CAAF will hear oral argument in the Army case of United States v. Murphy, No. 14-0767/AR (CAAFlog case page), on Tuesday, April 28, 2015. The court will consider the published decision of the Army CCA that held that ammunition is an explosive within the meaning of R.C.M. 103(11), with the following granted issue:

Whether the Army Court of Criminal Appeals erred in concluding that ammunition constitutes an explosive for purposes of the sentence aggravator of Articles 108 and 121, UCMJ.

Appellant pleaded guilty to offenses that included larceny and conspiracy to sell military 5.56 mm ammunition. Wrongful sale of military property (in violation of Article 108) and larceny (in violation of Article 121) have a range of maximum punishments depending on the existence of potential aggravating factors. One such factor is whether the object of the sale or larceny is an explosive. The charges against Appellant alleged that the 5.56 mm ammunition was an explosive, Appellant accepted that the ammunition was an explosive, and the Army CCA affirmed that conclusion in a published and en banc, but non-unanimous, opinion (that I analyzed in this post).

That decision created the possibility of an absurd result. The maximum punishment for a violation of Article 108 or 121 involving a military explosive includes a whopping 10 years of confinement. The CCA’s decision extended that maximum to an offense involving just a single round of ammunition. But the same maximum also applies for offenses involving any military property of a value of more than $500, and Appellant’s criminal activities easily exceeded that value as the included an incident when:

Appellant then took 1800 rounds of loose 5.56mm ammunition from the truck in his company area, placed them in his backpack, and drove them to SPC Westfall’s house for the sale .. (JA 36). Despite its fair market value of approximately $1024, SPC Westfall and appellant sold the ammunition to a buyer for two hundred dollars.

Gov’t Br. at 3. Yet for reasons unknown, it appears that the Government elected to charge Appellant with offenses involving explosives rather than offenses involving military property of a value of more than $500. Specifically:

Appellant pleaded guilty to and was convicted of two specifications of conspiracy to sell “5.56 mm ammunition, explosives, military property of the United States” and two specifications of stealing that ammunition, again described as “explosives.” The difference in the two conspiracy convictions is that the overt acts alleged to accomplish the first conspiracy concern the theft and sale of the 1800 rounds of loose 5.56 mm ammunition whereas the overt acts for the subsequent conspiracy concern the theft and transport of the 3200 rounds of linked 5.56 mm ammunition.

United States v. Murphy, 73 M.J. 699, 700 (A.Ct.Crim.App. May 30, 2014). Because the Government did not allege a value, if the ammunition is not an explosive then the maximum authorized punishments are much lower: one year for each conspiracy specification, and just six months for each Article 121 specification (assuming that CAAF does not imply military nature to the ammunition from the conspiracy specification; and I expect that it won’t).

And so Appellant’s case presents CAAF with something of a functional paradox. If CAAF reverses the CCA and holds that ammunition is not an explosive, then it creates the possibility of an absurd result in this case by granting a windfall to Appellant. However, if CAAF affirms the CCA, then it permits an absurd result in a future case involving just a single round of ammunition. These factors risk Murphy being a tough case that makes bad law.

Appellant’s brief begins by considering the R.C.M. 103(11) definition of an explosive, and the similar definition in 18 U.S.C. § 844:

Rule for Courts-Martial 103(11) defines “explosive” as: “gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonators, and other detonating agents smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device, and any other device which is an explosive within the meaning of 18 U.S.C. § 232(5) or § 844(j) ” The federal statutory definition in 18 U.S.C. § 844 mirrors R.C.M. 103(11) and includes a few additional terms.

Both the federal statutory definition and the R.C.M. definition of “explosive” do not include the term “ammunition.”

App. Br. at 6-7. Appellant’s brief focuses on federal cases interpreting the federal statute, specifically United States v.
Graham, 691 F.3d 153 (2d Cir. 2012) vacated on other grounds, 133 S.Ct. 2851 (2013). In Graham, the Second Circuit “determined that Congress did not intend a single cartridge, which contains a small amount of gunpowder, to fall within the definition of explosives in§ 844(j).” App. Br. at 9. Notably,  three-judge panel of the Army CCA adopted the reasoning of Graham in an unpublished decision in United States v. Lewis, No. 20120797 (A.Ct.Crim.App. Feb. 27, 2013) (link to unpub. op), to conclude that 5.56mm ammunition is not an explosive for the purposes of Articles 108 and 121. In reaching the opposition conclusion in Murphy, the en banc CCA concluded that “general application of Graham to Articles 103, 108 and 121, and that ruling’s specific application to the facts of this case are inapposite.” 73 M.J. at 701.

Appellant’s position is that the Army CCA was wrong to find Graham inapposite, that the President did not intend to include ammunition in the R.C.M. 103(11) definition of an explosive, and that in any case the R.C.M. 103(11) definition is ambiguous when it comes to ammunition and “the President should resolve this ambiguity; this Court should not.” App. Br. at 20.

