United States v. Anderson , 68 M.J. 378 ( 2010 )

UNITED STATES, Appellee
v.
Ryan G. ANDERSON, Specialist
U.S. Army, Appellant
No. 08-0344
Crim. App. No. 20040897
United States Court of Appeals for the Armed Forces
Argued September 22, 2009
Decided March 4, 2010
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Eugene R. Fidell, Esq. (argued); Lieutenant
Colonel Matthew M. Miller, Captain Candace N. White Halverson,
and Matthew S. Freedus, Esq. (on brief); Lieutenant Colonel
Steven C. Henricks, Major Grace M. Gallagher, Captain Jason Nef,
and Brent C. Harvey, Esq.
For Appellee: Captain Stephanie R. Cooper (argued); Colonel F.
J. Allen III, Lieutenant Colonel Martha L. Foss, and Major Lisa
L. Gumbs (on brief); Major Elizabeth G. Marotta, Major Tami L.
Dillahunt, Captain W. Todd Kuchenthal, and Captain Philip M.
Staten.
Military Judge: Debra L. Boudreau
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Anderson, No. 08-0344/AR
Judge RYAN delivered the opinion of the Court.
This case presents two questions: (1) whether Appellant’s
trial became fundamentally unfair where, after the military
judge denied Appellant’s request for a forensic psychologist
expert witness, the Government presented such a witness during
its rebuttal case; and (2) whether the military judge erred in
failing to dismiss charges under Articles 80, 104, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 904,
934 (2000), because the charges were based on a single
transmission of information to those Appellant believed to be
the enemy.1 We first hold that we are convinced beyond a
reasonable doubt that the testimony of the Government’s witness
on rebuttal did not prejudice Appellant. Second, we hold that
the challenged charges are not multiplictious, an unreasonable
multiplication of charges, or preempted. We therefore affirm
the decision of the lower court.
1
Upon Appellant’s petition, we granted review of the following
issues:
I. SHOULD THE MILITARY JUDGE HAVE DISMISSED CHARGE
III AS PREEMPTED, MULTIPLICIOUS, AND AN UNREASONABLE
MULTIPLICATION OF CHARGES; AND THE ADDITIONAL CHARGE
AS MULTIPLICIOUS WITH CHARGE I, SPECIFICATION 1, AND
AN UNREASONABLE MULTIPLICATION OF CHARGES WITH CHARGE
I, SPECIFICATION 2?
II. WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH
HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND
THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC
PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE
VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?
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I. Facts
A general court-martial convicted Appellant, contrary to
his pleas, of one specification of attempting to give
intelligence to the enemy, two specifications of attempting to
communicate with the enemy, one specification of attempting to
aid the enemy, and one specification of wrongfully and
dishonorably providing information to military personnel whom he
believed were terrorists, which was conduct prejudicial to good
order and discipline and of a nature to bring discredit upon the
armed forces, in violation of Articles 80, 104, and 134, UCMJ.
Appellant was sentenced to confinement for life with eligibility
for parole and a dishonorable discharge. The sentence was
approved by the convening authority and the United States Army
Court of Criminal Appeals (CCA) affirmed in a per curiam
opinion. United States v. Anderson, No. Army 20040897 (A. Ct.
Crim. App. Jan. 31, 2008).
The charges stem from actions that occurred before
Appellant deployed with his Washington State National Guard unit
to Iraq in the fall of 2004. Appellant began posting comments
and pictures on a website called “Brave Muslims.” On October 6,
2003, Appellant posted a comment stating, “Soon, very soon, I
will have an oppertunity [sic] to take my own end of the
struggle against those who would oppress us, to the next level.
Inshallah I shall be closer to some of you, and can enlist your
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aid upon my arrival.” He further requested that any “Brave
Muslims” should contact him to start a dialogue and posted a
picture of himself dressed in traditional Arab garb while
brandishing a weapon. This website also contained numerous
pictures of U.S. and coalition soldiers in a file entitled
“enimies” [sic].
Through the website, Appellant began exchanging e-mails
with a purported Muslim extremist in order to offer his aid
towards extremist goals. On November 2, 2003, Appellant
authored an e-mail in which he wrote, “Just curious, would there
be any chance a brother who might be on the wrong side at the
present, could join up . . . defect so to speak?” Subsequent e-
mails on November 3, 7, and 9, 2003, detail the possible
movements of Appellant’s unit to Iraq, the units that his unit
would be replacing, and ways in which Appellant could be
contacted that would hinder any investigation into the
conversations. In reality, the “Muslim extremist” was a private
American citizen who was a member of a group of concerned
citizens devoted to gathering intelligence in an attempt to
thwart terrorist activities in the United States.
As Appellant became more comfortable with his “extremist”
contact, his e-mails became much more detailed and included
comprehensive information about the number of soldiers in his
unit, their training programs, and the precise location to which
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his unit would be deploying. This included: (1) e-mails on
November 11, 2003, that detailed how soldiers were being trained
to spot potential suicide bombers; and (2) an e-mail on December
14, 2003, that detailed the location of his unit’s planned
deployment to Balad, Iraq, estimated the number and capabilities
of the soldiers that would be stationed there, and expressed a
desire to “bring [him]self . . . across to the arms of our
Muslim brothers and sisters when I come to Iraq.” The
conversations between Appellant and the “extremist” culminated
in several e-mails during December 2003 and January 2004 in
which they coordinated a meeting to plan for actions against
U.S. interests within the United States. However, no meeting
took place because Appellant was deployed overseas before any
definite plans were established.
On November 10, 2003, the civilian who had been posing as
an extremist reported Appellant’s actions to the Federal Bureau
of Investigation (FBI). This led FBI agents and military
personnel to open an official investigation, begin posing as Al
Qaeda operatives, and initiate communications with Appellant via
a telephone number he had provided to the civilian. These
communications began on or about January 17, 2004, and focused
on determining Appellant’s intentions and the viability of a
face-to-face meeting. Appellant eventually met with undercover
investigators on February 8, 2004, and provided a floppy disk
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with his passport picture to prove his identity. A second
meeting occurred the following day, February 9, 2004, during
which Appellant provided the undercover agents with computer
diskettes containing classified information on the
vulnerabilities of various military vehicles, the
vulnerabilities of his unit as they traveled to Iraq, and other
sensitive information. Appellant also noted the most vulnerable
points of several Army vehicles -- including M1A1 and M1A2 tanks
-- on paper schematics he had brought with him, and he verbally
described the most effective way to force a tank crew to abandon
their vehicle and kill them. Shortly after the second meeting
occurred, Appellant was taken into custody.
Prior to trial, Appellant was evaluated by a board convened
pursuant to Rule for Courts-Martial (R.C.M.) 706 to determine
his mental responsibility. The board diagnosed Appellant with
Attention Deficit Disorder and an unspecified personality
disorder but determined that Appellant had no severe mental
disease or defect, appreciated the nature and quality of the
wrongfulness of his conduct, and was able to understand the
nature of the proceedings against him. Subsequently, Appellant
requested that the court detail a civilian clinical and forensic
psychologist, Dr. Reneau Kennedy, located in Honolulu, Hawaii,2
2
Appellant was held, and the trial took place at Fort Lewis,
Washington. Defense counsel estimated that the assistance of
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to assist the defense in trial preparation and as a potential
expert witness at trial. The convening authority denied the
request. The request was renewed before the military judge, who
found:
The diagnosis alone and a RCM 706 board does not
indicate in any way that the accused lacks mental
capacity or is unable to form the specific intent
required. There is no underlying factual basis and no
showing of anything that would satisfy the
requirements for employing an expert . . . . I will
revisit this later if there is evidence that would
support the defense allegations, but the mere nature
of the offenses and the type of diagnosis alone do not
mandate that the government provide expert assistance.
After this ruling, the defense requested and was granted
the assistance of a government-appointed expert in clinical
psychology, Dr. Jack T. Norris. The military judge denied a
Government motion in limine concerning whether Dr. Norris would
be allowed to provide testimony as to the intent or knowledge of
the accused, holding that the Government was incorrect in
asserting that it takes a forensic psychologist to testify to
such matters. The military judge also denied Appellant’s
request that the Government be prevented from attacking Dr.
