United States v. Murphy

UNITED STATES, Appellee
v.
Brian A. MURPHY, Private
U.S. Army, Appellant
No. 14-0767
Crim. App. No. 20120556
United States Court of Appeals for the Armed Forces
Argued April 28, 2015
Decided July 8, 2015
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., and STUCKY and OHLSON, JJ., joined. ERDMANN, J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: Captain Brian J. Sullivan (argued); Colonel
Kevin Boyle (on brief).
For Appellee: Captain Anne C. Hsieh (argued); Colonel John P.
Carrell, Major A. G. Courie III, and Captain Benjamin W. Hogan
(on brief); Lieutenant Colonel James L. Varley and Major Steven
J. Collins.
Military Judge: G. Bret Batdorff
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Murphy, No. 14-0767/AR
Judge RYAN delivered the opinion of the Court.
Consistent with Appellant’s pleas, Appellant was convicted
by a military judge sitting as a general court-martial of two
specifications of conspiracy to sell military property, one
specification of wrongfully using a controlled substance, and
two specifications of larceny in violation of Articles 81, 112a,
and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 881, 912a, 921 (2012). 1 He was sentenced to a bad-conduct
discharge, confinement for forty-eight months, and a reduction
to the grade of E-1. Pursuant to a pretrial agreement, the
convening authority approved the sentence but reduced the
confinement period to seventeen months.
On appeal under Article 66, UCMJ, 10 U.S.C. § 866 (2012),
the United States Army Court of Criminal Appeals (ACCA)
consolidated Specifications 1 and 2 of Charge I, alleging
violations of Article 81, UCMJ, and affirmed the modified Charge
I and its specification, setting aside the finding of guilty of
the original Specification 2 of Charge I and affirming the
remaining findings of guilty and approved sentence. United
States v. Murphy, 73 M.J. 699, 705 (A. Ct. Crim. App. 2014) (en
1
Consistent with his pleas, the military judge found Appellant
not guilty of two specifications of willfully failing to secure
ammunition and one specification of making a false official
statement in violation of Articles 92 and 107, UCMJ, 10 U.S.C.
§§ 892, 907 (2012).
2
United States v. Murphy, No. 14-0767/AR
banc). We granted Appellant’s petition to review the following
issue only:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN
CONCLUDING THAT AMMUNITION CONSTITUTES AN EXPLOSIVE FOR
PURPOSES OF THE SENTENCE AGGRAVATOR OF ARTICLES 108 AND
121, UCMJ.
We hold that the ACCA did not err in concluding that the
5000 rounds of ammunition Appellant stole is included in the
definition of “explosive” provided in Rule for Courts-Martial
(R.C.M.) 103(11) and that Appellant did not establish a
substantial basis in law or fact for questioning his guilty
plea.
I. FACTS
In August 2011, Appellant entered into a conspiracy with
Specialist (SPC) WW to steal and sell military ammunition.
Murphy, 73 M.J. at 700. On September 6, 2011, Appellant and SPC
WW stole two boxes of loose 5.56 millimeter ammunition, a total
of 1800 loose rounds, from the back of a military truck in the
company area, taking it to SPC WW’s home, where they sold it to
a third party. Id. Later that day, they returned to the
company area to steal additional rounds, this time taking two
crates of 5.56 millimeter ammunition, another 3200 linked
rounds. The rounds were secreted in SPC WW’s backyard shed
rather than sold immediately. Id.
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Appellant pleaded guilty to “steal[ing] . . . 5.56 mm
ammunition, which are explosives, military property, property of
the United States government.” No value was alleged. Manual
for Courts-Martial, United States pt. IV, para. 46.e.(1)(c)
(2008 ed.) (MCM), nonetheless prescribes an increased maximum
punishment for larceny of an explosive, irrespective of value,
of “[d]ishonorable discharge, forfeiture of all pay and
allowances, and confinement for 10 years.” In comparison, MCM
pt. IV, para. 46.e.(1)(a), concerning larceny of “[m]ilitary
property of a value of $500 or less” excluding firearms,
explosives, vehicles, aircraft, and vessels, carries a maximum
punishment of “[b]ad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 1 year.”
During the providence inquiry, the military judge
instructed Appellant on the elements of Article 121, UCMJ, as
well as the definition of “explosives.” The military judge
defined “explosives” as “gun powders, powders used for blasting,
all forms of high explosives, blasting materials, fuses 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, firebomb, or similar device.” The military judge did
not state the source of this definition. Appellant answered
that he understood the definition.
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United States v. Murphy, No. 14-0767/AR
The military judge later asked Appellant if he was aware
that the ammunition he stole was an explosive. Appellant
answered in the affirmative and stated he knew it was “[b]ecause
I dealt with ammunition the whole time I was at Fox Company and
I was very well aware that it was an explosive.” The military
judge then said, “I have . . . 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?” Dep’t of the Army, Reg. 75-14, Interservice
Responsibilities for Explosive Ordnance Disposal para. 3.e.
(Feb. 14, 1992) [hereinafter AR Reg. 75-14]. 2 Appellant answered
in the affirmative. The military judge asked, “And is 5.56
millimeter ammunition an explosive in accordance with this Army
regulation?” Appellant answered, “Yes, that is correct.”
2
Paragraph 3.e. of AR Reg. 75-14 defines “Explosive Ordnance
(EO)” as:
Bombs and warheads; guided and ballistic missiles;
artillery, mortar, rocket, and small arms ammunition; all
mines, torpedoes, and depth charges; grenades demolition
charges; pyrotechnics; clusters and dispensers; cartridge-
and propellant-actuated devices; electroexplosive devices;
clandestine and improvised explosive devices (IEDs);
improvised nuclear devices (INDs); and all similar or
related items or components explosive in nature. This
definition includes all munitions containing explosives,
propellants, nuclear fission or fusion materials, and
biological and chemical agents.
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United States v. Murphy, No. 14-0767/AR
II. ACCA DECISION
On appeal, Appellant argued that the military judge erred
by accepting his guilty plea because “5.56 mm ammunition is not
an explosive.” Murphy, 73 M.J. at 701. The ACCA, sitting en
banc, held that ammunition is plainly an explosive because
gunpowder is listed in R.C.M. 103(11), which defines
“explosive.” Id. Further, it found that the ACCA panel in
United States v. Lewis, No. ACM 20120797, 2013 CCA LEXIS 188,
2013 WL 1960747 (A. Ct. Crim. App. Feb. 27, 2013), erred in
relying on United States v. Graham, 691 F.3d 153 (2d Cir. 2012),
vacated on other grounds, 133 S. Ct. 2851 (2013), in which the
United States Court of Appeals for the Second Circuit held that
firing a single bullet near the victim was not using an
explosive to commit a felony. Murphy, 73 M.J. at 701-02.
III. DISCUSSION
This Court will not disturb a guilty plea unless Appellant
has demonstrated that there is “a substantial basis” in “law or
fact” for questioning the plea. United States v. Inabinette, 66
M.J. 320, 322 (C.A.A.F. 2008). “[W]e review a military judge’s
decision to accept a guilty plea for an abuse of discretion and
questions of law arising from the guilty plea de novo.” Id. It
is undisputed that Appellant stole, in aggregate, approximately
5000 rounds of 5.56 mm ammunition. Appellant alleges that there
is a substantial basis in law to question the providence of his
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United States v. Murphy, No. 14-0767/AR
plea because ammunition is not an explosive within the meaning
of either R.C.M. 103(11), or MCM pt. IV, para. 46.e.(1)(c), and
because the definition of “explosive” given by the military
judge rendered the plea improvident. We disagree.
There is no substantial basis in law upon which to question
Appellant’s plea because the definition of explosives in R.C.M.
103(11) includes ammunition and Appellant described all the
facts necessary to establish his guilt.
A.
“[I]t is axiomatic that ‘[i]n determining the scope of a
statute, we look first to its language.’” United States v.
Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014) (second alteration in
original) (quoting United States v. Turkette, 452 U.S. 576, 580
(1981)). This Court further looks to provisions of related
statutes. United States v. Falk, 50 M.J. 385, 390 (C.A.A.F.
1999). We apply the same interpretive process when analyzing a
rule promulgated by the President in the MCM. United States v.
Rendon, 58 M.J. 221, 224 (C.A.A.F. 2003); see United States v.
Muwwakkil, No. 15-0112, 2015 CAAF LEXIS 485, at *17, 2015 WL
3444622, at *7 (C.A.A.F. May 28, 2015).
R.C.M. 103(11) includes ammunition for three main reasons.
First, the text at issue, R.C.M. 103(11), defines an
“[e]xplosive” as:
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United States v. Murphy, No. 14-0767/AR
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).
This definition is by its terms expansive and inclusive. It
includes all items listed in both 18 U.S.C. § 844(j) 3 and 18
U.S.C. § 232(5), 4 and is thus more expansive than either § 844(j)
3
18 U.S.C. § 844(j) is part of the penalty provision of the
“Explosives Control Act,” 18 U.S.C. §§ 841-48 (2012). It reads:
For the purposes of subsections (d), (e), (f), (g), (h),
and (i) of this section . . . , the term “explosive” means
gunpowders, powders used for blasting, all forms of high
explosives, blasting materials, fuzes (other than electric
circuit breakers), detonators, and other detonating agents,
smokeless powders, other explosive or incendiary devices
within the meaning of paragraph (5) of section 232 of this
title, and any chemical compounds, mechanical mixture, or
device that contains any oxidizing and combustible units,
or other ingredients, in such proportions, quantities, or
packing that ignition by fire, by friction, by concussion,
by percussion, or by detonation of the compound, mixture,
or device or any part thereof may cause an explosion.
Emphasis added.
4
18 U.S.C. § 232(5) provides a definition of “explosive or
incendiary device” for Chapter 12 of the U.S.C. dealing with
civil disorders. It reads:
The term “explosive or incendiary device” means (A)
dynamite and all other forms of high explosives, (B) any
explosive bomb, grenade, missile, or similar device, and
(C) any incendiary bomb or grenade, fire bomb, or similar
device, including any device which (i) consists of or
includes a breakable container including a flammable liquid
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United States v. Murphy, No. 14-0767/AR
or § 232(5) individually. The repeated use of the word “any”
along with the clause incorporating both statutes by reference
indicates, as a general matter, that R.C.M. 103(11) is intended
to be inclusive. Cf. Babbitt v. Sweet Home Chapter of
Communities of a Great Oregon, 515 U.S. 687, 705 (1995).
Also instructive for our purposes, R.C.M. 103(11)
incorporates by reference § 844(j)’s catch-all clause, which
includes within its definition of explosives:
any chemical compounds, mechanical mixture, or
device that contains any oxidizing and
combustible units, or other ingredients, in such
proportions, quantities, or packing that ignition
by fire, by friction, by concussion, by
percussion, or by detonation of the compound,
mixture, or device or any part thereof may cause
an explosion.
Emphasis added. This clause makes clear that § 844(j) (and thus
R.C.M. 103(11)) covers not just self-evidently explosive
devices, such as bombs, but also those items that may be
explosive due to contextual factors such as the quantity of the
“compound, mixture, or device,” as well as how it is packed.
18 U.S.C. § 844(j); see United States v. Davis, 202 F.3d 212,
219 (4th Cir. 2000) (citing the catch-all clause in § 844(j) to
conclude that “[g]unpowder clearly is an ‘explosive,’ not only
or compound, and a wick composed of any material which,
when ignited, is capable of igniting such flammable liquid
or compound, and (ii) can be carried or thrown by one
individual acting alone.
9
United States v. Murphy, No. 14-0767/AR
because it is specifically identified as such in the statutory
definition . . . but also by its properties and use”). By the
same token, a device that shares characteristics with or
resembles an explosive but would not “cause an explosion” is not
covered by R.C.M. 103(11). Using the language of 18 U.S.C.
§ 232(5), R.C.M. 103(11) limits the application to “any
explosive bomb, grenade, missile, or similar device” (emphasis
added), indicating that it does not apply, for example, to
common smoke grenades, which do not explode or ignite but only
emit smoke as a signal or to provide concealment. The 18 U.S.C.
§ 844(j) catch-all clause similarly applies only to compounds,
mixtures, or devices that “may cause an explosion.”
