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).
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
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).
2004
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).
2003
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).
2002
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).
2001
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).
2000
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)).