Appellant’s brief also highlights another potential absurd result from the Army CCA’s holding. The CCA found reasoned that  “ammunition which contains gunpowder or smokeless powder is unambiguously an explosive.” 73 M.J. at 701. Appellant’s brief notes that other items – not themselves considered to be explosives – contain explosive components:

Surely, no one would advance the notion that one who commits vehicular homicide commits homicide with an explosive, or that one who steals a government vehicle containing fuel steals an explosive. Under the Army Court’s opinion, this oddity becomes a possibility.

App. Br. at 18.

The Government’s brief opens with what I consider to be a serious mistake:

According to the 2002 Amendment to the MCM, the sentence aggravator for “any firearm or explosive” was added to these punitive articles because “regardless of the intrinsic value of such items, the threat to the community and disruption of military activities is substantial when such items are wrongfully taken.” MCM, App. 23, Analysis of Punitive Articles, ¶ 46.e at A23-16; see also MCM, App. 23, Analysis of Punitive Articles, ¶ 27.e at A23-8. As further explained in the Analysis of Article 108, UCMJ,

[t]he harm to the military in such cases is not simply the intrinsic value of the item. Because of their nature, special accountability and protective measure are employed to protect firearms or explosives against loss, damage, destruction, sale, and wrongful disposition. Such property may be a target of theft or other offenses without regard to its value. Therefore, to protect the Government’s special interest in such property, and the community against improper disposition, such property is treated the same as property of a higher value.

MCM, App. 23, Analysis of Punitive Articles, ¶ 32.e at A23-9.

Given the plain language and structure of the rules in question, as well as the intent behind the sentence aggravator for these punitive articles, it is clear that ammunition can and does constitute an explosive when applying the sentence aggravator to the offenses in this case.

Gov’t Br. at 6-7. The appendices to the Manual for Courts-Martial are not part of the Manual. See M.C.M. Part I, ¶ 4. Further, the analysis in the appendices (and the discussion sections within the Manual) are explicitly disclaimed as non-binding commentary in the very first discussion section (found at pages I-1 to I-2 of the 2012 MCM). CAAF has given great persuasive weight to this non-binding commentary. See, for example, United States v. Leahr, 73 M.J. 364  (C.A.A.F. 2014) (CAAFlog case page). However, I think that this commentary provides a very weak foundation for a legal argument, particularly the Government’s argument regarding the intent of the language in R.C.M. 103(11).

But the Government follows this argument with one that is more pragmatic:

[T]he plain language of [R.C.M 103(11)] leaves no ambiguity as to whether gunpowders or smokeless powders–which are commonly used as explosive propellants in ammunition–are explosives. As a matter of simple logic, ammunition falls within this definition of explosives when it contains gunpowder, smokeless powder, or another listed explosive material.

Gov’t Br. at 9. Unfortunately, the Government’s brief does not address Appellant’s hypothetical involving the highly explosive fuel (gasoline) found in automobiles.

The Government’s brief then makes an alternative argument. “To the extent that the plain language of the definition may not unambiguously resolve whether ammunition is an explosive, the surrounding language and overall structure of the rules help answer this question.” Gov’t Br. at 11-12. And, “a holistic analysis of the rules at play here, to include the relationship between the terms “firearm” and”explosive” within the MCM, further supports the finding that the President intended “explosive” to include ammunition for the purposes of these sentence aggravators under the UCMJ.” Gov’t Br. at 15.

The Government’s brief also argues that ammunition belongs in the same category as the other items for which a greater maximum punishment applies:

For larceny (the gravamen offense in appellant’s case), the same increase in maximum authorized punishment that applies to firearms or explosives also applies to vehicles, aircraft, vessels, and any property over $500. MCM, pt. IV, ¶ 46.e. As such, when it comes to increasing the maximum punishment for larceny, the term “explosive” is not only grouped with “firearm” but listed along with several other items of military significance in this provision. Considering the intent behind the increased maximum sentence for this broad category of items, whose primary commonality appears to be their fundamental significance to traditional military operations and readiness, it is difficult to imagine why the President would want to exclude ammunition. Ammunition stolen from the military poses a comparable “disruption of military activities” as does the larceny of military vehicles, firearms, or other explosives. Stolen military ammunition–just like stolen firearms or other explosives–also pose a threat to the public when placed in the wrong hands.

Gov’t Br. at 16-17. The obvious response is that the President specifically listed vehicles, aircraft, vessels, firearms, explosives, and property of a value of more than $500 as justifying increased punishment, but not ammunition, and  expressio unius est exclusio alterius (to express or include one thing implies the exclusion of the other).

Case Links:
ACCA opinion (73 M.J. 699)
Blog post: The Army CCA finds that ammunition is an explosive
Appellant’s brief
Appellee’s (Government) brief
• Blog post: Argument preview

7 Responses to “Argument Preview: United States v. Murphy, No. 14-0767/AR”

  1. SomeJA says:

    This case reminds me of McBoyle v. United States, 283 U.S. 25 (1931).  CAAF should overrule.

