United States v. Private E2 BRIAN A. MURPHY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before the Court Sitting En Banc
UNITED STATES, Appellee
v.
Private E2 BRIAN A. MURPHY
United States Army, Appellant
ARMY 20120556
Headquarters, 82d Airborne Division
G. Bret Batdorff, Military Judge
Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate
For Appellant: Captain A. Jason Nef, JA; Captain Brian J. Sullivan, JA (on brief).
For Appellee: Major Robert A. Rodrigues, JA (on brief).
30 May 2014
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OPINION OF THE COURT
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HAIGHT, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy to sell military property,
the wrongful use of oxycodone, and two specifications of larceny, in violation of
Articles 81, 112a and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 881,
912a, and 921 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
conduct discharge, confinement for forty-eight months, and reduction to the grade of
E-1. Pursuant to a pretrial agreement coupled with a thirty-day reduction in
confinement for dilatory post-trial processing, the convening authority approved
only so much of the sentence as provides for a bad-conduct discharge, confinement
for seventeen months, and reduction to E-1. 1
1
The military judge awarded thirty days of confinement credit. Although this credit
should have been reflected in the Action and Promulgating Order, it was not. See
Rule for Courts-Martial 1107. Accordingly, to the extent appellant has not already
received this credit, appellant will be credited with thirty days against his sentence
to confinement.
MURPHY—ARMY 20120556
This case is before us for review pursuant to Article 66, UCMJ. Appellant
personally raised two issues pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), both of which merit discussion, one of which merits relief.
FACTS
Appellant required additional money to support his illegal drug habit.
Therefore, in August of 2011, appellant entered into an agreement with his co-
conspirator, Specialist (SPC) WW, to steal and then sell military ammunition. This
particular enterprise did not come to fruition until 6 September 2011. As it turns
out, appellant effectuated this conspiracy twice on the same day.
At the conclusion of a military range exercise, appellant was assigned as a
member of a detail tasked to return unspent ammunition to the Ammunition Supply
Point. Due to inclement weather shut-downs, the detail was unable to turn in the
unused ordnance on that day and instead left the ammunition in the back of a
military truck in the company area. Appellant was then released for the day.
Recognizing the opportunity, appellant called SPC WW and they agreed that this
was their chance to carry out their conspiracy. Appellant returned to the company
area; stole two boxes of loose 5.56 millimeter (mm) ammunition, each comprising
900 rounds for a total of 1800 rounds; and transported them to SPC WW’s house. A
buyer whom SPC WW had contacted arrived and purchased the stolen ammunition.
Appellant and SPC WW immediately took their proceeds to a gas station,
purchased cigarettes, and SPC WW took appellant to a drug supplier from whom
appellant purchased five Percocet pills. During this time frame, appellant and
SPC WW agreed they would steal and sell some more of the ammunition that
appellant had left behind in the military truck. Later that same night, appellant
returned to the company area and stole two crates of linked 5.56 mm ammunition,
each comprising 1600 rounds for a total of 3200 rounds. He transported this stolen
ammunition to SPC WW’s house, where the two carried the crates to the backyard
shed as it was too late in the day to sell the contraband at that time. The next day,
the ammunition was discovered to be missing and an investigation ensued, in which
appellant was eventually implicated.
Appellant pleaded guilty to and was convicted of two specifications of
conspiracy to sell “5.56 mm ammunition, explosives, military property of the United
States” and two specifications of stealing that ammunition, again described as
“explosives.” The difference in the two conspiracy convictions is that the overt acts
alleged to accomplish the first conspiracy concern the theft and sale of the 1800
rounds of loose 5.56 mm ammunition whereas the overt acts for the subsequent
conspiracy concern the theft and transport of the 3200 rounds of linked 5.56 mm
ammunition.
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MURPHY—ARMY 20120556
Appellant now argues that 5.56 mm ammunition is not an explosive. He also
now asserts that his meeting of the minds with SPC WW constitutes but one
conspiracy, not two.
LAW AND DISCUSSION
Definition of Explosive
For purposes of Article 103, UCMJ, the failure to secure or wrongful
disposition of captured or abandoned property; Article 108, UCMJ, the wrongful
sale, loss, damage, destruction, or disposition of military property; and Article 121,
UCMJ, the larceny of personal property, the maximum allowable punishment is
significantly increased if the property in question is a firearm or explosive. See
Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], pt. IV,
¶¶ 27.e, 32.e, 46.e. 2 3 Rule for Courts-Martial [hereinafter R.C.M.] 103(11) defines
the term “explosive” as follows:
“Explosive” means gunpowders, powders used for
blasting, all forms of high explosives, blasting materials,
fuzes (other than electrical circuit breakers), detonators,
and other detonating agents, smokeless powders, any
explosive bomb, grenade, missile, or similar device, and
any incendiary bomb or grenade, fire bomb, or similar
device, and any other compound, mixture, or device which
is an explosive within the meaning of 18 U.S.C. § 232(5)
or 844(j).
2
Appellant’s misconduct occurred in 2011. Therefore, the 2008 edition of the MCM
is applicable to his offenses. The relevant provisions of the 2008 MCM remain
unchanged in the 2012 edition of the MCM.