Norris’s credentials, holding that such cross-examination would
be relevant if Dr. Norris strayed beyond the bounds of his
expertise.
Dr. Kennedy would have cost the Government approximately
$10,000, while the Government’s estimate was $20,000.
7
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At trial, Dr. Norris testified that he diagnosed Appellant
with Bipolar I Disorder, schizotypal and narcissistic features,
and an unspecified personality disorder, but that none of the
conditions prevented Appellant from knowing the difference
between role-playing and reality or from separating fact from
fiction. The Government’s cross-examination of Dr. Norris was
quite limited. While the Government did draw attention to the
fact that he was a clinical and not a forensic psychologist --
and therefore not an expert in the interface between the law and
psychology -- neither the accuracy of Dr. Norris’s psychological
evaluation nor his qualification to make such an evaluation was
called into question. Appellant also presented testimony from
another expert, Dr. Russell Hicks, a staff psychiatrist at the
Madigan Army Medical Center and Appellant’s treating
psychiatrist, who testified that he had diagnosed Appellant with
Asperger’s Syndrome and Bioplar I Disorder, which inhibited
Appellant’s ability to interact with others but did not affect
his knowledge of the difference between right and wrong. Dr.
Hicks based his opinion mainly on his observation of Appellant
while in confinement and historical evidence of Appellant’s
behavior, and stated that he did not find evidence
contemporaneous to the crime helpful. On cross-examination, Dr.
Hicks admitted that, while a practicing psychiatrist, he was not
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board-certified and did not view himself as an expert on
Asperger’s Syndrome.
In rebuttal, the Government called Dr. Ricky Malone, a
forensic psychiatrist from Walter Reed Army Medical Center. No
objection was made to Dr. Malone’s qualifications or testimony.
Dr. Malone noted that there was legitimate diagnostic
uncertainty with respect to this case and that the assessments
made by Dr. Norris and Dr. Hicks were “all reasonable
considerations.” In agreement with the defense witnesses, Dr.
Malone testified that Appellant’s psychological symptoms
affected neither his intellectual functioning nor his ability to
tell the difference between right and wrong. Dr. Malone did
raise an issue regarding Dr. Hicks’s (Appellant’s treating
psychiatrist) testimony about the material that Dr. Hicks took
into account when coming to his diagnosis. Dr. Malone testified
that in the field of forensic psychology, contemporaneous
evidence of Appellant’s behavior should be given great weight in
the diagnosis. Furthermore, Dr. Malone testified that, contrary
to Dr. Hicks’s testimony, Asperger’s Syndrome does not affect
cognitive functioning. Dr. Malone did agree that Dr. Hicks’s
testimony was correct in regards to the disease’s affect on
social interaction and social reciprocity. Dr. Malone did not
comment on any of the assertions made by Dr. Norris, the
clinical psychologist appointed to assist the defense.
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II. Denial of Forensic Psychologist
Servicemembers are entitled to government-provided expert
assistance if such assistance is necessary to their defense.
United States v. Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008). The
government must provide the expert if the accused establishes:
that a reasonable probability exists that (1) an expert
would be of assistance to the defense and (2) that denial
of expert assistance would result in a fundamentally unfair
trial. To establish the first prong, the accused “must
show (1) why the expert assistance is needed; (2) what the
expert assistance would accomplish for the accused; and (3)
why the defense counsel were unable to gather and present
the evidence that the expert assistance would be able to
develop.”
Id. (citations omitted). When the defense requests a
nonmilitary expert, the defense must provide an estimated cost
of employment and illustrate why a military expert would be an
inadequate substitute. While the military judge is not required
to provide the particular expert requested, if the defense shows
that expert assistance is necessary an adequate substitute must
be provided. United States v. Warner, 62 M.J. 114, 118
(C.A.A.F. 2005). A military judge’s ruling regarding the
appointment of a government-funded expert is reviewed for an
abuse of discretion and will only be overturned if the findings
of fact are clearly erroneous or the decision is influenced by
an erroneous view of the law. See United States v. Lee, 64 M.J.
