JEFFREY L. HARDISON, PETITIONER V. UNITED STATES OF AMERICA No. 90-7629 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals' order and judgment (Pet. App. A1-A2) is unreported. The district court's order (Pet. App. B1-B4) also is unreported. JURISDICTION The judgment of the court of appeals was entered on March 1, 1991. The petition for a writ of certiorari was filed on April 8, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court-martial in petitioner's case had jurisdiction to adjudicate the murder charge against him. STATEMENT Petitioner was convicted by a United States Marine Corps court-martial of the unpremeditated murder of a Philippine national while petitioner was stationed in the Philippines, in violation of Article 118 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 918. He was sentenced to 30 years' imprisonment, to be dishonorably discharged from the naval service, to forfeit all pay and allowances, and to be reduced in rank to pay grade E-1. His conviction and sentence were affirmed on appeal to the Navy-Marine Corps Court of Military Review. Petitoner's petition for habeas corpus was denied by the District Court for the District of Kansas. The court of appeals affirmed. 1. The facts of petitoner's offense are summarized in the opinion of the Navy-Marine Corps Court of Military Review, which affirmed his conviction on direct appeal. United States v. Hardison, 17 M.J. 701, 702-703, 706-707 (N.M.C.M.R. 1983); Pet. App. H1-H7. The victim of petitioner's offense, a citizen of the Philippines, Vitiliana Mancia Heruela, was killed after being stabbed with a knife approximately 80 times on November 14, 1981, in her apartment in a civilian area of Olongapo City, Republic of the Philippines. At the time, petitioner was in the United States Marine Corps, stationed at the Naval Base in Subic Bay. Petitioner was identified by the victim's neighbors as having been with the victim at about the time of the murder. His fingerprints and blood with his blood type were found at the scene. He subsequently admitted to friends on several occasions that he stabbed a Filipino girl to death, cutting himself in the process. On November 30, 1981, petitioner left the Philippines with his unit. On April 15, 1982, Philippine authorities notified the Commander of the Subic Bay Naval Base that a murder complaint had been filed against petitioner and requested that he be placed on legal hold. The Philippine authorities were informed that that course would not be possible, because petitioner had left the Philippines and had returned to his permanent duty station in Hawaii. 17 M.J. at 703; Pet. App. B2. Because there was no extradition treaty nor other means to compel petitioner's presence in the Philippines, and because the Philippine authorities had been advised that the U.S. Navy intended to try petitioner for murder, Philippine authorities dismissed without prejudice the charges against petitioner. Ibid. Five days later, on June 2, 1982, the charges on which petitioner was convicted were referred to a militry court-martial, which ultimately convicted petitioner of unpremeditated murder. Ibid. His conviction and sentence were affirmed by the Navy-Marine Corps Court of Military Review, United States v. Hardison, supra, and the Court of Military Appeals denied review, Pet. App. G. Petitioner is presently confined at the disciplinary barracks at Fort Leavenworth, Kansas. 2. a. Thereafter, petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. 2241 in the District of Kansas, alleging ten grounds on which his conviction and sentence should be overturned. Pet. App. D2-D3. /1/ The district court denied the petition. The court determined that the military courts had given full and fair consideration to seven of the asserted grounds for relief and dismissed those claims with prejudice. Id. at D3-D4. The court also ruled that petitioner had not presented three of his non-jurisdictional claims to the Court of Military Appeals (Claims 3, 4, and 8, see pages 3-4 note 1, supra). The district court dismissed those claims without prejudice due to petitioner's failure completely to exhaust his military court remedies. Id. at D4. b. The court of appeals affirmed the judgment of the district court in part, vacated the judgment in part, and remanded the case to the district court. Pet. App. C1-C4. The court upheld the dismissal with prejudice of petitioner's non-jurisdictional claims. Id. at C3. The court also ordered dismissed with prejudice the three non-jurisdictional claims that the district court had dismissed without prejudice, on the ground that further review by the military courts was unavailable. Id. at C3-C4. With respect to petitioner's claim that the court-martial in his case lacked jurisdiction to try him for the murder, the court of appeals ruled that the district court was wrong not to consider that jurisdictional issue on the merits, and remanded the case for further proceedings. Id. at C4. 3. a. On remand, the district court rejected petitioner's jurisdictional arguments on the merits. Pet. App. B1-B5. The court ruled that the government had fully complied with the applicable Military Base Agreement (MBA), 61 Stat. 4109, T.I.A.S. 1775, as amended Aug. 10, 1965, 16 U.S.T. 1090, T.I.A.S. No. 5851. Under the MBA, the Republic of the Philippines and the United States had concurrent subject matter jurisdiction over a crime against a Philippine national committed off base by an American serviceman. Pet. App. B2-B3. Both governments also had concurrent personal jurisdiction over such a servicemember if he remained in the Philippines. Id. at B3. The district court ruled that the Republic of the Philippines lost personal jurisdiction over petitioner when he left the Philippines, and that, at the same time, the United States acquired primary jurisdiction under the MBA to try petitioner for the offense. Ibid. The court held, moreover, that the Republic of the Philippines waived its subject matter jurisdiction over the offense when it dismissed its charges against petitioner. Id. at B3-B4. Finally, the court concluded that the limitations on the exercise of court-martial jurisdiction over servicemembers imposed by this Court's decision in O'Callahan v. Parker, 395 U.S. 258 (1969), did not apply to offenses committed by servicemembers in foreign countries. Pet. App. B4, citing Hemphill v. Moseley, 443 F.2d 322 (10th Cir. 1971). b. The court of appeal affirmed the dismissal of petitioner's jurisdictional claims. Pet. App. A1-A2. The court agreed with the district court that the Republic of the Philippines lost primary jurisdiction over the offense because petitioner was not present in the Philippines when the Philippine authorities filed charges against petitioner, and that the Philippines waived its subject matter jurisdition when the government dismissed the charges against petitioner. Id. at A2. In addition, the court held that there is no "service connection" requirement, because Solorio v. United States, 483 U.S. 435 (1987), overruled O'Callahan. Pet. App. A2. ARGUMENT Petitioner argues that the military courts lacked jurisdiction over his case for two reasons: the offense was not "service connected" under this Court's now-overruled decision in O'Callahan, Pet. 4-5, and the Republic of the Philippines had primary jurisdiction over the offense under the governing Military Base Agreement, Pet. 6-9. The court of appeals properly rejected each claim, and neither one warrants further review by this Court. 1. Prior to this Court's 1969 decision in O'Callahan, the Court had consistently endorsed the rule that a member of the armed forces could be prosecuted by a court-martial for any violation of the Uniform Code of Military Justice. See, e.g., Gosa v. Mayden, 413 U.S. 665, 672 (1973) (plurality opinion); Kinsella v. Singleton, 361 U.S. 241, 243 (1960). In O'Callahan, this Court for the first time adopted the principle that a court-martial could exercise jurisdiction over an offense committed by a servicemember within the territorial jurisdiction of the civilian courts of the United States only if the offense was "service connected," a test that required consideration of a variety of factors. See 395 U.S. at 273-274. See also Relford v. Commandant, 401 U.S. 355, 365-369 (1971) (describing various factors). This Court, however, reconsidered and overruled O'Callahan in 1987 in Solorio v. United States, supra, which held that a serviceman can be prosecuted by a court-martial for any offense committed in violation of the Uniform Code of Military Justice. The murder charged against petitioner took place in 1981, before Solorio overruled Callahan. Petitioner argues that the O'Callahan rule should be applied in his case and that the murder charge against him should be dismissed, because that murder was not "service connected" under O'Callahan. Pet. 4-5. That claim does not warrant review by this Court, for several reasons. First, there is no conflict among the circuits on the question whether this Court's 1987 decision in Solorio applies to offenses committed prior to that decision, during the period when O'Callahan set forth the governing law. The Court of Military Appeals is the only other appellate court to have addressed that question, and its decision in United States v. Avila, 27 M.J. 62 (C.M.A. 1988), that Solorio applies to al such offenses is fully consistent with the Tenth Circuit's decision in this case. Second, the Tenth Circuit's decision is correct. Court-martial jurisdiction is defined by statute, and the Uniform Code of Military Justice has always vested the military justice system with jurisdiction over all servicemembers on active duty for any offense committed in violation of the Code. Art. 2, UCMJ, 10 U.S.C. 802. Establishing that a crime was "service connected" under O'Callahan did not vest a court-martial with jurisdiction over that offense; the court-martial