Sometime ago, the No Man called my attention to a 23 June published opinion by the 10th Circuit concerning use of an Article 134 conviction as a sentence enhancer. See United States v. Brown, __ F.3d ___, No. 07-8065 (10th Cir. June 23, 2008). Here’s a link. I expected the No Man to blog about it, but since he hasn’t (and since he knows I’m among the three least patient lawyers in all of DOD), I declare his opportunity waived — that’s right, not forfeited; waived.

Ari Brown pled guilty to possession of child pornography in the U.S. District Court for the District of Wyoming. He had an odd plea bargain. He would receive 10 years if his prior court-martial conviction for an Article 134 offense was considered an enhancer under 18 U.S.C. § 2252A, but only five years if it wasn’t. The district court concluded that it was and sentenced him to confinement for 10 years. A unanimous 10th Circuit panel concluded it wasn’t and sent the case back to the district court for resentencing.

While stationed at Fort Campbell, Brown was tried by a court-martial where he pled guilty to and was found guilty of violating Article 134 by “[v]iolat[ing] 18 U.S.C. § 2252 by wrongfully distributing one or more visual depictions of a minor engaging in sexually explicit conduct.”

As the 10th Circuit explained,

Section 2252A(b)(2) provides for an enhanced sentencing range of no less than ten years’ imprisonment if the defendant:

has a prior conviction under this chapter [18 U.S.C. §§ 2251 et seq.], chapter 71 [18 U.S.C. §§ 1460 et seq.], chapter 109A [18 U.S.C. §§ 2241 et seq.], or chapter 117 [18 U.S.C. §§ 2421 et seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography . . . .

Brown, slip op. at 4 (alterations in original).

The 10th Circuit then went on to mischaracterize Article 134. It wrote, “There is no specific military code for the particular crime of which Mr. Brown was found guilty. Instead, he was convicted under clause 3 of Article 134 (‘all conduct of a nature to bring discredit upon the armed forces . . .’) which is something of a catchall provision. In order to convict Mr. Brown, the military court assimilated the elements of the crime from § 2252 – a federal child pornography statute.” Id., slip op. at 5-6. So, oddly enough, the 10th Circuit quoted Article 134(2) when discussing Article 134(3). I’m not sure whether the 10th Circuit ever really grasped the “crimes and offenses not capital” concept that Article 134(3) actually covers or that provision’s independence from the service discrediting and prejudice to good order and discipline prongs of Article 134.

Then, gaining somewhat firmer footing, the 10th Circuit observed that “Mr. Brown’s prior conviction is for a violation of Article 134 – the catchall provision – and not § 2252. First, we are persuaded by the plain and ordinary meaning of the phrase ‘under this chapter.'” Id., slip op. at 6. The court held that “under this chapter” means “‘governed by’ or ‘subject to’ § 2252.” Id. It doesn’t mean “as defined by” or “related or akin to” § 2252. Id. In support, the 10th Circuit favorably cited an ACMR decision (written by Judge Wayne Alley while he was on ACMR) and an AFCCA decision. Id. at 7 (citing United States v. Almendarez, 46 C.M.R. 814 (A.C.M.R. 1972); United States v. Sanchez, 59 M.J. 566 (A.F. Ct. Crim. App. 2003)).

Having decided that “Mr. Brown’s conviction was under Article 134 and not § 2252,” the 10th Circuit proceeded to decide whether an Article 134 conviction could be a sentence enhancer under § 2252. Id., slip op. at 9. It held that it could not. The court initially observed that the “language of § 2252A does not expressly include convictions under UCMJ Article 134 as a sentence-enhancer.” Id. It then went on to apply one of my favorite canons of statutory construction. “Under the doctrine of expressio unius est exclusio alterius, ‘to express or include one thing implies the exclusion of the other.'” Id., slip op. at 9-10 (quoting Black’s Law Dictionary 620 (8th ed. 2004)). As we have seen, § 2252A expressly includes convictions under Article 120 of the UCMJ as the basis for a sentence enhancement under § 2252A. “Had Congress meant to include prior Article 134 convictions” as well as Article 120 convictions “as sentence-enhancers,” the 10th Circuit ruled, “it could have easily done so explicitly.” Id., slip op. at 10. The court concluded, “Because Congress amended the statute to include violations of the UCMJ and did not include Article 134, nor UCMJ violations relating to child pornography generally, we must agree with Mr. Brown that the plain language does not support the district court’s interpretation.” Id., slip op. at 11.

Finally, the 10th Circuit concluded that excluding Article 134 violations from the scope of § 2252A’s sentence enhancement was “neither absurd nor irrational.” Id. The 10th Circuit wrapped up this discussion by observing: “Although we need not – and cannot – determine Congress’s precise reason for not including Article 134 convictions in the list of sentence-enhancers, we can safely conclude that it was not unthinkable for Congress to have intended this result.” Id., slip op. at 14.

12 Responses to “The 10th Circuit on Article 134 convictions”

  1. No Man says:

    The Gentleman from Maryland yields his time to the Distinguished Gentleman from . . . Maryland. Thanks.

  2. Anonymous says:

    Unfortunately, many people who practice in the Federal courts believe that courts-martial are akin to double A ball. I am not sure why this perception exists, perhaps it is beacuse of the relative inexperience of all involved.

  3. somedeadflagofficer says:

    Anonymous hit that nail squarely on its head in describing the attitude of some practitioners that courts-martial are akin to double-A baseball. I know I’ve been asked if JAGs practice “real law” and are “real lawyers.”

  4. virtual lawyer says:

    I just received the type of query that somedeadflagofficer described from a fellow officer yesterday. Granted, he was Air Force, but still.

  5. Cloudesley Shovell says:

    How did the comments get going on this double-A ball stuff? There is nothing in the 10th Circuit’s opinion that suggests that military law is somehow bush league. The court in fact cites two military cases approvingly in reaching its decision.

    What of the rule of lenity? Seems the court could have resolved the case on that basis as well.

  6. Anonymous says:

    I think to some extent civilian lawyers (and the public) confuse the military commissions with courts martial.

  7. Anonymous says:

    Compared to the US Attorney’s Office in Miami, the Navy JAGs actually do practice in the minor leagues.

  8. Anonymous says:

    Wow, having spent a year at DoJ I was underimpressed by the overall trial avoidance of most Assistants. One AUSA told me he never lost a case in the 15 years he was in the office…of course he only had 4 jury trials in the criminal division.

  9. Anonymous says:

    True…DoJ must be so proud. Good call on the habeas avoidance in GTMO! Thanks DoJ for hoisting that MESS on the military.

  10. Anonymous says:


  11. Anonymous says:

    Um..sorry, I pushed the wrong key. I don’t have spell check on blogs and admit right away I can’t proof my own writing. But let me thank you for such a cogent addition to the discussion on comparisons of federal prosecutors and military prosecutors. That certainly shores up the argument.

  12. Anonymous says:

    um…blow it out your dunghole.