213, 217 (C.A.A.F. 2006) (citing United States v. Gunkle, 55
M.J. 26, 32 (C.A.A.F. 2001)).
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The decision to deny Appellant’s request for the expert
assistance of Dr. Kennedy was not an abuse of discretion in the
absence of any: (1) reason beyond a childhood diagnosis of
Attention Deficit Disorder and the convening of an R.C.M. 706
board to suggest that Appellant might lack the mental capacity
to form the specific intent required; or (2) assertion, after
the subsequent request for the expert assistance of Dr. Norris
was granted, that Dr. Norris was inadequate. While there are
three possible periods in which an abuse of discretion could
have occurred (the initial denial of a forensic psychologist by
the convening authority, the affirmation of that denial by the
military judge, or the appointment of Dr. Norris rather than the
expert Appellant originally requested), Appellant’s argument is
not focused on these actions. Instead, Appellant’s core
argument is that his court-martial was fundamentally unfair
because the military judge, having rejected Appellant’s motion
challenging the convening authority’s denial of a government-
funded forensic psychologist, failed, after the Government
subsequently presented rebuttal testimony of a forensic
psychiatrist, to revisit the earlier ruling or take some other
action.
A trial is fundamentally unfair where the government’s
conduct is “so outrageous that due process principles would
absolutely bar the government from invoking judicial processes
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to obtain a conviction.” United States v. Russell, 411 U.S.
423, 431-32 (1973) (citation omitted). Appellant did not object
to the testimony or qualifications of the Government’s rebuttal
expert, and we therefore review the military judge’s failure to
act for plain error. See United States v. Powell, 49 M.J. 460,
463-65 (C.A.A.F. 1998) (holding that failure to object at trial
should cause this Court to review solely for plain error, i.e.,
error that is clear or obvious and materially prejudicial to an
appellant’s substantial rights).
As a threshold matter we note that Appellant does not
argue, and it is not the law, that having expert type A for
Appellant and expert type B for the Government on rebuttal is
per se unfair. See Warner, 62 M.J. at 119 (requiring the
defense expert to “have qualifications reasonably similar to
those of the Government’s”). Nor does Appellant detail how Dr.
Norris was inadequate.
In any event, we need not decide an issue of first
impression, whether the military judge’s failure to stop the
trial and appoint a forensic psychologist to Appellant because
the Government had one testify on rebuttal was error, let alone
plain error, because Appellant was not prejudiced by the limited
rebuttal testimony of the Government’s forensic psychiatrist.
See Article 59, UCMJ, 10 U.S.C. § 859 (2000); United States v.
Farley, 60 M.J. 492, 493 (C.A.A.F. 2005) (“We need not decide
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whether there was error, because any error was harmless.”).
Because Appellant raises a due process argument, our test for
prejudice must be whether the challenged action was harmless
beyond a reasonable doubt. United States v. Buenaventura, 45
M.J. 72, 79 (C.A.A.F. 1996); see Ake v. Oklahoma, 470 U.S. 68,
86-87 (1985) (reversing and remanding case for a new trial
because denial of expert assistance deprived defendant of due
process); United States v. Crews, 781 F.2d 826, 834 (10th Cir.
1986) (finding prejudice where expert assistance wrongfully
withheld was indispensible for a fair trial).
Dr. Malone’s testimony added little to the Government’s
case and bolstered the testimony of Appellant’s experts. Rather
than attack the diagnoses of Appellant’s experts, Dr. Malone
noted that there were legitimate reasons for the discrepancy in
diagnosis among the two defense experts and that their
conclusions were entirely reasonable. The only discrepancies
between the testimony of Dr. Malone and either defense expert
concerned the importance of certain evidence to a clinical
diagnosis and the affect of Asperger’s Syndrome on cognitive
functioning, and those discrepancies were between Dr. Malone and
Appellant’s treating psychiatrist, not the court-appointed
psychologist.3 Because the Government’s rebuttal expert’s
3
The evidence at issue was a videotape of Appellant meeting with
two undercover agents on February 9, 2004. On the tape
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testimony merely confirmed the plausibility of Appellant’s
experts’ direct testimony, we are convinced beyond a reasonable
doubt that Appellant was not prejudiced by it.