Ammunition is generally comprised of three main components:
“projectiles together with their fuzes, propelling charges, and
primers that are fired.” Webster’s Third New International
Dictionary Unabridged 71 (1986). Neither party disputes that
ammunition contains a small amount of gunpowder in each round.
Final Brief on Behalf of Appellant at 6, 12, 17, 18, United
States v. Murphy, No. 14-0767 (C.A.A.F. Feb. 23, 2015); Brief on
Behalf of Appellee at 9-10, United States v. Murphy, No. 14-0767
(C.A.A.F. Mar. 29, 2015). More importantly, ammunition is
packed and intended to be expelled by action of its explosive
component after the hammer strikes the primer.
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United States v. Murphy, No. 14-0767/AR
Second, we read R.C.M. 103(11) alongside a complementary
definition in the MCM, which is in accord. United States Nat.
Bank of Oregon v. Indep. Ins. Agents of America, Inc., 508 U.S.
439, 454-55 (1993) (noting that statutory construction is a
holistic endeavor). R.C.M. 103(12) clarifies that ammunition is
an explosive, given that it defines a “firearm” as “any weapon
which is designed to or may be readily converted to expel any
projectile by the action of an explosive.” (Emphasis added.)
R.C.M. 103(12) identifies the essential components of ammunition
as a projectile, such as a bullet, and the explosive that expels
it, typically gunpowder. The primer is part and parcel of the
ammunition, and gunpowder is the first listed item in R.C.M.
103(11)’s definition of “explosives.” We agree with the ACCA
that “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.” Murphy, 73 M.J. at
704.
Third, the penalty sections of 18 U.S.C. § 844 give further
insight into what specific items are explosives within the
meaning of § 844(j) and, by extension, R.C.M. 103(11). Falk, 50
M.J. at 390; see also United Sav. Ass’n of Texas v. Timbers of
Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988) (“A
provision that may seem ambiguous in isolation is often
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United States v. Murphy, No. 14-0767/AR
clarified by the remainder of the statutory scheme . . . .”).
Subsection 844(g), which provides penalties for possessing
explosives, exempts “the possession of ammunition . . . in an
airport . . . if such ammunition is either in checked baggage or
in a closed container.” 18 U.S.C. § 844(g)(2)(A) (emphasis
added). By implication, because 18 U.S.C. § 844(g)(2)(A)
exempts ammunition when contained in checked commercial airline
baggage, ammunition is ordinarily included in the definition in
§ 844(j). 5 If § 844(j) did not include ammunition, the statute
would not need to make an explicit exemption allowing for it to
be possessed in certain narrowly prescribed circumstances.
Babbitt, 515 U.S. at 724 (“[S]tatutes should be read so far as
possible to give independent effect to all their provisions.”).
Contrary readings would have to assume that the exemption has no
meaning and is surplusage. Microsoft Corp. v. i4i Ltd.
Partnership, 131 S. Ct. 2238, 2248 (2011) (discussing the canon
against superfluity).
In addition to the textual bases for concluding that
ammunition is an explosive under R.C.M. 103(11), we note that
5
This inference is bolstered by 18 U.S.C. § 845(a) and (a)(4),
which indicate that the penalty provisions of § 844 using the
§ 844(j) definition regulate small arms ammunition by default.
Subsections 845(a) and (a)(4) state that “[Chapter 40] shall not
apply to” “small arms ammunition and components thereof” but
also explicitly except numerous subsections from this statement,
including the penalty provisions of § 844 (such as § 844(g))
that use the § 844(j) definition.
12
United States v. Murphy, No. 14-0767/AR
the sentence enhancement for larceny of an explosive under MCM
pt. IV, para. 46.e.(1)(c), further bolsters this conclusion in
the military context, as it addresses not only concerns of loss
of life and property, but other concerns unique to the military.
The armed forces have a responsibility to ensure that the
firearms and explosives that are in their care are controlled,
housed, and used safely, and that they are mission ready. With
this in mind, the MCM provides for a sentence enhancement for
larceny of these objects “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. Special accountability and protective
measures are taken with firearms and explosives, and they may be
the target of theft regardless of value.” MCM, Analysis of
Punitive Articles app. 23 at A23-17 (2008 ed.). The armed
forces must ensure a proper complement of firearms and
explosives so that servicemembers can be trained and so that the
armed forces can respond when called. Id. Much like explosive
chemical compounds, bombs, or grenades, ammunition, because it
contains gunpowder and is a necessary component of firearms,
implicates all of these concerns in a way that other types of
military property, such as canteens, do not. See Murphy, 73
M.J. at 704.
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The Second Circuit’s reasoning in Graham, which Appellant
relies on for the proposition that ammunition is not included in
§ 844(j) and therefore, he argues, not included in R.C.M.
103(11), does not counterbalance the foregoing reasons for
concluding that larceny of 5000 rounds of ammunition is larceny
of an explosive. 691 F.3d at 164. In Graham, the appellant
fired a gun once during a robbery and was charged, inter alia,
for using an explosive during the commission of a felony under
18 U.S.C. § 844(h)(1). 691 F.3d at 154-55, 157. The Second
Circuit held that, “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.” Id. at 164. But see Davis, 202 F.3d at
219 (holding that “[t]he ammunition in a loaded handgun is . . .
an ‘explosive’ under § 844(j)”). The Second Circuit was careful
to limit its holding to the facts of that case, explicitly
stating that “[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.” 691 F.3d at 164. Because
the case before us deals with theft of 5000 rounds of ammunition
in the military context, we do not deem the decision in Graham
in conflict with ours.
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B.
Having concluded that the ammunition that Appellant stole
constituted an “explosive” under R.C.M. 103(11) as a matter of
law, we now turn to the question whether the definition the
military judge provided for explosives affected the providence
of the plea. United States v. O’Connor, 58 M.J. 450, 453
(C.A.A.F. 2003); United States v. Jones, 34 M.J. 270, 272
(C.M.A. 1992). A plea is provident so long as Appellant was
“convinced of, and [was] able to describe, all of the facts
necessary to establish [his] guilt.” O’Connor, 58 M.J. at 453.
The military judge has a duty “to accurately inform [an]
[a]ppellant of the nature of his offense” and “[a]n essential
aspect of informing . . . is a correct definition of legal
concepts.” United States v. Negron, 60 M.J. 136, 141 (C.A.A.F.
2004); see also United States v. Care, 18 C.M.A. 535, 541, 40
C.M.R. 247, 253 (1969) (codified at R.C.M. 910(c)). Yet,
failure to define correctly a legal concept or “explain[] each
and every element of the charged offense to the accused in a
clear and precise manner” “is not reversible error if it is
clear from the entire record that the accused knew the elements,
admitted them freely, and pleaded guilty because he was guilty.”
Jones, 34 M.J. at 272; see also United States v. Redlinski, 58
M.J. 117, 119 (C.A.A.F. 2003).
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United States v. Murphy, No. 14-0767/AR
The first definition for explosives the military judge gave
did not include the language of or refer to 18 U.S.C. § 232(5)
and § 844(j). Given that these statutes are explicitly
incorporated into R.C.M. 103(11), both informing and
supplementing it, the military judge should have informed
Appellant of those definitions during the providence inquiry.
See Jones, 34 M.J. at 272; Redlinski, 58 M.J. at 119. It was
not reversible error, however, to fail to do so. See Jones, 34
M.J. at 272 (plea was provident where the military judge stated
that there was federal jurisdiction over the location of the
crime, as required by the statute, but did not define that term,
because the appellant discussed the jurisdictional issue with
defense counsel and pleaded unconditionally); United States v.
Kilgore, 21 C.M.A. 35, 36, 44 C.M.R. 89, 90 (1971) (holding a
plea to be provident where the military judge “questioned the
accused closely as to the factual allegations of various
specifications, but did not separately detail the elements of
each offense, either by way of preface or summary.” (emphasis
added)); see also Redlinski, 58 M.J. at 119 (citing Kilgore, 21
C.M.A. at 37, 44 C.M.R. at 90, Jones, 34 M.J. at 272, and United
States v. Pretlow, 13 M.J. 85, 88 (C.M.A. 1982), for the
proposition that “[r]ather than focusing on a technical listing
of the elements of an offense, this Court looks . . . to
determine whether an accused is aware of the elements, either
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United States v. Murphy, No. 14-0767/AR
explicitly or inferentially”). The military judge properly
explained the elements of Article 121, UCMJ, and explained the
elements of the sentence enhancement under MCM pt. IV, para.
