24 M.J. 857 | U.S. Army Court of Military Review | 1987
OPINION OF THE COURT
Appellant was tried by a military judge sitting as a general court-martial on 16 December 1986. Pursuant to his pleas, he was convicted of obtaining counterfeit money and passing it with intent to defraud (Charge I, Specifications 1-4) and conspiracy to pass counterfeit money with intent to defraud (Charge II), in violation of Articles 134 and 81 of the Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 881 (1982) [hereinafter UCMJ or Code], respectively.
I
On Fort Polk, Louisiana, the appellant entered into an agreement with Private Mark Ghiglieri to pass counterfeit money in the surrounding civilian community. Private Ghiglieri gave appellant the counterfeit money in the billets on post. Appellant then went into Alexandria, Louisiana, and “purchased” things of value in four different transactions, using the counterfeit bills. He received legitimate United States currency as change. Later appellant returned to Fort Polk and split the proceeds with Private Ghiglieri.
Appellant asserts that the court-martial improperly exercised jurisdiction over the offense of conspiracy to pass counterfeit money and the overt acts committed in furtherance of that conspiracy. Briefs were filed and oral argument held prior to the Supreme Court ruling in Solorio v. United States, — U.S. —, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987). This court, subsequent to the Solorio decision, requested supplemental briefs on the issue of the retroactivity of Solorio.
II
We find that the court-martial could properly try all offenses that were referred to it. The U.S. Congress has provided that court-martial jurisdiction exists over all persons subject to the Code for any offense made punishable by the Code, under such limitations as the President may prescribe. See Articles 16-20, UCMJ, 10 U.S.C. §§ 816-820. In the Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 203 provides that “to the extent permitted by the Constitution, courts-martial may try any offense under the Code and, in the case of general courts-martial, the law of war.” Heretofore, the major constitutional limitation on the subject-matter jurisdiction of courts-martial was the requirement for “service-connection,” established in O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), and expanded upon in Relford v. Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971) and Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). This service-connection analysis is no longer necessary. The Supreme Court has overruled O’Callahan in Solorio.
In Solorio, the issue was whether the jurisdiction of a court-martial to try a member of the Armed Forces depended upon the service-connection of the offense charged. The Court held that the jurisdiction of a court-martial depends upon the accused’s status as a member of the Armed Forces, and not on the “service-connection” of the offense charged. Id. Applying Solorio retroactively, we find jurisdiction in the instant case.
The Supreme Court has often recognized that the retroactive application of its new rules is neither compelled nor prohibited by the Constitution of the United States. As a general rule, any change in the law occurring after a relevant event in a case will be given effect while that case is on direct review. United States v. Parker, 8 M.J. 584 (A.C.M.R.1979), affirmed on other grounds, 10 M.J. 415 (C.M.A. 1981). Appellate courts may limit application of decisions changing the law to a prospective effect only. “However, when the higher court has not limited the scope of its new rule to prospective cases only, it has been said that inferior courts must assume that the new rule applies in all
Appellant suggests that application of the Solorio test would be an improper ex post facto application of law. However, the ex post facto clause is based upon the principle that “persons have a right to fair warning of that conduct which will give rise to criminal penalties____” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977). We find that no ex post facto violation occurred, in that there is no increase in the punishment of appellant, no change in the ingredients of the offenses of conspiracy or passing counterfeit money, and the ultimate facts necessary to establish guilt have not been changed. See United States v. McDonagh, 14 M.J. 415 (C.M.A.1983).
Ill
Further, even if Solorio is not given retroactive application, under the applicable principles of service-connection we still believe that there is sufficient service-connection in the offenses to sustain a military trial. When the actual passing of the counterfeit money occurred, the appellant was properly absent from the post. However, when the agreement to do so was made, the appellant was on post. Also, Private Ghiglieri had taken the counterfeit money that he gave to appellant from a locker in the billets on post. Therefore, clearly the act of conspiracy (Charge II) was committed on post. With regard to the passing of counterfeit money off-post (Charge I), appellant contends that these offenses impacted on military discipline and effectiveness only to the extent that the commission of any offense does. We believe otherwise; commission of these offenses affects troop morale and the reputation and integrity of the post. Every soldier stationed at Fort Polk and conducting business in the surrounding civilian community has been harmed by appellant’s actions. See United States v. Lockwood, 15 M.J. 1, 9-10 (C.M.A.1983). Also, soldiers should not view the military enclave as a sanctuary in which they may evade prosecution. If a soldier believes that he can only be tried by a civilian court and not be subject to court-martial penalties, the commander’s ability to maintain order will be decreased.
Accordingly, the findings of guilty and the sentence as approved by the convening authority are affirmed.