Opinion Analysis: The MCM definition of an explosive includes ammunition and the appellant’s guilty plea is affirmed in United States v. Murphy, No. 14-0767/AR
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.