MISCELLANEOUS MATTERS: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

2022 (October Term)

United States v. Anderson, 83 M.J. 291 (when Congress acts pursuant to its power to make rules for the government and regulation of the land and naval forces, judicial deference is at its apogee). 

(Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military). 

2018 (October Term)

United States v. Briggs, 78 M.J. 289 (congressional enactments will not be construed to have retroactive effect unless their language requires this result). 

2017 (October Term)

United States v. Barry, 78 M.J. 70 (Congress is presumed to know the law, and it knows how to change the law if it so desires). 

2016 (October Term)

United States v. Dalmazzi, 76 M.J. 1 (in the Military Commissions Act of 2009, Congress established the United States Court of Military Commission Review (10 USC § 950f(a)(2012)); the USCMCR is to consist of one or more panels, each composed of not less than three judges on the court; the Secretary of Defense is authorized to assign persons who are appellate military judges to the USCMCR as judges (10 USC § 950f(b)(2)); and the President is authorized to appoint, by and with the advice and consent of the Senate, additional judges to the USCMCR (10 USC § 950f(b)(3)).

(three separate actions are required for the President to appoint an “additional judge” to the United States Court of Military Commission Review under the terms of 10 USC § 950f: (1) the President nominates a person for the position and sends his name to the Senate for confirmation; (2) the Senate confirms the nominee; and (3) the President appoints the confirmed nominee to the position; normally, the President signs a commission as evidence of the appointment; but if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it; while not necessary for the appointment, the commission is conclusive evidence of it; before the issuance of the commission, the President is free to change his mind and not make the appointment; afterwards, he is not). 

2015 (September Term)

United States v. Sterling, 75 M.J. 407 (the Religious Freedom Restoration Act, 42 USC 2000bb-1 (2012) (as amended), which, by its own terms, applies to every branch, department agency, instrumentality, and official (or other person acting under color of law) of the United States, 42 USC § 2000bb-2(1), also applies in the military context). 

(the RFRA provides that the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability; as amended by the Religious Land Use and Institutionalized Persons Act of 2000, the RFRA broadly defines the exercise of religion as any exercise of religion, whether or not compelled by, or central to, a system of religious belief; the RFRA applies to the military).

(an RFRA inquiry is triggered by a “religious exercise;” the CCA’s holding that RFRA’s definition of “religious exercise” requires the practice be part of a system of religious belief was too narrow; the RFRA defines “religious exercise” as any exercise of religion, whether or not compelled by, or central to, a system of religious belief; a “religious exercise” under the RFRA involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons). 

(to establish a prima facie RFRA defense, an accused must show by a preponderance of the evidence that the government action (1) substantially burdens (2) a religious belief (3) that the defendant sincerely holds; if a claimant establishes a prima facie case, the burden shifts to the government to show that its actions were the least restrictive means of furthering a compelling governmental interest; in this case, because appellant failed to establish a prima facie case, the burden did not shift to the government in this case). 

(while religious conduct triggers a RFRA inquiry, RFRA only protects actions that are sincerely based on a religious belief; determining sincerity is a factual inquiry within the trial court’s authority and competence, and the claimant’s sincerity in espousing that practice is largely a matter of individual credibility).

(within the meaning of the RFRA, a substantial burden exists where a government action places substantial pressure on an adherent to modify her behavior and to violate her religious beliefs). 

2012 (September Term)

United States v. Schell, 72 M.J. 339 (unless the text of a statute is ambiguous, the plain language of a statute will control unless it leads to an absurd result). 

(the plain language of 18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, is unambiguous; nothing in the plain language of § 2422(b) indicates that an accused must intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity; because the terms “entice,” “induce,” and “persuade” in 18 USC § 2422(b) are not statutorily defined, they are accorded their ordinary meaning, and in ordinary usage, they are effectively synonymous - the idea conveyed is of one person leading or moving another by persuasion or influence, as to some action or state of mind; the legislative history indicates that Congress intended the statute to address those who lure children out to actually engage in illegal sexual activity, but also to more broadly protect children and families from online harm; there is nothing in the legislative history suggesting that an accused had to intend to actually engage in a sexual crime). 