3
The maximum sentence for either selling military property or stealing military
property of a value of $500.00 or less pursuant to Articles 108 and 121, UCMJ,
respectively, is a bad-conduct discharge, one year of confinement, and forfeiture of
all pay and allowances. However, if the military property sold or stolen is “any
firearm or explosive,” regardless of value, the maximum sentence for each of these
offenses is a dishonorable discharge, ten years of confinement, and forfeiture of all
pay and allowances. For Article 103, UCMJ, if the captured or abandoned property
is “any firearm or explosive,” the maximum sentence is a dishonorable discharge,
five years of confinement, and total forfeitures, as opposed to a maximum
punishment of a bad-conduct discharge, six months of confinement and total
forfeitures if the property in question is of a value of $500.00 or less.
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MURPHY—ARMY 20120556
Therefore, in accordance with a “plain meaning” interpretation of the above
definition, ammunition which contains gunpowder or smokeless powder is
unambiguously an explosive as those terms are expressly listed in the definition,
with gunpowder as the very first example. See United States v. Schell, 72 M.J. 339,
343 (C.A.A.F. 2013) (“Unless the text of a statute or rule is ambiguous, ‘the plain
language will control unless it leads to an absurd result.’”); see also State v. Field,
132 N.H. 760, 766, 571 A.2d 1276, 1280 (1990) (“defendant’s argument that a round
of live ammunition is not an explosive strains credulity”). However, appellant’s
reliance on United States v. Lewis, ARMY 20120797, 2013 WL 1960747 (Army Ct.
Crim. App. 27 Feb 2013) (summ. disp.), compels further analysis.
In Lewis, a panel of this court determined “5.56 mm rounds of ammunition are
not explosives for the purposes of Articles 108 and 121, UCMJ.” Lewis, 2013 WL
1960747, at *1. In its decision, that panel relied upon United States v. Graham,
691 F.3d 153 (2d Cir. 2012) vacated on other grounds, __ U.S. __, 133 S.Ct. 2851(2013). In Graham, the United States Court of Appeals for the Second Circuit
concluded a single 9 mm cartridge did not fall within 18 U.S.C. § 844(j)’s definition
of an “explosive.” Graham, 691 F.3d at 161. As the definition of explosive in
§ 844(j) substantially mirrors that in R.C.M. 103(11), this conclusion appears
persuasive. However, upon further review, general application of Graham to
Articles 103, 108 and 121, and that ruling’s specific application to the facts of this
case are inapposite.
Regarding the general applicability of the reasoning in Graham to Articles
103, 108 and 121, we note the Second Circuit was grappling with a fundamentally
different question than we are. That court was defining the interplay between two
separate federal crimes, one being that of the use or carry of a “firearm” during and
in relation to a crime of violence and the second being the use or carry of an
“explosive” during the commission of any felony. Graham, 691 F.3d at 155. See 18
U.S.C. §§ 924(c) and 844(h). While perpetrating the crime of extortion, Graham
fired a single shot from his 9 mm pistol into the ground next to his victim. Graham,
691 F.3d at 157. Because that single round of ammunition was considered an
explosive at trial, “Graham’s 50-year sentence included two consecutive, mandatory
10-year terms of imprisonment for the violations of 18 U.S.C. § 924(c)(1)(A)(iii)
[discharge of a firearm] and 18 U.S.C. § 844(h)(1) [use of an explosive].” Id. at
155. Essentially, on appeal, the Graham court determined an interpretation of the
term “explosive” which required the “explosive” sentencing enhancement to be
stacked atop the “firearm” sentencing enhancement was unreasonable and
accordingly concluded that a single 9 mm round was not an “explosive” for purposes
of § 844(h)(1). Id. at 164.
Turning to military law, for purposes of Articles 103, 108, and 121, a
sentence aggravator applies if the property which is the object of those crimes is an
explosive. A sentence modifier in property crimes which deals with the nature of
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MURPHY—ARMY 20120556
the property in question is far different than a sentence modifier which deals with
the means of a violent crime and what particular tools are implemented to effectuate
that crime. 4 The distinction between a sentence aggravator based upon how a crime
is committed and one based upon the nature of the property that is the object of a
particular crime is repeatedly stressed in the MCM’s Analysis of the Punitive
Articles. 5
4
We recognize that the Article 134, crime of “threat or hoax designed or intended to
cause panic or public fear” refers to harms threatened to be done by means of an
explosive, among other means. While we need not determine if explosives include
small arms ammunition for purposes of that offense, we do note that particular
paragraph is the MCM’s only use of the term “explosive” not in conjunction with the
term “firearm.” Therefore, on those occasions where the two are mentioned
together, words and terms should be interpreted in accordance with their
companions. See Gutierrez v. Ada, 528 U.S. 250, 255 (2000) (Supreme Court
invokes the canon noscitur a sociis).
5
The 2002 Amendment to the authorized maximum punishment for Article 103 adds
the sentence aggravator “any firearm or explosive” because “regardless of the
intrinsic value of such items, the threat to the community is substantial when such
items are wrongfully bought, sold, traded, dealt in or disposed.” MCM, App. 23,
Analysis of Punitive Articles, ¶ 27.e at A23–8. This same sentence aggravator
applies to Article 108, because:
[t]he harm to the military in such cases is not simply the
intrinsic value of the item. Because of their nature,
special accountability and protective measure are
employed to protect firearms or explosives against loss,
damage, destruction, sale, and wrongful disposition. Such
property may be a target of theft or other offenses without
regard to its value. Therefore, to protect the
Government’s special interest in such property, and the
community against improper disposition, such property is
treated the same as property of a higher value.
