CAAFlog » September 2014 Term » United States v. Murphy

CAAF decided the Army case of United States v. Murphy, 74 M.J. 302, No. 14-0767/AR (CAAFlog case page) (link to slip op.), on Wednesday, July 8, 2015. Holding that ammunition is an explosive as the term is defined in the Manual for Courts-Martial, CAAF affirms the appellant’s pleas of guilty to larceny and conspiracy to sell military 5.56mm ammunition with the aggravating factor that the ammunition was an explosive, and also affirms the published decision of the Army CCA.

Judge Ryan writes for the court, joined by all but Judge Erdmann who concurs in the result.

The 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 the appellant alleged that the 5.56 mm ammunition was an explosive, the 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 (discussed here).

CAAF then granted review of the following 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.

Judge Ryan’s opinion explains that the appellant “stole, in aggregate, approximately 5000 rounds of 5.56 mm ammunition. Appellant alleges that there is a substantial basis in law to question the providence of his plea because ammunition is not an explosive within the meaning of either R.C.M. 103(11), or MCM pt. IV, para. 46.e.(1)(c), and because the definition of ‘explosive’ given by the military judge rendered the plea improvident.” Slip op. at 6-7. But CAAF finds no such basis to disturb the plea, with the majority concluding that:

because the definition of explosives in R.C.M. 103(11) includes ammunition and Appellant described all the facts necessary to establish his guilt.

Slip op. at 7.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Murphy, No. 14-0767/AR (CAAFlog case page): Oral argument audio.

United States v. Stellato, No. 15-0315/AR (CAAFlog case page): Oral argument audio.

United States v. Schloff, No. 15-0294/AR (CAAFlog case page): Oral argument audio.

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.

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In this post from last June I analyzed the Army CCA’s opinion in United States v. Murphy, 73 M.J. 699 (A. Ct. Crim. App. May 30, 2014) (en banc). In that decision the CCA found that “ammunition which contains gunpowder or smokeless powder is unambiguously an explosive as those terms are expressly listed in the definition [in the Manual for Courts-Martial], with gunpowder as the very first example.” 73 M.J. at 701.

One consequence of the CCA’s decision is that the wrongful loss, sale, theft, damage, or destruction of just a single round of ammunition, or the failure to secure the same when captured or abandoned, is punishable by a maximum of confinement for ten years and a dishonorable discharge. See Appendix 12, MCM, Arts. 103, 108, 121. See also Art. 80 (attempts), Art. 81 (conspiracy), and Art. 134 (solicitation).

On New Year’s Eve, CAAF granted review:

No. 14-0767/AR. U.S. v. Brian A. Murphy. CCA 20120556. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following 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.

Briefs will be filed under Rule 25.

In an en banc published opinion in United States v. Murphy, No. 20120556, 73 M.J. 699 (A.Ct.Crim.App. May 30, 2014) (link to slip op.), the Army CCA finds that 5.56mm ammunition is included in the definition of an explosive under Rule for Courts-Martial 103, affirming the appellant’s guilty pleas to larceny of and conspiracy to sell military property.

Judge Haight writes for the CCA. Judge Krauss dissents in part, vigorously disagreeing with the rest of the court on this point.

The majority observes:

Rule for Courts-Martial [hereinafter R.C.M.] 103(11) defines the term “explosive” as follows:

“Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electrical 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 compound, mixture, or device which is an explosive within the meaning of 18 U.S.C. § 232(5) or 844(j).

Therefore, in accordance with a “plain meaning” interpretation of the above definition, ammunition which contains gunpowder or smokeless powder is unambiguously an explosive as those terms are expressly listed in the definition, with gunpowder as the very first example.

Slip op. at 3-4. But the analysis can’t stop there, as just last year:

In [United States v. Lewis, No. 20120797 (A.Ct.Crim.App. Feb. 27, 2013) (link to unpub. op)], a panel of this court determined “5.56 mm rounds of ammunition are not explosives for the purposes of Articles 108 and 121, UCMJ.” Lewis, 2013 WL 1960747, at *1. In its decision, that panel relied upon United States v. Graham, 691 F.3d 153 (2d Cir. 2012), vacated on other grounds, __ U.S. __, 133 S.Ct. 2851 (2013). In Graham, the United States Court of Appeals for the Second Circuit concluded a single 9 mm cartridge did not fall within 18 U.S.C. § 844(j)’s definition of an “explosive.” Graham, 691 F.3d at 161. As the definition of explosive in § 844(j) substantially mirrors that in R.C.M. 103(11), this conclusion appears persuasive. However, upon further review, general application of Graham to Articles 103, 108 and 121, and that ruling’s specific application to the facts of this case are inapposite.

Slip op. at 4. Notably, Judge Krauss wrote for the CCA in Lewis. But in Murphy Judge Haight distinguishes Graham on the basis that “the legal framework under the UCMJ, Title 10, is significantly different from that of the framework under Title 18, United States Code. . . . In other words, applying Graham to Articles 103, 108 and 121, UCMJ, is an exercise in the age-old comparison of apples to oranges.” Murphy, slip op. at 6.

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