(to establish an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the government must prove that an accused: (1) had the intent to commit the substantive offense; and (2) took a substantial step toward persuading, inducing, enticing or coercing a minor to engage in illegal sexual activity; this second element - the substantial step requirement - ensures that mere thought crimes are not prosecuted). 

(18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, does not require that the accused have the specific intent that the minor, ultimately, actually engage in illegal sexual activity as a result of his enticement; the intent required to support an attempt conviction under § 2422(b) is the intent to commit the predicate offense - that is, the intent to entice a minor for the purpose of engaging in illegal sexual activity). 

(where appellant pleaded guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), he did not raise a matter inconsistent with his guilty in his unsworn statement during sentencing when he stated that he did not actually intend to engage in illegal sexual activity with the minor; because he admitted in a detailed stipulation of fact and during the plea colloquy that he intended to entice her to engage in illegal sexual activity, he had the requisite intent to support an attempt conviction under § 2422(b); the offense did not require that he have the specific intent to actually engage in illegal sexual activity with the minor – only the intent to entice the minor into engaging in illegal sexual activity). 

(during a providence inquiry with an accused pleading guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the military judge erred in defining the elements of the offense because she failed to instruct the accused that he had to take a substantial step toward enticing a minor in order to plead guilty to an attempt under Article 134, UCMJ; additionally, neither the specification nor the stipulation of fact mentioned that a substantial step was an element of the Article 134, UCMJ, offense; although the accused was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step, the record had to objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense; that the accused admitted facts during his plea colloquy that were likely sufficient to prove that he took a substantial step towards enticing a minor did not answer the altogether different question whether he understood that a substantial step was necessary to make his conduct criminal; even though the accused agreed that the military judge correctly described his crime, and admitted that he took steps to attempt to persuade the minor, the record did not demonstrate that the accused understood how the law related to the facts; as such, there was a substantial basis in law to question the providence of the plea). 

United States v. Bowersox, 72 M.J. 71 (the statute, 18 USC § 1466A(b)(1), which prohibits the possession of obscene visual depictions of a minor engaging in sexually explicit conduct, does not require proof that the depictions represent “real” minors; the statute expressly provides that the minors depicted need not actually exist; as such, the statute applied to appellant’s conduct, who possessed 198 of such images on his computers in his shared US barracks room, even though none of images depicted real children; furthermore, the statute is constitutional as applied to appellant because the statute requires that the proscribed visual depiction be obscene, and the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home,” did not extend to appellant’s possession of obscene materials in his shared barracks room). 

2011 (September Term)

United States v. Easton, 71 M.J. 168 (judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress). 

United States v. Watson, 71 M.J. 54 (when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms). 

United States v. King, 71 M.J. 50 (unless ambiguous, the plain language of a statute will control unless it leads to an absurd result). 

2010 (September Term)

United States v. Phillips, 70 M.J. 161 (in deciphering the meaning of a statute, an appellate court normally applies the common and ordinary understanding of the words in the statute).

2009 (September Term)

United States v. Diaz, 69 M.J. 127 (the mens rea requirement contained in § 793(e) of the Espionage Act, a section that bars the willful communication of classified information, does not include an element of bad faith or ill intent). 


(willfulness, in the context of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information, arises not in the context of bad intent, but in the conscious choice to communicate covered information). 


(classification alone does not satisfy the mens rea requirement of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information; although classification may demonstrate that an accused has reason to believe that information relates to national defense and could cause harm to the United States, not all information that is contained on a classified or closed computer system pertains to national defense; likewise not all information that is marked as classified, in part or in whole, may in fact meet the criteria for classification). 


(appellant’s conduct in disclosing classified information about detainees at Guantanamo Bay naval base satisfied the mens rea requirement of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information, where (1) the information disclosed, including internment serial numbers of the detainees, the interrogation team assigned to the detainees, and the source identification numbers, could have revealed sources and methods of intelligence gathering, (2) appellant knew he was dealing with sensitive material derived from a classified computer system, and (3) appellant intentionally revealed the material to an employee of an outside organization in a clandestine manner; appellant knew or should have known that the information could be used to the injury of the United States or to the advantage of any foreign nation; and evidence of motive derived from the proffered evidence would not have negated this mens rea element).  


(proof of appellant’s motive is irrelevant the mens rea requirement of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information on this issue; although motive evidence may be relevant where it is circumstantial evidence of intent, in this case, appellant’s motive was unrelated to his intent; any noble motives appellant might have harbored when he released classified information about detainees at Guantanamo Bay naval base, including what he may have thought was in compliance with a Supreme Court ruling, were irrelevant to his intentional act of physically mailing the names of detainees and coding information related to these names in violation of the Espionage Act). 

2008 (Transition)

United States v. Lopez de Victoria, 66 M.J. 67 (in 2003, Congress amended Article 43(b)(1), UCMJ, to except from the general five-year statute of limitations certain child abuse offenses, listed in Article 43(b)(2)(B), UCMJ, including indecent acts and liberties with a child; the statute of limitations for these offenses would expire when the child reached the age of twenty-five years; a further amendment in 2006 changed the limitation period to the greater of the life of the child or five years after the offense). 


(while Congress certainly possesses the constitutional authority to apply legislation retroactively, subject to the limits of the Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl. 3, retroactive application of statutes is normally not favored in the absence of explicit language in the statute or necessary implication therefrom; this principle applies to statutes of limitations). 


(catchlines or section headings in a title to a congressional amendment are not part of a statute; they cannot vary its plain meaning and are available for interpretive purposes only if they can shed light on some ambiguity in the text). 


(the 2003 congressional amendment to the statute of limitations, Article 43(b), UCMJ, 10 USC § 843(b), that extended the statute of limitations for child abuse offenses from five years to a child victim’s twenty-fifth birthday, does not apply retroactively to offenses committed before the amendment’s effective date, considering the lack of any indication of congressional intent to apply the 2003 amendment retrospectively, the general presumption against retrospective legislation in the absence of such an indication, and the general presumption of liberal construction of criminal statutes of limitation in favor of repose). 



United States v. Disney, 62 M.J. 46 (Title 18 U.S.C. § 842 (h) (storing stolen explosives that have been shipped in interstate commerce) is a constitutional exercise of Congress’s authority under the Commerce Clause; the disposition of stolen explosives which are moving as, which are part of, which constitute, or which have been shipped or transported in, interstate or foreign commerce clearly falls within the scope of Congress’s enumerated Article I, Section 8 regulatory powers).    


(Congress may regulate three broad categories of conduct pursuant to its commerce power:  the channels of interstate commerce, such as highways and rail lines; the instrumentalities of interstate commerce, or persons or things in interstate commerce, such as vehicles and goods; and those activities that substantially affect interstate commerce, such as intrastate coal mining or hotels catering to interstate guests; even if activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce).

(an appellate court looks at four considerations in its analysis of whether an activity regulated by Congress substantially affects interstate commerce:  (1) whether the statute regulates economic or non-economic activity; (2) whether the statute contains an express jurisdictional element; (3) whether Congress made findings regarding the connection to interstate commerce; and (4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated).

United States v. Martinelli, 62 M.J. 52 (the extraterritorial application of Federal statutes does not involve any question as to Congress’ authority to enforce its criminal laws beyond the territorial boundaries of the United States -- Congress clearly has that authority; rather, the question is whether Congress has in fact exercised that authority, which is a matter of statutory construction).  

(legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States). 

(unless the affirmative intention of Congress to give extraterritorial effect to a statute is clearly expressed, it is presumed that the statute is primarily concerned with domestic conditions).

(the only category of offenses exempt from any presumption against extraterritoriality and for which a congressional intent for extraterritorial application can be inferred from the nature of the offense are those involving obstructions and frauds against the government).

