               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                  Before
              R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     JARED H. SULLIVAN
        LANCE CORPORAL (E-3), U.S. MARINE CORPS RESERVE

                            NMCCA 201400071
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 25 October 2013.
Military Judge: CDR R.P. Monahan, Jr., JAGC, USN.
Convening Authority: Commander, 4th Marine Division, Marine
Forces Reserve, New Orleans, LA.
Staff Judge Advocate's Recommendation: LtCol E.R. Kleis,
USMC.
For Appellant: LtCol Richard Belliss, USMCR.
For Appellee: LCDR Keith Lofland, JAGC, USN; Capt Suzanne
Dempsey, USMC.

                              29 May 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a special court-martial
convicted the appellant, pursuant to his pleas, of one
specification of making a false official statement and nine
specifications of larceny in violation of Articles 107 and 121,
Uniform Code of Military Justice, 10 U.S.C. §§ 907 and 921.
The military judge sentenced the appellant to confinement for
eleven months, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence,
but suspended all confinement in excess of time already served
as an act of clemency.

     Though the appellant submitted this case without assignment
of error, we noticed a discrepancy between the referral block on
the charge sheet and the convening order. Specifically, the
charges were referred by the Commander, 4th Marine Division,
but the convening order contained in the record was signed by
the commanding officer of Headquarters Battalion, 4th Marine
Division-a subordinate unit. We ordered the Government to
either produce a convening order signed by the Commanding
General or Commander, 4th Marine Division, or show cause why the
findings and sentence should not be set aside for lack of
jurisdiction. 1

     Having reviewed the record and the Government’s response to
our show cause order, we conclude that the charges and
specifications were improperly referred. Consequently, we set
aside the findings and sentence for lack of jurisdiction.

                            Factual Background

     The CA in this case signed block V on the charge sheet
referring the subject charges and specifications to trial by
special court-martial convened by “SPCMCO #1-13” dated 12 March
2013. Block V lists his capacity to sign as “Commanding” and
the designation of his command as 4th Marine Division. There
are no special instructions listed in block V.

      When reciting the jurisdictional data, the trial counsel
announced the following:

      This court-martial is convened by Colonel [JLG] by
      Special Court-Martial Convening Order 1-13, dated 12
      March 2013 . . . . and [the charges] have been
      properly referred to this court-martial for trial by
      Colonel [JLG], the Convening Authority. Colonel [JLG]
      was in command on the date of referral; he is normally
      the Chief of Staff.

Record at 2.



1
  The Government responded to our Order on 7 April 2014.   The appellant
declined our invitation to submit a response.
                                      2
     SPCMCO 1-13 contained in the record lists “Headquarters
Battalion, 4th Marine Division” on the letterhead and is signed
by Lieutenant Colonel VHF as the commanding officer. The record
contains no modification or separate convening orders and the
trial counsel stated that “There are no modifications or
corrections to the convening order.” Id.

     Immediately after trial on 25 October 2013, civilian
defense counsel submitted a clemency request addressed to the
“Commanding General, 4th Marine Division.” Colonel [JLG]
approved the request by written endorsement that same date,
signing as the Commander, 4th Marine Division.

     During the post-trial processing of the case, the trial
counsel addressed the 25 October 2013 Results of Trial and the
15 January 2014 Modified Results of Trial to the “Commander, 4th
Marine Division, Convening Authority”; however, both the Staff
Judge Advocate’s Recommendation (SJAR) and the Addendum to the
SJAR were addressed to “Commanding Officer, Headquarters
Battalion, 4th Marine Division.” Special Court-Martial Order
Number 12-2013, Colonel JLG’s action in this case, lists
“Headquarters Battalion, 4th Marine Division” on the letterhead,
recites “at a special court-martial, convened by Commanding
Officer, Headquarters Battalion, 4th Marine Division” in the
initial paragraph, and displays the title “Commanding Officer”
beneath Colonel JLG’s signature.

