during that period were the result of the lack of communication among the appellant and his two counsel, and were not, in any way, the result of improper Governmental intervention.

Accordingly, the findings and sentence as approved on review below are affirmed.

. United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).