Contrary to his plea, a panel of officers and enlisted members convicted the appellant of one charge and one specification of violating Article 92, UCMJ 10 U.S.C. § 892 for disobedience of a Department of Defense regulation for misusing his Government Travel Card on divers occasions and one charge and two specifications of violating Article 134, UCMJ 10 U.S.C. § 934.
The appellant asserts three errors.
Preemption
The appellant, for the first time on appeal, avers the preemption doctrine prohibits the government from charging him with a violation of Article 134, UCMJ, for misuse of Bank of America “Pay by Phone” services because the United States Congress elected to only punish such conduct under Article 123a, UCMJ, 10 U.S.C. § 923a, (Bad Checks).
On the issue of waiver, our superior court has found that preemption is not waived by the appellant’s guilty plea. See United States v. Robbins, 52 M.J. 159, 160 (C.A.A.F.1999). In Robbins the Court noted that Rule for Courts-Martial (R.C.M.) 905(e) “provides that lack of jurisdiction or failure to state an offense are not waived by failure to raise the issue at trial.” Id. While Robbins dealt with an assimilated charge under Article 134, UCMJ, the Court still found that preemption relates to a question of subject-matter jurisdiction of the trial court and thus cannot be waived by either a plea or failure to object. That decision controls the issue in this ease and the claim of preemption is not waived. As for the claim of estoppel, we expressly reject the application of that doctrine to this ease. The decision to withdraw the Article 123a offense rested solely with the convening authority. Estoppel does not apply under these facts. We next turn to the substantive question.
The preemption doctrine “prohibits application of Article 134 to conduct covered by Articles 80 through 132.” Manual for Courts-Martial, United States (MCM), Part IV, ¶ 60.c.(5)(a) (2005 ed.). In United States v. Kick,
[LJegal concept that where Congress has occupied the field of a given type of misconduct by addressing it in one of the specific punitive articles of the code, another offense may not be created and punished under Article 134, UCMJ, by simply deleting a vital element. However, simply because the offense charged under Article 134, UCMJ, embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine. In addition, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way.
Id. at 85 (internal citations omitted); see also United States v. Erickson,
Interpretation of a statute and its legislative history is a question of law to be reviewed de novo. United States v. Martinelli,
Applying the above standard, we conclude that Congress did not intend that all criminal conduct related to bank transfers of money must be prosecuted under Article 123a. In this regard, we look to our superior court’s early decisions addressing Congress’s intent in respect to the scope of Article 123a. In United States v. Barnes, 34 C.M.R. 347, 349,
The Article 13b, UCMJ “Pay by Phone” Offense
At trial, the appellant did not object to the government’s decision to dismiss the Article 123a, UCMJ violation and substitute it with a general Article 134, UCMJ violation. The substituted offense reads as follows:
In that ... [SrA Jones] did ... on divers occasions between on or about 17 May 2005 and on or about 8 December 2005, wrongfully misuse the Bank of America “Pay by Phone” service by giving Bank of America verbal authorization to electronically draft his bank account for payment of his Government Travel Card, then knowing that he ... did not or would not have sufficient funds or credit with such bank for payment of the verbal authorization.
The specification charged raises a number of questions. Does it state an offense? If so, did the appellant have “fair notice” as to what conduct was subject to criminal sanction? See United States v. Saunders,
In our attempt to answer these questions we look first to the military judge’s instructions on the specification. In doing so, we conclude the military judge erred in failing to advise the members that they must find the conduct was done with the intent to defraud. See Downard,
In closing, we would highlight that we do not find fault with charging a general Article 134, UCMJ violation in a circumstance where the evidence does not fit into the language of Article 123a, UCMJ or the Article 134, UCMJ “bad check” offense. The short coming of such a practice, however, is to create confusion regarding the level of criminality required to prove, instruct and sustain a conviction based upon breach of obligations in maintaining a cheeking account.
In the appellant’s second assertion of error, he claims that Charge I and its specification must be set aside because it is unclear which misuses of the Government Travel Card the members relied upon when they found him guilty of misuse on divers occasions. Citing United States v. Walters,
Having reviewed the evidence presented in this case, de novo, we are satisfied that at least two of the charged card uses are legally and factually sufficient violations of Article 92, UCMJ. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United States v. Washington,
Business Records
The appellant contends that the military judge abused his discretion when he admitted Bank of America records that showed Government Travel Card usage by the appellant. A document prepared by a third party is properly admitted as part of a second business entity’s records if the second business integrated the document into its records and relied upon it in the ordinary course of business. United States v. Grant,
Sentence Reassessment
Because we dismissed Specification 2 of Charge II, we next analyze the case to determine whether we can reassess the sentence. See United States v. Doss,
The appellant was found guilty of three specifications. All were related to his conduct regarding the misuse and timely payment of charges on his government-provided travel card. The misconduct included in the dismissed specification was relevant and material to the dishonorable failure to pay the debt specification. As such, we believe the landscape regarding punishment is not significantly altered because of our dismissal of Specification 2 of Charge II. Further, we conclude the amount of additional punishment given based upon the same facts supporting two different specifications is limited. Finally, we note that as a special court-martial, even absent Specification 2 of Charge II, the members would still have been advised of the same maximum permissible punishment. Reassessing the sentence, we are convinced beyond a reasonable doubt that the panel would have awarded a sentence of at least a bad-conduct discharge and reduction to E-3. Furthermore, we find the sentence, as modified, to be appropriate. See United States v. Peoples,
In this case, the overall delay of 794 days between the trial and completion of review by this Court is facially unreasonable. Because the delay is facially unreasonable, we examine the four factors set forth in Barker v. Wingo,
Having considered the totality of the circumstances and entire record, we conclude that any denial of the appellant’s right to speedy post-trial review and his appeal was harmless beyond a reasonable doubt and that no relief is warranted.
Conclusion
The findings, as modified, and the sentence as reassessed, are correct in law and fact, and no error prejudicial to the substantial rights of the appellant occurred. Article 66(e), UCMJ; United States v. Reed,
AFFIRMED.
Notes
. Initially the appellant was arraigned on two violations of Article 92, UCMJ, and a single violation of both Article 123a, UCMJ and Article 134, UCMJ. The two Article 92, UCMJ violations were merged into a single specification on motion. The Article 123a, UCMJ charge was withdrawn by the convening authority after arraignment, and a second specification was added to the Article 134, UCMJ charge.
. We note the second charge sheet references Special Order AB-08, which is not included in the record. The defense agreed at trial that Special Order AB-06 and 07 were the relevant orders referring members for this case. Based upon the inquiry at trial and the lack of objection on appeal we are also satisfied that this case was properly referred and that the reference to AB-08 was an administrative error.
. The appellant’s third issue is raised pursuant to United States v. Grostefon,
. The appellant would call Bank of America and authorize a transfer of money from his bank account to his government credit card to pay the card. At the time of each requested transfer, the appellant knew he did not have the money in his bank account.
. It was never clearly established whether "drafts” were completed to execute the “pay by phone” orders placed with Bank of America.