United States v. Johnson

¶1dissenting:

¶2When a serviceman’s conduct is punishable in both military and civilian courts, the military has jurisdiction to try him if; (1) its interest in deterring that conduct is distinct from and greater than that of civilian society because of the impact of the offense on military discipline and effectiveness; and (2) the distinct military interest cannot be vindicated adequately in civilian courts. See Schlesinger v. Councilman, 420 U.S. 738, 760, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). Otherwise, the offense is not service connected and the military has no power to try him.

¶3In applying the twelve considerations enumerated in Relford v. Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971), to determine service connection, jurisdiction has not been established in this case. The appellant was properly absent from Fort Bliss when the offense was committed; the offense occurred in El Paso, Texas, while he was off duty; it was committed during peacetime; there was no connection between the appellant’s military duties and the crime; the possession of marihuana is an offense that is prosecuted regularly in civilian courts and those courts were available; and there was no threat to the security of Fort Bliss or its property or any flouting of military authority.1

¶4The evidence of record indicates that the civilian authorities were vitally concerned about illegal drug trafficking in El Paso, Texas. Special agents of the Texas Department of Public Safety, in cooperation with military criminal investigators, had under surveillance the local residence where the appellant received the marihuana. In fact, the appellant was apprehended by civilian agents about two miles from the residence. At the time of his arrest, he was in a probationary status, pending charges in a civilian court in El Paso, Texas. The appellant was enrolled in a civilian rehabilitative program as a condition of his probation and the possession of marihuana violated the probationary terms. These important facts, which were ignored by the majority, indicate that the concern of the military was not distinct2 and that the military interest *573could have been adequately vindicated in the civilian courts.

¶5In an effort to affirm jurisdiction, the majority reached certain factual conclusions as to the appellant’s previous dealings with drugs and his contemplated disposition of the marihuana. Their conclusions are not supported by the evidence and exceed the bounds of permissible inferences. For example, it is undisputed that the two soldiers, who accompanied the appellant, were unaware of his criminal endeavor. Yet, the majority inferred that they were eventual recipients of the marihuana. This is unwarranted speculation. In United States v. McCarthy, 25 U.S.C.M.A. 30, 33, 54 C.M.R. 30, 33, 2 M.J. 26, 28 (1976), similar facts were supported by the evidence. Jurisdiction is a matter that must be established affirmatively by competent evidence. Cf. United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650,1 M.J. 134 (1975).

¶6The only factor supportive of service connection in this case is the military status of the participants and that alone is insufficient to sanction court-martial jurisdiction. United States v. Wilson, 25 U.S.C.M.A. 26, 28, 54 C.M.R. 26, 28, 2 M.J. 24 (1976); United States v. Hedlund, 25 U.S.C.M.A. 1, 6, 54 C.M.R. 1, 6, 2 M.J. 11, 14 (1976). In resolving the question of military jurisdiction over an offense, the situs of the offense is far more significant than the status of the parties involved. United States v. Tucker, 24 U.S.C.M.A. 311, 52 C.M.R. 22, 1 M.J. 463 (1976). Therefore, I conclude that there is a lack of jurisdiction in this case.