## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s DAVID W. OLIVER United States Army, Appellant

ARMY 20110986

Headquarters, Fort Bliss Karen W. Riddle and Craig S. Denney, Military Judges Colonel Francis P. King, Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Jack D. Einh orn, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captai n Benjamin W. Hogan, JA (on brief).

2 May 2014

--------------------------------- SUMMARY DISPOSITION

--------------------------------- Per Curiam:

A military judge sitting as a special court-martial convicted appellant, pursuant to his pleas, of conspiracy an d failure to obey a lawful general regulation,

in violation of Articles 81 and 92, Uniform Code of Milit ary Justice, 10 U.S.C. §§ 881, 892 (2006) [her einafter UCMJ]. Th e convening author ity approved the adjudged sentence of a bad-conduct disc harge, confinement fo r eight months, and

reduction to the grade of E-1.

Appellant’s case is now before this court for revi ew pursuant to Article 66, UCMJ. The central issue of this appeal is whether an organi zation called Dark Horse, of which appellant was allegedly a member, was an extremist organization as defined by Dep’t of Army Re g. 600-20, Army Command Poli cy [hereinafter AR 600- 20], para. 4-12 (18 Mar. 2008). Consistent with our decision in a companion case, United States v. Moyers , ARMY 20110975 (Army Ct. Crim. App. 31 March 2014) (mem. op.), recon. granted and affirmed (Army Ct. Crim. App. 28 April 2014) (summ. disp.), we hold that Dark Horse did not me et the regulatory definition of extremist organization. Consequently, appe llant’s Article 92, UC MJ, conviction forOLIVER—ARMY 20110986

2 wrongfully participat ing in an extremist organizat ion is legally and factually insufficient. For similar reasons, his conv iction for conspiracy to fail to obey a lawful general regulation is also legally an d factually insufficient. We grant relief in our decretal para graph. This relief moots appe llant’s other claims.

BACKGROUND

Appellant and Specialist ( SPC) Moyers deployed to Iraq with the same unit in 2009, returning in early 2010. In July or August 2010, SPC Moyers approached appellant about joining a gr oup named “Dark Horse.” Sp ecialist Moyers told him the purpose of the group was to defend the constitution and to fight alongside the military if the government were to become corrupt. In Sept ember 2010, appellant and his wife shared an off-post apartment with SPC Moyers and his wife. Specialist Moyers testified that afte r they moved in together, he gave appe llant a patch signifying membership in Dark Horse. Specialis t Moyers also test ified that he had his wife sew a lieutenant general’s in signia on a desert combat uniform for appellant. Specialist Moyers tried to give appellant that jacket , but appellant did not seem interested. Specialist Moyers then placed the jacket on the back of the kitchen chair in the shared apartment.

When questioned by law enforcement personnel, appell ant admitted his involvement in the group. Sp ecial Agent Day, who interv iewed appellant, testified that appellant was aware of the objectives of the organization and that appellant assumed the organization was il legal. Appellant stated that he u nderstood that the purpose of Dark Hors e was to defend the constitution by force if neces sary in case the government became corrupt. Appellant also sold an AK-47 rifle to SPC Moyers.

Appellant was found gu ilty of the following ch arges and specifications:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 81

THE SPECIFICATION: In that [appellant], U.S. Army., did, at or near El Paso, Texa s, between on or about 1 May

2009 until on or abou t 12 October 2010, conspire with SPC Christopher Moyers and SPC Jessie Ruiz to commit

an offense under the Uniform C ode of Military Justice, to wit: failure to obey a lawful general regula tion, and in order to effect the object of the conspiracy the said SPC Christopher Moyers did orga nize and assign rank and position to members of an extremist organization.

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 92OLIVER—ARMY 20110986

3 THE SPECIFICATION: In that [appellant], U.S. Army., did, at or near El Paso, Texa s, between on or about 1 May

2009 until on or abou t 12 October 2010, fail to obey a lawful general regu lation, to wit: pa ragraph 4-12, Army Regulation 600-20, dated 18 March 2008, by wrongfully participating in an ex tremist organization.

There was no evidence introduced at tria l indicating that Da rk Horse advocated racial, gender, or ethnic hatred or intole rance; advocated, crea ted, or engaged in illegal discrimination based on race, color, gender, religion, or national origin, or

advocated the use of or use force or violence or unlawful means to deprive individuals of their rights und er the United States Constitution or the laws of the United States, or any State, by unlawful means. Furthe r, there was no evidence of an agreement between appellant and anyone else to participate in an organization

with those aims.

