United States v. Anderson - U.S. Court of Appeals for the Armed ...

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United States v. Anderson, No. 08-0344/ARmultiplicious invites this Court to reconsider its judgment.V. PreemptionFinally, Appellant suggests that Article 104, UCMJ,preempts the Article 134, UCMJ, offenses in this case. By itstext, Article 134, UCMJ, applies to offenses “not specificallymentioned in [Chapter 47 of Title 10, UCMJ].” The Presidentexpounded upon this language and placed the following limitationon Article 134, UCMJ, in the MCM:The preemption doctrine prohibits application ofArticle 134 to conduct covered by Articles 80 through132. For example, larceny is covered in Article 121,and if an element of that offense is lacking -- forexample, intent -- there can be no larceny or larcenytypeoffense, either under Article 121 or, because ofpreemption, under Article 134. Article 134 cannot beused to create a new kind of larceny offense, onewithout the required intent, where Congress hasalready set the minimum requirements for such anoffense in Article 121.MCM pt. IV, para. 60.c(5)(a). Although the effect of thislimitation seems clear, this Court has long placed an additionalrequirement on the application of the preemption doctrine thathas greatly restricted its applicability:[S]imply because the offense charged under Article134, UCMJ, embraces all but one element of an offenseunder another article does not trigger operation ofthe preemption doctrine. In addition, it must beshown that Congress intended the other punitivearticle to cover a class of offenses in a completeway.United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979). Thus, wehave required Congress to indicate through direct legislative20
United States v. Anderson, No. 08-0344/ARlanguage or express legislative history that particular actionsor facts are limited to the express language of an enumeratedarticle, and may not be charged under Article 134, UCMJ. See,e.g., id. (“We do not agree that the legislative history of[Articles 118 and 119, UCMJ, 10 U.S.C. §§ 918, 919] indicates aclear intent to cover all homicides to the extent of eliminatingnegligent homicide as an offense under Article 134, UCMJ.”);United States v. Taylor, 17 C.M.A. 595, 597, 38 C.M.R. 393, 395(1968) (“There is, therefore, nothing in the legislativebackground of Article 115 to compel the conclusion that Congressintended to restrict criminal responsibility for self-injury tothose acts delineated in the Article.”); United States v.Taylor, 12 C.M.A. 44, 45-47, 30 C.M.R. 44, 45-47 (1960)(analyzing congressional intent regarding Articles 121 and 130,UCMJ, 10 U.S.C. §§ 921, 930, through statutory interpretation,comparison to other federal statutes, and review of legislativehistory). Appellant has not challenged the continued vitalityof this Court’s preemption precedent, merely its application tothe facts of this case.But the legislative history of Article 104, UCMJ, does notclearly indicate that Congress intended for offenses similar tothose at issue to only be punishable under Article 104, UCMJ, tothe exclusion of Article 134, UCMJ. Furthermore, while the twocharges in this case have parallel facts, as charged they are21
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