United States v. Davis , 1998 CAAF LEXIS 19 ( 1998 )

Opinion of the Court

CRAWFORD, Judge:

On mixed pleas, appellant was convicted of conspiracy to commit assault and battery, violation of a lawful general order, assault with a dangerous weapon, and communication of a threat, in violation of Articles 81, 92, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 892, 928, and 934, respectively. The convening authority approved the adjudged sentence of a bad-conduct discharge, 12 months’ confinement, forfeiture of $250 pay per month for 12 months, and reduction to pay grade E-l. The Court of Criminal Appeals affirmed the findings and sentence. 45 MJ 681 (1997).

The Judge Advocate General of the Navy certified the following issue to this Court:

WHETHER UNDER UCMJ ARTICLE 128, AN ASSAULT WITH A DANGEROUS WEAPON CAN BE COMMITTED WITH AN UNLOADED OR INOPERABLE GUN IF THE VICTIM HAS A REASONABLE APPREHENSION OF DEATH OR GRIEVOUS BODILY HARM, AND THE VICTIM IS UNAWARE OF WHETHER THE GUN IS LOADED OR OPERABLE; AND, IF SO, DID THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY DETERMINE THE MAXIMUM PUNISHMENT FOR SUCH AN OFFENSE TO BE IN ACCORDANCE WITH THE MANUAL FOR COURTS-MARTIAL, UNITED STATES (1995 EDITION), PART IV, PARAGRAPH 54e(8)(b).

We hold that an unloaded weapon is not a dangerous weapon under the President’s interpretation of Article 128, under the circumstances of this case. For this reason, we further hold that the Court of Criminal Appeals did not determine correctly appellant’s maximum punishment in accordance with the Manual for Courts-Martial, United States (1995 ed.).

FACTS

Appellant’s court-martial arose after he and numerous others participated in a form of hazing known as a “blanket party” or a “fumble.” The alleged purpose of a “fumble” or “blanket party” is to censure Marines who do not live up to the expectations of their organization. In this case, a group of about ten drunk Marines, including appellant, grabbed, kicked, and hit the victim repeatedly. 45 MJ at 682.

Appellant chose to take the activity even farther by pointing a .380 pistol at the victim’s head and stating, “I ought to cap you now.” Understandably, the victim feared for his life and believed appellant would shoot him.

Appellant was charged with assault with a dangerous weapon for pointing a loaded pistol at the victim. Appellant pled guilty to simple assault on the grounds that the weapon was unloaded and, therefore, was not a dangerous weapon. The military judge recognized that the weapon was unloaded but convicted appellant of aggravated assault, holding that “the unloaded weapon used by [appellant] was in fact a dangerous weapon.” In so ruling, the military judge disregarded contrary language in paragraph 54c(4)(a)(ii) of Part IV of the Manual, expressly relying on United States v. Sullivan, 36 MJ 574 (ACMR 1992), overruled by United States v. Turner, 42 MJ 689 (Army Ct.Crim.App.1995) (en banc).

The Court of Criminal Appeals initially set aside appellant’s conviction for assault with a dangerous weapon and affirmed, instead, the lesser-included offense of assault consummated by a battery. Unpub. op. at 2-6. However, it then withdrew its panel decision on its own motion and set the case for reconsideration en banc. The majority of that court then upheld appellant’s conviction for aggravated assault, expressly rejecting the President’s construction of assault with a dangerous weapon in paragraph 54c(4)(a)(ii) of Part IV of the Manual. The lower court reasoned that when there is an offer-type assault, as opposed to an attempt-type assault, whether an unloaded or inoperable weapon is dangerous depends upon whether the victim fears the weapon. 45 MJ at 685.

DISCUSSION

In United States v. Lopez, 35 MJ 35, 39 (1992), this Court explained that the

military, like the Federal and state systems, has hierarchical sources of rights. These sources are the Constitution of the United States; Federal Statutes, including the Uniform Code of Military Justice; Executive Orders containing the Military Rules of Evidence; Department of Defense Directives; service directives; and Federal common law____ Normal rules of statutory construction provide that the highest source authority will be paramount, unless a lower source creates rules that are constitutional and provide greater rights for the individual----

The Government urges this Court to interpret Article 128 in such a way that an unloaded weapon is considered dangerous or a “means or force likely to produce death or grievous bodily harm.” Applying the hierarchy of rights, the first question is whether the Constitution addresses the issue. In this ease, it does not. Next, we examine the federal statute, Article 128. It is not clear from either the plain meaning of the statute or its legislative history that an unloaded weapon qualifies as a dangerous weapon under the statute. Furthermore, it is certainly not inconsistent with Article 128 that an unloaded weapon does not qualify as a dangerous weapon. Consequently, we must look to the Executive branch of government to see if it has provided guidance on the matter.

The President establishes the Manual for Courts-Martial by Executive Order. The Manual includes sections on the elements of proof necessary to make out offenses in the UCMJ. The Manual also contains explanations of these elements. Paragraph 54c(4)(a)(ii) of Part IV of the Manual explains that “an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a dangerous weapon or a means of force likely to produce bodily harm, whether or not the assailant knew it was unloaded.”

In some civilian jurisdictions, whether a weapon is dangerous depends not on whether the weapon is loaded but upon the apprehension felt by the victim. See, e.g., McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986); United States v. Hunter, 101 F.3d 82 (9th Cir.1996); Herndon v. State, 563 So.2d 1065 (Ala.1990). It is beyond cavil that, when a weapon is pointed at someone, that person normally will fear death or grievous bodily harm.

