Two recent decisions of the Army CCA evoke this pronouncement:
[L]oyalty to the Nation all the time, loyalty to the Government when it deserves it.
Mark Twain, The Czar’s Soliloquy, The North American Review, Vol. 180, No. 580 (Mar., 1905), pp. 321-326 (available here).
In the companion cases of United States v. Moyers, No. 20110975 (A.Ct.Crim.App. Mar. 31, 2014) (Moyers I) (link to unpub. op.), recon. granted and affirmed, (A.Ct.Crim.App. Apr. 28, 2014) (Moyers II) (link to unpub. op.), and United States v. Oliver, No. 20110986 (A.Ct.Crim.App. May 2, 2014) (link to unpub. op.), the Army CCA reverses convictions for membership in an alleged extremist organization called Dark Horse, finding that the organization does not meet the regulatory definition of an extremist organization under Army Regulation (AR) 600-20 (available here).
Specialist (SPC) Moyers and Private First Class (PFC) Oliver “deployed to Iraq with the same unit in 2009, returning in early 2010. In July or August 2010, SPC Moyers approached [PFC Oliver] about joining a group named ‘Dark Horse.’ [SPC] Moyers told [PFC Oliver] the purpose of the group was to defend the constitution and to fight alongside the military if the government were to become corrupt.” Oliver, slip op. at 2. PFC Oliver confessed to law enforcement personnel that he “was aware of the objectives of the organization,” that he “assumed the organization was illegal,” and that he “understood that the purpose of Dark Horse was to defend the constitution by force if necessary in case the government became corrupt.” Oliver, slip op. at 2. Agents from the Secret Service conducted a search of SPC Moyers’ home and computer:
The forensic exam of [SPC Moyers'] computer revealed several incriminating documents. The documents reference a “Dark Horse” organization which [SPC Moyers] described as a special task force within the U.S. Army’s Special Forces. . . . The purpose of the group was to “stand up and defeat the continuing corruption in our government as well as protect and defend the U.S. Constitution against all enemies foreign and domestic.” (emphasis in original). The documents also . . . characterizes the President’s actions as similar to Hitler in Germany in the 1930s and refers to President Obama as “the tyrant .”
Moyers I, slip op. at 4. SPC Moyers also confessed to law enforcement personnel, speaking “in detail about his personal political beliefs, the purpose of the ‘Dark Horse’ organization, and how the group evolved.” Moyers I, slip op. at 5. This included explaining that the organization began as a paintball team but “evolved into a militia” that was intended “to support and defend the Constitution, and was designed to fight alongside the military if need be, if the government ‘goes corrupt,’ and if they needed to respond. [SPC Moyers] likened it to making contingency plans.” Moyers I, slip op. at 5.
Both were charged and SPC Moyers was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of violating a lawful general regulation (AR 600-20); knowingly becoming a member of, or affiliating with, a group which encouraged the violent overthrow or destruction of the United States Government (in violation of 18 U.S.C § 2385,
assimilated incorporated – see comment below under Art. 134); and advising, counseling and urging disloyalty and mutiny by members of the Armed Forces (in violation of 18 U.S.C § 2387, assimilated incorporated under Art. 134). He was sentenced to confinement for four years, reduction to E-1, and a dishonorable discharge. PFC Oliver was convicted pursuant to his pleas of guilty, by a special court-martial composed of a military judge alone, of conspiracy and failure to obey a lawful general regulation (AR 600-20), in violation of Articles 81 and 92. He was sentenced to confinement for eight months, reduction to E-1, and a bad-conduct discharge.
On review, a three-judge panel of the Army CCA (composed of Judges Kern, Aldykiewicz, and Martin) reverse SPC Moyers’ conviction for violating Article 92, and reverse all of PFC Oliver’s pleas, finding that Dark Horse does not meet the definition of an extremist organization under AR 600-20. In Moyers the panel affirms the convictions for violating 18 U.S.C. §§ 2385 and 2387, but Judge Martin dissents and would reverse the § 2385 conviction as well. However, SPC Moyers gets no relief from the relatively-harsh sentence, while all of the charges against PFC Oliver are dismissed.
The Moyers opinion contains the more detailed analysis of the two, as early in the Oliver opinion the court states that its ruling is “consistent with our decision in a companion case, United States v. Moyers.” Oliver, slip op. at 1. The court begins by emphasizing the purpose of AR 600-20, and the associated Department of Defense Instruction (DoD Instr.) 1325.06 (available here) and Department of Army Pamphlet (DA Pam) 600-15 (available here):
The plain language of AR 600-20, paragraph 4-12, demonstrates it is designed to prohibit extremist activities that target people based on race, creed, color, sex, religion, ethnicity, or national origin in violation of their legal rights. The entire focus of the paragraph is the prevention of hate crimes in the Army and membership by soldiers in organizations that espouse discriminatory ideologies.
Likewise, DA Pam. 600-15 is intended to address problems with groups that are discriminatory in nature. The pamphlet provides examples of recent cases involving hate crimes, and provides the same definition for extremist activities as that found in the Army Regulation.
While the most current version of DOD Instr. 1325.06, dated 22 February 2012, provides a more comprehensive definition of prohibited activities by service members, the version in effect at the time of appellant’s court -martial was limited in scope. Like the Army regulation, the Instruction focuses on those groups that “deprive individuals of their civil rights.”