already had such jurisdiction by virtue of the Code. Instead, proof that an offense was "service connected" simply made it "appropriate" for a military tribunal to exercise its already-existing jurisdiction over a particular servicemember and a specific offense. Gosa v. Mayden, 413 U.S. at 674, 677 (plurality opinion). By overruling O'Callahan, Solorio simply restored to courts-martial the authority that such tribunals had historically enjoyed over servicemembers. Moreover, applying Solorio to offenses committed prior to the date of that decision cannot lead to any unfairness in a particular case. Petitioner does not claim that he relied on the O'Callahan "service connection" doctrine when he committed the murder in the Philippines; thus, no reliance interest of his is jeopardized. In any event, any such reliance would not be entitled to any weight, since murder is an offense under American and Philippine law. See United States v. Ross, 456 U.S. 798, 824 n.33 (1982); cf. United States v. Bass, 404 U.S. 336, 348 n.15 (1971). Third, petitioner's offense was properly tried by a court-martial even during the period that O'Callahan was the law. This Court's decision in O'Callahan rested on the assumption that a member of the armed forces would be tried in a civilian court, at which all the federal constitutional guarantees would apply, if he were not tried by a court-martial. That assumption does not hold true, however, when a servicemember commits a crime in a foreign country, as petitioner did in this case. Neither the laws of the Republic of the Philippines nor any treaty in force between the Philippines and the United States provided that petitioner would have been tried for murder in the civilian courts of the United States. Indeed, one of petitioner's complaints is that he was not tried by the Philippine government. Accordingly, as the Tenth Circuit held in Hemphill v. Moseley, 443 F.2d at 322-324, on which the district court in this case relied, even under O'Callahan a servicemember could be tried by a court-martial for any offense that he committed in a foreign country. Accord United States v. Newvine, 23 C.M.A. 208, 48 C.M.R. 960 (1974). Fourth, O'Callahan was limited to offenses committed within the territorial jurisdiction of the United States. O'Callahan, 395 U.S. at 274; Hemphill v. Moseley, 443 F.2d at 322-324; United States v. Newvine, supra. See Relford, 401 U.S. at 365. Thus, petitioner is asking this Court to create a new rule of law that courts-martial lacked authority to adjudicate cases like his. Petitioner cannot obtain relief of that type on federal habeas corpus under Teague v. Lane, 489 U.S. 288 (1989). In addition, neither of the exceptions to the Teague rule is applicable here. O'Callahan did not place certain kinds of primary conduct beyond the authority of the criminal law to proscribe, 489 U.S. at 311, because O'Callahan did not limit the "jurisdiction" of military courts-martial; that decision only purported to serve as a means of deciding when it was "appropriate" for a court-martial to exercise its already-existing jurisdiction. Gosa v. Mayden, 413 U.S. at 674, 677 (plurality opinion). And the O'Callahan rule is not indispensible to ensure that court-martial proceedings are accurate and fundamentally fair. See Teague, 489 U.S. at 313. This Court's subsequent decision in Solorio proves that point. Fifth, this question is of diminishing importance. It applies only to those cases in which a servicemember committed an offense prior to this Court's 1987 decision in Solorio. Since all offenses committed by servicemembers can now be prosecuted by courts-martial, the question presented by this case affects only a dwindling number of prosecutions. 2. Petitioner maintains that the courts below misinterpreted the Military Base Agreement (MBA) as authorizing the United States to try the murder charge against him. There is no merit to that fact-bound claim. In the first place, the MBA does not grant American service-members the right to object to the exercise of jurisdiction by an American court-martial over offenses committed in the Republic of the Philippines. Only the Republic of the Philippines can object to a violation of the MBA, because the MBA is an agreement between sovereigns, and no provisions in the MBA allows a servicemember to object to the action of either sovereign. See, e.g., Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 1990) ("It is well established that individuals have no standing to challenge violations of international treaties in the absence of a protest by the sovereigns involved.") (collecting cases); United States v. Reed, 639 F.2d 896, 902 (2d Cir. 1981) ("absent protest or objection by the offended sovereign, (a defendant) has no standing to raise violation of international law as an issue"); United States ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir.) ("Lujan fails to allege that either Argentina or Bolivia in any