United States v. Reff

United States Court of Appeals
Fifth Circuit
F I L E D
February 15, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
for the FIFTH CIRCUIT
No. 06-50076
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
GEORGE REFF, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
INTRODUCTION
Defendant-Appellant George Reff Sr. challenges his
conviction for “First Degree Murder on a Government
Reservation.” The primary issue on appeal is whether the
Government sufficiently proved that Reff was “[w]ithin
the special maritime and territorial jurisdiction of the

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1The visitors center is located on the east side of
the northbound roadway of Hood Road. The record
establishes that Hood Road consists of two roadways
separated by a median. Each roadway has two lanes running
in a northbound or southbound direction between U.S.
Highway 190 and Fort Hood’s front gate, which is just
over 1,000 feet north of U.S. Highway 190. U.S. Highway
190 runs east and west. A railroad track close to U.S.
Highway 190 also runs east and west. The record does not
indicate whether Hood Road is a dedicated public roadway
or a private roadway that is part of Fort Hood.
2
United States” when he committed the murder. See 18
U.S.C. § 1111(b).
FACTUAL BACKGROUND
On December 31, 2003, at approximately 10:39 p.m.,
the Fort Hood Military Police (“MP”) notified United
States Army Criminal Investigation Command (“CID”) that
a traffic accident had occurred on Hood Road near the
visitors center. The MP relayed to CID information from
an eyewitness who was traveling northbound on Hood Road
when the accident occurred.1
The witness stated that as she approached the
visitors center she saw a dark sedan parked in the median
of Hood Road. Then, another car traveling northbound near
the visitors center passed the parked sedan and, as soon

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2According to the record, Sharie Durr was married to
a military officer stationed at Fort Hood. But the record
does not indicate whether she was a military officer or
worked at Fort Hood.
3
as it did, veered off of the road into the median.
Thinking that the person in the dark sedan was going to
help the other driver, the witness called the MP but did
not stop to help.
A MP officer responded immediately. Upon arrival, the
officer observed a vehicle facing north in the median
between the northbound and southbound lanes of Hood Road.
As he approached, he noticed “brain matter” and blood
scattered on the front seat. Paramedics arrived shortly
thereafter, administered first aid to a female victim
later identified as Sharie Durr,2 and transported her to
Darnell Community Hospital at Fort Hood. CID agents then
arrived to investigate.
Durr died on the scene. During her autopsy, the
medical examiner found a bullet fragment in her head. The
examiner determined that the bullet was consistent with
a .38 caliber firearm, likely traveled through glass
before striking Durr, and was the cause of her death.

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CID’s investigation quickly turned to Reff. Cell
phone records showed calls from Reff to Durr at 10:24
p.m. and 10:25 p.m., and a call from Durr to Reff at
10:25 p.m., minutes before the fatal incident occurred.
A search of Reff’s vehicle, which matched the
eyewitness’s description of the vehicle parked in the
median of Hood Road, turned up gunshot residue and
cartridge bullet casings. Additionally, agents found
gunshot residue on Reff’s person.
CID later interviewed Reff about his relationship
with Durr. Reff admitted that he knew Durr and stated
that he last saw her at a 7-11 store close to Fort Hood
at 10:30 p.m. on December 31, the night of the murder.
Subsequent investigation revealed that Reff purchased a
.38 caliber revolver on December 31.
In a later interview, Reff claimed that he fired the
gun on January 1 and then put it in the back seat of his
vehicle. But when an agent began to take Reff to his
vehicle to retrieve the gun, Reff told him that he lost
the gun or the gun perhaps was stolen. Reff later changed
his story, stating that he gave the gun to an anonymous

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friend.
Reff’s friends and acquaintances eventually provided
agents with strong evidence that Reff was involved in
Durr’s death. One female friend established that Reff
likely had an affair with Durr, who was married to a
military officer stationed at Fort Hood. The week before
the killing, Reff asked her whether she knew anything
about Durr “messing with” another guy. Another female
friend reported that Reff was mad at Durr for “seeing
other guys.”
One of Reff’s male acquaintances told agents that
Reff asked him to get rid of a gun for him, and that
Reff, referring to Durr, stated that he “shot the bitch.”
Another male acquaintance told agents that Reff said he
shot Durr in the head and then hid the gun.
Finally, after his arrest and imprisonment but before
his trial, Reff gave to a fellow inmate a somewhat
detailed explanation of how he killed Durr. In the end,
there was overwhelming evidence presented at trial that
Reff killed Durr; and he does not challenge that finding
on appeal. Rather, Reff solely focuses on whether the

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murder occurred within federal jurisdiction.
PROCEDURAL HISTORY
Reff was arrested in January 2004. In March 2004, a
grand jury superseding indictment charged Reff for “First
Degree Murder on a Government Reservation.” Specifically,
the indictment charged that Reff, on December 31, 2003,
murdered Durr “on Fort Hood Military Reservation, a place
within the special maritime and territorial jurisdiction
of the United States . . . in violation of Title 18,
United States Code, Sections 7(3) and 1111(a) and (b).”
During a two-day trial, the Government presented
extensive evidence that Reff killed Durr. Reff took the
stand and denied killing Durr, but the jury unanimously
convicted Reff as charged, and the district court
sentenced Reff to life in prison.
The jurisdictional component of the federal statute
was not a disputed issue at any time prior to appeal.
DISCUSSION
On appeal, Reff makes two arguments relating to the
jurisdictional element of the statute he was convicted
under. First, he argues that the Government provided

