        This opinion is subject to revision before publication




          UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
             James M. HALE, Lieutenant Colonel
               United States Air Force, Appellant
                           No. 18-0162
                       Crim. App. No. 39101
        Argued October 23, 2018—Decided February 6, 2019
       Military Judges: Mark W. Milam and Shelly W. Schools
   For Appellant: Major Allen S. Abrams (argued); Lieutenant
   Colonel Anthony D Ortiz.
   For Appellee: Captain Peter F. Kellett (argued); Colonel Ju-
   lie L. Pitvorec, Lieutenant Colonel Joseph J. Kubler, and
   Mary Ellen Payne, Esq. (on brief).
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judges RYAN and
   MAGGS joined. Judge OHLSON filed a separate opinion
   concurring in part and dissenting in part.
                       _______________

   Judge SPARKS delivered the opinion of the Court.
    This case arises out of the general court-martial of a
reserve officer, Lieutenant Colonel (O-5) James M. Hale
(Appellant). Contrary to his pleas, members of the court-
martial convicted Appellant of four specifications of
attempted larceny, one specification of making a false
official statement, and three specifications of larceny in
violation of Articles 80, 107, and 121 Uniform Code of
Military Justice (UCMJ), §§ 10 U.S.C. 880, 907, 921.
Appellant was sentenced to one month of confinement,
dismissal, and forfeiture of all pay and allowances. The
convening authority approved the sentence. Upon review,
the United States Air Force Court of Criminal Appeals set
aside one larceny conviction and instead affirmed the lesser
included offense (LIO) of attempted larceny.1 The lower

   1  The lower court also altered the date in another larceny spec-
ification by exceptions and substitutions.
                 United States v. Hale, No. 18-0162/AF
                         Opinion of the Court

court then affirmed the modified findings and the reassessed
sentence.

   The lower court found as a matter of law that personal
jurisdiction does not exist outside of the hours of inactive-
duty training. Here, we review the lower court’s conclusion
that the court-martial had sufficient jurisdiction over
Appellant for two attempted larceny specifications:
Specification 3 of Additional Charge II and Specification 2 of
Additional Charge 1 (affirmed as the LIO, attempted
larceny). Appellant also questions whether the military
judge erred in instructing the members that they could
convict Appellant for conduct “on or about” the dates alleged
in a number of the charged specifications.2

   We hold that the lower court did not err in upholding the
two attempted larceny convictions. The members were
entitled to consider evidence of conduct that occurred while
Appellant was not subject to court-martial jurisdiction and
this circumstantial evidence, coupled with evidence of
Appellant’s actions when he was subject to jurisdiction,
proved sufficient to uphold both attempted larceny

   2   This Court granted review of the following assigned issues:

            I.   The lower court found as a matter of law
                 that personal jurisdiction does not exist out-
                 side of the hours of inactive-duty training.
                 The lower court proceeded to find personal
                 jurisdiction existed over Appellant because
                 he was “staying” with his in-laws. Was this
                 error?

            II. Whether the lower court erred when it con-
                cluded the military judge correctly instruct-
                ed the members they could convict Appel-
                lant for conduct “on or about” the dates
                alleged in each specification.

   And the following specified issue:

            III. Whether the lower court erred in concluding
                 the court-martial had jurisdiction over Spec-
                 ification 2 of Additional Charge I, as modi-
                 fied to affirm the lesser included offense of
                 attempted larceny.




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               United States v. Hale, No. 18-0162/AF
                       Opinion of the Court

convictions. We also conclude that, regardless of whether the
military judge erred by including the “on or about” language
in the instructions to the members, Appellant failed to carry
his burden to prove that any material prejudice to his
substantial rights resulted from such instructions.3

                          Background4
   Appellant was an Air Force reserve officer living in
Colorado but attached to a squadron in San Antonio, Texas.
Between June 26, 2011, and November 19, 2013, Appellant
traveled from Colorado to Texas for seven periods of reserve
duty. While in Texas, Appellant was engaged in either active
duty or inactive duty training (IDT). IDTs consisted of two
four-hour work blocks in a given day, from 8:00 a.m. through
noon and from 1:00 p.m. through 5:00 p.m. (with the final
day of the tour sometimes consisting of just one 8:00 a.m.
through noon block). For each four-hour block, Appellant
was paid and received one point towards retirement.

    In Texas, Appellant stayed with his in-laws, Mr. and
Mrs. Vernon. The charges in question stem from Appellant’s
claims for lodging reimbursement for these stays, despite
the fact that the Joint Federal Travel Regulations (JFTR) at
the time prohibited reimbursement for lodging with family.
Following each stay, Appellant created false receipts
indicating payment to either Mr. Vernon or “Vernon Guest
Suites.” He submitted these receipts along with travel
vouchers seeking reimbursement for lodging expenses.
Appellant’s in-laws never charged him to stay with them.
Instead, he would give Mr. Vernon a check for each stay
which Mr. Vernon eventually returned to Appellant
uncashed. Appellant later deposited these checks into the
Vernon’s bank account himself and then wired the money

   3  With respect to the jurisdiction issues (Issues I and III), Ap-
pellant’s specific prayer for relief asks that we set aside the find-
ings of guilty for Specification 2 of Additional Charge I and Speci-
fication 3 of Additional Charge II. As for the instructions issue,
Appellant’s specific prayer for relief requests that we set aside the
findings of guilty for Charge II and its specification, Specifications
1 and 2 of Additional Charge I, and Additional Charge II and its
specifications.
   4  Here we rely extensively on the lower court’s clear and de-
tailed factual description of the case.