United States v. Reeves, 62 M.J. 88 (legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States). 

(offenses created by the Child Pornography Prevention Act do not fall within the obstruction and fraud against the government exception to the presumption against extraterritoriality).

United States v. Warner, 62 M.J. 114 (in construing Article 46, UCMJ (10 USC 846), an appellate court cannot simply defer to the rules contained within the MCM; as a congressional statute, Article 46 prevails over any limiting interpretation of an MCM provision; to the extent that Article 46 provides rights beyond those contained within the MCM rule on the production of witnesses and evidence (RCM 703), it is an appellate court’s judicial duty to enforce the statutorily-established rights).



United States v. Lundy, 60 MJ 52  (under 10 USC § 1059, the Secretary of Defense has established a program (DoDI 1342.24) that provides financial assistance to the dependents of service members who are the victims of dependent-abuse offenses, such as sexual assault, rape, sodomy, assault, battery, murder, and manslaughter; the program provides monthly payments to dependent-abuse victims and family members who meet the criteria established by the instruction; the program applies to victims of dependent-abuse offenses committed by service members whose court-martial sentences result in punitive discharges or total forfeitures, or who are administratively separated for dependent-abuse offenses; the Department of Defense’s administration of the statute, permits concurrent receipt of dependent-abuse payments and waived forfeitures, and is consistent with the text and legislative history of 10 USC § 1059 and Article 58b).   



United States v. Gogas, 58 MJ 96 (Title 10 U.S.C. § 1034(a)(1) provides that no person may restrict a member of the armed forces in communicating with a Member of Congress; the statute further dictates that no person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing a communication to a Member of Congress).

(the purpose of 10 U.S.C. § 1034(b)(1)(A) is to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter).

(to violate 10 U.S.C. § 1034, a person must initiate a negative personnel action specifically in retaliation for a servicemember’s communication with a Member of Congress).

(there may be circumstances where the use of a congressional communication in the context of a court-martial proceeding would constitute a prohibited retaliation under 10 U.S.C. § 1034).

(the remedial provisions of 10 U.S.C. § 1034 are limited to retaliatory actions, and the Court declines to extend the statute to establish a broad privilege or public policy prohibition against use in a court-martial of communications by servicemembers to Members of Congress, even in the absence of retaliation).


United States v. Phanphil, 57 MJ 6 (18 USC § 922(a) (federal firearms control legislation) is violated by a "straw purchase" when the "actual purchaser" is otherwise eligible to purchase a weapon; the identity of the true purchaser is a "fact" material to the lawfulness of the sale, regardless of the eligibility of the true purchaser).

(recordkeeping provisions of federal firearms control legislation, including § 922(a)(6), are designed to assist law enforcement and also to control foreign commerce in firearms; "strawman" purchases defeat the recordkeeping provisions of the Act; to allow strawman purchases -- that is, false information as to the actual purchaser -- would make the recordkeeping provisions unworkable).

(the actual buyer’s identity is a record required to be kept by 18 USC § 922(b)(5); false statements or representations that result in fictitious identifications of the real buyer are prohibited).

(there is a split of authority on the question whether materiality under 18 USC § 922(a) is a question of fact or a question of law; however, in this case, the court did not need to resolve the conflicting interpretations of 18 USC § 922(a) because any error was harmless beyond a reasonable doubt - appellant did not contest materiality and expressly admitted materiality in his guilty plea to making a false statement).


United States v. Ogren, 54 MJ 481 (Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, requires that the Government prove two essential elements beyond a reasonable doubt: (1) that the threat rendered was a "true" threat, and (2) that the threat was knowing and willful).

(under Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, only “true threats” satisfy the statute’s threshold of criminal conduct and put the conduct beyond the protections of the First Amendment; whether a statement is a “true threat” is determined by (1) the context, (2) whether the threat is expressly conditional in nature, and (3) the reaction of the listeners).

(under Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, the threat must be “knowing and willful”; whether a threat is knowing and willful is determined by an objective test requiring only that the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President).

