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).
• 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