                                  3
              United States v. Hale, No. 18-0162/AF
                      Opinion of the Court

back into his own account. As the investigation into
Appellant progressed, the timing of these deposits aligned
with critical stages in the investigation as officials noted the
absence of or requested copies of the canceled checks. The
government paid Appellant for five of the seven stays, a total
of $25,071.00.

   Appellant was charged with eight specifications. The
charging language in each specifies alleged conduct
committed “on or about” a certain date or dates. When the
military judge instructed members on the elements of each
charge, he used the same “on or about” language.

   Further facts relevant to the specific charges are
developed below.

                            Analysis
Jurisdiction
Relevant Law
   We conduct a de novo review of jurisdiction questions. EV
v. United States, 75 M.J. 331, 333 (C.A.A.F. 2016). When
challenged, the government must prove jurisdiction by a
preponderance of evidence. United States v. Morita, 74 M.J.
116, 121 (C.A.A.F. 2015) (citing United States v. Oliver, 57
M.J. 170, 172 (C.A.A.F. 2002)).

   “An inquiry into court-martial jurisdiction focuses on …
whether the person is subject to the UCMJ at the time of the
offense.” United States v. Ali, 71 M.J. 256, 261 (C.A.A.F.
2012). Court-martial jurisdiction is determined by Article 2,
UCMJ, 10 U.S.C. § 802 (2012).5 Morita, 74 M.J. 116, helped

  5
     The jurisdictional questions in this petition will have limited
application given changes by Congress concerning Article 2(a)(3)’s
jurisdiction over IDTs. The changes extend jurisdiction to (1)
members traveling to and from the IDT training site; (2) intervals
between consecutive periods of IDT on the same day, pursuant to
orders or regulations; and (3) intervals between IDTs on
consecutive days, pursuant to orders or regulations. National
Defense Authorization Act (NDAA) for Fiscal Year 2017, Pub. L.
No. 114-328, § 5102, 130 Stat. 2000, 2921 (2016). These changes
go into effect in January 2019 (first day of the first calendar
month that begins no later than two years after the NDAA date of
enactment). Id. § 5542.



                                 4
               United States v. Hale, No. 18-0162/AF
                       Opinion of the Court

to lay down a baseline for when jurisdiction exists over
reserve members. In Morita, id. at 120, this Court clarified
that, for reservists, jurisdiction hinges on satisfying Article
2(a) or Article 2(c), UCMJ. Article 2(c) “require[s] that the
reservist be, as a threshold matter, ‘serving with’ the armed
forces at the time of the misconduct, and meet the other four
criteria set forth in the statute.”6 74 M.J. at 118.
Jurisdiction continues until “active service has been
terminated.” Article 2(c), UCMJ. Article 2(a)(3), UCMJ, in
relevant part, extends jurisdiction to “[m]embers of a reserve
component while on inactive-duty training.” In Morita, this
Court determined that the military did not have jurisdiction
over a reservist when he had forged his active duty and IDT
orders, stating that simply being a member of a reserve
component “is not sufficient to find that Appellee was
‘serving with’ the armed forces.” 74 M.J. at 123. In United
States v. Phillips, this Court concluded that jurisdiction over
a reservist did cover the travel day prior to her reporting for
active duty. 58 M.J. 217, 220 (C.A.A.F. 2003). The decision
emphasized that determining whether someone is serving
with the military requires a “case-specific analysis of the
facts” and requires a “more direct relationship than simply
accompanying the armed forces in[to] the field.” Id.

   Article 121(a)(1), UCMJ, in relevant part, identifies
larceny as wrongfully taking, obtaining, or withholding
“with intent permanently to deprive or defraud another
person of the use and benefit of property or to appropriate it
to his own use.”

   Article 80, UCMJ, defines an attempted offense as “[a]n
act, done with specific intent, to commit an offense …
amounting to more than mere preparation and tending, even
though failing, to effect its commission.” The elements
include:
         (1) that the accused did a certain overt act; (2) that
        the act was done with the specific intent to commit
        a certain offense under the code; (3) that the act


  6   The other four Article 2(c), UCMJ, criteria are:
       (1) submitted voluntarily to military authority;
       (2) met mental competency and minimum                      age
 qualifications …;
       (3) received military pay or allowances; and
       (4) performed military duties.



