UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, ALDYKIEWICZ, and MARTIN 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class 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. Einhorn, JA (on brief). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Robert A. Rodrigues, JA; Captain 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 and failure to obey a lawful general regulation, 

in violation of Articles 81 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 

881, 892 (2006) [hereinafter UCMJ]. The convening authority approved the 

adjudged sentence of a bad-conduct discharge, confinement for eight months, and 

reduction to the grade of E-1. 

 Appellant’s case is now before this court for review pursuant to Article 66, 

UCMJ. The central issue of this appeal is whether an organization called Dark 

Horse, of which appellant was allegedly a member, was an extremist organization as 

defined by Dep’t of Army Reg. 600-20, Army Command Policy [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 meet the regulatory definition of 

extremist organization. Consequently, appellant’s Article 92, UCMJ, conviction for 
OLIVER—ARMY 20110986 

2 

wrongfully participating in an extremist organization is legally and factually 

insufficient. For similar reasons, his conviction for conspiracy to fail to obey a 

lawful general regulation is also legally and factually insufficient. We grant relief 

in our decretal paragraph. This relief moots appellant’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 group named “Dark Horse.” Specialist 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 September 2010, appellant 

and his wife shared an off-post apartment with SPC Moyers and his wife. Specialist 

Moyers testified that after they moved in together, he gave appellant a patch 

signifying membership in Dark Horse. Specialist Moyers also testified that he had 

his wife sew a lieutenant general’s insignia 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, appellant admitted his 

involvement in the group. Special Agent Day, who interviewed appellant, testified 

that appellant was aware of the objectives of the organization and that appellant 

assumed the organization was illegal. Appellant stated that he understood that the 

purpose of Dark Horse was to defend the constitution by force if necessary in case 

the government became corrupt. Appellant also sold an AK-47 rifle to SPC Moyers. 

 Appellant was found guilty of the following charges and specifications: 

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 81 

THE SPECIFICATION: In that [appellant], U.S. Army., 

did, at or near El Paso, Texas, between on or about 1 May 

2009 until on or about 12 October 2010, conspire with 

SPC Christopher Moyers and SPC Jessie Ruiz to commit 

an offense under the Uniform Code of Military Justice, to 

wit: failure to obey a lawful general regulation, and in 

order to effect the object of the conspiracy the said SPC 

Christopher Moyers did organize and assign rank and 

position to members of an extremist organization. 

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

3 

THE SPECIFICATION: In that [appellant], U.S. Army., 

did, at or near El Paso, Texas, between on or about 1 May 

2009 until on or about 12 October 2010, fail to obey a 

lawful general regulation, to wit: paragraph 4-12, Army 

Regulation 600-20, dated 18 March 2008, by wrongfully 

participating in an extremist organization. 

There was no evidence introduced at trial indicating that Dark Horse advocated 

racial, gender, or ethnic hatred or intolerance; advocated, created, 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 under the United States Constitution or the laws of the 

United States, or any State, by unlawful means. Further, 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 sufficiency issues de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). In conducting our review, we must 

determine “whether, considering the evidence in the light most favorable to the 

prosecution, a reasonable factfinder could have found all the essential elements 

beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324 (C.M.A. 1987), 

citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). 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 evidence, giving no deference to the decision 

of the trial court on factual sufficiency beyond the admonition in Article 66(c), 

UCMJ, to take into account the fact that the trial court saw and heard the witnesses.” 

Washington, 57 M.J. at 399. This court “applies neither a presumption of innocence 

nor a presumption of guilt,” but “must make its own independent determination as to 

whether the evidence constitutes proof of each required element beyond a reasonable 

doubt.” Id. 

This case turns on whether Dark Horse was an extremist 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 treating all Soldiers without regard to race, color, 

 

1

 The evidence in this case differed from the evidence presented in Moyers. 

However, neither case presented 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 extremist organizations, and defines these groups as 

ones that advocate racial, gender, or ethnic hatred or 

intolerance; advocate, create, or engage in illegal 

discrimination based on race, color, gender, religion, 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 Constitution 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, paragraph 4-12, 

demonstrates it is designed to prohibit extremist activities that target people based 

on their status in violation of their constitutional rights. The entire focus of the 

paragraph is the prevention of hate crimes in the Army and membership by soldiers 

in organizations that espouse discriminatory ideologies.”2 Moyers, slip. op. at 7-8. 

The absence of any evidence that Dark Horse was organized for action contrary to 

AR 600-20, para. 4-12 or took action prohibited by the regulation compels the result 

herein: a finding of legal and factual insufficiency for violating Article 92, UCMJ. 

For similar reasons, we conclude that the evidence is legally and factually 

insufficient to sustain appellant’s conviction for conspiracy to fail to obey a lawful 

general regulation. The elements of the charged 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 continued to exist, and while the accused 

remained a party to the agreement, the accused or his co-conspirator performed an 

overt act for the purpose 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 appellant and his alleged co-conspirators 

entered into agreements regarding Dark Horse is without dispute; however, the 

government failed to establish that those agreements included forming an extremist 

organization as defined by AR 600-20, para. 4-12. Thus, the object of those 

 

2

 This regulation also expressly provides that paragraph 4-12 must be used in 

conjunction with Dep’t of Def. 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. 1325.6, Guidelines for Handling Dissident and Protest 

Activities Among members of the Armed Forces (1 Nov. 2009). The regulation also 

notes that Dep’t of Army Pam. 600-15, Extremist Activities (1 June 2000) provides 

guidance in implementing Army policy on extremist activities and organizations. 

Although these documents 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 failure to obey a lawful general regulation – 

i.e., AR 600-20, para. 4-12. 

 

CONCLUSION 

The findings and the sentence are set aside. Charge I and its Specification 

and Charge II and its Specification are dismissed. All rights, privileges, and 

property, of which appellant has been deprived by virtue of that portion of the 

findings and sentence set 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: