U.S. v. Robbins, 52 M.J. 159

Trial Stages: Pretrial: Charges and Specifications

1. preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132, UCMJ, where Congress has occupied the field of a given type of misconduct, set the minimum requirements for such offenses, and intended that some other punitive article cover a class of offenses in a complete way
2. preemption doctrine prohibits assimilating crimes under Article 134 if two questions are answered in the affirmative: (1) did Congress intend to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the Code; and, (2) is the offense charged composed of a residuum of elements of a specific offense and asserted to be a violation of either Articles 133 or 134, UCMJ. See United States v. McGuinness, 35 MJ 149 (1992)
3. the analysis for determining whether assimilation is permissible includes: (1) asking whether the defendants conduct is made punishable by any enactment of Congress?; and, (2) if the answer to the first inquiry is “yes”, then ask whether the federal statutes that apply to the act or omission preclude application of the state law in question or, put differently, does the applicable federal law indicate an intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue? See Lewis v. United States, 523 U.S. 155, 164-66 (1998)
4. an Ohio statute prohibiting “the unlawful termination of another’s pregnancy as a proximate result of the offender’s committing or attempting to commit a felony” was properly assimilated into Article 134 through the Assimilative crimes act where the Ohio statute specifically distinguished the unlawful termination of the fetus from the traditional offense of manslaughter and Congress has not specifically proscribed the killing of a fetus in either the UCMJ or the Federal Criminal Code
5. an Ohio statute prohibiting “the unlawful termination of another’s pregnancy as a proximate result of the offender’s committing or attempting to commit a felony” was cognizable by a court-martial under this Court’s analysis set forth in United States v. McGuinness, 35 MJ 149 (1992), because: (1) the offense is not a residuum of elements of a specific offense, but instead is a separate offense proscribed by the Ohio Revised Code; (2) the Ohio statute does not conflict with congressional intent to preempt the field; (3) the Ohio statute does not enlarge or redefine an offense already proscribed by Congress; and, (4) the Ohio statute creates a new offense that is distinct and fills a gap in the criminal law

Trial Stages: Merits: Guilty Pleas

1. guilty plea did not waive claim that offense was improperly assimilated into Article 134 through the Assimilative Crimes Act, 18 USC § 13, because the issue relates to subject-matter jurisdiction; if the offense was preempted and not properly assimilated, it is not cognizable by court-martial

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. guilty plea did not waive claim that offense was improperly assimilated into Article 134 through the Assimilative Crimes Act, 18 USC § 13, because the issue relates to subject-matter jurisdiction; if the offense was preempted and not properly assimilated, it is not cognizable by court-martial