2008 edition - Fort Sam Houston - U.S. Army

Introduction
Unless otherwise indicated, the elements, maximum punishments
and sample specifications in paragraphs 3 through 113 are
based on paragraphs 157 through 213, paragraph 127 c (Table of
Maximum Punishments), and Appendix 6c of MCM, 1969 (Rev.).
1986 Amendment: The next to last paragraph of the introduction
to Part IV was added to define the term “elements,” as used
in Part IV. In MCM, 1969 (Rev.), the equivalent term used was
“proof.” Both “proof” and “elements” referred to the statutory
elements of the offense and to any additional aggravating factors
prescribed by the President under Article 56, UCMJ, to increase
the maximum permissible punishment above that allowed for the
basic offense. These additional factors are commonly referred to
as “elements,” and judicial construction has approved this usage,
as long as these “elements” are pled, proven, and instructed upon.
United States v. Flucas, 23 U.S.C.M.A. 274, 49 C.M.R. 449
( 1 9 7 5 ) ; U n i t e d S t a t e s v . N i c k a b o i n e , 3 U . S . C . M . A . 1 5 2 , 1 1
C.M.R. 152 (1953); United States v. Bernard, 10 C.M.R. 718
(AFBR 1953).
1. Article 77—Principals
b. Explanation.
(1) Purpose. Article 77 is based on 18 U.S.C. § 2. Hearings on
H. R. 2498 Before a Subcomm. of the House Comm. on Armed
Services, 81st Cong., 1st Sess. 1240-1244 (1949). The paragraph
of subparagraph b(1) reflects the purpose of 18 U.S.C. § 2 (see
Standefer v. United States, 447 U.S. 10 (1980)) and Article 77
(see Hearings, supra at 1240).
The common law definitions in the second paragraph of subparagraph
b(1) are based on R. Perkins, Criminal Law 643–666
(2d ed. 1969); and 1 C. Torcia, Wharton’s Criminal Law and
Procedure §§ 29–38 (1978). Several common law terms such as
“aider and abettor” are now used rather loosely and do not always
retain their literal common law meanings, See United States v.
Burroughs, 12 M.J. 380, 384 n.4. (C.M.A. 1982); United States v.
Molina, 581 F.2d 56, 61 n.8 (2d Cir. 1978). To eliminate confusion,
the explanation avoids the use of such terms where possible.
See United States v. Burroughs, supra at 382 n.3.
(2) Who may be liable for an offense. Subparagraph (2)(a) is
based on paragraph 156 of MCM, 1969 (Rev.). See 18 U.S.C.A. §
2 Historical and Revision Notes (West 1969). See also United
States v. Giles, 300 U.S. 41 (1937); Wharton’s, supra at §§ 30,
31, 35.
Subparagraph (2)(b) sets forth the basic formulation of the
requirements for liability as a principal. An act (which may be
passive, as discussed in this subparagraph) and intent are necessary
to make one liable as a principal. See United States v.
Burroughs, supra; United States v. Jackson , 6 U.S.C.M.A. 193,
19 C.M.R. 319 (1955); United States v. Wooten, 1 U.S.C.M.A.
358, 3 C.M.R. 92 (1952); United States v. Jacobs, 1 U.S.C.M.A.
209, 2 C.M.R. 115 (1952). See also United States v. Walker, 621
F.2d 163 (5th Cir. 1980), cert. denied, 450 U.S. 1000 (1981);
Morei v. United States, 127 F.2d 827 (6th Cir. 1942); United
States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). The terms
“assist” and “encourage, advise, and instigate” have been sub-
APPENDIX 23
ANALYSIS OF PUNITIVE ARTICLES
stituted for “aid” and “abet” respectively, since the latter terms
are technical and may not be clear to the lay reader. See Black’s
Law Dictionary 5, 63 (5th ed., 1979). See also Nye and Nissen v.
United States, 336 U.S. 613, 620 (1949); Wharton’s, supra at
246-47.
The last two sentences in subparagraph (2)(b) are based on the
third paragraph and paragraph 156 of MCM, 1969 (Rev.). See
United States v. Ford, 12 U.S.C.M.A. 31, 30 C.M.R. 31 (1960);
United States v. McCarthy, 11 U.S.C.M.A. 758, 29 C.M.R. 574
(1960); United States v. Lyons, 11 U.S.C.M.A. 68, 28 C.M.R. 292
(1959).
(3) Presence. This subparagraph clarifies, as paragraph 156 of
MCM, 1969 (Rev.) did not, that presence at the scene is neither
n e c e s s a r y n o r s u f f i c i e n t t o m a k e o n e a p r i n c i p a l . “ A i d ” a n d
“abet” as used in 18 U.S.C. § 2, and in Article 77, are not used in
the narrow common law sense of an “aider and abettor” who
must be present at the scene to be guilty as such. United States v.
Burroughs, supra; United States v. Sampol, 636 F.2d 621 (D.C.
C i r . 1 9 8 0 ) ; U n i t e d S t a t e s v . M o l i n a , s u p r a ; U n i t e d S t a t e s v .
Carter, 23 C.M.R. 872 (A.F.B.R. 1957). Cf. Milanovich v. United
States, 365 U.S. 551 (1961). See also Wharton’s, supra at 231.
Subparagraph (b) continues the admonition, contained in the third
paragraph of paragraph 156 of MCM, 1969 (Rev.), that presence
at the scene of a crime is not sufficient to make one a principal.
See United State v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46
(1956); United States v. Johnson, 6 U.S.C.M.A. 20, 19 C.M.R.
146 (1955); United States v. Guest, 3 U.S.C.M.A. 147, 11 C.M.R.
147 (1953).
(4) Parties whose intent differs from the perpetrators. This
subparagraph is based on the first paragraph in paragraph 156 of
MCM, 1969 (Rev.). See United States v. Jackson, 6 U.S.C.M.A.
193, 19 C.M.R. 319 (1955); Wharton’s, supra at § 35.
(5) Responsibility for other crimes. This paragraph is based on
the first two paragraphs in paragraph 156 of MCM, 1969 (Rev.).
S e e U n i t e d S t a t e s v . C o w a n , 1 2 C . M . R . 3 7 4 ( A . B . R . 1 9 5 3 ) ;
United States v. Self, 13 C.M.R. 227 (A.B.R. 1953).
Principals independently liable. This subparagraph is new and
is based on Federal decisions. See Standefer v. United States,
supra; United States v. Chenaur , 552 F.2d 294 (9th Cir. 1977);
United States v. Frye, 548 F.2d 765 (8th Cir. 1977).
Withdrawal. This subparagraph is new and is based onUnited
States v. Williams, 19 U.S.C.M.A. 334, 41 C.M.R. 334 (1970).
See also United States v. Miasel, 8 U.S.C.M.A. 374, 24 C.M.R.
184, 188 (157); United States v. Lowell, 649 F.2d 950 (3d. Cir.,
1981); United States v. Killian, 639 F. 2d 206 (5th Cir.), cert.
denied 451 U.S. 1021 (1981).
2. Article 78—Accessory after the fact
c. Explanation.
(1) In general. This subparagraph is based on paragraph 157 of
M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . T a m a s , 6
U.S.C.M.A. 502, 20 C.M.R. 218(1955).
(2) Failure to report offense. This subparagraph is based on
paragraph 157 of MCM, 1969 (Rev.); United States v. Smith, 5
M.J. 129 (C.M.A. 1978).
(3) Offense punishable by the code. This subparagraph is based
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