                                  5
             United States v. Hale, No. 18-0162/AF
                     Opinion of the Court

      amounted to more than mere preparation; and (4)
      that the act apparently tended to effect the com-
      mission of the intended offense.
United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014)
(citation omitted). More than mere preparation is
interpreted as requiring that the accused take a “substantial
step” toward committing the crime. Id. This Court has
distinguished attempt as going beyond “devising or
arranging the means or measures necessary for the
commission of the offense” and, instead, engaging in a
“direct movement toward the commission after the
preparations are made.” United States v. Schoof, 37 M.J. 96,
103 (C.M.A. 1993) (internal quotation marks omitted)
(citation omitted). The explanation section of Article 80,
UCMJ, states that “[t]he overt act need not be the last act
essential to the consummations of the offense.” Manual for
Courts-Martial, United States pt. IV, para. 4.c.(2) (2012 ed.)
(MCM).

   In United States v. Winckelmann, this Court highlighted
the “elusive line separating mere preparation from a
substantial step.” 70 M.J. 403, 407 (C.A.A.F. 2011) (internal
quotation marks omitted) (citation omitted). We favorably
quoted several federal cases concerning the contours of a
substantial step:

      Federal courts of appeals have defined a “substan-
      tial step” as “more than mere preparation, but less
      than the last act necessary before actual commis-
      sion of the crime.” See, e.g., United States v. Cham-
      bers, 642 F.3d 588, 592 (7th Cir. 2011). We have
      adopted a similar approach. See, e.g., United States
      v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987) (“ ‘[A] sub-
      stantial step must be conduct strongly corrobora-
      tive of the firmness of the defendant's criminal in-
      tent.’ ”) …. Accordingly, the substantial step must “
      ‘unequivocally demonstrat[e] that the crime will
      take place unless interrupted by independent cir-
      cumstances.’ ” United States v. Goetzke, 494 F.3d
      1231, 1237 (9th Cir. 2007).
Id. (alterations in original) (citations omitted). We
recognized that a substantial step could be comprised of




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              United States v. Hale, No. 18-0162/AF
                      Opinion of the Court

something as benign as travel, arranging a meeting, or
making hotel reservations. Id.7


Specification 3 of Additional Charge II
   In Specification 3 of Additional Charge II, Appellant was
charged with and convicted of attempting to commit larceny
on or about November 19, 2013. Appellant completed a
series of IDTs, working from 8:00 a.m. through noon and
again from 1:00 p.m. through 5:00 p.m. on November 4
through 8; November 12 through 15; and November 18
through 19, 2013, and working a single 8:00 a.m. through
noon block on November 20. He stayed with his in-laws
during this time and wrote them a check for his stay dated
November 20, though the Government was not able to
establish exactly what time of day the check was written. On
December 3, Appellant submitted his final travel voucher8
with a receipt he had manufactured for “Vernon Guest
Suites” requesting reimbursement for $1,870.00.

   We agree with the lower court’s finding that, based on
Article 2, UCMJ, and supporting case law, no authority
existed at the time of the offenses to extend military status
to Appellant while engaged in IDTs beyond the designated
four-hour blocks of IDT time. Article 2(a)(3) very clearly
extends jurisdiction to “[m]embers of a reserve component
while on inactive-duty training.” (Emphasis added.) As the
lower court reasoned:
       Unlike other types of reserve duty, an IDT is not a
       tour but a block of time. Specifically, it is a desig-
       nated “four-hour period of training, duty or instruc-
       tion.” Air Force Instruction (AFI) 36-2254V1, Re-
       serve Personnel Participation, ¶ 4.1.1 (26 May
       2010). The member performing the IDT is paid for

   7 In Winckelmann, this Court ultimately decided that a sen-
tence written during an on-line chat reading “u free tonight” was
“simply too preliminary” to constitute a substantial step towards
underage enticement. 70 M.J. at 408 (internal quotation marks
omitted) (citation omitted).
   8 The submitted voucher lists lodging dates between October 3
and October 20. However, because Appellant’s duty orders cover
the period from November 3 to November 20, we assume that the
incorrect month listed was a clerical error. The lower court found
that on December 3, 2013, Appellant created a receipt for his stay
and submitted that receipt with his claim for reimbursement.



                                 7
              United States v. Hale, No. 18-0162/AF
                      Opinion of the Court

       and receives a point for that designated four-hour
       block of time. Appellant was no exception. He was
       not receiving “regular pay” as the Government sug-
       gests. Rather, he received pay and points solely for
       the IDT blocks he was authorized to complete.
United States v. Hale, 77 M.J. 598, 604 (A.F. Ct. Crim. App.
2018); see also United States v. Wolpert, 75 M.J. 777 (A. Ct.
Crim. App. 2016) (jurisdiction does not exist over a reserve
member who committed criminal acts between periods of
IDT).

   The lower court determined that Appellant’s pattern of
previous behavior (this was his seventh stay with his in-
laws, with the previous six resulting in fraudulent requests
for reimbursement for lodging) taken as a whole
demonstrated the “firmness of Appellant’s criminal intent.”
Hale, 77 M.J. at 605 (internal quotation omitted) (citation
omitted). The lower court concluded that this evidence of
Appellant’s intent, coupled with the act of staying with his
in-laws while he completed his IDTs, constituted the
substantial step necessary for an attempted larceny. Id. at
605–06.

