United States v. Bailey
ACM 39052
A.F.C.C.A.Sep 26, 2017Background
- Appellant pleaded guilty at a general court-martial to multiple offenses stemming from a multi-year plan to kill his ex-girlfriend MC, including three specifications of attempted premeditated murder, attempted conspiracy to commit murder, solicitation to commit murder (three specs), and illegal possession of a firearm silencer.
- Acts included arranging an arson (SSgt EL set MC’s house on fire), a “bag drop” of weapons and identifying information to a purported hitman (who was an AFOSI agent), and soliciting EL to shoot MC at a courthouse parking lot.
- Court sentenced Appellant to a dishonorable discharge, 50 years confinement, and reduction to E‑1; convening authority approved a reduced sentence of 30 years confinement under a pretrial agreement.
- On appeal Appellant argued (1) Article 134 solicitation specifications were preempted by Article 80 attempt specifications, (2) attempted conspiracy failed to state an offense, and (3) his sentence was inappropriate compared to co-actor SSgt EL’s 12-year sentence.
- The Air Force Court of Criminal Appeals affirmed, rejecting preemption and the failure-to-state claim, and finding a rational basis for the sentence disparity while upholding sentence appropriateness.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Preemption (Article 134 solicitation vs Article 80 attempt) | Solicitation specs duplicate and are preempted by attempted murder specs; therefore improper | Solicitation and attempt are distinct offenses; preemption inapplicable; preemption not waived but fails on merits | Preemption not waived; solicitation under Article 134 is not preempted by Article 80; convictions affirmed |
| Failure to state an offense (attempted conspiracy) | "Attempted conspiracy" is not a cognizable offense under UCMJ | CAAF precedent permits attempted conspiracy as an Article 80 offense | Denied; court follows CAAF precedent (Roeseler) that attempted conspiracy is an offense |
| Sentence appropriateness / disparity with co-actor | 30-year approved sentence is disproportionate compared to SSgt EL’s 12-year sentence | Cases are closely related but convictions differ; rational basis exists for disparity | Denied; court finds rational and compelling basis for disparity and approves the sentence |
| Waiver of preemption via PTA | PTA waived all waivable motions, so preemption claim is waived | Preemption concerns subject-matter jurisdiction and cannot be waived by plea/PTA | Court adheres to precedent that preemption is jurisdictional here and not waived |
Key Cases Cited
- United States v. Robbins, 52 M.J. 159 (C.A.A.F.) (lack of jurisdiction / failure to state offense not waived by guilty plea)
- United States v. Jones, 66 M.J. 704 (A.F. Ct. Crim. App.) (preemption relates to subject-matter jurisdiction; not waived)
- United States v. Guardado, 75 M.J. 889 (Army Ct. Crim. App.) (distinguishes ACA/clause 3 Article 134 cases; holds preemption may be waivable for clause 1–2 Article 134 offenses)
- United States v. Curry, 35 M.J. 359 (C.M.A.) (preemption applies only when offense is a residuum and Congress intended exclusive coverage)
- United States v. Anderson, 68 M.J. 378 (C.A.A.F.) (preemption requires congressional intent to limit prosecutions to a specific article)
- United States v. Roeseler, 55 M.J. 286 (C.A.A.F.) (attempted conspiracy is a military offense under Article 80)
- United States v. Lacy, 50 M.J. 286 (C.A.A.F.) (framework for assessing sentence disparity among closely related cases)