     Thus, the record reflects that the CA referred charges to a
court-martial convened by a subordinate commander. On 27 March
2014, we ordered the Government to produce a copy of SPCMCO 1-13
dated 12 March 2013 issued by the Commanding General or
Commander, 4th Marine Division, or show cause why we should not
set aside the findings and sentence for lack of jurisdiction.
On 7 April 2014, the Government responded. Citing United States
v. Wilkins, 29 M.J. 421 (C.M.A. 1990), the Government
acknowledged that no such convening order signed by Colonel JLG
or his predecessor in command existed; however, the record amply
demonstrated Colonel JLG’s intent to adopt SPCMCO 1-13 convened
by his subordinate commander.

                            Analysis

     Jurisdiction is a legal question that we review de novo.
United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006). The
Government carries the burden of proving jurisdiction by a
preponderance of the evidence. United States v. Oliver, 57 M.J.
170, 172 (C.A.A.F. 2002). “Jurisdiction depends upon a properly

                                3
convened court, composed of qualified members chosen by a proper
convening authority, and with charges properly referred.”
United States v. Adams, 66 M.J. 255, 258 (C.A.A.F. 2008).
Proper referral requires three elements: (1) an authorized
convening authority, (2) receipt of preferred charges by the
convening authority, and (3) “a court-martial convened by that
convening authority or a predecessor (see R.C.M. 504).” RULE FOR
COURTS-MARTIAL 601(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Discussion. We are concerned here with the third element.

     “The power to convene courts-martial may not be delegated.”
R.C.M. 504(b)(4). In United States v. Ryan, 5 M.J. 97, 101
(C.M.A. 1978), the Court of Military Appeals definitively held
that “if the convening authority cannot delegate the power to
appoint a court-martial, then the convening authority cannot
delegate the power to appoint, or detail the court members . . .
.” This holding makes sense in light of Article 25, UCMJ, which
requires a CA to personally select court-martial members who are
“best qualified” for that duty.

     Here, contrary to the Government’s assertion, there is no
indication in the record that Colonel JLG intended to adopt
those members detailed by SPCMCO 1-13 as his own. Furthermore,
despite the Government’s reliance on Wilkins, we are unconvinced
that such an adoption could suffice. 2 A CA may adopt a court-
martial convened by a predecessor in command. R.C.M. 601(b).
But no authority allows a superior commander to adopt a panel
convened by a subordinate even though the latter may possess the
same authority to convene a court-martial.

     There lies a substantial difference between adopting a
convening order promulgated by a predecessor in one’s own office
and delegating the power to convene a court-martial to a
subordinate. The former is permissible; the latter is not.
That is because the power to convene a court-martial is vested
in an office, not a person. United States v. Bunting, 15 C.M.R.
84, 87 (C.M.A. 1954).

     The outcome may differ if the record indicated that Colonel
JLG personally selected the members appearing on SPCMCO #1-13
despite the fact that the written order is signed by Lieutenant

2
  In Wilkins, the Court of Military Appeals held that a CA’s entry into a
pretrial agreement whereby Sergeant Wilkins agreed to plead guilty to an
uncharged offense operated as a constructive referral of that offense
sufficient for court-martial jurisdiction. 29 M.J. at 424. We do not view
Wilkins to be read so broadly as to hold that a CA may constructively adopt a
panel convened by a subordinate commander.
                                      4
Colonel VHF. See United States v. Allgood, 41 M.J. 492, 496
(C.A.A.F. 1995) (recognizing that the CA had personally
evaluated and selected the members when deciding to adopt his
predecessor’s convening order). But in the absence of any such
indication, we find error. We do not test this error for
prejudice because it is a jurisdictional defect in the court-
martial. See Adams, 66 M.J. at 258 (noting that a court-martial
composed of members who were never detailed by the CA is
improperly constituted and the findings must be set aside as
invalid) (citing McClaughry v. Deming, 186 U.S. 49, 63-65
(1902)); Ryan, 5 M.J. at 101 (declining to test for prejudice
even though the appellant chose trial by judge alone because
delegation of member selection was a jurisdictional defect).

                           Conclusion

     The findings and sentence are set aside and the charges and
specifications are dismissed without prejudice. The record of
trial is returned to the Judge Advocate General of the Navy for
forwarding to an appropriate CA for further disposition not
inconsistent with this opinion. An “other” trial under R.C.M.
1107(e)(2) is authorized.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




                                5