III. Multiplicity
Appellant alleges that Charge III4 (simple disorder in
violation of Article 134, UCMJ) is multiplicious of Charge 1,
Specifications 15 (attempting to knowingly give intelligence to
Appellant explained his intentions and personal beliefs,
expressed a “considerable amount” of anti-American sentiment,
and provided the undercover agents with the sensitive
information at issue in this case. Dr. Hicks, did not find the
contemporaneous evidence of the crime crucial to his diagnosis,
however, Dr. Malone testified that it was the best evidence on
which to base a diagnosis.
4
Charge III states:
In that Specialist Ryan G. Anderson, also known as Amir
Abdul Rashid, U.S. Army, did, on divers occasions, at or
near Fort Lewis, Yakima, Lakewood, Lynnwood, and Seattle,
Washington, between, on or about 17 January 2004 and about
10 February 2004, wrongfully and dishonorably provide:
information on U.S. Army troop movements, equipment,
tactics, identification and weapon systems; methods and
means of killing U.S. Army personnel and destroying U.S.
Army weapon systems and equipment; and specific
vulnerabilities of U.S. Army organizations, weapon systems,
and equipment, to U.S. military personnel, whom the accused
thought were Tariq Hamdi and Mohammed, members of the al
Qaida terrorist network, such conduct being prejudicial to
good order and discipline in the armed forces, and of a
nature to bring discredit upon the armed forces.
5
Specification 1 of Charge I states:
In that Specialist Ryan G. Anderson, also known as Amir
Abdul Rashid, U.S. Army, did, on divers occasions, at or
near Fort Lewis, Yakima, Lakewood, Lynnwood, and Seattle,
Washington, between, on or about 23 January 2004 and about
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the enemy in violation of Articles 80 and 104, UCMJ) and 26
(attempting to communicate with the enemy in violation of
Articles 80 and 104, UCMJ), and that the Additional Charge7
10 February 2004, attempt to, without proper authority,
knowingly give intelligence to the enemy, by disclosing
true information to U.S. military personnel, whom the
accused thought were Tariq Hamdi and Mohammed, members of
the al Qaida terrorist network, an enemy force, about:
U.S. Army troop movements, equipment, tactics, and weapon
systems; methods and means of killing U.S. Army personnel
and destroying U.S. Army weapon systems and equipment; and
specific vulnerabilities of U.S. Army organizations, weapon
systems, and equipment.
6
Specification 2 of Charge I states:
In that Specialist Ryan G. Anderson, also known as Amir
Abdul Rashid, U.S. Army, did, on divers occasions, at or
near Fort Lewis and Lynnwood, Washington, between, on or
about 17 January 2004 and about 22 January 2004, attempt
to, without proper authority, knowingly communicate with
the enemy, by oral, written, and electronic communication
to U.S. military personnel, whom he, the said Specialist
Ryan G. Anderson, thought to be Tariq Hamdi, member of the
al Qaida terrorist network, an enemy force, a communication
in words substantially as follows, to wit: I wish to meet
with you; I share your cause; I wish to continue contact
through conversations and personal meetings.
7
The Additional Charge states:
In that Specialist Ryan G. Anderson, also known as Amir
Abdul Rashid, U.S. Army, did, on divers occasions, at or
near Fort Lewis, Yakima, Lakewood, Lynnwood, and Seattle,
Washington, between, on or about 23 January 2004 and about
10 February 2004, attempt to, without property authority,
knowingly communicate with the enemy, by oral, written and
electronic communication to U.S. military personnel, whom
he, the said Specialist Ryan G. Anderson, thought to be
Tariq Hamdi and Mohammed, members of the al Qaida terrorist
network, an enemy force, a communication in words
substantially as follows, to wit: I wish to desert from
the U.S. Army; I wish to defect from the United States; I
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(attempting to communicate with the enemy in violation of
Articles 80 and 104, UCMJ) is multiplicious of Charge 1,
Specification 1 and an unreasonable multiplication of Charge 1,
Specification 2. We disagree.
We review multiplicity claims de novo. United States v.
