Lead Opinion
OPINION OF THE COURT
Pursuant to a grant of immunity, Sergeant Gregory Seals implicated the accused and another airman in a series of on-base larcenies and burglaries from fellow airmen. Some of the stolen equipment later was recovered during a search of the accused’s off-base apartment in Anchorage, Alaska, conducted by the FBI pursuant to a search warrant issued by a civilian magistrate.
During Airman Tucker’s subsequent trial by general court-martial, he was acquitted of all the larceny and burglary offenses which hinged primarily upon the testimony of Sergeant Seals. He was convicted, however, of two charges of unlawful concealment of stolen property. The conviction appears to be based in part upon the accused’s own trial and pretrial statements in addition to certain circumstantial evidence. At trial, Airman Tucker acknowledged agreeing to “store” a television set and two speakers for his “acquaintance,” Sergeant Seals, at his off-base apartment. But he suggested that later, during the same conversation, he offered to purchase the equipment for $300 in cash. This contrasted with the statement Airman Tucker gave to the FBI following the search of his apartment in which he explained the presence of the stolen items noting that a man named Bill had sold him the television for $200 and had “thrown in” the speakers.
As he did at trial, the appellant contends that the concealing stolen property offenses were not service connected and hence that the court-martial which convicted him was without jurisdiction to proceed. See Relford v. Commandant,
Such a reading of Sexton is, we believe, overly simplistic for, as this Court made clear there, substantial on-post activity precipitated the subsequent off-post transfer of marihuana. Both the agreement for sale of the marihuana and the transfer of the purchase price to Sexton took place on a military installation. Only the physical transfer of the marihuana from Sexton to the undercover agent occurred off post. Compare United States v. Crapo,
The jury’s findings make clear that the government failed to establish that the accused had any on-base dealings with Sergeant Seals before the actual sale of the merchandise to Airman Tucker at his off-base residence while both individuals were off duty. Nor is there any evidence that the accused knew that the owners of the property were fellow servicemen. Screening the 12 criteria of Relford for resolving military jurisdiction, not a single factor weighs in favor of trial by court-martial. The paucity of evidence offered by the government on the jurisdictional question prompts us to again stress to the trial judiciary that jurisdiction is a matter to be proven, not presumed. The appropriate forum for such proof is at the trial level.
The decision of the U.S. Air Force Court of Military Review is reversed. The findings and sentence are set aside, and the charges are ordered dismissed.
Notes
. Rainville v. Lee,
. Our resolution of the first granted issue makes it unnecessary to address the second which challenged the conditions under which Sergeant Seals was granted immunity from prosecution. See United States v. Gilliam,
Dissenting Opinion
(dissenting):
I would sustain the exercise of military jurisdiction on the ground that the victim of the accused’s concealment of the stolen property was another serviceman and his property had been stolen from his quarters on base. See United States v. Moore,