46.e.(1)(c). Appellant stated that he understood the first
definition for explosives that the military judge provided, and
agreed that “the definitions [of the elements of larceny] taken
together correctly describe what [he] did with respect to the
offenses to which [he] pled guilty.” Most importantly,
Appellant testified that he was “very aware” that ammunition is
an explosive. Review of the record shows that Appellant knew
the elements of Article 121, UCMJ, including the sentence
enhancement for larceny of explosives, and stated all of the
facts necessary to establish that he violated Article 121, UCMJ,
by stealing approximately 5000 rounds of ammunition, which he
understood were explosives. O’Connor, 58 M.J. at 453; see also
Jones, 34 M.J. at 272. Thus, the failure to read § 232(5) and
§ 844(j) does not establish a substantial basis for questioning
Appellant’s plea. Inabinette, 66 M.J. at 322; O’Connor, 58 M.J.
at 453.
The second definition of “explosives” the military judge
gave to illustrate the conclusion that small arms ammunition are
explosives, AR Reg. 75-14, is not part of, nor incorporated in,
R.C.M. 103(11). In light of our conclusion, however, that small
arms ammunition does constitute an explosive and is included in
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United States v. Murphy, No. 14-0767/AR
R.C.M. 103(11), AR Reg. 75-14 is not inconsistent with R.C.M.
103(11). 6 Accordingly, the military judge’s use of AR Reg. 75-14
also does not establish a substantial basis in law or fact for
questioning Appellant’s plea. Inabinette, 66 M.J. at 322; see
also United States v. Finch, 73 M.J. 144, 149 (C.A.A.F. 2014)
(holding that a single inconsistent reference to images of
virtual minors during the providence inquiry did not “establish
that a substantial basis in law or fact exists to reject his
plea” where the appellant pled guilty to possessing images of
actual minors).
IV. CONCLUSION
The decision of the United States Army Court of
Criminal Appeals is affirmed.
6
We do not decide whether the other items listed in AR Reg. 75-
14 would also be considered “explosives” under R.C.M. 103(11)
because this case deals only with larceny of small arms
ammunition.
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ERDMANN, Judge (concurring in the result):
I concur with the majority’s decision that there is no
substantial basis in law or fact for questioning Murphy’s guilty
plea, including his agreement that the ammunition was an
explosive and therefore subject to the sentence aggravator
provisions of MCM pt. IV, para. 46.e.(1)(c). I depart from the
majority, however, as to the rationale for that conclusion. Due
to the ambiguities in the definition of “Explosive” in R.C.M.
301(11), it is not at all clear that 5.56 mm ammunition is an
explosive under R.C.M. 103(11). However, I do not believe that
holding ammunition to be an explosive is necessary to our review
of the guilty plea. Due to the colloquy between Murphy and the
military judge, I do not find a substantial basis in law or fact
to question the providence of the plea.
Murphy was charged with and convicted of conspiracy to
steal and the subsequent theft of government-owned ammunition,
which was identified in the charge sheet as an explosive. MCM
pt. IV, para. 46.e.(1) sets forth the punishments for larceny
and subsection (c) provides a sentence aggravator for theft of
military property with a value of more than $500, 1 or for any
military vehicle, aircraft, vessel, firearm, or explosive. As
1
At trial it was established that the conspiracy and theft
involved 1800 rounds of loose 5.56 mm ammunition with a value of
$1024.00, and 3200 rounds of linked 5.56 mm ammunition with a
value of $1824.00.
United States v. Murphy, No. 14-0767/AR
the government did not allege the value of the ammunition in the
charge sheet but did identify the ammunition as an explosive,
the issue here is whether ammunition can be considered an
explosive for purposes of the sentence aggravator in MCM pt. IV,
para. 46.e.(1)(c).
Initially, there is a distinction here that is important.
Murphy was charged with conspiracy/theft of ammunition and the
government identified the ammunition as an explosive. However,
in the context of the sentence aggravator, there has been no
argument that the ammunition itself is an explosive. 2 Both the
government and the majority rely on the presence of gunpowder in
each round of ammunition to satisfy the definition of
“Explosive” in R.C.M. 103(11). That rationale, however,
conflates ammunition with gunpowder.
For purposes of the MCM, the term “Explosive” is defined in
R.C.M. 103(11) 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 devices which is an explosive
within the meaning of 18 U.S.C. § 232(5) or 844(j).
2
As noted by the majority, ammunition is comprised of three main
components: the projectile, propelling charges (gunpowder), and
primers.
2
United States v. Murphy, No. 14-0767/AR
The CCA found that ammunition was an explosive as it
contained gunpowder, a substance which is included in the R.C.M.
103(11) definition of explosive. United States v. Murphy, 73
M.J. 699, 701 (A. Ct. Crim. App. 2014). However, the presence
of gunpowder in a round of 5.56 mm ammunition does not
necessarily convert a round of 5.56 mm ammunition into an
explosive.
The President specifically listed several devices which
contain gunpowder in R.C.M. 103(11), i.e., explosive bomb,
grenade, missile, but did not include ammunition. The canon of
statutory construction expressio unius est exclusio alterius,
provides guidance in interpreting the omission of “ammunition”
in R.C.M. 103(11). Specifically, because the expression of one
thing is the exclusion of another we must presume that the
exclusion of “ammunition” is intentional. As such, we should
not read ammunition into the plain language of the statute.
United States v. Kick, 7 M.J. 82, 88-89 (C.M.A. 1979) (Perry,
J., dissenting) (explaining that under the cannon of
construction expressio unius est exclusio alterius, language
omitted in an otherwise comprehensive statutory scheme is
presumed intentional). In addition, where the President’s
narrowing construction is favorable to an accused and is not
inconsistent with the language of a statute, “we will not
3
United States v. Murphy, No. 14-0767/AR
disturb the President’s narrowing construction.” United States
v. Davis, 47 M.J. 484, 486–87 (C.A.A.F. 1998).
The majority also relies on the definitions of explosive
found in 18 U.S.C. §§ 232(5) and 844(j), which are incorporated
by reference into R.C.M. 103(11). 18 U.S.C. § 232(5) is the
definitional statute in Chapter 12 of Title 18, Civil
Disturbances, and provides:
The term “explosive or incendiary device” means (A)
dynamite and all other forms of high explosives, (B)
any explosive bomb, grenade, missile, or similar
device, and (C) any incendiary bomb or grenade, fire
bomb, or similar device, including any device which
(i) consists of or includes a breakable container
including a flammable liquid or compound, and a wick
composed of any material which, when ignited, is
capable of igniting such flammable liquid or compound,
and (ii) can be carried or thrown by one individual
acting alone.
As this provision is limited to “explosive or incendiary
device[s],” it is not relevant to the issue of whether 5.56 mm
ammunition is an explosive. Neither party argued that the 5.56
mm rounds were either explosive or incendiary.
The majority primarily relies on the definition contained
in 18 U.S.C. § 844(j), which is part of the penalty provisions
for Chapter 40 of Title 18, Importation, Manufacture,
Distribution and Storage of Explosive Materials. Subsection
844(j) provides:
For the purposes of subsections (d), (e), (f), (g),
(h), and (i) of this section and section 842(p), the
term “explosive” means gunpowders, powders used for
4
United States v. Murphy, No. 14-0767/AR
blasting, all forms of high explosives, blasting
materials, fuzes (other than electric circuit
breakers), detonators, and other detonating agents,
smokeless powders, other explosive or incendiary
devices within the meaning of paragraph (5) of section
232 of this title, and any chemical compounds,
mechanical mixture, or device that contains any
oxidizing and combustible units, or other ingredients,
in such proportions, quantities, or packing that
ignition by fire, by friction, by concussion, by
percussion, or by detonation of the compound, mixture,
or device or any part thereof may cause an explosion.
The majority, focusing on the clause in the last five lines
of this definition, makes a compelling argument that this
language includes ammunition, as it includes “compounds,
mixtures, or devices that ‘may cause an explosion.’” United
States v. Murphy, __ M.J. __, __(10) (C.A.A.F. 2015). The
mixture or compound that explodes in this case is the gunpowder
contained in the ammunition. While that inclusion does not
convert the ammunition into an explosive, this provision would
appear to provide the most support for the government’s theory.
