          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                           Senior Airman JOSEPH D. MORCHINEK
                                    United States Air Force

                                              ACM S32291

                                               9 May 2016

         Sentence adjudged 28 September 2014 by SPCM convened at Bagram
         Airfield, Afghanistan. Military Judge: Christopher F. Leavey.

         Approved Sentence: Bad-conduct discharge, confinement for 2 months,
         forfeiture of $1,021.00 pay per month for 2 months, reduction to E-1, and a
         reprimand.

         Appellate Counsel for the Appellant: Captain Lauren A. Shure.

         Appellate Counsel for the United States: Captain Tyler B. Musselman and
         Gerald R. Bruce, Esquire.

                                                  Before

                           ALLRED, MITCHELL, and ZIMMERMAN
                                 Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



ZIMMERMAN, Judge:

       Appellant was convicted, contrary to his plea, by a panel of officer members of
misbehavior before the enemy in violation of Article 99, UCMJ, 10 U.S.C. § 899.
Appellant was convicted by the military judge, in accordance with his plea, of use,
distribution and possession of hashish while receiving special pay in violation of Article
112a, UCMJ, 10 U.S.C. § 912a. The court sentenced him to a bad-conduct discharge,
confinement for two months, forfeiture of $1,021 pay per month for two months, reduction
to the grade of E-1, and a reprimand.1 The sentence was approved, as adjudged, on 2
February 2015.

       Appellant argues that: (1) the evidence was factually insufficient to establish that
Appellant was “before the enemy” and endangered the safety of Bagram Airfield; (2) that
the Government was required to prove that Appellant had a duty to defend Bagram Airfield,
and that it failed to do so; (3) the military judge erred in instructing the members prior to
deliberation on findings; and (4) the court-martial lacked jurisdiction over the charge of
misbehavior before the enemy because it alleged a capital offense yet was referred without
consent of the general court-martial convening authority. Finding no error that materially
prejudices a substantial right of Appellant, we affirm the findings and sentence.

                                                   Background

        Appellant used, distributed, and possessed hashish both on and off-duty as a security
forces member deployed to Bagram Airfield, Afghanistan. He pled guilty to the controlled
substance offenses, but contested the charge that his use constituted misbehavior before the
enemy. He argued that under the circumstances, his drug offenses did not endanger the
safety of the installation. He further contended that, based upon the state of hostilities, he
was not before the enemy at the time of his misconduct. Appellant stipulated that on one
occasion he used hashish while posted to a perimeter response team which had immediate-
action responsibilities in the event of an attack on the installation. In that capacity, he was
the senior member of a three-person crew of a tactical vehicle armed with a crew-served
machine gun mounted in a turret. During that time, he both used hashish and distributed it
to the other members of his crew. He also stipulated that on another occasion he used
hashish while responsible for the search and inspection of personnel coming onto the
installation. His commander testified during the trial that both postings were part of a
“defense in depth” strategy to defend the installation. The commander also testified that
the installation came under indirect fire attacks during the charged timeframe.

                                       Factual and Legal Sufficiency

       Appellant first argues that the evidence was factually insufficient to sustain his
conviction for misbehavior before the enemy because the Government failed to prove that
his misconduct was actually before the enemy and that it endangered the installation. We
review issues of factual sufficiency de novo. United States v. Washington, 57 M.J. 394,
399 (C.A.A.F. 2002). The test for factual sufficiency is “whether, after weighing the
evidence in the record of trial and making allowances for not having personally observed

1
  The court-martial order incorrectly states that the sentence was adjudged by the military judge, rather than members.
We direct the promulgation of a corrected order. We also note that a reprimand was adjudged and approved, but not
included on the convening authority’s action, as required by Air Force Instruction 51-201, Administration of Military
Justice (6 June 2013). Since the omission of the reprimand does not prejudice a material right of Appellant, we direct
no further action in that regard. See Article 59(a), UCMJ, 10 U.S.C. § 859(a).

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the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed,
54 M.J. 37, 41 (C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh,
impartial look at the evidence,” applying “neither a presumption of innocence nor a
presumption of guilt” to “make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable doubt.”
Washington, 57 M.J. at 399.

     The Manual for Courts-Martial provides an explanation for the term “before the
enemy.”
          Whether a person is “before the enemy” is a question of tactical
          relation, not distance. For example, a member of an antiaircraft
          gun crew charged with opposing anticipated attack from the
          air, or a member of a unit about to move into combat may be
          before the enemy although miles from the enemy lines. On the
          other hand, an organization some distance from the front or
          immediate area of combat which is not a part of a tactical
          operation then going on or in immediate prospect is not “before
          or in the presence of the enemy” within the meaning of this
          article.