way protested to his abduction. This omission is fatal to his reliance upon the (United Nations and Organization of American States) charters. The provisions in question are desinged to protect the sovereignty of states, and it is plainly the offended states which must in the first instance determine whether a violation of sovereignty occurred, or requires redress.") (footnote omitted), cert. denied, 431 U.S. 1001 (1975); United States v. Green, 14 M.J. 461, 464 (C.M.A. 1983) ("The general rule is that standing to contest an alleged treaty violation may not be assumed, but can only be asserted where the treaty clearly indicates an intention to create present enforceable rights for the individual."); United States v. Evans, 6 M.J. 577, 580 (A.C.M.R. 1978), petition denied, 6 M.J. 239 (1979); Pet. App. H3. Dismissal of the charges also is not an appropriate remedy for a treaty violation in the absence of an express provision authorizing such a drastic remedy. Cf. Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886). In any event, the federal government did not violate the MBA. The courts of the Republic of the Philippines and United States military tribunals had concurrent jurisdiction over the offense at the time the murder was committed. Subsection 3(a) of Art. XII of the MBA, reprinted at Pet. App. F2, granted the Philippines "the primary right to exercise jurisdiction" over the crime, but nothing in the MBA suggests that, by giving the Philippines "primary" jurisdiction over the offense, the agreement defeatedthe authority of the United States to exercise concurrent jurisdiction over the offense. Subsection 3(c), reprinted at Pet. App. F2, deals with the matter by stating that "(i)f the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as possible." There is also no doubt in this case that the Republic of the Philippines decided not to exercise its primary jurisdiction, because it withdrew the charges filed against petitioner due to the difficulties of gaining personal jurisdiction over him. /2/ Contrary to petitioner's argument, Pet. 6-9, the United States did not violate the MBA when it declined to transfer petitioner to the Philippines for him to be tried by Philippine authorities. The MBA provides that "(t)he appropriate authorities of the Republic of the Philippines and the appropriate authorities of the United States shall assist each other in the arrest of members of the United States armed forces or civilian component and their dependents in the Republic of the Philippines and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions." Art. XIII, Section 5(a), reprinted at Pet. App. F2. Nothing in that provision required the United States to deliver petitioner to the Philippine authorities until it was clear which nation would exercise jurisdiction. /3/ In a case such as this one, where the Philippine authorities were content to acquiesce in the exercise of jurisdiction by the United States military courts and therefore withdrew the charges pending against petitioner under Philippine law, the United States, and not the Republic of the Philippines, was "the authority which is to exercise jurisdiction" over the offense. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney MAY 1991 /1/ Petitioner alleged the following grounds of error: (1) the court-martial lacked jurisdiction; (2) the trial judge erred in admitting evidence of photographs and fingerprints; (3) the government did not prove his guilt beyond a reasonable doubt; (4) the Staff Judge Advocate was disqualified from submitting to the convening authority an analysis of the proceedings, to be used for review and clemency purposes; (5) the trial judge erred in denying petitioner's motion for a mistrial; (6) the trial judge erred in admitting evidence regarding the presence of ants on the victim's body when it was discovered; (7) the trial judge erred by not excusing a panel member for cause; (8) the trial judge erred in denying petitioner's request for additional peremptory challenges; (9) the prosecutor's argument prejudiced petitioner; and (10) the sentence was unduly harsh. Pet. App. D1-D2. /2/ As an independent, alternative basis for affirming the military's compliance with the MBA, the court of appeals and the district court also were correct in interpreting the MBA to require personal jurisdiction over a potential defendant before one of the treaty partners had jurisdiction to try the offense within the meaning of the MBA. Thus, although the Republic of the Philippines had primary jurisdiction to try the offense when it was committed, the Republic of the Philippines lost personal jurisdiction over petitioner when he left the Philippines before any charges were filed. /3/ Moreover, the plain meaning of the provision includes the requirement that the potential defendant be located "in the Republic of the Philippines." The provision would not appear to apply once petitoner lawfully left the Philippines.