   Appellant takes issue with the lower court’s
interpretation of the concept of staying with his in-laws.
Appellant’s view is that he was only staying with his in-laws
when he was physically in their home, for example on days
off or during the evenings between his IDT blocks.
Therefore, under his view, the act of staying with the in-
laws could only occur during periods he was not subject to
court-martial jurisdiction. The Government counters that
the plain meaning and ordinary usage of the term “staying”
in this context means “to live for awhile” or “to live in a place
for a short time as a visitor” (internal quotation marks
omitted) (citations omitted). Therefore, staying is not strictly
limited to the period of time when a guest is physically
present but rather spans the full scope of time encompassing
a given visit.9 We also adopt the common understanding of
the term staying. We therefore conclude that the act of
staying with the in-laws spanned the entire period of time

   9  When questioned during the command-directed investiga-
tion, Appellant himself agreed that he did “stay” with his in-laws
every time he came to San Antonio for reserve duty and that he
did “stay” for the entire time period of his reserve duty.



                                8
             United States v. Hale, No. 18-0162/AF
                     Opinion of the Court

during which Appellant resided with them, including both
the actual IDT blocks and the gaps between them.

    We agree with the lower court that simply staying with
the in-laws, by itself, would not be enough to establish a
substantial step. However, we believe that Appellant’s other
actions taken during periods he was not subject to the
UCMJ could have been considered by the members to
establish Appellant’s intent while staying with his in-laws.
This is similar to how members are permitted to consider
evidence of other acts admitted under Military Rule of
Evidence 404(b) to prove the requisite intent for an offense.
See MCM pt. IV, para. 46.c.(1)(f)(ii) (2012 ed.) (“An intent to
steal may be proved by circumstantial evidence.”). In order
to establish attempted larceny, it is not necessary that every
step leading up to or following that attempt occur at times
where the Appellant is subject to the UCMJ, so long as some
element of the offense occurs during such times. All that
Article 80, UCMJ, requires is commission of a single act
during IDT or active duty, provided that the act is done with
the specific intent of committing a larceny, that the act
amounts to more than mere preparation, and that the act
tends to effect the commission of a larceny. Cf., United
States v. Kuemmerle, 67 M.J. 141, 144 (C.A.A.F. 2009)
(finding jurisdiction over the appellant’s distribution of child
pornography offense where one of the two acts necessary to
establish the offense (i.e., posting the image) occurred prior
to the appellant entering active duty because his subsequent
decision to keep the image posted occurred while he was
subject to the UCMJ).

   For this offense, the related evidence the members could
have considered on the issue of Appellant’s intent included
the false receipt Appellant created for a stay at “Vernon
Guest Suites,” the travel voucher submitted December 3,
and a check he wrote to Randall Vernon on November 20,
2013. The members also could have considered evidence of
the six other occasions upon which Appellant followed a
similar pattern: staying with his in-laws and then
submitting false receipts and travel vouchers in order to
claim lodging reimbursement for which he was not eligible.
Thus, the act of staying with his in-laws with the intent to
defraud the government was more than simply an isolated
and unimportant circumstance. It was the sine qua non for
Appellant’s travel fraud scheme.



                               9
             United States v. Hale, No. 18-0162/AF
                     Opinion of the Court

Specification 2 of Additional Charge I

   In Specification 2 of Additional Charge I, Appellant was
charged with and convicted of committing larceny on or
about May 16, 2012, and September 30, 2012. Between May
16, 2012, and September 30, 2012, Appellant was on active
duty orders. He stayed with his in-laws during that time
period and, prior to going on active duty, set up a series of
automatic interim partial payments to reimburse him for
lodging expenses. Four interim payments were then
deposited into his bank account during his active duty
period (June 14, July 16, August 13, and September 12). He
submitted a pre-travel authorization form on May 3, 2012,
and created a receipt for the stay with his in-laws on
September 30, 2012. He also wrote checks to his in-laws
dated June 30, August 31, and September 30, 2012.
Appellant then performed IDT duties, working 8:00 a.m.
through noon and 1:00 p.m. through 5:00 p.m. blocks
between October 1 through 5, October 9 through 12, and
October 15 through 17. Appellant submitted his travel
voucher and the receipt to his supervisor on October 2 and
he received his final payment on October 12.

   The lower court found that, as with the November 19,
2013, offense, jurisdiction did not exist when Appellant was
engaged in IDTs except during the four-hour working blocks.
The court therefore concluded that, because the receipt of
interim payments and staying with his in-laws that occurred
during the active duty period were not sufficient to
constitute a completed larceny, the court-martial did not
have jurisdiction to sustain the larceny conviction. However,
the lower court did conclude that jurisdiction existed for the
lesser included offense of attempted larceny and affirmed a
finding of guilty of that offense.

   This specification requires a substantial step analysis
similar to the one conducted above. Here, Appellant not only
stayed with his in-laws—on this occasion the third stay for
which he claimed lodging reimbursement—but also received
automatic partial interim lodging payments from the
military and created a fraudulent receipt for his stay with
the Vernons, all while on active duty. In addition, the
members were entitled to consider as circumstantial
evidence events that took place while Appellant was not
subject to jurisdiction. This additional evidence included



                              10
             United States v. Hale, No. 18-0162/AF
                     Opinion of the Court

submission of the travel voucher and receipt of final
payment as well as arranging for interim payments prior to
going on active duty. We conclude that all this evidence,
considered together, is sufficient to establish the requisite
substantial step towards commission of the offense of
attempted larceny.

Improper Instruction
   “The military judge shall give the members appropriate
instructions on findings.” Rule for Courts-Martial 920(a).
“This Court presume[s] that the panel followed the
instructions given by the military judge.” United States v.
Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017) (alteration in
original) (internal quotation marks omitted) (citation
omitted).

   “Whether a panel was properly instructed is a question of
law reviewed de novo.” United States v. Medina, 69 M.J. 462,
465 (C.A.A.F. 2011) (internal quotation marks omitted)
(quoting United States v. Ober, 66 M.J. 393, 405 (C.A.A.F.
2008)). In this case, the military judge instructed the
members on the elements of the charged offenses, including
the “on or about” language. Defense counsel did not object to
the instructions at the time they were given. “Where there
was no objection to the instruction at trial, we review for
plain error.” United States v. Tunstall, 72 M.J. 191, 193
(C.A.A.F. 2013).

   Under plain error review, “Appellant has the burden of
establishing (1) error that is (2) clear or obvious and (3)
results in material prejudice to his substantial rights.”
United States v. McClour, 76 M.J. 23, 25 (C.A.A.F. 2017)
(internal quotation marks omitted) (quoting United States v.
Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014)). “[T]he failure to
establish any one of the prongs is fatal to a plain error
claim.” Id. (alteration in original) (internal quotation marks
omitted) (citation omitted). We determine that Appellant
has failed to carry his burden with regard to the third prong.
Whether or not the military judge erred in giving
instructions on the “on or about” language, Appellant has
not proven any material prejudice to his substantial rights.

   In his prayer for relief, Appellant asks that this Court set
aside findings for five specifications due to instructional



                              11
             United States v. Hale, No. 18-0162/AF
                     Opinion of the Court

error: Charge II and its specification; Additional Charge I,
Specifications 1 and 2; and Additional Charge II, and its
specifications. Additional Charge I, Specification 1, is a
larceny conviction. The others are attempted larceny
convictions.

   Appellant has not established that the military judge’s
instructions in any way impacted the members’ decision-
making process on these offenses. Though there were
multiple steps involved in orchestrating the taking of the
money, the dates of those steps were well documented
through travel vouchers, duty orders, checks, bank
statements, etc., which were admitted into evidence. Those
dates were not ambiguous and the members were not
relying on witness testimony that was open to
interpretation. The members were not asked to consider a
separate crime that may have occurred outside the scope of
the court’s jurisdiction. Rather, the charges here involved
concrete acts occurring on concrete dates. Appellant
provided no reason to suspect the members did not adhere to
the admitted evidence when reaching their verdict.

   With regard to the attempted larceny convictions, our
decision above on issues I and III establishes that Appellant
staying with his in-laws, coupled with circumstantial
evidence of acts committed when he was not subject to
jurisdiction, is sufficient to constitute a substantial step
towards completed larceny. Nothing in Appellant’s
argument or in the record suggests that members considered
other, impermissible, evidence.

   With regard to Additional Charge I, Specification 1, the
larceny conviction, the charge sheet reads “between on or
about 26 June 2011 and on or about 30 September 2011.”
Appellant was on active duty and therefore under military
jurisdiction from June 26, 2011, through September 30,
2011. While he was on active duty, Appellant stayed with
his in-laws. He also received interim payments on July 26,
August 25, and September 26. He wrote a check to the
Vernons on September 27 and created a false receipt for
lodging dated September 29. We consider all this evidence
sufficient to support a conviction of a completed larceny. Any
assumption that the members based their conviction on
other evidence of acts taking place when Appellant was not
subject to jurisdiction would be purely speculative.



                              12
            United States v. Hale, No. 18-0162/AF
                    Opinion of the Court

   Both parties spent some time analyzing to what degree
the Government depended upon the “on or about” language
in its closing argument. The Government did reference the
“on or about” language. However, given the above points and
the fact that the members were clearly instructed that
arguments are not evidence, we are not convinced that the
remarks made during closing arguments played a significant
enough role to have prejudiced Appellant.

                         Decision
    We conclude that the court-martial had sufficient
jurisdiction over Appellant to support both challenged
attempted larceny convictions. In addition, Appellant has
failed to prove any material prejudice stemming from the
military judge’s instructions to the members.

   The decision of the United States Air Force Court of
Criminal Appeals is affirmed.




