Friday, November 28, 2008

The Year of Jurisdiction continues -- CGCCA edition

The Year of Jurisdiction will extend into 2009, when the Supremes will decide the Denedo case. But on the 2008 side of New Year's Day, we now have another published jurisdiction case: United States v. Coker, __ M.J. ___, No. 1280 (C.G. Ct. Crim. App. Nov. 21, 2008). The particular jurisdictional issue in Coker was whether the military justice system had subject matter jurisdiction over Coker's offense.

The accused who gives his name to United States v. Coker is a Coast Guard Lt(JG) reservist. He was on an extended active duty contract that ended on 3 August 2006. On 3 August 2006, he received a DD-214 that indicated his separation date was 3 August 2006. He then committed some serious criminal misconduct on 4 August 2006. Question: did the military have jurisdiction over the offense? CGCCA's answer: yes.

CGCCA rejected Judge Judge's reasoning that the military had jurisdiction over LT(JG) Coker's offense because the individual who delivered the DD-214 to Coker shouldn't have done so because Coker hadn't properly accomplished his checkout procedures. But, CGCCA ruled, the DD 214 included the wrong date. LT(JG) Coker was entitled to four days of travel, the court concluded, so the terminal date on the DD 214 should have been 7 August 2006 instead of the 3rd. Having raised the issue of whether this makes the DD 214 void, CGCCA pulls a bait-and-switch, dropping that issue and proceeding to find jurisdiction due to the lack of final accounting of pay. Because LT(JG) Coker's final accounting of pay wasn't calculated until 8 August 2006, CGCCA found subject matter jurisdiction by relying on CAAF's holding in United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008). Of course, as CGCCA acknowledges, Hart was a personal jurisdiction case, not a subject matter jurisdiction case. Presumably LT(JG) Coker's counsel will ask CAAF to review CGCCA's opinion to determine whether that distinction matters.


Cloudesley Shovell said...

Using travel regs and a statute entirely unrelated to the UCMJ (10 USC 1158) to construe the extent of UCMJ jurisdiction is just bad judging. What's even worse is that the "software system" running pay, according the CGCCA, automatically calculates final pay on only two days a month. CGCCA actually relied on "the computer did it" to defend their decision to find jurisdiction. Appalling. The guy's official orders were quite clear: His active duty service ended on 3 August. His DD-214 said the same thing. No further inquiry into travel regulations and what not is necessary. That was the last day of active duty.

Here is CGCCA's holding: "Since no part of Appellant’s final pay was ready for delivery on 3 August 2006, he was not truly released from active duty on that date, and his actions on 4 August 2006 could provide the basis for charges against him at a court-martial."

Got that? Because the CG's pay system only calculates pay twice a month, you are never released from the active duty until the computer does its calculations. Judging from the working of CGCCA's opinion, I take it that they would be inclined to find jurisdiction right up to the point the pay was actually delivered, which is every 1st and 15th. What a triumph of the slippery slope. The DD-214, a document of tremendous legal significance, has been completely obsoleted by military pay procedures and travel regulations.

What's even worse is that this guy pleaded guilty to numerous serious charges, including child porn, indecent acts w/a child, and kidnapping. (To quote the opinion, "misconduct on eight separate occasions involving six different four- and five-year-old boys.") Only two of those charges (as far as I can tell) were jurisdictionally questionable. Unfortuntely, CGCCA's opinion doesn't state which charges were at issue in the appeal. Why waste all this effort and torture the law to sustain a conviction on a charge you don't need? The sentence was 20 years, the deal was for 12 years. There is no doubt that the MJ would still have sentenced Coker to more than 12 years even without the last questionable charge. Why not just give the ones occurring after 3 August to the local prosecutors?

Cloudesley Shovell said...

Since I'm being awfully hard on the CGCCA, let me just make clear that I think that the Hart case(66 MJ 273 (CAAF 2008)), upon which CGCCA relied, was a horrible decision.

Anonymous said...

I agree with the last comment. It makes terrible law to allow (worst case) manipulative or arbitrary finance and accounting processes to trump a DD 214 discharge date, expiration of service obligation and lack of preferred CM charges. We are dealing with a similar case right now at DCAP and I am going to vehemently argue that the Gov't has lost jursidiction. Somebody needs to take this issue to the Supreme Court. Dwight...?