Manual for Courts-Martial, United States, pt. IV, ¶ 23.c.(1)(c) (2012 ed.). Our superior
court has also examined the issue, holding that “if an organization is in position ready to
participate in either an offensive or defensive battle, and, its weapons are capable of
delivering fire on the enemy and in turn are so situated that they are within effective range
of the enemy weapons, then that unit is before the enemy.” United States v. Sperland, 5
C.M.R. 89, 91 (C.M.A. 1952).

        Appellant contends that “[n]o evidence was presented that Appellant was tactically
engaged with the enemy.” Neither Sperland nor the definition in the Manual focuses on
individual engagement, however. The Manual references, by way of illustration, those
before the enemy as a “member of an antiaircraft gun crew” and “a member of a unit about
to move into combat.” Since one form of misbehavior before the enemy is wrongful failure
to engage in combat, we find this unit-based analysis significant. See United States v.
Payne, 40 C.M.R. 516, 519–20 (A.B.R. 1969). Appellant’s commander affirmatively
testified that the unit was tactically engaged in the defense of Bagram Airfield. We find
Appellant’s contention that Bagram Airfield was “some distance from the front or
immediate area of combat” unconvincing in light of the uncontested evidence in the record
that the installation did, in fact, come under indirect-fire attack during the charged time-
frame. Nor are we convinced by Appellant’s argument that his misconduct did not actually
endanger the base. After making allowances for not having personally observed the
witnesses, and based upon our independent review of the record, we are convinced beyond


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a reasonable doubt that Appellant was before the enemy and that his conduct endangered
Bagram Airfield.

       Appellant separately argues that, although not explicitly stated in the statute, the
specification as alleged incorporated as an element that Appellant had a duty to defend
Bagram Airfield. More importantly, Appellant argues that the Government failed to prove
such an element beyond a reasonable doubt. We construe this assignment of error as an
assertion that the evidence was factually and legally insufficient to support his conviction
because it did not show that Appellant had a duty to defend Bagram Airfield.

       We review legal sufficiency of the evidence de novo. Washington, 57 M.J. at 399.
“The test for legal sufficiency of the evidence is ‘whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all the
essential elements beyond a reasonable doubt.’” United States v. Humpherys, 57 M.J. 83,
94 (C.A.A.F. 2002) (quoting Turner, 25 M.J. at 324). The term reasonable doubt does not
mean that the evidence must be free from conflict. United States v. Lips, 22 M.J. 679, 684
(A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency, we are bound to draw
every reasonable inference from the evidence of record in favor of the prosecution.” United
States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001). Our assessment of legal and factual
sufficiency is limited to the evidence produced at trial. United States v. Dykes, 38 M.J.
270, 272 (C.M.A. 1993). We review the factual sufficiency component of Appellant’s
assertion using the same standard of review and legal test articulated above.

       Appellant first sets out a statutory and due process argument to establish, as an
element, that Appellant had a duty to defend Bagram Airfield. We agree with Appellant’s
interpretation that the specification alleged in this case established an element that
Appellant had a duty to defend Bagram Airfield.

        We find, however, that the evidence was factually and legally sufficient to show
that Appellant had such a duty. Appellant’s commander testified both about the general
duty of Airmen assigned to his unit and about the specific duties Appellant performed. He
testified that all members of his unit had a duty to defend Bagram Airfield. He also testified
about the layered defenses he employed, including searches of incoming and outgoing
traffic as well as perimeter response teams with additional weapons. Other members of
the unit also testified that Airmen assigned to the unit had a duty to defend Bagram Airfield,
even during rest periods, or while “off-shift.” Appellant also stipulated that he “was
assigned to perform base defense duties.” More specifically, Appellant stipulated that he
used hashish while on-shift assigned to both search duties and perimeter response team
duties. We find this evidence was sufficient when viewed in the light most favorable to
the prosecution for a reasonable finder of fact to conclude that Appellant had a duty to
defend Bagram Airfield at all times relevant to the charged offense. We ourselves, after
making allowances for not having personally observed the witnesses, and based upon our


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independent review of the record, also conclude beyond a reasonable doubt that Appellant
was guilty of the offense alleged.

                                        Reasonable Doubt Instruction

        Appellant also argues that the military judge erred in instructing the members prior
to deliberation on findings, particularly as it relates to reasonable doubt. We review de
novo the military judge’s instructions to ensure that they correctly address the issues raised
by the evidence. United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996). When, as
in this case, trial defense counsel made no challenge to the instruction now contested on
appeal, the matter has been forfeited absent plain error.2 See Rule for Courts-Martial
(R.C.M.) 920(f). If we find error, we must then determine whether the error was harmless
beyond a reasonable doubt. United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011).