Moyers I, slip op. at 7-8. Because the focus of these regulations is on “discriminatory ideology,” and the Government presented no evidence that would support such a finding about Dark Horse, the CCA finds the conviction for violating the order to be legally and factually insufficient. Moyers I, slip op. at 8. Notably, in Moyers “the [G]overnment did not call any members of the so-called ‘Dark Horse’ militia to testify” at the contested trial. Moyers I, slip op. at 5. And in Oliver, even though the appellant pleaded guilty to violating the order and conspiring to violate the order:
There was no evidence introduced at trial indicating that Dark Horse advocated racial, gender, or ethnic hatred or intolerance; advocated, created, or engaged in illegal discrimination based on race, color, gender, religion, or national origin, or advocated the use of or use force or violence or unlawful means to deprive individuals of their rights under the United States Constitution or the laws of the United States, or any State, by unlawful means. Further, there was no evidence of an agreement between appellant and anyone else to participate in an organization with those aims.
Oliver, slip op. at 3. While the court notes that the DoDI was recently updated and expanded, I’m not sure that the newer version prohibits Dark Horse either. It also looks to be a mere statement of DoD policy and not a punitive regulation.
But the CCA does find sufficient evidence to sustain the Title 18 convictions in Moyers:
In our view, reasonable inferences arising from this independent evidence sufficiently corroborate the essential truth of appellant’s confession – that is, appellant’s confession that he became a member of, or affiliated with, a group which encouraged the overthrow or destruction of the Government of the United States by force or violence.
Moyers I, slip op. at 9. It’s significant that this affirmation occurrs in the context of corroboration of a confession, and it’s unclear that this conclusion is supported by the evidence exclusive of the confession. Particularly as Judge Martin writes in her dissent that she “believe[s] there is insufficient evidence of the existence of a group that advocated the overthrow of the government.” Moyers I, slip op. at 10. Judge Martin explains that:
[A]ppellant often spoke of a zombie invasion and how they should protect themselves during a zombie invasion and the discussion of zombies was fairly prevalent.
Moyers I, slip op. at 12. Judge Martin then goes even further, noting the requirements for “the existence of a group that advocated the overthrow of the government” and for “a call to forcible action for the accomplishment of immediate or future overthrow, in contrast to the teaching of a mere abstract doctrine favoring that end.” Moyers I, slip op. at 12 (marks omitted) (quoting Scales v. United States, 367 U.S. 203, 231 (1961)). She finds that in this case:
[A]ny plan to overthrow the Government was conditional and insufficient to demonstrate “advocacy of action,” that is required to meet the strict standards for the adequacy of proof. Scales, 367 U.S. at 232. In his confession, appellant stated the group would fight alongside the military, “if the government goes corrupt” and would act “if need be in the future.” Appellant stated there were no specific plans, he provided no indication of teaching or training in support of the Dark Horse objectives, and no funding for the group. Instead, appellant likened the group’s mission to a contingency.
Moyers I, slip op. at 13. Judge Martin also describes SPC Moyers as “young, not particularly sophisticated, and did not have a high GT score.” Moyers I, slip op. at 14. She adds:
[I]t is important to note that 18 U.S.C. § 2385 is a twenty-year offense that should be reserved for individuals who engage in treason or subversive acts that threaten the government. The evidence in this case demonstrated that while appellant was naïve and intemperate, he did not display behavior that gave rise to a credible threat. The Dark Horse documents are filled with fantastical elements mixed in with youthful rantings. The government failed to corroborate key portions of appellant’s statement, and failed to produce one member of the alleged Dark Horse militia to testify to the group’s purpose and teachings. Appellant’s conduct was certainly ill-advised, but simply did not rise to the level that warrants the severity of this charge.
Moyers I, slip op. at 14. Accordingly, Judge Martin would reverse the conviction for violation of § 2385 and order a sentence rehearing.
Finally, Judge Martin provides the only substantive discussion of the § 2387 charge:
While the evidence was not sufficient to demonstrate appellant belonged to a group which encouraged the overthrow or destruction of the Government of the United States by force or violence in violation of 18 U.S.C. § 2685, appellant’s confession was sufficiently corroborated to show appellant advised, counseled, and urged disloyalty and mutiny by members of the military forces of the United States. Testimony by Mrs. KR revealed appellant approached other soldiers with the idea of a militia and distributed patches. Private First Class JL corroborated that appellant attempted to recruit him and offered him the position of lieutenant in his group. This evidence, combined with the computer and physical evidence seized by the Secret Service, along with appellant’s confession, is legally and factually sufficient to prove appellant violated of 18 U.S.C. § 2387.
Moyers I, slip op. at 15.
Knowing only the facts as presented in these unpublished appellate decisions, and not seeing what was found on SPC Moyers’ computer, my gut tells me that even the § 2387 conviction has problems. Judge Martin’s discussion of SPC Moyers’ youth and naivete, his prepping for a zombie invasion, and the fact that an apparently key purpose of Dark Horse was to support and defend the Constitution, makes me think that SPC Moyers was just a kid with too much time on his hands and an overzealous prosecutor blew his fantasy way out of proportion. But again, there’s a limited record in the opinions.
That said, considering that PFC Oliver’s guilty pleas were reversed entirely while all of SPC Moyers’ sentence was affirmed, I’m reminded of a question I asked back in March: Is the Army CCA treating contested cases differently?