The Fiction of Legislative Intent: A Rationaie of Congressional Pre-emption in Courts-Martial Offenses

• Author: Captain Thomas F. Meagher, Jr
• Pages: 02

We cannot grant to the rewieea unlimited authority ta eliminate +tal elements from e~mmon iaw crimen and offenses expressly defined byCongreaa and pemit the remaining elements to be punished 88 an offense under Aytiele 134.1

1. INTRODUCTION

   In this sweeping statement of policy, the Cnited States Court of Military Appeals, at a time when the Uniform Code of Military Justice2 was yet in its formative years, proclaimed the applicability to courts-martial proceedings of the rule of Congressional pre-emption. While its pertinence to the case in which it was first announced is open to serious challenge, the principles on which the rule is premised are sound. Like most rules, the rule of preemption has grown beyond the relatively narrow limita which its initial formulation seemed to indicate, and appears to be applied today without a proper regard for its humble beginnings. It is proposed to examine in detail the circumstances which gave birth to the rule, the underlying factors which justify its existence and the expansion of the rule to encompass specific areas of conduct, to the end that the present scope of this rule can be reduced to specific terms.

   Just prior to enactment of the Uniform Code of Military Justice, the Articles of War had been revised, with some innovations having been wrought. Earlier Articles of War denounced larceny and embezzlement,a together with other common law crimes, but did not define these crimes. Further, the crime of larceny by false pretense wad treated as prejudicial or discrediting conduct violative of the catch-all provision, Article of War 96.' In the 1949 revision, embezzlement was merged with larceny, but no definition was added;& larceny by false pretense, however, remained B viola- * Member of the faculty of The Judge Advocate General's School, U.S. Amy, Chariottesuiile. Virginia; member of the Yassachuaetts State Bar; praduate of Baaton Coileee Law School.

   tion of the general Article.6 Additionally joy-riding' and wrongful takinga were thought to be offenses under the general Article, the latter offense requiring no mem rea.

   In the 1961 Code, Congress attempted to consolidate larceny by trespass, embezzlement, and larceny by false pretense in a single provision, Article 121. However, the initial version of the Article proposed9 was radically different from the version ultimately en-acted as Article 121.in Gnited States v. Norris,'o a trial for larceny, the accused pleaded guilty to what he believed to be the lesser included offense of wrongful taking, in violation of Article 134, i.e., taking the property of another without authority, but the court-martial con-victed him, not of iarceny, as charged, nor of wrongful taking, in accordance with his plea, but of wrongful appropriation, which was the only other offense in iasue, according to the instructions of the law officer. in order to ascertain whether the law officer had erred, the Court found it necessary to determine whether there existed an offense of wrongful taking. in reaching a conclusion that wrongful taking was not a military offense, the Court announced that Connress had, in the enactment of Article 121, in-tended to consolidate not only larceny by trespass, embezzlement, and larceny by false pretense, but all other forms of criminal con-version. Authority for this deduction was found primarily in a colloquy which occurred during hearings on the Code, which is as follo\vs :

   "MR.

   ELSTON: But you are including three offenses in one: Larceny, embezzlement and obtaining property by false pretenses?

   &Form 148, Appendh 4, Manual for Courts-Martinl, US. Army, 1949.7 Id., Form 159.

   SId., Farm 189.l"Any person subject to this code who, vith intent to deprive or defraud another of the use and benefit of property or to appropriate the dame ta his oaa use or the use of any perion other than the tme owner, wrongfully taker, obtains, or withholds, by any means whatever, from the PwPsIion of the true owner or of any other person any money, personal property, or article of vslne of any kind, atesk such property and is guilty of larceny, and shall be punished eii a court-martial may direct '"Hewinos on H.R.

   Bafors a Subcommittee of the House Cmmttee on Armed Servioea, 81at Cow, 1st Seas. 591 (1949). One criticism directed against this version. which undoubtedly indicated B n e 4 for re-drafting of the Article, WDB that made by the Judge Adamate General of the Army. that hesme there was no distinction between an intent to deprive permanentiy, or temporaiiiy, it would damage morale to stamp ai larceny the act of (me who intmded

   B temporary deprivation only. Hearings 071 S. 857 and HR 4080 Bafme Subcmmittm af the Swts Cmmittee on Armcd Scrvicea, 81at Coni., let Sees. 276 (1848).

   111 N. 1, am.

   TO *GO 100'OB

   CONG. PRE.EMPTIOii IN COURTS-MARTIAL OFFENSES

   "MR. LARIUN : That is right.

   "MR.