MCM, App. 23, Analysis of Punitive Articles, ¶ 32.e at A23–9. Likewise, this same
sentence aggravator applies to Article 121 for similar reasons “because, regardless
of the intrinsic value of such items, the threat to the community and disruption of
military activities is substantial when such items are wrongfully taken.” MCM, App.
23, Analysis of Punitive Articles, ¶ 46.e at A23–16.
5
MURPHY—ARMY 20120556
Distinct from the scenario in Graham, in every instance that the President
allows for an “explosive” to be a sentence aggravator for crimes under the UCMJ, it
is coupled with the term “firearm.” 6 Accordingly, the MCM’s use of the phrase
“firearm or explosive” as a single aggravator alleviates any fear of dual
enhancements. Also distinguishing the “explosive” sentence enhancer applicable in
Graham from that in Articles 103, 108 and 121, UCMJ, is that the one in 18 U.S.C.
§ 844(h) is mandatory as opposed to the mere potentiality of an increased sentence
under the UCMJ.
We agree with the Graham court that textual interpretation “‘is a holistic
endeavor’” and must be conducted “‘in light of the surrounding language and
framework’” as well as by looking to the overall statutory or regulatory scheme.
Graham, 691 F.3d at 160 (citing United Sav. Ass'n of Texas v. Timbers of Inwood
Forest Assocs., Ltd., 484 U.S. 365, 371 (1988); County of Nassau v. Leavitt, 524
F.3d 408, 414 (2d Cir. 2008)). We hasten to point out the legal framework under the
UCMJ, Title 10, is significantly different from that of the framework under Title 18,
United States Code. In fact, the MCM’s Analysis to R.C.M. 103 (Definitions)
emphasizes, “[i]t is the drafters’ intent that the words of the Manual be construed in
accordance with their plain meaning, with due deference to previous usage of terms
in military law or custom.” R.C.M. 103 analysis at A21-4. Likewise, in our
interpretation of “explosives” for purposes of military law, we are not restricted to
the Second Circuit’s interpretation of that same term for the purpose of its
application to a completely different statute and different form of sentence
aggravator. In other words, applying Graham to Articles 103, 108 and 121, UCMJ,
is an exercise in the age-old comparison of apples to oranges. Again, reference to
the MCM’s analysis of the R.C.M. provides pointed guidance:
A rule is binding even if the source of the requirement is a
judicial decision or a statute not directly applicable to
courts-martial. If the President had adopted a rule based
on a judicial decision or a statute, subsequent repeal of the
statute or reversal of the judicial decision does not repeal
the rule. . . .
. . . Users are reminded, however, that primary reliance
should be placed on the plain words of the rules. . . .
6
The dissent in United States v. Davis, 202 F.3d 212, 221-22 (4th Cir. 2000),
stresses that offenses involving the use of explosives and offenses involving the use
of firearms are often treated separately. (Michael, J. dissenting). This is simply not
the case for purposes of Articles 103, 108 and 121, where “firearm or explosive” is
treated as a single modifier.
6
MURPHY—ARMY 20120556
. . . Developments in the civilian sector that affect the
underlying rationale for a rule do not affect the validity of
the rule except to the extent otherwise required as a matter
of statutory or constitutional law. . . . Once incorporated
into the Executive Order, such matters have an
independent source of authority and are not dependent
upon continued support from the judiciary.
R.C.M. (Introduction) analysis at A21-3. In this opinion, we apply the definition
provided by the President. We do not add, expand, or broaden that definition, nor do
we restrict, limit, or reject portions of it as the dissent would have us do. If the
President had wanted the “explosive” sentence enhancer to only apply to amounts of
gunpowder or smokeless powder greater than that found in small arms ammunition,
then the process to effect such a desire was certainly known. For example, the
maximum punishment for longer unauthorized absences is greater than that for those
of shorter duration. Likewise, the potential sentence for possession of less than 30
grams of marijuana is less severe than that for possession of a greater quantity of the
same drug. See MCM, pt. IV, ¶¶ 10.e, 37.e.
The imprudence of applying Graham to Article 103, 108 or 121, UCMJ, is
alluded to in that decision itself. First, when addressing the Fourth Circuit’s
conclusion in Davis, 202 F.3d 212, that the firing of handgun ammunition into a
dwelling constituted property damage by use of an “explosive,” the court in Graham
specifically pointed out the Davis court was not “grappl[ing] with the relationship
between the respective sentencing enhancements in § 844(h) (explosives) and §
924(c) (firearms).” Graham, 691 F.3d at 163. Neither are we.
Second, it is difficult to reconcile any determination that the 18 U.S.C.
