United States v. Private First Class FERGUSON J. MARCELLE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class FERGUSON J. MARCELLE
United States Army, Appellant
ARMY 20130339
Headquarters, Fort Stewart
Tiernan P. Dolan, Military Judge
Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate
For Appellant: Major Amy E. Nieman, JA; Lieutenant Colonel David E. Coombs, JA
(on brief).
For Appellee: Colonel John P. Carrell, JA; Major John K. Choike, JA; Major
Matthew T. Grady, JA (on brief).
26 January 2015
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of larceny and one specification of
wrongfully signing another’s name to an Army Emergency Relief application, in
violation of Articles 121 and 134, Uniform Code of Military Justice, 10 U.S.C. 921,
934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad -
conduct discharge and confinement for six months. The convening authority
approved the adjudged sentence.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
alleges – and the government concedes – the novel Article 134, UCMJ, specification
in this case is preempted by Article 107, UCMJ, making a false official statement.
Appellant’s personal submissions made pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) do not warrant relief.
MARCELLE—ARMY 20130339
BACKGROUND
The gravamen of appellant’s misconduct was stealing basic allowance for
housing (BAH) funds for over four years. Howeve r, appellant was also charged and
convicted of a specification under Article 134, UCMJ , to wit:
The Specification: In that [appellant], U.S. Army, did, at
or near Fort Stewart, Georgia, on or about 28 June 2012,
without knowledge or consent, wrongfully sign First
Sergeant [JB]’s name on a AER Form 700, such conduct
being to the prejudice of good order and discipline in the
armed forces and was of a nature to bring discredit upon
the armed forces.
The evidence at trial revealed that appellant applied for an Army Emergency Relief
(AER) loan by signing his first sergeant’s name on the application. Appellant did so
without his first sergeant’s permission or knowledge. When questioned by Criminal
Investigation Command agents, appellant confessed.
During the government’s closing argument, the military judge questioned trial
counsel why the conduct charged under Article 134, UCMJ, was not instead charged
as a false official statement in violation of Article 107, UCMJ. After discussion
with the military judge, the government i nitially moved to amend the charge and
specification to state a violation of Article 107, UCMJ. The defense opposed this
amendment as a “major change.” After a recess, the government withdrew its
motion and asked to proceed with the novel Article 134, UC MJ, specification as
drafted. When asked by the military judge why the Article 134, UCMJ, offense was
not preempted, the government responded it was unsure whether the false statement
at issue was “official” within the meaning of Article 107, UCMJ.
LAW AND DISCUSSION
By its terms, Article 134, UCMJ, applies to offenses “not specifically
mentioned in [the UCMJ].” See United States v. Anderson, 68 M.J. 378, 386
(C.A.A.F. 2010) (explaining the doctrine of preemption). The President has
explained the preemption doctrine as follows:
The preemption doctrine prohibits application of Article
134 to conduct covered by Articles 80 through 132. For
example, larceny is covered in Article 121, and if an
element of that offense is lacking—for example, intent—
there can be no larceny or larceny-type offense, either
under Article 121 or, because of preemption, under Article
134. Article 134 cannot be used to create a new kind of
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MARCELLE—ARMY 20130339
larceny offense, one without the required intent, where
Congress has already set the minimum requirements for
such an offense in Article 121.
Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶
60.c.(5)(a). Courts have placed an additional requirement on the application of the
preemption doctrine. Anderson, 68 M.J. at 368. “[S]imply because the offense
charged under Article 134, UCMJ, embraces all but one element of an offense under
another article does not trigger operation of the preemption doctrine. In addition, it
must be shown that Congress intended th e other punitive article to cover a class of
offenses in a complete way. United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979).
At trial, the government initially conceded that the Article 134, UCMJ,
offense should have been charged as a violation of Artic le 107, UCMJ. On appeal,
the government concedes the offense should have been charged as a false official
statement. The parties have established that the false statement at issue was official ,
that appellant knew the statement was false, and that the st atement was made with
the intent to deceive. MCM, pt. IV, ¶ 31.b. Under the facts of this case, in light of
the government’s concession, we agree the Article 134 charge and specification were
preempted and dismiss that offense. *
CONCLUSION
Upon consideration of the entire record, the findings of guilty of Charge II
and its Specification are set aside. Charge II and its Specification are dismissed.
The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence based upon the factors announced in United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013). First, the gravamen of appellant’s offense was larceny
of BAH funds for over four years. Second, appellant was sentenced by a military
*
In other circumstances, one might be charged and convicted of conduct described
by the President as violating Article 134, UCMJ, for conduct that constitutes a false
official statement. See, e.g., MCM, pt. IV, ¶ 77. (false or unauthorized pass
offenses); MCM, pt. IV, ¶ 79. (false swearing); MCM, pt. IV, ¶ 86. (impersonating a
commissioned, noncommissioned, or petty officer, or an agent or official); MCM, pt.
IV, ¶ 96. (obstructing justice) (where the obstruction consists of a false statement);
MCM, pt. IV, ¶ 96a. (wrongful interference with an adverse administrative
proceeding) (same); MCM, pt. IV, ¶ 99. (public record: altering, concealing,
removing, mutilating, obliterating, or destroying); and MCM, pt. IV, ¶ 109. (hoax
designed or intended to cause panic or public fear). All these ways of violating
Article 134, UCMJ, might also violate Article 107, UMCJ. We certainly do not hold
that these offenses as described by the President might not be viable in light of the
preemption doctrine.
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MARCELLE—ARMY 20130339
judge alone. Third, we have familiarity with the remaining offense to determine
reliably what sentence the military judge would have adjudged. Accordingly, the
sentence is AFFIRMED.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk
Clerk of
of Court
Court
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