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

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




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             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.



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OLIVER—ARMY 20110986

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.


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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
                                       FORTHE
                                           THECOURT:
                                               COURT:




                                      MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                      Clerk of Court
                                       Clerk of Court




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