However, the Manual has a different test for offer-type assaults. It is clear from the language of paragraph 54(c)(4)(a)(ii) that, for purposes of aggravated assault under Article 128, the President intended for a weapon to be considered dangerous only .if loaded.

We note that we are not bound by the President’s interpretation of the elements of substantive offenses. As we stated in United States v. Manee, 26 MJ 244, 252 (1988):

[Wjhile the views of the drafters of the various Manuals in writing the provisions just discussed and those of the President in promulgating them are important, they are not binding on this Court in fulfilling our responsibility to interpret the elements of substantive offenses — at least, those substantive crimes specifically delineated by Congress in Articles 77 through 132 of the Code, 10 USC §§ 877-932, respectively.

Article 36(a), UCMJ, 10 USC § 836(a), gives the President express authority to promulgate rules under Parts II and III of the Manual. Part IV of the Manual is not expressly governed by Article 36(a). Nonetheless, where the President unambiguously gives an accused greater rights than those conveyed by higher sources, this Court should abide by that decision unless it clearly contradicts the express language of the Code.

There is no indication that the President’s explanation of aggravated assault contradicts the Code in any way. There is also no indication that Congress intended some other construction of aggravated assault. The Manual has indicated that an unloaded firearm is not a dangerous weapon since 1951. See para. 207(b)(1), Manual for Courts-Martial, United States, 1951; para. 207(c)(1), Manual for Courts-Martial, United States, 1969 (Revised edition); para. 54e(4)(a)(ii), Part IV, Manual for Courts-Martial, United States, 1984, and 1995 edition. Congress could have changed this concept at any time if it disagreed. The President could change it easily as well.

Because there is no contradiction with the Code, and in deference to the President’s authority and the hierarchy of rights, we answer the certified question in the negative. We hold that an unloaded pistol is not a dangerous weapon under the President’s interpretation of Article 128. Since this interpretation is favorable to appellant and not inconsistent with the language of Article 128, we will not disturb the President’s narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.^* We further hold that the Navy-Marine Corps Court of Criminal Appeals did not correctly determine appellant’s maximum punishment.

For the reasons set forth above, we reverse the decision of the United States Navy-Marine Corps Court of Criminal Appeals. We return appellant’s case to the Judge Advocate General of the Navy for disposition of the case consistent with this opinion.

Chief Judge COX and Judges GIERKE and EFFRON concur.

* The assertion in the dissent — that the majority "holds that the handgun used in this case was not a dangerous weapon," 47 MJ at 488, — does not accurately describe the view of the majority. The rule concerning unloaded firearms was promulgated by the President, not by the majority of this Court. Since 1951, each President who has promulgated a revised version of the Manual for Courts-Martial has restated this rule without substantive change. The basis of the majority opinion is that "we will not disturb the President’s narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.” 47 MJ at 486-87. The majority opinion does not constrain the President’s authority to change the rule, including a change that would accommodate the policy concerns set forth in the dissenting opinion.

A noted authority on military law has explained why courts should be hesitant to substitute their views for the President’s rules when the President, as the Commander-in-Chief of the armed forces and as the nation’s Chief Executive, promulgates rules for courts-martial that are more favorable to servicemembers than the minimum requirements of the Constitution or the Uniform Code of Military Justice. He states:

What the due process hierarchy dictates is that the more protective of the due process sources (the Constitution, the UCMJ, the Manual, the regulations, or military case law) must prevail. In this way, the military justice system will be applied in a consistent, and more importantly, fair fashion.

D. Schlueter, Military Criminal Justice: Practice and Procedure § 1-1 (B) at 8-9 (4th ed.1996) (footnote omitted). He also notes that a contrary approach would "only reinforce the notion that military tribunals will interpret the rules in such a way that the offender is disciplined, if necessary, at the cost of justice. Military criminal justice deserves better.” Id.

The dissent relies on the Supreme Court’s decision in McLaughlin v. United States, 476 U.S. 16, 106 S.Ct. 1677, 90 L.Ed.2d 15 (1986), for the proposition that an unloaded gun is a dangerous weapon, "as a matter of federal criminal law.” 47 MJ at 488. The dissent argues that the Supreme Court’s interpretation of "dangerous weapon,” as used in the federal bank robbery statute, 18 USC § 2113(d), "must be followed for purposes of Article 128.” 47 MJ at 489.

We do not agree that McLaughlin controls the disposition of the present case. McLaughlin is a narrow ruling that addressed "whether an unloaded handgun is a ‘dangerous weapon’ within the meaning of the federal bank robbery statute.” 476 U.S. at 16, 106 S.Ct. at 1677-78. The Supreme Court’s interpretation of "dangerous weapon” in this limited context does not apply "as a matter of federal criminal law,” and it is not necessary that it "be followed for purposes of Article 128.” The limited scope of McLaughlin is reinforced by the Supreme Court’s reference to the legislative history of § 2113(d) as an expression of congressional intent. Id. at 18 n. 3, 106 S.Ct. at 1678 n. 3.

The dissent also cites our prior decision in United States v. Milton, 46 MJ 317 (1997). Milton is inapposite to the present situation. The issue in that case was whether appellant could be convicted of a simple offer-type assault. In addition, the assault involved a loaded weapon. The case did not involve an interpretation of the statutory or Manual provisions governing aggravated assault.