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insufficient evidence for the jury to find that he
committed the crime “[w]ithin the special maritime and
territorial jurisdiction of the United States.” See 18
U.S.C. § 1111(b). Second, Reff contends that the district
court reversibly erred because it did not define for the
jury the phrase “special maritime and territorial
jurisdiction of the United States.” Id.
I. The Sufficiency of the Jurisdictional Evidence
A. Standard of Review and Burden of Proof
Reff, citing United States v. Reveles, urges us to
“determine whether a reasonable trier of fact could have
found that the evidence established [the jurisdictional
element] of the crime beyond a reasonable doubt.” 190
F.3d 678, 686 (5th Cir. 1999). The Government disagrees
for two reasons.
First, the Government contends that because at trial
Reff did not contest jurisdiction or move for a judgment
of acquittal on that or any other basis, our review
should be extremely limited. Specifically, we should set
aside the conviction only if its affirmance would result
in a “miscarriage of justice,” United States v. Partida,

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385 F.3d 546, 561 (5th Cir. 2004); that is, only if “the
record is devoid of evidence” establishing jurisdiction,
see id. Reff did not move for a judgment of acquittal on
any basis. Therefore, we agree with the Government that
our more limited “miscarriage of justice” or “devoid of
evidence” standard of review applied. See id.
The Government also disagrees with Reff that it was
required to prove § 1111's jurisdictional element beyond
a reasonable doubt. Rather, pointing to this Court’s
decision in United States v. Bell, which has never been
directly overruled, the Government argues that the less
burdensome preponderance of the evidence standard
applies. 993 F.2d 427, 429 (5th Cir. 1993). Reff points
out, and the Governments concedes, that on two recent
occasions panels of this Court have called into question
Bell’s preponderance of the evidence holding. See United
States v. Bailey, 169 F. App’x 815, 821 (5th Cir. 2006);
United States v. Perrien, 274 F.3d 936, 939 n.1 (5th Cir.
2001).
The panels in Bailey and Perrien left the issue
unresolved, however, because the record in both cases

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supported conviction beyond a reasonable doubt. See
Bailey, 169 F. App’x at 821; see also Perrien, 274 F.3d
at 939. The record before us supports conviction beyond
a reasonable doubt. Therefore, like the panels in Bailey
and Perrien, we leave the issue for another day.
B. Evidence Relating to the Jurisdictional Element
Reff argues that the evidence at trial was
insufficient to establish federal jurisdiction. We
disagree.
Section 1111 applies to murders committed “[w]ithin
the special maritime and territorial jurisdiction of the
United States.” § 1111(b). Title 18, U.S.C. § 7(3)
specifies that the phrase “special maritime and
territorial jurisdiction of the United States” includes:
[a]ny lands reserved or acquired for the use of
the United States, and under the exclusive or
concurrent jurisdiction thereof, or any place
purchased or otherwise acquired by the United
States by consent of the legislature of the
State in which the same shall be, for the
erection of a fort, magazine, arsenal, dockyard,
or other needful building.
Reff’s first contention regarding the sufficiency of
the jurisdictional evidence, which he limited to

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approximately one page in his brief, is that we cannot
presume that the area of Fort Hood around the visitors
center is within federal jurisdiction.
However, this Court’s jurisprudence does permit such
a presumption. We numerous times and without
qualification have 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. See, e.g., United States v.
Colon-Padilla, 770 F.2d 1328, 1331 (5th Cir. 1985)
(explaining that “[s]ection 7's definition extends to
military reservations such as Fort Bliss”); United States
v. Benson, 495 F.2d 475, 481 (5th Cir. 1974) (explaining
the same in a case involving Fort Rucker).
In fact, we previously have been confronted with the
same argument that Reff makes here -- i.e. not every part
of Fort Hood is within the “special maritime and
territorial jurisdiction of the United States.” See Bell,
993 F.2d at 429. In rejecting the argument, we stated
that “crimes committed within the confines of federal
military reservations [fall] within the special maritime

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3The Government’s evidence regarding jurisdiction
generally was conclusory opinion testimony not objected
to Reff. Also, Reff did not offer any contradictory
evidence. As discussed below, the evidence indicates Durr
was shot on the northbound roadway of Hood Road near the
visitors center. If the record showed that the right-of-
way for Hood Road had been dedicated to the public and
that fences along the east and west side of the road
established that right-of-way, the jurisdictional issue
in this case would be more problematic. But given the
uncontradicted evidence offered at trial by the
Government, we conclude that this is not a case where
reversal is required to prevent a miscarriage of justice.
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and territorial jurisdiction of the United States”. Id.
Not only did we reject the argument, we also deemed it
“devoid of merit.” Id. Bound by our prior decisions and
once again unpersuaded by this argument, we find that
Fort Hood is within federal jurisdiction under 18 U.S.C.
§ 7(3).
Before moving on to Reff’s next argument, we must
briefly point out that the Government at trial
established that the visitors center is within the
boundaries of Fort Hood and thus within federal
jurisdiction.3 As it always should be, establishing
jurisdiction was the Government’s first order of business
at trial. The Government began its case-in-chief by

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calling to the stand Thomas Webb. Webb is employed by the
U.S. Army Corps of Engineers and works at its Central
Texas area office on Fort Hood.
Webb indicated that his job requires him to be
intimately familiar with Fort Hood’s post boundaries.
While looking at an aerial photograph of the reservation,
Webb pointed to the visitors center and stated that “the
boundary is further to the south. So we’re about 1,000
feet plus into the boundary of Fort Hood. So that’s --
the boundary’s is [sic] way down in this direction which
is railroad tracks, things like that establish the
boundary.” Numerous other Government witnesses, including
a Fort Hood MP officer and CID agent who both were
familiar with the reservation’s boundaries, agreed with
Webb that the area at issue unquestionably is within Fort
Hood’s southern boundary. As we noted above, Reff offered
no evidence to the contrary. Indeed, regarding
jurisdiction, Reff did not cross-examine a single
Government witnesses.
We now turn to Reff’s argument that even if Fort Hood
is within federal jurisdiction and the visitors center is

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on Fort Hood, the Government failed to prove that the
murder was committed near the visitors center. Reff
correctly notes that the proper inquiry is where the
fatal injury was inflicted, not where the death occurred.
See 18 U.S.C. § 3236.
The thrust of Reff’s argument is that the Government
proved that Durr died near the visitors center, but
failed to prove that Reff inflicted her injury there.
Reff explains what he sees as a possible alternative
scenario: Durr’s car was found facing north in the median
of Hood Road near the visitors center. Thus, she likely
was traveling north before she crashed. The visitors
center is only approximately 1,000 north of U.S. Highway
190, presumably where Durr entered the reservation before
she was shot. U.S. Highway 190 is not part of Fort Hood.
Reff further explains that because Durr could have
traveled 1,000 feet in her vehicle in a short period of
time, she could have been shot in the head somewhere off
of the reservation, such as on U.S. Highway 190. Then,
she could have entered Fort Hood seeking medical
attention before she died. (The location where Durr’s car

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crashed was on the way to the hospital.)
Regardless of whether on appeal Reff has come up with
a plausible alternative scenario, this Court’s review is
for a “miscarriage of justice.” The record certainly is
not “devoid of evidence” regarding where Reff shot Durr;
some evidence, if not substantial evidence or all of the
evidence, suggests that he shot her in the head near or
at the visitors center on Fort Hood, within federal
jurisdiction.
II. The Jury Instruction
Reff next contends that the district court reversibly
erred by not giving the jury a more specific instruction
regarding the phrase “special maritime and territorial
jurisdiction of the United States.” The parties agree
that because Reff did not object to the jury instruction
or submit his own, our review is for plain error. See
United States v. McClatchy, 249 F.3d 348, 357 (5th Cir.
2001).
Reff first points to United States v. Winship for the
proposition that it is plain error for a district court
to not instruct on an essential element of a crime. 724

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F.2d 1116, 1124 (5th Cir. 1984). However, the district
court did give an instruction. The court told the jury
that it had to be convinced that the Government had
proven beyond a reasonable doubt “[t]hat the killing took
place within the special maritime and territorial
jurisdiction of the United States.” Reff, therefore, must
show that the instruction was somehow inadequate.
However, he has provided no explanation regarding what
the court should have said, how further instruction would
have aided the jury, or how his substantial rights were
affected by the alleged omission.
Next, Reff relies on a Ninth Circuit decision, United
States v. Warren, 984 F.2d 325 (9th Cir. 1993), which he
claims strongly supports his position. The court in
Warren stated that “[t]he failure to instruct on every
single element . . . is harmless only if the omitted
element is undisputed.” Id. at 328. Again, here the court
did give an instruction. Additionally, Warren does not
help Reff because it implicitly stands for the
proposition that a failure to instruct on an element is
harmless when the element is undisputed. See id. As we

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mentioned, the jurisdictional element went undisputed at
trial. This alone convinces us that the district court’s
decision to not give a more detailed instruction was not
reversible error.
We are further comforted by the fact that the court
used a Fifth Circuit Pattern Jury Instruction (“No. 2.55,
Murder (First Degree)”). We previously have stated that
the use of an unobjected-to pattern jury instruction
rarely will rise to the level of plain error. See United
States v. Stewart, 879 F.2d 1268, 1271 (5th Cir. 1989).
This is not one of those rare occasions.
In sum, sufficient evidence supports Reff’s
conviction, and the district court’s jury instruction did
not constitute plain error.
CONCLUSION
For the foregoing reasons, we AFFIRM Reff’s
conviction.
AFFIRMED.

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