§ 844(j) definition of “explosive” does not include small arms ammunition with
§ 844(g)’s apparent criminalization of the possession of an explosive in the form of
small arms ammunition in an airport. Under § 844(g), it is a crime to possess an
explosive in an airport, but the statute provides a specific exception to criminal
liability if the possession of the explosive in question is ammunition inside either
checked baggage or a closed container. Therefore, ammunition possessed outside of
checked baggage is included within the definition of “explosive.” The Graham court
resolved this apparent contradiction to their interpretation by stating, “[s]uffice it to
say that the Government arguments [that the structure of 844(g) supports including
small arms ammunition within the definition of explosive] are aimed at a different
case than the one before us today.” 691 F.3d at 164. We are now faced with such “a
different case.”
Regarding the specific applicability of Graham to the instant case, when
declining to view a single 9 mm cartridge as an explosive, that court refrained from
speculating how 18 U.S.C. § 844(j)’s definition of “explosive” applied to
7
MURPHY—ARMY 20120556
ammunition generally. Id. at 162. The Second Circuit stated, “[w]e do not hold here
that ammunition generally (small arms or otherwise), which may conceivably be
employed in quantities or in a manner far different from the single 9-millimeter
cartridge discharged by Graham, cannot fall within 844(j)’s definition of explosive,
and thus trigger the 844(h) enhancement. We decide only the case before us.” Id.
164. We do the same here.
With respect to how R.C.M. 103(11) defines “explosives,” we believe it is a
simple question of reverse logic. Surely, the lethal rifles and pistols which our
servicemembers are issued, trained on, deploy with, defend themselves with, engage
the enemy with, have access to, and are in regular contact with are firearms.
“Firearm” is defined as “any weapon which is designed to or may be readily
converted to expel any projectile by the action of an explosive.” R.C.M. 103(12)
(emphasis added). 7 Therefore, if a servicemember’s individual weapon is only a
firearm if it discharges by virtue of an explosive, then the ammunition which
provides that required explosive must, by logic, be included within that term’s
definition. 8 More simply put, if 5.56 mm ammunition is not an explosive, then, by
definition, the weapon that fires it cannot be a firearm. Such a conclusion is
untenable and obviously not contemplated by the President when adding a sentence
escalator for firearms and explosives to the maximum allowable punishments for
Articles 103, 108, and 121, in order to protect the community and prevent disruption
to the military mission. Loss of accountability for rounds of ammunition, regardless
of their value, is more dangerous and disruptive than the loss of $1,000.00 worth of
canteen covers. 9
7
Cf. United States v. Laster, 42 M.J. 538, 542 (A.F. Ct. Crim. App. 1995) (pellet
pistol which expels projectile via carbon dioxide is not a firearm); United States v.
Hawthorne, ARMY 9800209, 2001 WL 36264251, at *4 (Army Ct. Crim. App.
26 Jan. 2001) (mem. op.) (BB or pellet guns that use air or carbon dioxide pressure
to expel a projectile are not firearms).
8
This simple and persuasive syllogism matches the holding in Davis, 202 F.3d 212(determining that use of handgun ammunition is, by definition under § 844(j), use of
an explosive).
9
Although quantity is not dispositive of our definitional analysis, we note appellant
conspired to sell, and then stole two boxes and two crates of 5.56 mm ammunition,
totaling 5000 rounds, each cartridge containing its corresponding amount of
gunpowder or smokeless powder. Needless to say, the “explosive” nature of such an
amount, in the aggregate, is evident.
8
MURPHY—ARMY 20120556
After entering his plea of guilty and having the term “explosive” defined for
him multiple times—in accordance with R.C.M. 103(11)—by the military judge,
appellant admitted under oath that the ammunition which he conspired to wrongfully
sell and stole constituted explosives no less than twelve times. These admissions are
significant as they occurred after the military judge highlighted to appellant and
counsel that he needed to be convinced that the property was of the explosive nature
alleged. Appellant took this to heart and asserted, “I dealt with ammunition the
whole time I was at Fox Company and I was very aware that it was an explosive.” 10
We concur with appellant’s assessment at trial. While 5.56 mm ammunition may not
qualify as “high explosives,” it is an “explosive.” See United States v. Bopp,
NMCM 200200334, 2002 WL 31720713, at *4 (N.M. Ct. Crim. App. 25 Nov. 2002)
(firecrackers constitute an “explosive” but do not constitute a “highly explosive
article”); United States v. Hall, 3 M.J. 969 (N.C.M.R. 1977) rev’d on other grounds,
5 M.J. 134 (C.M.A. 1978). (while blank rounds of M-16 ammunition contain
gunpowder, which is a propellant explosive, they are not high explosives). We,
therefore, conclude no error was committed in accepting appellant’s guilty pleas to
his crimes which equated the 5.56 mm ammunition in question to explosives.
Conspiracy
Appellant was charged with conspiring with SPC WW to sell loose 5.56 mm
ammunition and separately charged with conspiring at the same time and location
with the same co-conspirator to sell linked 5.56 ammunition. This charging scheme
may have originally made sense if the government theory was that the objectives of
those two conspiracies were different in that separate agreements were entered into
with the specific purpose of selling distinct properties of two different natures. If
so, then the first conspiracy terminated when the loose 5.56 mm ammunition was
sold. See United States v. Beverly, 14 U.S.C.M.A. 468, 471, 34 C.M.R. 248, 251
10
Complementing his certainty that 5.56 mm ammunition met the definition of
“explosives” under R.C.M. 103(11), appellant also assured the military judge that
his understanding comported with that of the United States military by
acknowledging that a joint service regulation specifically labels small arms
ammunition as “explosive ordnance.” See Army Reg. 75-14/Chief of Naval
Operations Instr. 8027.1G/Marine Corps Order 8027.1D/Dep’t of Air Force Reg.