Roderick, 62 M.J. 425, 431 (C.A.A.F. 2006). “‘If a court,
contrary to the intent of Congress, imposes multiple convictions
and punishments under different statutes for the same act or
course of conduct,’ the court violates the Double Jeopardy
Clause of the Constitution.” Id. (citations omitted) (emphasis
in original). This Court “analyze[s] Congress’ intent using the
separate elements test established in Blockburger v. United
States, 284 U.S. 299 (1932).” Id. at 432 (citations omitted).
The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to
determine whether there are two offenses or only one,
is whether each provision requires proof of a fact
which the other does not.
Blockburger, 284 U.S at 304.
A facial comparison of the elements of the charges
Appellant claims are multiplictious demonstrates that each
“requires proof of a fact which the other does not.” Id.
Article 134, UCMJ, requires a finding that (1) the accused did
or failed to do certain acts, and (2) under the circumstances,
wish to join al Qaida, train its members, and conduct
terrorist attacks.
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the accused’s conduct was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring
discredit upon the armed forces. Manual for Courts-Martial,
United States pt. IV, para. 60.b. (2005 ed.) (MCM). Article
80, UCMJ, however, also requires that the “certain acts” be
overt and that the act (1) was done to commit a certain offense
under the code, (2) amounted to more than mere preparation, and
(3) apparently tended to effect the commission of the intended
offense. MCM pt. IV, para. 4.b. Charge III and Charge I are
not multiplicious.
Nor is the Additional Charge multiplictious with Charge I,
Specification 1. While that specification concerns attempts to
give intelligence to the enemy, the Additional Charge focuses on
attempts to communicate with the enemy. Congress defined aiding
the enemy as giving intelligence to or communicating with the
enemy. See United States v. Dickenson, 6 C.M.A. 438, 450, 20
C.M.R. 154, 166 (1955) (“As we read Article 104, none of the
acts enumerated is conditioned upon, or restricted by, another.
Rather, the Article prohibits separate and distinct acts, each
of which is sufficient by itself to constitute the offense.”);
compare MCM pt. IV, para. 28.b(4) (giving intelligence to the
enemy), with MCM pt. IV, para. 28.b(5) (communicating with the
enemy). Because each charge “requires proof of a fact which the
other does not,” the charges are not multiplicious.
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IV. Unreasonable Multiplication of Charges
Even where charges are not multiplictious, “the prohibition
against unreasonable multiplication of charges has long provided
courts-martial and reviewing authorities with a traditional
legal standard –- reasonableness -- to address the consequences
of an abuse of prosecutorial discretion in the context of the
unique aspects of the military justice system.” United States
v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). Five factors
should be considered when determining if multiple findings of
guilt constitute an unreasonable multiplication of charges:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
(2) Is each charge and specification aimed at
distinctly separate criminal acts?;
(3) Does the number of charges and specifications
misrepresent or exaggerate the appellant’s
criminality?;
(4) Does the number of charges and specifications
unfairly increase the appellant’s punitive exposure?;
(5) Is there any evidence of prosecutorial
overreaching or abuse in the drafting of the charges?
Id. (citation and quotation marks omitted).
As we have previously held, the application of the Quiroz
factors involves a reasonableness determination, much like
sentence appropriateness, and is a matter well within the
discretion of the CCA in the exercise of its Article 66(c),
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UCMJ, 10 U.S.C. § 866 (2000), powers. Id. at 339; see United
States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986); United
States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). In this case,
the issue of unreasonable multiplication of charges was raised
to the CCA, affording the lower court the opportunity to award
relief on this issue. No relief was awarded.
We do not find that the CCA abused its discretion in
declining to find an abuse of prosecutorial discretion here.
Appellant completed any number of independent actions that alone
would have been sufficient to support specifications in addition
to the ones with which he was charged. While Appellant did
object at trial, his criminality was not exaggerated by the
manner in which the conduct was charged; his punitive exposure
was not increased, because a conviction on any one of the
Articles 80, UCMJ, offenses had a maximum punishment of life
confinement; and the Government could easily have broken up the
specifications as drafted into multiple different specifications
based on specific contacts, e-mails, Internet postings, etc.