(appellant’s threats against the President of the United States, made while appellant was in pretrial confinement, where legally sufficient for a rational trier of fact to find that appellant threatened the life of the President, in violation of 18 USC § 871(a), where:  (1) the threats were “true threats” in that they were not conditional and the specific context as well as the reaction of the listeners set these words apart from appellant’s other expressions; and (2) the threats were knowing and willful because appellant should have reasonably foreseen that his threats would be understood to be more than a crude method of responding to his confinement).

United States v. James, 55 MJ 297 (the definition of “child pornography” in 18 USC § 2256(8) and the prohibitions in 18 USC § 2252A are constitutional and do not infringe on speech protected by the First Amendment).

(the definition of “child pornography” found in 18 USC § 2256(8) creates a content-based restriction, but suppressing the “virtual” or apparent child pornography trade is a compelling interest that justifies the expanded definition of “child pornography” found in the federal statute).

(Title 28 USC § 455 governs the recusal of judges and is applicable to cases involving the actions of appellate military judges).


United States v. Murray, 52 MJ 423 (prosecution under 18 USC § 2252(a)(2) for unlawful receipt of sexually explicit depictions of minors from the Internet examined for legal sufficiency, particularly finding sufficient evidence that images downloaded passed through interstate commerce and adopting view that prosecution need not prove that the accused had knowledge of the interstate aspect of the conduct at issue).

United States v. Allen, 53 MJ 402 (where there was an independent and continuing military interest in the investigation of appellant, it was not a violation of the Posse Comitatus Act, 18 USC § 1385, for OSI agents to participate in the search of appellant’s off-base home).

(although no warrant was obtained to seize electronic data stored by an internet service provider which identified the date, time, user, and internet site addresses accessed by appellant, there is no exclusionary rule under 18 USC § 2703, which is part of Title II of the Electronic Communications Privacy Act of 1986, “Stored Wire and Electronic Communications Transactional Records Access”).

United States v. McElhaney, 54 MJ 120 (Congress exercises control over discipline in the military through the Uniform Code of Military Justice, and although we frequently look to civilian statutes for guidance, the military and civilian justice systems are separate as a matter of law; amendments to Title 18 of the United States Code, changes to the Federal Rules of Criminal Procedure, and changes to the Federal Rules of Evidence to not directly affect proceedings under the Uniform Code of Military Justice except to the extent that the Code or Manual for Courts-Martial specifically provides for incorporation of such changes).

(Congressional intent to separate military justice from the federal criminal system requires military appellate courts to exercise great caution in overlaying a generally applicable statute specifically onto the military justice system; Congress intended the deliberative process of amending the Manual for Courts-Martial to prevail over uncritical application of statutes outside the UCMJ).

(application of a federal statute to the military justice system is a question of law that is subject to de novo review).

(court below erred when it applied the extended statute of limitations in the Victims of Child Abuse Act, 18 USC 3283, to appellant’s court-martial; Article 43 provides the applicable statute of limitations).

United States v. Pritt, 54 MJ 47 (amendment to Article 95, UCMJ, making flight from apprehension criminal, was effective on February 10, 1996, the date upon which the President signed the legislation in consonance with the rule that a law takes effect on the date of its enactment).


United States v. Falk, 50 MJ 385 (18 USC § 2252, dealing with visual depictions of child pornography, was supplemented by the addition of a new section, § 2252A, which was presumably designed to encompass some additional means of possessing child pornography that were not already covered by existing statutes).

United States v. Gray, 51 MJ 1 (21 USC § 848(o)(1), “Right of the defendant to justice without discrimination”, was enacted after appellant’s trial, is not constitutionally mandated, and is specifically limited to offenses under 21 USC; see United States v. Loving, 41 MJ 213, 274 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

United States v. Robbins, 52 MJ 159 (guilty plea did not waive claim that offense was improperly assimilated into Article 134 through the Assimilative Crimes Act, 18 USC § 13, because the issue relates to subject-matter jurisdiction; if the offense was preempted and not properly assimilated, it is not cognizable by court-martial).

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