LAW AND DISCUSSION

This court reviews legal su fficiency issues de novo. United States v. Washington , 57 M.J. 394, 399 (C.A.A .F. 2002). In conducti ng our review, we must determine “whether, considering the evidence in the light most favorable to the prosecution, a reasonab le factfinder could have foun d all the essential elements beyond a reason able doubt.” United States v. Turner , 25 M.J. 324 (C.M.A. 1987), citing Jackson v. Virginia , 443 U.S. 307, 319 (1 979). Article 66(c ), UCMJ, requires the Court of Criminal Appeals to conduct a de novo review of the factual sufficiency

of the case. See United States v. Cole , 31 M.J. 270, 272 (C.M.A . 1990). The review “involves a fresh, impartial look at the ev idence, giving no defe rence to the decision

of the trial court on factua l sufficiency beyond the adm onition in Article 66(c), UCMJ, to take into account th e fact that the trial court sa w and heard the witnesses.” Washington , 57 M.J. at 399. This court “applies ne ither a presumption of innocence nor a presumption of guilt,” but “must make its own indepe ndent determination as to whether the evidence constitutes proof of ea ch required element beyond a reasonable

doubt.” Id

.

This case turns on whethe r Dark Horse was an extr emist organization as defined by AR 600-20, paragraph 4-12. We recently held in the companion case of United States v. Moyers , ARMY 20110975 (Army Ct. Crim. App. 31 March 2014) (mem. op.), recon. granted and affirmed (Army Ct. Crim. App. 28 April 2014) (summ. disp.), that Dark Horse did not meet that definition. 1 The beginning of paragraph 4-12 emphasizes the importance of tr eating all Soldiers withou t regard to race, color,

1 The evidence in this case diffe red from the evid ence presented in Moyers

. However, neither case pr esented evidence of Dark Horse being an extremist organization as defined by AR 600-20, para. 4-12.OLIVER—ARMY 20110986

4 religion, gender, or national origin as a matter of Army policy. Furthermore, the section states that it is incumbent upon the command to enforce this policy, and it is “vitally important to unit cohesion and morale.” The paragraph goes on to prohibit participation in extremis t organizations, and defi nes these groups as

ones that advocate racial, gender, or ethnic hatred or intolerance; advocate, creat e, or engage in illegal

discrimination base d on race, colo r, gender, re ligion, or national origin, or advocate the use of or use force or violence or unlawful means to deprive individuals of their rights under the United States Consti tution or the laws of the United States, or any State, by unlawful means.

As we noted in Moyers

, “[t]he plain language of AR 600-20, para graph 4-12, demonstrates it is designed to prohibit extremist activitie s that target people based

on their status in violation of their constitutional righ ts. The entire focus of the paragraph is the preven tion of hate crimes in the Army and membership by soldiers in organizations that espous e discriminatory ideologies.” 2 Moyers

, slip. op. at 7-8. The absence of any evidence th at Dark Horse was organized for action contrary to AR 600-20, para. 4-12 or took action prohib ited by the regulation compels the result herein: a finding of le gal and factual insufficiency fo r violating Article 92, UCMJ.

For similar reasons, we co nclude that the evidence is legally and factually insufficient to sustain appellant’s conviction for conspiracy to fail to obey a lawful general regulation. The elem ents of the charge d conspiracy are: (1) the accused entered into an agreement with another person to fail to obey a lawful general regulation; and (2) while the agreement co ntinued to exist, a nd while the accused remained a party to the agre ement, the accused or his co -conspirator performed an overt act for the pu rpose of bringing about the object of the conspiracy. See Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶ 5.b. “The object of the agreement must, at least in part, involve the commission of one or more offenses

under the code.” Id. at ¶ 5.c.(3). That appellan t and his alleged co-conspirators entered into agreements re garding Dark Horse is wit hout dispute; however, the government failed to es tablish that those agreements included forming an extremist organization as defined by AR 600-20, para. 4-12. T hus, the object of those

2 This regulation also expressly provides that paragraph 4-12 must be used in conjunction with Dep’t of De f. Dir. 1325.6, Guidelines for Handling Dissident and Protest Activities Among members of the Armed Forces (1 October 1996), reissued

as Dep’t of Def. Instr. 13 25.6, Guidelines for Handli ng Dissident and Protest Activities Among members of the Armed Forces (1 Nov. 20 09). The regulation also notes that Dep’t of Army Pa m. 600-15, Extremist Activiti es (1 June 2000) provides guidance in implementing Army policy on extremist activities and organizations. Although these document s use different language than para. 4-12, this difference is not dispositive. See Moyers , slip. op. 7-9.OLIVER—ARMY 20110986

5 agreements was not and could not be a fail ure to obey a lawful general regulation –
i.e., AR 600-20, para. 4-12.

CONCLUSION

The findings and the sentence are set as ide. Charge I and its Specification and Charge II and its Specification are dismissed. All righ ts, privil eges, and property, of which ap pellant has been depr ived by virtue of that portion of the findings and sentence se t aside by this decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: