United States Court of Appeals

Fifth Circuit

FILED

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
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
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.
4

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
5

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
6

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
7

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,
8

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
9

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
10

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
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-ofway 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.

11

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
12

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
13

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
14

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
15

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
16

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.