  2. stewie says:

    Not sure how it would be a windfall.  The government made the charging decision, not the accused. He got 17 months as part of the deal.  There’s not much risk of much of a significant windfall even if CAAF gets rid of the ammo specs. Heck, I could see ACCA finding no change in the sentencing landscape, or even if they did giving him a month or two off…again, pretty weak windfall, and not something to be very concerned about IMO.
    At any rate, I would much rather hold the government to their decision in this case, then have bad law that goes forward for a bunch of future cases. 

  3. Zachary D Spilman says:

    If the maximums should have been six months and one year (and noting that he also pleaded guilty to wrongful use of oxycodone – a five year maximum), then the total maximum authorized punishment would have been 8 years instead of 45 years. 

  4. Tami (a/k/a Princess Leia) says:

    My husband reloads his own ammunition.  If you buy primers and gunpowder separately, they are considered “explosives” that you also have to pay a HAZMAT fee.  However, if you buy live ammunition, it is NOT considered an “explosive” and there is no HAZMAT fee, even though the live ammo obviously includes gunpowder and primers.  The rationale for not treating live ammo as an “explosive,” as he explained it to me, is actually fairly simple:
    By putting gunpowder and primers into a live round, you are changing the container, thereby making it less dangerous.  Gunpowder comes in a plastic container, and it contains its own oxygen, so it doesn’t take much heat or force for gunpowder to explode on its own.  But when you put it in the brass casing, the gunpowder won’t explode unless exposed to really high heat, or when it’s ignited by something, i.e. primer, but then that requires a force for the primer to ignite the gunpowder. 
    As far as the primers on their own being considered an “explosive,” other than the container being a cardboard box, I’m still puzzled, and my hubby thinks it’s “stupid” to consider primers on their own as “explosives,” but the rationale for the gunpowder makes total sense to me.
    The SAMMI (Sports Arms and Ammunition Manufacturers’ Institute) sets the standards across the US.
    Also interestingly, the Fort Hood regulation on ammunition and explosives is “Ammunition AND Explosives Safety Procedures.”  There’s a reason for the “and.”
    Firearms and ammunition are integral parts of my husband’s profession, so when he talks, people listen.  I’m siding with appellant on this.

  5. Tami (a/k/a Princess Leia) says:

    Looking at 18 USC Sec. 232(5), and explosive must be in a “breakable container.”  The brass casing used for live ammo is not a “breakable container.”  End of story.

  6. RKincaid3 (RK3PO) says:

    Well, Tami’s facts hit it right on the head.  Seems to me that those facts should have been offered by defense counsel at trial so that court could have been more fully informed and considered them when deciding the case.
    As I said last year, this case was properly decided using the accepted and ordinary tools of statutory constirction, even though that conclusion is utterly absurd and makes bad law.  And that would be the fault of the legislature (in the case of a statute), the President (in the case of a Executive Order) and/or the parties, all of whom failed to develop the factual record with enough specific info to add meat to the bones of a poorly drafted statute/EO).
    Any absurd result from this case is the direct result of the poorly drafted statute/EO, and the parties’ respective failures to develop the record, and the trial and intermediate appellate courts’ application of the limited factual evidence to a bad statute\EO consistent with tried and true tools of statutory construction.
    The Defense at trial should have produced an expert on ammunition and whether (and when) it is an explosive (the HAZMAT fee example is a big one–the Fed’s own rules governing the product evince its explosive state under only certain conditions).  That would have helped the trial court, which in turn would have helped the appellate courts.
    But given that that didn’t happen, the defense essentially left unchallenged the definition of an explosive vis a vis gunpowder on a critical point–when is it an ezplosive?
    So, since appellate courts are not to consider new evidence or facts for the first time on appeal, Murphy’ conviction should stand for the following reasons:  it is the proper application of the rules statutory construction on the evidence aduced at trial.  Sadly, Murphy’s result, which may seem absurd, will not be ACCORDING TO THE FACT ON RECORD IN THAT CASE.  But absurd or not, Murphy will last as precedent until remedied by Congress (in the case of an amended statute–good luck waiting for that), the President (in the case of an amended EO) or until another case with a more properly developed factual record appears before the court–then the absurdity will end–not because it is absurd generally–but because the result ON THE FACTS OF THE CASE AT ISSUE make it absurd based upon that case’s factual record.  Until then, Murphy’s holding is not absurd.
    And since upholding Murphy will inevitably result in much more government reliance upon Murphy to charge ammo as explosives in future cases, it won’t take long for a properly developed case, perhaps with a qualified expert like Tami’s husband, to develop the record at trial.  And then, Murphy will be overturned.

  7. stewie says:

    Z, I get the maximums change, but the actual deal/approved sentence is not significant, and isn’t likely to change much, thus no windfall.