136-8, Interservice Responsibilities for Explosive Ordnance Disposal, para. 3.e
(14 February 1992). This regulatory reference and its admission into evidence
further reveals that appellant, a soldier, had “fair warning” and “notice” that the
object of his crimes, 5.56 mm ammunition, constituted explosives. See United
States v. Desposito, 704 F.3d 221, 229-30 (2d Cir. 2013); see also United States v.
Warner, 73 M.J. 1 (C.A.A.F. 2013).
9
MURPHY—ARMY 20120556
(1964) (a conspiracy is terminated when the object of that conspiracy is
accomplished).
However, the above is not how the facts unfolded. Instead, appellant pleaded
guilty to two specifications of conspiracy to commit the same crime, the sale of 5.56
mm ammunition, explosives, military property of the United States. In accordance
with his pleas, he was found guilty twice of the same conspiracy, albeit with
different supporting overt acts. This is the very issue 11 that our superior court
summarily disposed of in United States v. Jones, 72 M.J. 97 (C.A.A.F. 2013) (summ.
disp). It is clear from the record—specifically the stipulation of fact—that the
agreement between appellant and his co-conspirator was to sell ammunition
generally, regardless as to whether it was loose or linked, as part of a single ongoing
“illicit business arrangement.” See also United States v. Pereira, 53 M.J. 183(C.A.A.F. 2000). Therefore, as the Court of Appeals for the Armed Forces (CAAF)
did in Jones, we will consolidate the two conspiracy specifications. Jones, 72 M.J.
97. Also, like the CAAF in Jones, although we merge the two conspiracy offenses,
we are satisfied that appellant suffered no prejudice as to his sentence. See United
States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); United States v. Sales, 22 M.J.
305 (C.M.A. 1986).
CONCLUSION
Specifications 1 and 2 of Charge I are consolidated into a single specification,
The Specification of Charge I, to read as follows:
Charge I: Article 81.
THE SPECIFICATION: In that Private (E-2) Brian A.
Murphy, U.S. Army, did, at or near Fort Bragg, North
Carolina, between on or about 1 August 2011 and on or
about 6 September 2011, conspire with Specialist W.C.W.
to commit an offense under the Uniform Code of Military
Justice, to wit: selling 5.56 mm ammunition, explosives,
military property of the United States, and in order to
effect the object of the conspiracy the said Private (E-2)
Brian A. Murphy removed loose 5.56 mm ammunition,
brought it to Specialist W.C.W., Specialist W.C.W.
11
The court granted the petition for grant of review of the following issue:
“WHETHER A SINGLE AGREEMENT TO COMMIT THE SAME CRIME ON
MULTIPLE OCCASIONS IS LEGALLY SUFFICIENT TO SUPPORT FINDINGS
OF GUILTY ON TWO SEPARATE CONSPIRACY CHARGES?”
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MURPHY—ARMY 20120556
contacted a buyer for the ammunition, Specialist W.C.W.
gave the ammunition to the buyer, and the said Private (E-
2) Brian A. Murphy removed linked 5.56 millimeter
ammunition, brought it to Specialist W.C.W., and
Specialist W.C.W. took possession of the ammunition so
that Specialist W.C.W. could arrange to sell the
ammunition to a buyer.
The findings of guilty of Charge I and its specification (consolidated) are
AFFIRMED. The finding of guilty of Specification 2 of Charge I is set aside and
that specification is DISMISSED. The remaining findings of guilty and the
approved sentence are AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by our
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).
Chief Judge PEDE, Senior Judge LIND, Senior Judge KERN, Senior Judge
COOK, Judge TELLITOCCI, Judge ALDYKIEWICZ, Judge MORAN, and Judge
BORGERDING concur.
Judge CAMPANELLA took no part in the decision of this case.
KRAUSS, Judge, dissenting in part:
“[I]t is not reasonable to construe § 844(j) as including within its ambit a
single 9-millimeter cartridge, simply because it contains a small amount of
gunpowder and can be fired from a gun.” United States v. Graham, 691 F.3d 153,
164 (2d Cir. 2012) vacated on other grounds, __ U.S. __, 133 S.Ct. 2851 (2013).
“[T]he serious and substantial nature of the other explosives listed suggests
that the tiny amount of gunpowder used to fire a gun does not constitute ‘an
explosive’ within the meaning of § 844(h)(1)” and thus the meaning of explosive in
§ 844(j). United States v. Thompson, 728 F.3d 1011, 1017 (9th Cir. 2013) (adopting
the reasoning in Graham, 691 F.3d at 160-61).
“[The Second Circuit] concluded that ammunition is not an explosive for
purposes of 18 U.S.C. § 844(j) simply because it may be fired from a gun.”
Thompson, 728 F.3d at 1026 n.9 (Murguia, J., dissenting).