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              United States v. Hale, No. 18-0162/AF


   Judge OHLSON, concurring in part and dissenting in
part.
    Thankfully, the jurisdictional puzzle confounding the
Court in the instant case soon will be sorted out. The Mili-
tary Justice Review Group (MJRG), which was so ably
chaired by Senior Judge Andrew Effron, recognized the va-
garies inherent in a system whereby jurisdiction over reserv-
ists performing inactive duty training (IDT) could—like an
office light switch—turn on and off several times during the
course of a single work day.1 See Office of the General Coun-
sel, Dep’t of Defense, Report of the Military Justice Review
Group 154–55 (Dec. 22, 2015), http://ogc.osd.mil/mjrg.html.
Therefore, upon the MJRG’s recommendation, Congress
amended Article 2(a)(3), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 802(a)(3), so as to eliminate jurisdic-
tional gaps that previously arose within the interstices of
blocks of time dedicated to inactive duty training. National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, § 5102, 130 Stat. 2000, 2894–95 (2016). Thus, some
much needed rationality is now in the process of being im-
posed regarding court-martial jurisdiction over reservists.
    In the instant case, however, the old jurisdictional rules
apply. As explained below, in construing those rules, and in
applying the law to the relevant facts, I conclude that the
jurisdictional light switch, so to speak, was in the “off” posi-
tion at the time Appellant took the steps necessary for the
commission of one of the attempted larceny offenses. Fur-
ther, I conclude that the military judge’s “on or about” in-
struction constituted plain error because it directly implicat-


   1  Although this brief and episodic form of jurisdiction may
seem quite odd, this is not a point on which the majority and I
disagree. As the majority correctly notes in its opinion, “[N]o au-
thority existed at the time of the offenses to extend military status
to [servicemembers who were] engaged in [inactive duty training]
beyond the designated four-hour blocks of IDT time.” United
States v. Hale, __ M.J. __ (7) (C.A.A.F. 2019). The majority opinion
also favorably and correctly cites a United States Army Court of
Criminal Appeals decision that holds that “jurisdiction does not
exist over a reserve member who committed criminal acts between
periods of IDT.” Id. at __ (8) (citing United States v. Wolpert, 75
M.J. 777 (A. Ct. Crim. App. 2016)).
           United States v. Hale, No. 18-0162/AF
   Judge OHLSON, concurring in part and dissenting in part

ed jurisdictional issues in this case and improperly author-
ized the panel members to convict Appellant of the attempt-
ed larceny charge even if the offense occurred when he was
not in a military status. Accordingly, unlike my colleagues in
the majority, I would hold that Appellant’s conviction for
that offense must be set aside and the specification must be
dismissed. Therefore, I respectfully dissent.
                         OVERVIEW

    This travel fraud case resulted in Appellant being
charged with a number of larceny and attempted larceny of-
fenses. One of these attempted larceny offenses is charged in
Specification 3 of Additional Charge II. This specification
alleges that Appellant “did within the continental United
States, on or about 19 November 2013 attempt to steal mon-
ey, military property, of a value of over $500.00, the property
of the United States Government,” in violation of Article 80,
UCMJ, 10 U.S.C. § 880 (2012). At the time of this charged
misconduct, Appellant, an Air Force reservist, was on IDT
for multiple four-hour blocks of time between November 3,
2013, and November 20, 2013. Central to this case is the fact
that while performing his IDT at Joint Base San Antonio-
Lackland, Texas, Appellant elected to lodge at the home of
his in-laws.
   A panel of officer members sitting as a general court-
martial convicted Appellant of several offenses, including
the attempted larceny offense cited above. The members
reached their verdict after the military judge instructed
them as follows:
      [Y]ou must be convinced by legal and competent ev-
      idence beyond reasonable doubt:
          (1) That, on or about 19 November 2013 … the
      accused did a certain act, that is: stay at the pri-
      vate residence of his in-laws, …, write a check to
      [his father-in-law], and/or create a lodging receipt
      reflecting his stay at the [in-laws’] residence;
          ….
          (3) That the acts amounted to more than mere
      preparation, that is, they were a substantial step
      and a direct movement toward the commission of
      the intended offense.




                               2
            United States v. Hale, No. 18-0162/AF
    Judge OHLSON, concurring in part and dissenting in part

(Emphasis added.)
    The majority concludes that: (1) there was court-martial
jurisdiction over the attempted larceny offense charged in
Specification 3 of Additional Charge II (Issue I); and (2) the
military judge’s “on or about” instruction with respect to this
specification did not amount to plain error (Issue II). As out-
lined below, I part ways with both of these conclusions.
                               I.

    Turning first to Issue I, this Court must determine
whether the court-martial had jurisdiction over the attempt-
ed larceny offense that was alleged to have occurred “on or
about” November 19, 2013. “[C]ourts-martial may only exer-
cise jurisdiction over a servicemember ‘who was a member of
the Armed Services at the time of the offense charged.’ ”
United States v. Kuemmerle, 67 M.J. 141, 143 (C.A.A.F.
2009) (emphasis added) (quoting Solorio v. United States,
483 U.S. 435, 451 (1987)). Stated differently, “Article 2(a),
UCMJ, jurisdiction for a reservist hinges on whether the
charged events occurred during active duty status or IDTs.”
United States v. Morita, 74 M.J. 116, 120 (C.A.A.F. 2015)
(emphasis added). I interpret these precedents to mean that
a reservist is not subject to UCMJ jurisdiction if the reserv-
ist leaves a military status before all of the elements of a
criminal offense are met.
    In terms of the attempted larceny offense at issue in the
instant case, this Court has identified “four elements of at-
tempt,” including “that the act amounted to more than mere
preparation.” United States v. Payne, 73 M.J. 19, 24
(C.A.A.F. 2014) (citing Manual for Courts-Martial, United
States pt. IV, para. 4.b (2012 ed.)). In other words, Appellant
must “ha[ve] taken a substantial step—some overt act, be-
yond mere preparation—toward accomplishing” the larceny.
United States v. Schoof, 37 M.J. 96, 102 (C.M.A. 1993).
There is no “litmus test” for determining whether a substan-
tial step exists, and the line between preparation and sub-
stantial step is “elusive.” Id. at 103 (citation omitted) (inter-
nal quotation marks omitted). However, the Supreme Court
has stated that “the mere intent to violate a federal criminal
statute is not punishable as an attempt unless it is accom-
panied by significant conduct.” United States v. Resendiz-




