United States v. Solorio

¶1concurring in part and dissenting in part.

¶2I agree with the Court’s holding that the trial judge erred, as a matter of law, in determining the impact of this offense on the morale and discipline of the Coast Guard in Juneau and that a determination should have been made as to the impact, if any, on the accused’s present command and the Coast Guard community as a whole. In addition to the matters discussed in the majority opinion, I note that the judge’s essential findings may have been based on an erroneous standard, where the judge stated “the impact of the alleged offenses ... does not rise to the level to compel the exercise of Court-Martial jurisdiction in these circumstances.” [R-132] (emphasis added).1 I also agree that the trial judge erred, as a matter of law, in his finding that there was no evidence suggesting a “lessened interest, concern or capacity” of the civil court in Alaska in the prosecution of these offenses.

¶3Where I depart from the majority is the holding that there was “service connection” and therefore jurisdiction, in this case, as a matter of law. As noted by the majority, the judge made no specific findings with respect to the possible effect of the offenses at Governors Island or on personnel under the authority and responsibility of the convening authority. Even if this case were before us for review under Article 66(c), U.C.M.J., 10 U.S.C. § 866(c), I would hesitate to determine that jurisdiction exists in light of this omission. Although the Court of Military Appeals has sanctioned drawing reasonable inferences with respect to factual matters not fully developed in the record of trial to support court-martial jurisdiction, it has done so where jurisdiction was challenged for the first time at the appellate level. U.S. v. Lockwood, 15 M.J. 1 (C.M.A.1983). Since this case is before us for review under Article 62(b) U.C.M.J., 10 U.S.C. § 862(b), I do not believe we are empowered to cure an omission from the essential findings of the trial judge. Further, I would distinguish cases such as U.S. v. Burris, 20 M.J. 707 (A.C.M.R.1985) and U.S. v. Poduszczak, 20 M.J. 627 (A.C.M.R.1985), where determination that the trial judge erred, as a matter of law, necessarily compelled a contrary finding of fact.

¶4I am concerned that, in exceeding that which is necessary to dispose of the Government’s appeal, we have lessened the requirement “that the Government fulfill its obligation under the law to meet the letter of the law.” U.S. v. Trottier, 9 M.J. 337 (C.M.A.1980), (concurring opinion at 353). Accordingly, while I would grant relief to the Government and remand the charges to the trial court, I would do so without prejudice to the accused’s right to renew his attack at the trial level and upon any further appellate review of the case. Murray v. Haldeman, 16 M.J. 74 (C.M.A.1983).