“Congress intended that, to the extent ‘practicable,’ trial by court-martial
should resemble a criminal trial in a federal district court. . . [U]nless there is reason
not to do so, an interpretation of a provision of the Uniform Code should follow a
well-established interpretation of a federal criminal statute concerning the same
subject.” United States v. Valigura, 54 M.J. 187, 191 (C.A.A.F. 2000).
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MURPHY—ARMY 20120556
The first goal of the 1984 Manual for Courts-Martial, in which the President
adopted the federal definition of explosive, “was to conform to federal practice to
the extent possible . . . .” Rule for Courts-Martial [hereinafter R.C.M.] at A21-1.
The fact is that small arms ammunition is not regulated or prosecuted as an
explosive in federal district court and there is nothing impracticable about enforcing
the law as it is there, here in a court-martial. The federal district courts use the
exact same definitions of explosive and firearm at play in courts-martial and reject
the “syllogism” employed by the majority here. And while I share the sentiment that
ammunition is dangerous and deserved of strict regulation, it is not treated as a
dangerous explosive under the federal definition adopted by the President for use in
courts-martial. 12
Contrary to the majority’s characterization of the facts of this case, the parties
did not merely “complement” the definition of explosive under R.C.M. 103 with
reference to a regulation, they substituted and relied upon a regulatory definition to
categorize small arms ammunition as an explosive in a fashion outside the scope of
R.C.M. 103.
The majority here effects the same modification. It takes the definition of
explosives meant for bombs and adds small arms ammunition. This is a job for the
President not us. The President adopted the definitions of firearms and explosives
under Chapters 12, Civil Disorders and 40, Importation, Manufacture, Distribution
and Storage of Explosive Materials of Title 18 U.S.C., involving §§ 232 and 844,
respectively. He recapitulated the definition of firearms under § 232(4) in R.C.M.
103(12). He combined the definitions of explosives under §§ 232(5) and 844(j) into
one in R.C.M. 103(11). We are bound to interpret and apply that rule as it is, and
leave additions to Congress or the Commander in Chief. The fact that the military
judge, trial counsel and appellant all ultimately relied on a definition provided by an
Army regulation, rather than R.C.M. 103(11), reveals the fact that they were either
unsure whether small arms ammunition was included in the Rule for Courts-Martial
definition, or concluded that it was not, and their substitution of an inapplicable
definition is itself sufficient basis to reject this plea on appeal.
Not a single federal case holds that small arms ammunition in and of itself is
an explosive. The lack of cases is telling. It may have much to do with the fact that
12
Indeed, 5.56 mm ammunition can be purchased at WalMart in quantity and at
relatively cheap prices. Looking for Answers about Federal Ammunition Federal
Cartridge 5.56mmx45mm 62gr FMJ Ball-Clipped Ammo Can, 420 Rounds? (30 May
2014), http://answers.walmart.com/answers/1336/product/21638833/questions.htm.
Grenades are, as yet, unavailable at that retail chain.
12
MURPHY—ARMY 20120556
Congress promulgated a separate chapter, Chapter 44, Firearms, under Title 18
U.S.C. dealing specifically with firearms and ammunition. That chapter itself treats
ammunition and explosives as if they are separate and distinct items. See, e.g., 18
U.S.C. §§ 921(a)(4) and (17), § 922 and § 924. 13
Contrary to the majority’s read of United States v. Graham, the Second
Circuit directly rejected the reasoning and arguments the majority here advances
when it resolved that small arms ammunition, in and of itself, does not constitute an
explosive as contemplated under 18 U.S.C. § 844(j).
To begin with, the majority mistakes the proposition that small arms
ammunition configured in certain amounts and in a certain way might be used as an
explosive for the proposition that a round of small arms ammunition is, as defined
by R.C.M. 103(11), an explosive in and of itself. 14
Though the majority’s ultimate holding seems to limit itself to the particular
facts of this case, its conclusion cannot be reached without first concluding that a
round of ammunition constitutes an explosive under R.C.M. 103(11) because it
contains a bit of propellant powder.
As the Second Circuit concluded, “it is not reasonable to construe § 844(j) as
including within its ambit a single 9-millimeter cartridge, simply because it contains
a small amount of gunpowder and can be fired from a gun.” Graham, 691 F.3d at
164. Thus it explicitly rejects the reasoning that because the definition of firearm
means any weapon designed to expel any projectile by the action of an explosive
then small arms ammunition must be an explosive. Id.; see also Thompson, 728 F.3d
at 1026. The definitions of explosive and firearm are the same under R.C.M. 103 as
they are in the federal civilian system and in the cases relied upon by the majority.
For example, the Second Circuit in Graham was dealing with the interplay between
Title 18 U.S.C. §§ 844 and 924 which contain the same definitions of explosive and
firearm at issue in this case.
13
Because the offenses in this case occurred in North Carolina, it is interesting to
note that the North Carolina Court of Appeals held that small arms ammunition is
not an explosive device when dealing with a similar issue. State v. Sherrod, 191
N.C. Ct. App. 776, 777-82, 663 S.E.2d 470, 472-75 (2008).
14
“We do not hold that ammunition generally (small arms or otherwise), which may
conceivably be employed in quantities or in a manner far different from the single 9-
millimeter cartridge discharged by Graham, cannot fall within § 844(j)’s definition
of explosive, and thus trigger the § 844(h) enhancement.” Graham, 691 F.3d at 164
(emphasis added).
