U.S. v. Wheeler, 77 M.J. 289

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. the preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 to 132, and is designed to prevent the government from eliminating elements from congressionally established offenses under the UCMJ in order to ease their evidentiary burden at trial

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. charging appellant under clause three of Article 134, UCMJ, for attempting to persuade, induce, or entice a minor into engaging in sexual activity, in violation of a federal statute, 18 USC § 2422(b) (entitled coercion and enticement), was not preempted by Article 120b(c), UCMJ (entitled sexual abuse of a child and as enacted in 2011); the precise language of Article 120b(c), UCMJ, and 18 USC § 2422(b), have little in common other than that they are both aimed at criminalizing the sexual predation of children; moreover, enticement is not addressed expressly under Article 120b, UCMJ, or otherwise under the provisions subject to the preemption doctrine, Articles 80–132, UCMJ, as a distinct offense; and while it might be possible to contort the then extant version of Article 120b(c), UCMJ, to accommodate enticement of a child to engage in sexual activity, it fits precisely under the federal statute specifically aimed at proscribing that activity; in this context, enticement may be prosecuted under Article 134, UCMJ; furthermore, the government has not turned to a hypothetical federal noncapital crime that lessened its evidentiary burden at trial by circumventing the mens rea element or removing a specific vital element from an enumerated UCMJ offense
2. Article 134, UCMJ, expressly permits charging military members for crimes and offenses not capital that are not specifically mentioned in the UCMJ, and which include, inter alia, crimes and offenses prohibited by the United States Code
3. clause three of Article 134, UCMJ, clearly contemplates and permits the incorporation of noncapital federal crimes under its aegis
4. the preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 to 132, and is designed to prevent the government from eliminating elements from congressionally established offenses under the UCMJ in order to ease their evidentiary burden at trial

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether an offense is preempted depends on statutory interpretation, which is a question of law that an appellate court reviewsde novo