                               3
           United States v. Hale, No. 18-0162/AF
   Judge OHLSON, concurring in part and dissenting in part

Ponce, 549 U.S. 102, 107 (2007) (emphasis added). Indeed,
this Court has recognized that the “substantial step must
unequivocally demonstrat[e] that the crime will take place
unless interrupted by independent circumstances.” United
States v. Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011)
(emphasis added) (citation omitted) (internal quotation
marks omitted).
    Applying the above law to the relevant facts, I conclude
that Appellant’s facially benign act of staying with his in-
laws while performing IDT does not constitute “a substantial
step.” After all, Appellant needed a place to stay for his tem-
porary duty, and he was permitted to stay with family mem-
bers—although he could not legally seek reimbursement for
this stay. This single facially benign act while in a military
status did not “unequivocally demonstrat[e] that the crime
[would] take place unless interrupted by independent cir-
cumstances.” Id. (citation omitted) (internal quotation
marks omitted); see also United States v. Presto, 24 M.J. 350,
352 (C.M.A. 1987) (concluding that conduct “tend[ing] to cor-
roborate appellant’s criminal intent” did not constitute a
substantial step).
    I recognize, as the majority and the lower court point out,
that six other larcenies or attempted larcenies occurred
when Appellant previously stayed with his in-laws.
However, because Appellant was authorized to stay with
family for his IDT, his mere act of staying with his in-laws
in November 2013—which was unaccompanied by any other
conduct during his time in military status that was
consistent with committing a larceny—does not demonstrate
the firmness of his intent to commit that offense. I also
recognize that Appellant engaged in acts outside of his
military status that, if taken during his IDT, would have
established a substantial step while he was subject to court-
martial jurisdiction. However, there is no court-martial
jurisdiction if the acts necessary to commit a crime occur
after an accused has left his military status; to be subject to
court-martial jurisdiction, the substantial step must occur
during an accused’s IDT status.
  In this particular case, it logically follows that because
Appellant did not take a substantial step towards commit-




                              4
           United States v. Hale, No. 18-0162/AF
   Judge OHLSON, concurring in part and dissenting in part

ting a larceny offense during IDT, this element of the at-
tempt offense was not satisfied—and thus an attempted lar-
ceny was not completed—during the time that Appellant
was in a military status. Therefore, there was no court-
martial jurisdiction for this attempt offense. See Morita,
74 M.J. at 120 (“Article 2(a), UCMJ, jurisdiction for a reserv-
ist hinges on whether the charged events occurred during …
IDTs.” (emphasis added)). Accordingly, I would set aside the
findings with respect to Specification 3 of Additional Charge
II and dismiss the specification.
                              II.

    Even if the majority is correct that there is court-martial
jurisdiction over the attempted larceny offense alleged in
Specification 3 of Additional Charge II, I conclude that the
finding of guilty for this specification should be set aside be-
cause the military judge plainly erred by instructing the
members that Appellant could be convicted if he committed
the larceny “on or about 19 November 2013.”
    The use of “on or about” in a military judge’s instructions
“generally connote[s] any time within a few weeks of the ‘on
or about’ date.” United States v. Brown, 34 M.J. 105, 110
(C.M.A. 1992), overruled on other grounds by United States
v. Reese, 76 M.J. 297 (C.A.A.F. 2017). In the instant case the
problem with the military judge’s “on or about” instruction
arises because it was given in the context of a specification
where court-martial jurisdiction was clearly implicated.
Court-martial jurisdiction is a binary proposition—it is ei-
ther there or it is not. Morita, 74 M.J. at 120 (“[A]ctive duty
is an all-or-nothing condition.” (citation omitted) (internal
quotation marks omitted)). Therefore, the military judge
needed to focus his instructions on the precise dates when
Appellant was on IDT. Cf. United States v. Thompson,
59 M.J. 432, 440 (C.A.A.F. 2004) (requiring a military judge
“to provide the members with instructions that focused their
deliberations on a much narrower period of time” to ensure
they did not convict on an offense that fell outside of the
statue of limitations).
   Because the military judge’s “on or about” instructional
language did not limit the attempt offense to the IDT period
when the court-martial had jurisdiction, the military judge