13
MURPHY—ARMY 20120556
The reason why R.C.M. 103 contains the same definitions as those under Title
18 U.S.C. is because, as the drafters of the 1984 Manual for Courts-Martial put it,
the first goal of the 1984 Manual “was to conform to federal practice to the extent
possible, except where the Uniform Code of Military Justice requires otherwise or
where specific military requirements render such conformity impracticable” citing
Article 36, UCMJ, which obligates the President to “apply the principles of law and
the rules of evidence generally recognized in the trial of criminal cases in the United
States district courts” as far as is practicable when prescribing rules. The drafter’s
analysis of R.C.M. 103 makes plain that “whenever possible, [they] followed the
definitions used in the United States Code.” Indeed, the only analysis of R.C.M.
103(11) and (12) provides reference to the statutes they copied and that the President
adopted as definitions of explosives and firearms. The rule itself makes explicit
reference to those statutes, review of which reveals that the R.C.M. simply combines
elements of 18 U.S.C. § 232(4) and (5) and § 844(j) and ultimately completes the
copy by referencing the rest of what those statutes cover.
As the Second Circuit again makes plain, the definition adopted by the
President comes from anti-bombing statutes. Graham, 691 F.3d at 162. Small arms
ammunition was not intended to be covered. See United States v. Gelb, 700 F.2d
875, 878-79 (2d Cir. 1983). Gelb indicates that contemporaneous with the adoption
of the statutory definitions at issue, the definition of explosive was understood to
mean bombs and other high explosives. 799 F.2d at 878. This is what the court in
Graham means when it relies on the companion words of the explosives definition:
not firearm, but dynamite and other high explosives, etc. Graham, 691 F.3d at 161.
This reliance on companion words verifying the purpose and parameters of the
definition was most recently endorsed by the 9th Circuit in Thompson, recognizing
that “the serious and substantial nature of the other explosives listed suggests that
the tiny amount of gunpowder used to fire a gun does not constitute ‘an explosive’
within the meaning of § 844(h)(1)” and thus the meaning of explosive at issue here.
728 F.3d at 1017; see also id. at 1026 n.9 (Murguia, J., dissenting) (where the
dissenting judge even recognizes that the Second Circuit “concluded that
ammunition is not an explosive for purposes of 18 U.S.C. § 844(j) simply because it
may be fired from a gun”); United States v. Hepp, 656 F.2d 350, 351-52 (8th Cir.
1981) (noting that the first category of explosives under § 844(j) is the same as that
contemplated under § 841 of the same title, in other words, high explosives). Thus,
the Second Circuit also directly rejects the majority’s reasoning by reference to §
844(g) and § 845 when it decided that “to the extent that the exemptions in § 844(g)
and § 845 support the Government’s reading of § 844(j), we think that this support is
outweighed by the contrary arguments from text and structure set out above.”
Graham, 691 F.3d at 164.
The Fourth Circuit gives a somewhat contrary reading to § 844(j) and offers
similar reasoning to that of the majority here in that “the discharge of a handgun
14
MURPHY—ARMY 20120556
involves and requires an ‘explosive’” and that “‘shooting’ requires an explosion to
expel a projectile from a firearm” in concluding that “the explosion of gunpowder
inside a handgun when it is discharged constitutes a ‘use’ of an explosive” for the
sentencing guideline at issue in that case. Davis, 202 F.3d at 219. But here again,
the Fourth Circuit quite carefully and purposefully declines to hold or reason that
small arms ammunition is an explosive in and of itself when it restricts its rationale
to “[t]he ammunition in a loaded handgun.” Id. (emphasis added). In other words,
though the Second Circuit rejects reliance on Davis, their reasoning is similar in
acknowledging that small arms ammunition might be the proper subject of some use
of explosive prosecution depending on its amount and configuration. Graham, 691
F.3d at 163-64. The same is true under the UCMJ. Small arms ammunition
configured as a bomb is a proper basis for prosecution for the crime of threat or
hoax designed or intended to cause panic or public fear under Article 134 but is not
the proper basis for the offense of selling or stealing explosives under Articles 108
and 121. MCM, pt. IV, ¶ 109.
A distinction between explosives and small arms ammunition for purposes of
prosecution is not unusual in the history of military justice. See, e.g., Hall, 3 M.J. at
970 (holding that blank rounds of M-16 ammunition were not highly explosive
articles, though they contained gunpowder, and relying on a previous decision of
that court holding that an order prohibiting the possession of explosives did not
prohibit the possession of ammunition).
It is also worthwhile to note that, prior to 1984, Congress, successive
Presidents and the military community were apparently happy demarking the
maximum punishments for wrongful sale and theft of military property by value
alone without any reference or concern for the explosive nature of that military
property. See, e.g., Manual for Courts-Martial, United States (1969 Rev. ed.). It
bears repeating that the adoption of the federal explosives definition came from a
desire to conform to federal practice not from any articulated and particular military
interest beyond that which was included in the definitions of firearms and explosives
at the time. 15 There is nothing impracticable about enforcing the value maximum
punishments rather than that of explosives, in relation to small arms ammunition,
absent an amendment to the rule. See UCMJ art. 36.
