7 M.J. 188 | United States Court of Military Appeals | 1979
Lead Opinion
Opinion of the Court
By certificate, the Judge Advocate General of the United States Navy,
Accused was charged with wrongful possession, “on board USS JOHN F. KENNEDY (CV 67),” of a quantity of marijuana, with intent to distribute, “in violation of 21 U.S.C. § 841.” The charge was lodged under Article 134 of the Uniform Code,
On review, the Court of Military Review affirmed the trial judge’s ruling. It supported its affirmance by quoting from the opinion of the United States Supreme Court in United States v. Rodgers, 150 U.S. 249, 264, 14 S.Ct. 109, 115, 37 L.Ed. 1071 (1893), the declaration that “a vessel is deemed part of the territory of the country to which she belongs.” We have no doubt as to the correctness of the Court of Military Review’s decision. As a leading American encyclopedia of law points out, a “[vjessel of [the] United States is [an] extension of [the] territory of [the] United States.” 21 Am.Jur.2d, Criminal Law, § 395 (Supp.). See also United States v. Flores, 289 U.S. 137, 53 S.Ct. 580, 77 L.Ed. 1086 (1933). Particularly is that true of a warship, which remains subject to the law of the country to which it belongs and exempt from the domestic law of a friendly nation, even in a port of that nation. 45 Am.Jur.2d, International Law, § 79. We are, however, impelled to consider an implication in accused’s argument to the effect that this Court’s opinion in United States v. Gladue, 4 M.J. 1 (C.M.A.1977), established that legislative intention as to the extraterritorial application of a statute has primacy over the principle of the extension of a nation’s territorial law to a vessel that flies its flag.
In Gladue, the accused was convicted of two offenses, one of which was wrongful possession of heroin “at or near” U-Tapao Air Field, Thailand. Between the commission of the offense and the charge, he had been discharged and had reenlisted. He contended that, under Article 3(a) of the Uniform Code,
Nothing in this exposition of the Gladue opinion suggests that a domestic law that has no general extraterritorial application must also be inoperative aboard a vessel owned by the United States that is on the high seas. However, extrapolations from the place of concealment of the heroin raise the issue. In the text of the Gladue opinion, the Court noted that the accused was assigned to the crew of a United States military aircraft. Before its scheduled departure from Thailand, he and a co-accused “placed three canisters of heroin aboard the aircraft.” Id. at 2. In a footnote to this factual recital, the opinion remarked that “possession of these three canisters” was the basis for the allegations that accused “ ‘did at or near U-Tapao Air Field, Thailand, . . wrongfully have in his possession . . . heroin.’ ” Id. n.2. If these comments are construed to mean that
The decision of the United States Navy Court of Military Review is affirmed.
UNCLASSIFIED
P R 121200Z SEP 68 FM AMEMBASSY BANGKOK TO SECSTATE WASHDC INFO CINCPAC
UNCLAS BANGKOK
SUBJ: THANAT NEWS CONFERENCE-SOFA
Foreign Minister Thanat was asked about the SOFA negotiations at his news conference this morning. He replied: “Negotiations are being held, but I do not know when they will be finished. . . •. It is . necessary to pay thorough consideration to all angles because we must safeguard the interests of our nation and our country and of all the Thai people. . In addition, there is the right to use military bases, which we consider are the rightful property of Thailand and under Thai sovereignty, and under Thai law.”
UNCLASSIFIED
. Article 67(b), Uniform Code of Military Justice, 10 U.S.C. § 867(b).
. 10 U.S.C. § 934.
. Article 3(a), UCMJ, 10 U.S.C. § 803(a), provides as follows:
Subject to section 843 of this title (article 43), no person charged with having committed, while in a status in which he was subject to this chapter, an offense against this chapter, punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-martial by reason of the termination of that status.
. We express no opinion on the merits of the argument. The aircraft in United States v. Gladue, 4 M.J. 1 (C.M.A.1977), was a KC-135(B-707), which is a very large plane. An aircraft of that kind might well be comparable to a naval vessel, but too expansive a view of the matter might require inclusion of such military land vehicles as a personnel carrier or a tank. The statutory definition of the special maritime and territorial jurisdiction of the United States extends to vessels and “[a]ny aircraft belonging in whole or part to the United States . while such aircrañ is in flight." 18 U.S.C. § 7(5) (emphasis added). In its brief, the Government maintains, and we agree, that “this case presents no impact upon international law or international relations between the United States and a foreign sovereign.”
. While United States military aircraft used the U-Tapao Royal Thai Air Field, and a portion of it was apparently set aside for the needs of American Forces for the limited purposes for which they were in Thailand, no treaty or agreement conferred upon the United States such legal authority over the field as to transform it into an enclave functionally equivalent to a domestic enclave, in which all United States law is enforced. See Thailand-Mutual Defense Assistance, T.I.A.S. 2434 (Oct. 17, 1950), Vol. 3, Part 2 (1952), at 2675. In a news conference, Thailand’s Foreign Minister declared, in regard to the United States’ “right to use military bases” in Thailand, that his government “consider[ed]” that the bases “are the rightful property of Thailand and under Thai sovereignty.” AMEMBASSY BANGKOK (Unger) Unelas Unclass msg to SECSTATE, WASH DC, of 121200Z Sep 68 (see Appendix). In its brief in Gladue, the Government represented that the air field was “not an American military base, but ... in fact, a Thai base”; and the accused emphasized that the offense “involved a possession at U-Tapao Air Field.”
Concurrence Opinion
(concurring in the result):
Relying solely on the statements and rationale supportive thereof in United States v. Flores, 289 U.S. 137, 53 S.Ct. 580, 77 L.Ed. 1086 (1933); St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936 (1894); United States v. Rodgers, 150 U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071 (1893); Wilson v. McNamee, 102 U.S. (12 Otto) 572, 26 L.Ed. 234 (1880); Crapo v. Kelly, 83 U.S. (16 Wall.) 610, 21 L.Ed. 430 (1873); and The Scotia, 81 U.S. (14 Wall.) 170, 20 L.Ed. 822 (1872), I concur in the result.