In an order dated July 2, 2014, in United States v. Long, No. 2014-02 (link to order), the Air Force CCA rejects a Government appeal and affirms a military judge’s ruling dismissing four novel specifications of violation of clause 2 of Article 134 (conduct of a nature to bring discredit upon the armed forces). The specifications alleged that the accused used a computer communication system to importune a person under 18 years of age to engage in sexual contact with him (two specifications) and provided a sexually oriented image to a person under 18 years of age (two specifications), both of which are offenses under Mississippi state law. The military judge dismissed the specifications after finding that they were preempted by Article 120b (2012).
The preemption doctrine states that Article 134 cannot be used to prohibit conduct already prohibited by Congress in the other punitive Articles. Preemption applies where (1) Congress intended to limit prosecutions for certain conduct to offenses defined in specific articles of the UCMJ, and (2) the charged offense is composed of a residuum of elements of an enumerated offense under the UCMJ. The preemption doctrine evolved from the conclusion that “the Government could not ‘eliminate vital elements’ from the offenses specified in [the other] article[s] and charge the remaining elements as an offense in violation of Article 134.” United States v. Wright, 5 M.J. 106, 110 (C.M.A. 1978) (quoting United States v. Norris, 8 C.M.R. 36, 39 (C.M.A. 1953)).
The CCA’s opinion reveals that the Government’s charging decision eliminated the vital element of Article 120b (2012) that a child is someone under the age of 16; the Mississippi statute applies to anyone under the age of 18:
Two of the charged specifications allege the appellee used a computer communication system to importune a minor to engage in sexual contact. The Government argues that, by looking at the Mississippi law, there are five elements of this offense, which are different from those in the Article 120, UCMJ, offense. However, these elements are no different than a charged offense for a violation of Article 120b, UCMJ. We are not convinced by the Government’s argument that use of “a computer communication system” is materially different from using “any communication technology.” The allegation is covered by Article 120b, UCMJ, for lewd acts by intentionally communicating indecent language to a child or committing indecent conduct with a child, or, under Article 80, UCMJ, for soliciting a child to engage in sexual contact. The only difference between the charged offense and the Article 120b, UCMJ, offenses is that the UCMJ applies to communications with children under 16 years of age, while the Mississippi law applies to minors under 18 years of age. The charged specification involves “the dropping of an element of a specifically denounced offense” and converting it to a broader age range. See United States v. Herndon, 36 C.M.R. 8, 11 (C.M.A. 1965). The Government cannot use Article 134, UCMJ, to enlarge the age range of an enumerated offense. See Williams v. United States, 327 U.S. 711 (1946) (Prosecutors could not use Arizona state law under Assimilative Crimes Act to broaden scope of offense to those under 18 years of age when Congress has defined federal law with a narrower scope as to only those under 16 years of age).
The other two specifications allege that the appellee provided “a sexually oriented image to wit: a photograph of an erect penis” to a person who had not attained the age of 18 years. We also find that this is nearly identical to the Article 120b, UCMJ, offense of “intentionally exposing one’s genitalia . . . to a child by any means, including via any communication technology.” Again, the only substantive difference is that the Government seeks to expand the age range to include persons over 16 years of age but under 18 years of age.
Order at 4-5 (emphases added).
The CCA also rejects a Government contention that “the inclusion of the terminal element means that the Article 134, UCMJ, offenses contain a separate and discrete element that is not required by Article 120, UCMJ.” Order at 5. The Government advanced this argument based on CAAF’s relatively recent emphasis of the significance of the terminal element in an Article 134 prosecution. But recognizing that accepting such a contention would eviscerate the preemption doctrine, the CCA finds that “our superior court has not overturned its case law on the preemption doctrine, and we are bound to follow established precedent.” Order at 5.
The CCA concludes “that Congress intended for Article 120b, UCMJ, to be a comprehensive statute to address sexual misconduct with children.” Order at 6.
But Judge Weber dissents, accepting the Government’s contention about the inclusion of the clause 2 terminal element:
The accused must have specific notice of the terminal element(s) being charged because these elements are distinct criminal elements no longer inherently included in the enumerated offenses, as they were long held to be.
Under a framework where the Article 134, UCMJ, clause 1 and 2 terminal elements are no longer implied in the enumerated offenses and are so distinct that specific notice must be provided of them, it is unclear what reach the preemption doctrine retains regarding offenses charged under clause 1 or 2 of Article 134, UCMJ. In these situations, the Government has not “simply deleted a vital element” by charging an act under Article 134, UCMJ, instead of the enumerated article. Rather, it has exchanged one or more elements from the enumerated article for another vital element—namely, that the accused’s conduct was prejudicial to good order and discipline or service-discrediting.
Order at 7 (Weber, J. dissenting).