   ELSTON

   : And perhaps conversion also?

   "MR. LARKIN

   : Yes.

   "MR.

   SMART:

   This includes joy-riding?

   "MR. LARKIN: Yes, under this section a person who would drive the automobile of another, and not intend to steal it at all but just drive it, without consent of the owner, would be guilty under Article 121."11This may well have been the intent of the legislators in considering enactment of the original version of Article 121, which included the term "wrongfully takes,"la hut it is quite B different matter to label this a declaration of Congressional intent, in relation to the substantially altered version of the Article which was enacted into law. But while the basis for an inference of Congressional intent to pre-empt may he questionable, so far as the offense in Nowis is concerned, there is no doubt that the rule itself is a sound one, and it is obviously too late in the day to challenge the influence of the pre-emption rule in the area of conduct circumscribed by Article 121.

   It should now be obvious that two possible inquiries are auggested by the implications of Nonis. The first would be designed to discover the scope of Article 134 in terms of "military offenses," in view of the strictures imposed by pre-emption. Such an Augean task does not tempt the writer, and would far exceed the limits of this Article.13 The other xould be to ascertain the present limitations on, or exceptions to, the rule of pre-emption, by examination of its application, in order to deduce from present practice, in more specific terms, a restatement of the rule. For the sake of order, examination will proceed in four distinct steps, Cases in which application of the rule is clearly warranted are considered first. By way of contrast, those cases in which it is obvious that the N o d doctrine was correctly distinguished and held inapplicable, will he considered second. Third, will be a survey of cases in which the doctrine is arguable, or indicates expansion. Final

   II Hearing8 on X.R. 9498 Bsjors a Subcommittee oj the HO(UIB

   Committee

   on Amrd Servieaa, 91st Cong., lit Sera. 1145 (1949) cited in U.S. Y. Norris, BUZIIO. at 238. 8 CMR 39.

   12 N.

   9, ~apra. If the Court W B ~

   in error in ascribing to the present Article the intent expressed in ralation to the initial draft of Article 121, the govv~m: ment cannot complain a~ the identical colloquy, in support of the lame proposition, is found in the government's brief. See Brief on Behalf of United Stater. nn. 5-6. U.S. V. Ilarris. _ova.

   .. . . .

   I8 See, halsever, Hagan, "The Gsnarai A+-tioie--llcnirntai Confuaian.' Hag 1860, (unpublished thenis in The Judge Advmate General's School Library) pminting out certain limitation8 imposed upon the scape of Artiele 184 by appellate interpmt&tion.

   NILITARY LAW REVIEW

   consideration i8 left to those opinions rejecting the exclusionary rule of .Vowis, in which the premises may be open to question.

   11. AREAS PRE-EXPTED

   In a trial for larceny in which the law officer has failed to instruct on intoxication, Semis precludes the affirmance of any lesser "offense" not rewiring a mms rea.>(, When an accused is charged with larceny, but the court, by exceptions and substitutions, finds him guilty only of the "wrongful taking" of the property alleged, in violation of Article 134, there remains no offense for which a conviction can be affirmed, because of the pre-emption theory.la To hold that stealing the "use of a rental automobile" is larceny, aou!d be to add a nex offense in the field of larceny, a result in conflict 15ith the principles of the Sorris decision, and in any event the accused could properly have been charged and convicted under Article 121.'6 It is not clear, however, that Congress intended in enacting Article 121, to exclude from punishment as an offense, acts in regard to intangibles, in the nature of larceny. However in the case in point, the acciiaed could, on proper pleadings, have been convicted of misapprcpriating the rental vehicle; thus, the result of the opinion is certainly in consonance with the holding in Sorris.

   In rnitsd States v. Gsppait;' the specification purported to plead a yiolation of Article 121 by alleging that the accused did "wrongfully withhold" an automobile. Citing Sorris, the Court held that, as the pleading %\-as insufficient to allege larceny, "with-holding" carrying no implication of intent, no offense under the Code was pleaded, because Article 121 cavered the field of criminal conversion. A board of review reached the same conclusion an identical grounds, in relation to a specification purporting to describe a larceny, which averred that the accused, "by means of false pretenses" re!ied on by the victim, "wrongfully obtained" articles of a specified value owned by the victim.1a In this instance, as in Cnited States \I. Gcpprrt, it appears that the drafter af the charges was not trying to create B new offense (as in both cases the accused was charged with violating Article 121) but was merely unzkiiled in the art of pleading a larceny. Thus, results in these cases are partially based an the rule that an offense mustbe fairlr pleaded, although...