While we do not have the benefit of the CCA’s reasoning because
its disposition was summary, we presume that it undertook the
correct analyses, cf. United States v. Robbins, 52 M.J. 455, 457
(C.A.A.F. 2000) (“A military judge is assumed to know the law
and apply it correctly.”), and nothing about the lower court’s
implicit determination that the charges were not unreasonably
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multiplicious invites this Court to reconsider its judgment.
V. Preemption
Finally, Appellant suggests that Article 104, UCMJ,
preempts the Article 134, UCMJ, offenses in this case. By its
text, Article 134, UCMJ, applies to offenses “not specifically
mentioned in [Chapter 47 of Title 10, UCMJ].” The President
expounded upon this language and placed the following limitation
on Article 134, UCMJ, in the MCM:
The preemption doctrine prohibits application of
Article 134 to conduct covered by Articles 80 through
132. For example, larceny is covered in Article 121,
and if an element of that offense is lacking -- for
example, intent -- there can be no larceny or larceny-
type offense, either under Article 121 or, because of
preemption, under Article 134. Article 134 cannot be
used to create a new kind of larceny offense, one
without the required intent, where Congress has
already set the minimum requirements for such an
offense in Article 121.
MCM pt. IV, para. 60.c(5)(a). Although the effect of this
limitation seems clear, this Court has long placed an additional
requirement on the application of the preemption doctrine that
has greatly restricted its applicability:
[S]imply because the offense charged under Article
134, UCMJ, embraces all but one element of an offense
under another article does not trigger operation of
the preemption doctrine. In addition, it must be
shown that Congress intended the other punitive
article to cover a class of offenses in a complete
way.
United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979). Thus, we
have required Congress to indicate through direct legislative
20
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language or express legislative history that particular actions
or facts are limited to the express language of an enumerated
article, and may not be charged under Article 134, UCMJ. See,
e.g., id. (“We do not agree that the legislative history of
[Articles 118 and 119, UCMJ, 10 U.S.C. §§ 918, 919] indicates a
clear intent to cover all homicides to the extent of eliminating
negligent homicide as an offense under Article 134, UCMJ.”);
United States v. Taylor, 17 C.M.A. 595, 597, 38 C.M.R. 393, 395
(1968) (“There is, therefore, nothing in the legislative
background of Article 115 to compel the conclusion that Congress
intended to restrict criminal responsibility for self-injury to
those acts delineated in the Article.”); United States v.
Taylor, 12 C.M.A. 44, 45-47, 30 C.M.R. 44, 45-47 (1960)
(analyzing congressional intent regarding Articles 121 and 130,
UCMJ, 10 U.S.C. §§ 921, 930, through statutory interpretation,
comparison to other federal statutes, and review of legislative
history). Appellant has not challenged the continued vitality
of this Court’s preemption precedent, merely its application to
the facts of this case.
But the legislative history of Article 104, UCMJ, does not
clearly indicate that Congress intended for offenses similar to
those at issue to only be punishable under Article 104, UCMJ, to
the exclusion of Article 134, UCMJ. Furthermore, while the two
charges in this case have parallel facts, as charged they are
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United States v. Anderson, No. 08-0344/AR
nonetheless directed at distinct conduct. The Article 104,
UCMJ, charge was directed at Appellant’s attempt to aid the
enemy directly. The Article 134, UCMJ, charge was directed
towards the distribution of sensitive material to individuals
not authorized to receive it -- in this case Criminal
Investigation Command agents posing as the enemy, but the
reasoning could just as easily be applied to the distribution of
information to individuals who are not necessarily the enemy,
such as a newspaper reporter, or for that matter the private
citizen who first encountered Appellant on the “Brave Muslim”
website. Unlike Article 104, UCMJ, the general offense as
charged prohibits the dissemination of the information
regardless of the intent behind that dissemination. If this
distinction was not permissible in light of Article 104, UCMJ,
Congress was free to clearly state that Article 104, UCMJ,
supersedes Article 134, UCMJ, in this context. Appellant’s
preemption argument is therefore rejected.
VI. Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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