       The language used by the military judge in Appellant’s case is—and has been for
many years—an accepted reasonable doubt instruction used in Air Force courts-martial.
See, e.g., United States v. Sanchez, 50 M.J. 506, 509–10 (A.F. Ct. Crim. App. 1999); see
also United States v. Gibson, 726 F.2d 869, 873–74 (1st Cir. 1984) (upholding similar
language). It was also offered by our superior court as a suggested instruction. See United
States v. Meeks, 41 M.J. 150, 157–58 n.2 (C.M.A. 1994) (citing Federal Judicial Center,
Pattern Criminal Jury Instruction 17–18 (1987)). As such, we cannot say the military judge
committed error, plain or otherwise, in giving the challenged instruction in Appellant’s
case.

                                      Jurisdiction over Capital Offense

       Appellant raises for the first time on appeal that the convening authority who
referred his case to a special court-martial lacked the consent of the general court-martial
convening authority, thereby depriving the court of jurisdiction to hear the case. See
R.C.M. 201(f)(2)(C); United States v. Henderson, 59 M.J. 350, 353 (C.A.A.F. 2004). We
disagree with Appellant’s contention.

        “The jurisdiction of a special court-martial over a non-mandatory capital offense is
a legal question we review de novo.” Henderson, 59 M.J. at 351–52.

        “Misbehavior before the enemy” under Article 99, UCMJ, is a non-mandatory
capital offense, punishable by “[d]eath or such other punishments as a court-martial may
direct.” Manual for Courts-Martial, United States, pt. IV, ¶ 23.e. (2012 ed.). When read
together, Article 19, UCMJ, and R.C.M. 201(f)(2)(C)(ii) 3 allow a special court-martial

2
  Although we recognize that the rule speaks of “waiver,” this is in fact forfeiture. United States. v. Sousa, 72 M.J.
643 (A.F. Ct. Crim. App. 2013).
3
  Article 19 states in part, “special courts-martial have jurisdiction to try persons . . . under such regulations as the
President may prescribe, for capital offenses.” Rule for Courts-Martial 201(f)(2)(C)(ii) prescribes one such exception,

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convening authority (SPCMCA) to refer a non-mandatory capital offense to trial by special
court-martial, when permitted by “[a]n officer exercising general court-martial jurisdiction
over the command which includes the accused.” Appellant did not raise this jurisdictional
issue at trial, and the record of trial is devoid of any indication that the general court-martial
convening authority (GCMCA) granted authority to the convening authority. Hence, the
Government filed affidavits in support of its argument that the convening authority actually
exercised proper jurisdiction under the R.C.M. 201(f)(2)(C)(ii) exception, which affidavits
were not contested by Appellant.4

       The Government supplied an affidavit from the GCMCA and one from the
SPCMCA who convened this court-martial. Both affiants unequivocally attested to
discussing this case with one another on multiple occasions, and to the GCMCA’s granting
of approval to the SPCMCA to refer the Article 99 offense to a special court-martial. We
find the statements in the affidavits were relevant; the GCMCA granted permission to the
convening authority to refer the offenses to trial by a special court-martial; and therefore,
the special court-martial had jurisdiction to convict and sentence Appellant.5

                                                     Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are AFFIRMED.



                  FOR THE COURT


                  LEAH M. CALAHAN
                  Clerk of the Court




allowing for special court-martial jurisdiction over non-mandatory capital offenses when permitted by “[a]n officer
exercising general court-martial jurisdiction over the command which includes the accused.”
4
  The Government filed a motion to attach documents with its response to Appellant’s supplemental filings, which
motion was uncontested and granted by this court. We considered the affidavits in our review of Appellant’s claim
of jurisdictional error. See United States v. Ginn, 47 M.J. 236, 242 (C.A.A.F. 1997); United States v. Averell, 2014
CCA LEXIS 841 (N.M. Ct .Crim. App. 6 November 2014), pet. rev. denied, 74 M.J. 354 (C.A.A.F. 2015) (where
appellant did not raise jurisdictional issue at trial and did not dispute contents of post-trial affidavit, court relied on
post-trial affidavit to find proper referral of charges to court-martial).
5
  Although neither required by law nor regulation, where the GCMCA permits a non-mandatory capital offense to be
referred to a special court-martial, such approval could be expressly stated on the charge sheet, DD Form 458, Section
V.

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