The Air Force Court of Criminal Appeals’ web site has posted a brief published case dealing with the preemption doctrine. United States v. Benitez, __ M.J. ___, No. ACM S31093 (A.F. Ct. Crim. App. Oct. 5, 2007).
The decision quotes United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979), for the proposition that the preemption doctrine is the
legal concept that where Congress has occupied the field of a given type of misconduct addressing it in one of the specific punitive articles of the code, another offense may not be created and punished under Article 134, UCMJ, by simply deleting a vital element. However, simply 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
Benitez, slip op. at 2.
The Air Force Court rejected A1C Benitez’s argument that the preemption doctrine prohibits criminalizing the sale of stolen non-military property under Article 134 because it is a mere residuum of the Article 108 offense of selling stolen military property. Id., slip op. at 3.
The Air Force Court also rejected an argument for an intra-Article 134 preemption doctrine, holding that the enumerated Article 134 offense of knowingly receiving, buying or concealing stolen military property does not preclude treating selling stolen non-military property as a novel Article 134 offense. Id.