CAAF’s Contreras opinion today, with its debate between a four-judge majority and Judge Baker, is a military wonk’s delight. The case deals with an extremely narrow question of law — though, surprisingly, one that has been the subject of two CAAF opinions in the span of two CAAF terms: whether the offense that a servicemember committed following an unlawful entry was a purely military offense for housebreaking purposes. In Contreras, the question was whether the Article 134 offense of indecent acts was such a “purely military offense.” No, held both the majority and Judge Baker. But Judge Ryan’s majority opinion and Judge Baker’s separate opinion adopted different tests to reach that common answer.
The majority opinion describes the two competing approaches for determining whether an offense is a purely military crime:
Appellant believes that we should determine whether indecent acts is a purely military offense by reference to the elements of the offense itself; the Government believes that we should do so by looking at the gravamen of the act comprising the criminal offense and asking whether it is an act that is, or could be, a criminal offense under the law of any state or under federal law.
The majority adopted the elements approach. CAAF notes that it followed an elements-based approach to the same question in last term’s Conliffe opinion and in the 1983 March opinion, where the court determined that UA was a “peculiarly military” offense. (That’s “UA” in naval speak, not Air Forcese.) CAAF also noted that this approach is more accessible to the non-lawyers who play such important roles in the military justice system. The opinion dryly observed: “We are not convinced that the President expected these non-specialists to conduct a fifty-state survey before deciding whether to charge a servicemember with housebreaking.”
The majority proceeded to decide that despite being an Article 134 offense at the time, indecent acts wasn’t a purely military offense, since (unlike some other UCMJ provisions) Article 134 applies to anyone “subject to this chapter” and under Article 2, various categories of civilians can be prosecuted for the offense; “the text of the UCMJ provides that Article 134, UCMJ, might be violated by persons who are not and never have been in the military.” While some presidentially specified Article 134 offenses (such as fraternization and gambling with a subordinate) are limited to military members only — and are thus purely military offenses — indecent acts wasn’t such a limited offense.
In his separate opinion, Judge Baker argues that whether an offense is a purely military crime should be determined by examining “the gravamen of the offense, and not just the elements,” an approach he refers to as a “contextual analysis.” Judge Baker offers malingering as an offense that should be considered purely military but that would be not be considered so under the majority’s elements test. But one can easily imagine a situation where malingering would be applied to a civilian subject to the Code. Article 2(a)(7) of the UCMJ subjects to court-martial jurisdiction “[p]ersons in custody of the armed forces serving a sentence imposed by a court-martial.” So a long-term inmate at the USDB who has been discharged but remains confined would be subject to the Code. And such a confined civilian might feign illness for the purpose of avoiding work, thus violating the letter of Article 115. Under Judge Baker’s test, would such a potential application of Article 115 to a civilian remove malingering from the category of “purely military offenses”?
Despite declaring a metaphorical war on metaphors earlier this term, see United States v. Douglas, 68 M.J. 349, 357-58 (C.A.A.F. 2010) (Baker, J., dissenting), Judge Baker offers this metaphorical contrast of his approach with that of the majority: “while the expedience of the ‘elements-based’ approach may possess some superficial appeal, where we are implicating the application of military law to civilians, as the majority does here, we should paint with a fine contextual brush rather than a broad one of black letter law.” Personally, I prefer the Jackson Pollock drip technique. But that’s probably an idiosyncratic approach to construing an MCM provision.
Judge Baker closes by predicting that in future cases, CAAF will use a contextual approach rather than elements-based approach. But how many future cases are we going to see dealing with the narrow issue of whether an offense committed after an unlawful entry into a building or structure is a purely military offense? It will probably be a long time before CAAF finds itself reaching for a brush with which to paint that Article 130 landscape again.