However, there is some uncertainty as to whether this definition
is even applicable to the circumstances of this case.
Murphy was charged with conspiracy to steal and the
subsequent theft of the ammunition, which the government
identified as an explosive. Under Chapter 40 of Title 18, it
does not appear that the definition relied upon by the majority
would apply in this case. 18 U.S.C. § 845 is entitled
“Exceptions; relief from disabilities.” Subsection (a) provides
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United States v. Murphy, No. 14-0767/AR
that “[e]xcept in the case of subsection (l), (m), (n), or (o)
of section 842 and subsections (d), (e), (f), (g), (h), and (i)
of section 844, this chapter shall not apply to: . . . (4) small
arms ammunition and components thereof.” 5.56 mm ammunition is
considered small arms ammunition by the Department of Defense. 3
None of the excepted provisions in 18 U.S.C. § 845(a) include
conspiracy to steal and sell explosives (even if we were to
assume that ammunition is an explosive) or the actual theft of
explosives. 4 As the federal statutory definition relied upon by
the government and the majority would not be applicable to this
situation under federal civilian law, there is a significant
question as to whether it is applicable in a military justice
context.
At the very least there is an ambiguity as to whether 5.56
mm ammunition is an explosive as that term is defined in R.C.M.
103(11). Any ambiguity, therefore, should be resolved in favor
3
DOD Dictionary of Military and Associated Terms defines “small
arms ammunition” as “Ammunition for small arms, i.e., all
ammunition up to and including 20 millimeters (.787 inches),”
available at http://dtic.mil/doctrine/dod_dictionary/data/s/7078.html
(last visited July 7, 2015).
4
18 U.S.C. § 842 (l), (m), (n), and (o) all pertain to plastic
explosives. 18 U.S.C. § 844(d) applies to transportation of
explosives with knowledge it will be used to kill, injure, etc.,
(e) involves making threats by mail, telephone or telegraph to
use explosives, (f) applies to the malicious damaging or
destroying of government property with explosives, (g) involves
possession of an explosive in an airport, (h) involves using an
explosive to commit any felony, and (i) involves the malicious
destruction of any building or vehicle by explosive.
6
United States v. Murphy, No. 14-0767/AR
of the accused. Cleveland v. United States, 531 U.S. 12, 25
(2000) (“[A]mbiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity.” (citation and internal
quotation marks omitted)); United States v. Beaty, 70 M.J. 39,
44 (C.A.A.F. 2011) (“This court has ‘long adhered to the
principle that criminal statutes are to be strictly construed,
and any ambiguity resolved in favor of the accused. . . .’”
(quoting United States v. Thomas, 65 M.J. 132, 135 (C.A.A.F.
2007))). Therefore, I do not join that portion of the majority
opinion which holds that 5.56 mm ammunition is an explosive
under R.C.M. 103(11).
However, as this is a guilty plea case, that uncertainty
does not necessarily mean that the plea was not provident. A
guilty plea will be rejected only where the record of trial
shows a substantial basis in law and fact for questioning the
plea. Thomas, 65 M.J. at 133-34. The failure to correctly
define a legal concept is not reversible error if it is clear
from the entire record that the accused understood the charges
and, in this case, that the ammunition was being charged as an
explosive for purposes of the sentence aggravator.
The issue as to whether ammunition was an explosive was
recognized early in the court-martial. Prior to the arraignment
the military judge summarized what had transpired during an
R.C.M. 802 session with the counsel. The military judge stated
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that he had asked both counsel for documentation that 5.56 mm
ammunition was an explosive. The military judge had therefore
identified a potential issue in the providence inquiry and had
asked the parties to address it. During the subsequent
providence inquiry the defense did not object to the definitions
that the military provided for “explosive” and Murphy
acknowledged numerous times that the ammunition was an
explosive. Notably, this acknowledgment included Murphy’s
assurance to the military judge that he had “dealt with
ammunition the whole time I was at Fox Company and I was very
aware that it was an explosive.” Accordingly, it is clear from
the colloquy that Murphy was on notice ammunition was being
charged as an explosive.
I therefore concur in the result.
8