15
Reference to the military and government interest in applying a maximum
punishment to explosives regardless of value because of their intrinsic danger begs
the question. The issue is not whether ammunition is dangerous, the issue is
whether ammunition is either a firearm or an explosive as defined by R.C.M.
103(11) and (12).
15
MURPHY—ARMY 20120556
At the very worst for appellant, the definition of explosives is sufficiently
ambiguous to warrant a narrow rather than expansive reading of the rule. Prior to its
decision in Thompson, the Ninth Circuit declared the statutory definition of the term
explosive as ambiguous and that it “does not have a clear meaning.” Gunderson v.
Hood, 268 F.3d 1149, 1154-55 (9th Cir. 2001). In circumstances such as these, it is
not our function to aggrandize criminal liability but rather to limit it and permit
Congress and the President to perform their respective functions. See United States
v. Schelin, 15 M.J. 218, 220 (C.M.A. 1983) (citing United States v. Emmons, 410
U.S. 396, 411 (1973)); United States v. Rice, 71 M.J. 719, 725 (Army Ct. Crim. App.
2012); United States v. McPherson, 68 M.J. 526, 529 (Army Ct. Crim. App. 2009);
see generally United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008) (ordinary
rules of statutory construction apply to Rules for Courts–Martial). 16
The facts of this case are also telling: (1) the stipulation of fact says nothing
about explosives but details the value of the ammunition; (2) the military judge,
prior to plea, required the government to provide “some sort of documentation
listing 5.56 ammunition as an explosive”; (3) the trial counsel, defense counsel,
appellant and judge initially relied, in part, on a definition of explosives from Army
Regulation (AR) 75-14 that specifically includes “small arms ammunition” in its
definition of explosive ordnance, in addition to the definition applicable to Articles
108 and 121, UCMJ; and, most importantly, (4) ultimately the judge and appellant
relied exclusively on the AR 75-14 definition to establish appellant’s guilt. See
Army Reg. 75-14, Interservice Responsibilities for Explosive Ordnance Disposal,
para. 3.e (14 February 1992). 17
The ambiguity of the explosives definition perceived at appellant’s court-
martial is manifest in the behavior of the military judge, trial and defense counsel
and in accord with the ambiguity recognized in Gunderson. It appears that unable to
resolve whether the ammunition alleged was included under R.C.M. 103(11), they
looked elsewhere: before entry of pleas, the judge when describing the content of an
R.C.M. 802 conference stated “I also informed counsel that the court required some
sort of documentation as to the -- some sort of documentation listing 5.56 millimeter
16
This is not a trivial matter. Though in this case appellant’s liability could have
been easily fixed by allegation of the value of the ammunition, in general terms we
are dealing with the difference between a maximum including ten years confinement
and a maximum including only one year in confinement.
17
Before resorting to AR 75-14 the military judge did twice define explosives as it is
under R.C.M. 103(11), but never was there any discussion about gunpowder,
smokeless powder, propellant powder or powder of any sort, in an individual round
of ammunition or in the aggregate, serving as the basis for appellant’s plea.
16
MURPHY—ARMY 20120556
ammunition as an explosive.” Then during the Care inquiry, the following exchange
between the judge and appellant occurred:
MJ: I have appellate exhibit 4, Private Murphy, which is
an excerpt from Army Regulation 75-14 that provides the
definition of explosives. Do you agree that paragraph 3(e)
encompasses small arms ammunition as explosives?
ACC: Yes, sir.
MJ: And is 5.56 millimeter ammunition an explosive in
accordance with this Army Regulation?
ACC: Yes, that is correct.
(emphasis added).
This is plainly an error. There exist various regulatory definitions of
explosive. The definition under AR 75-14 is provided for the purpose of that
regulation, not prosecution under the UCMJ. For example, in addition to the Army
Regulation 75 series, there is AR 385-63, which seems to treat ammunition and
explosives as distinct items. Army Reg. 385-63, Range Safety, (16 Apr. 2014). See
also, e.g., 27 C.F.R. § 555.11 and § 555.141 (2014). The definition of explosive for
the purposes of Articles 108 and 121, is that contained in R.C.M. 103. If the
President wants to incorporate definitions from Army Regulations he may do so. He
hasn’t, he adopted the statutory definitions discussed above. 18
At a minimum, the record reveals, therefore, that appellant understood his
liability as defined by a definition that does not apply to the offenses charged. 19 As
18
Which is it – is small arms ammunition obviously included in R.C.M. 103(11)
despite the fact that it is not mentioned or is explicit reference to small arms
ammunition under AR 75-14 superfluous? The majority opinion seems to
simultaneously hold to the contrary views that small arms ammunition, though not
mentioned, is obviously included in R.C.M. 103(11) but that explicit inclusion of
small arms ammunition in the definition of explosives ordnance under AR 75-14 is
not superfluous.
19
It cannot serve as notice to appellant that small arms ammunition is an explosive
under R.C.M. 103(11) as that definition is limited to its terms and the referenced
statutes upon which it is based.
17
MURPHY—ARMY 20120556
such the plea is improvident. See United States v. Medina, 72 M.J. 148 (C.A.A.F.
2013).
For this and the reasons above, I therefore respectfully dissent from that part
of the majority’s decision.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
18