Friday, February 16, 2007

Evidence Sufficient to Establish that Murder Committed on Fort Hood Was Within Special Maritime and Territorial Jurisdiction of the United States

United States v. Reff, No. 06-50076 (5th Cir. Feb. 15, 2007) (per curiam) (Higginbotham, Smith, DeMoss)

Reff was convicted of first degree murder on a government reservation, an element of which is that the murder was committed "within the special maritime and territorial jurisdiction of the United States" (as defined in 18 U.S.C. § 7). The victim was found behind the wheel of her car on Hood Road, which is on Fort Hood near Killeen, Texas, with a fatal gunshot wound to the head. Hood Road is a divided four-land road that runs north-south "between U.S. Highway 190 and Fort Hood's front gate, which is just over 1,000 feet north of U.S. Highway 190." Slip op. at 2 n.1. A witness reported seeing the victim's northbound vehicle suddenly veer into the median shortly after passing another vehicle which was parked in the median.

On appeal, Reff argued that the evidence presented at trial was insufficient to prove the jurisdictional element, and that the district court erred by failing to instruct the jury on the definition of "special maritime and territorial jurisdiction of the United States."

Because Reff did not challenge the jurisdictional basis for his prosecution at trial, the court of appeals reviewed for a "miscarriage of justice." Under that standard, a conviction is set aside "only if 'the record is devoid of evidence' establishing jurisdiction[.]" Slip op. at 7-8 (citing United States v. Partida, 385 F.3d 546, 561 (5th Cir. 2004)). The court held that there was no miscarriage of justice here because it has "numerous times and without reservation . . . stated that military reservations such as Fort Hood fall within the definition of 'special maritime and territorial jurisdiction of the United States' under 18 U.S.C. § 7." Slip op. at 10 (citations omitted). Moreover, there was testimony at trial that the place where the victim was found was well inside the southern boundary of Fort Hood. The court acknowledged that the issue would be "more problematic" if the evidence showed that the road leading to the visitor's center was open to the public, but there was no so evidence presented at trial.

Reff argued that even if Fort Hood fell within the special maritime and territorial jurisdiction of the U.S., the Government had to prove that he actually shot the victim on the base, not simply that the victim died there. He then offered an alternative hypothetical scenario in which the victim could have been shot on Highway 190 and then driven onto Hood Road to seek help. The court agreed that "the proper inquiry is where the fatal injury was inflicted, not where the death occurred[,]" but held that regardless of whether Reff's alternative scenario was plausible, the record was nevertheless not devoid of evidence that the injury was inflicted on the base, as required under the miscarriage of justice standard. Slip op. at 12-14.

(An interesting side issue is whether the Government is required to prove the jurisdictional element BRD. A Fifth Circuit case from 1993 holds that the Government need only prove the element by a preponderance of evidence. United States v. Bell, 993 F.2d 427, 429. Subsequent cases have questioned Bell's holding, but the court declined to address the issue here because the evidence established jurisdiction under either standard of proof.)

As to the second issue, the district court's failure to charge the jury on the definition of "special maritime and territorial jurisdiction," the court reviewed for plain error because Reff did not object to the jury charge or request a definition of the jurisdiction element. And the court held that there was no plain error because the element went undisputed at trial and because the district court used the Fifth Circuit's pattern charge on first degree murder.



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