                               5
            United States v. Hale, No. 18-0162/AF
    Judge OHLSON, concurring in part and dissenting in part

permitted the members to convict Appellant of an attempted
larceny even if it occurred when he was no longer in a mili-
tary status (i.e., when the military had no court-martial ju-
risdiction over Appellant). This point is underscored by the
fact that the military judge’s instruction listed three acts as
part of the attempted larceny offense with which Appellant
was charged—staying with his in-laws, writing a check to
his father-in-law, and creating a fraudulent lodging receipt.
However, the evidence in the record fails to establish that
two of these acts occurred while Appellant was in an IDT
status.2 Indeed, the Government’s appellate brief appears to
concede that Appellant’s acts of writing a check and creating
a lodging receipt occurred after he was no longer in an IDT
status and therefore not subject to the UCMJ. Under these
circumstances, the instructions improperly permitted the
members to convict Appellant of an attempted larceny that
was not actually completed until after Appellant had left his
military status.3 Therefore, I conclude that the military
judge clearly or obviously erred when instructing the mem-
bers in this manner.
    I further conclude that this clearly erroneous “on or
about” instruction prejudicially impacted the members’ de-
liberations. See United States v. Lopez, 76 M.J. 151, 154
(C.A.A.F. 2017) (explaining there is material prejudice for
plain error analysis when there is a reasonable probability
that the outcome would have been different absent the er-


   2  In the context of the military judge’s and lower court’s juris-
dictional analyses, neither the military judge nor the lower court
found that the writing of the check or the creation of the lodging
receipt occurred while Appellant was in a military status. The ma-
jority opinion similarly recognizes that the Government did not
establish the time of day that Appellant wrote the check. Thus,
there is no evidentiary basis to conclude that all of the necessary
acts for the commission of an attempted larceny offense occurred
when the military had court-martial jurisdiction over Appellant.
   3  Because the military judge’s “on or about” instruction specifi-
cally allowed the members to consider conduct when Appellant
was no longer in a military status, the military judge’s general
instruction about court-martial jurisdiction did not remedy the
error of allowing the members to convict for an offense completed
after Appellant left his military status.




                                 6
            United States v. Hale, No. 18-0162/AF
    Judge OHLSON, concurring in part and dissenting in part

ror). The Government did not rely solely on Appellant’s act
of staying with his in-laws when seeking a conviction for the
attempted larceny offense. Instead, trial counsel’s findings
argument pointed to conduct that occurred when Appellant
was not in a military status—writing a check, creating a
lodging receipt, and creating and submitting the final claim
for reimbursement. And, as already stated, the military
judge also instructed the members that they could consider
two of these acts in determining whether there was “more
than mere preparation”—despite the fact that these two acts
occurred during a period when Appellant was not in a mili-
tary status. The members were thereby incorrectly left with
the impression that they could find a substantial step based
on acts that occurred after Appellant had left his military
status. This stands in direct contradiction with the jurisdic-
tional requirement that the substantial step, and thus the
crime of attempted larceny, must have been completed while
Appellant was in a military status.
    Finally, as suggested by my discussion of Issue I, it is not
a foregone conclusion that the members would have found
that Appellant’s facially benign act of staying with his in-
laws by itself constituted a substantial step.4 Because the
military judge’s “on or about” instruction improperly author-
ized the members to find a substantial step based on conduct
that occurred after Appellant had left a military status, and
because trial counsel’s findings argument also relied on such
conduct in seeking a conviction, there is a reasonable proba-
bility that, but for the instructional error, the members
would have reached a different outcome. Therefore, even if
there is court-martial jurisdiction over Specification 3 of Ad-
ditional Charge II, Appellant has established that the mili-
tary judge plainly erred in providing the “on or about” in-
struction with respect to this specification.5


   4  At oral argument, the Government even conceded that the
mere act of staying at the in-laws without more is legally insuffi-
cient to constitute an attempt.
   5   Although I find plain instructional error with respect to
Specification 3 of Additional Charge II, I concur with the majori-
ty’s conclusion that the instructional error was not plainly errone-
ous as to the other charges and specifications because Appellant




                                 7
            United States v. Hale, No. 18-0162/AF
    Judge OHLSON, concurring in part and dissenting in part

                                  III.

    For the reasons set forth above, I respectfully dissent
from two portions of the majority opinion.6 First, I conclude
that the court-martial lacked jurisdiction over the attempted
larceny offense charged at Specification 3 of Additional
Charge II and therefore dissent from the majority’s resolu-
tion of Issue I. On these grounds I would set aside Appel-
lant’s conviction for that offense and dismiss the specifica-
tion. Second, even assuming the court-martial had jurisdic-
jurisdiction over Specification 3 of Additional Charge II, I
conclude that the military judge plainly erred in providing
an “on or about” instruction for this specification and there-
fore dissent from the majority’s resolution of Issue II insofar
as it concerns Specification 3 of Additional Charge II. On
these grounds I would set aside Appellant’s conviction for
that offense and authorize a rehearing.




has failed to establish that the “on or about” instruction led to
convictions for conduct that occurred when he was not in a mili-
tary status. Cf. United States v. Royal, 972 F.2d 643, 649 (5th Cir.
1992) (concluding that “on or about” instruction did not constitute
plain error because “the facts of the case eliminate the possibility
that the jury could have convicted the Defendant for acts barred
by the statute of limitations”).
   6   I concur with the result reached by the majority for Issue III.




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