       This opinion is subject to revision before publication




        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                Robert S. AVERY, Specialist
                United States Army, Appellant
                          No. 19-0259
                    Crim. App. No. 20140202
     January 15, 2020, Argued—Decided February 27, 2020
     Military Judges: Douglas Watkins (rehearing), Timothy P.
                  Hayes Jr., and Craig S. Denney
   For Appellant: Captain Steven J. Dray (argued); Colonel
   Elizabeth G. Marotta, Lieutenant Colonel Tiffany D. Pond,
   Major Jack D. Einhorn, and Captain Benjamin A. Accinelli
   (on brief); Major Julie L. Borchers and Captain Alexander
   N. Hess.
   For Appellee: Captain Marc J. Emond (argued); Colonel Ste-
   ven P. Haight, Lieutenant Colonel Wayne H. Williams, and
   Major Dustin B. Myrie (on brief); Major Sandra L. Ahinga.
   Judge RYAN delivered the opinion of the Court, in which
   Chief Judge STUCKY, and Judges OHLSON, SPARKS,
   and MAGGS, joined.
                     _______________

   Judge RYAN delivered the opinion of the Court.
    This case presents the question whether Congress
preempted the Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2012), enumerated offense of inde-
cent language to a child by enacting Article 120b(c), UCMJ,
10 U.S.C. § 920b (2012), sexual abuse of a child. We hold that
where the language communicated was indecent because of
its “vulgar, filthy, or disgusting nature,” and not because of
its sexual nature, there is no indication that Congress in-
tended Article 120b(c), UCMJ, to cover this type of miscon-
duct and preempt Article 134, UCMJ. The granted question
is answered in the negative.
              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

                       I. BACKGROUND

    A general court-martial convicted Appellant, contrary to
his pleas, of one specification of sexual assault of a child and
one specification of indecent language to a child, violations of
Articles 120b and 134, UCMJ, respectively. Appellant was ac-
quitted of three other specifications of Article 120b, UCMJ,
sexual assault of a child. He was sentenced to reduction to E-1
and a bad-conduct discharge. The convening authority ap-
proved the sentence as adjudged. The United States Army
Court of Criminal Appeals (ACCA) affirmed the findings but
set aside the sentence and authorized a rehearing in light of
the military judge’s denial of for cause challenges against four
members. See United States v. Avery, No. ARMY 20140202,
2017 CCA LEXIS 739, at *14–15, *26, 2017 WL 6021317, at
*5, *9 (A. Ct. Crim. App. Nov. 30, 2017). On rehearing, a mil-
itary judge sitting alone sentenced Appellant to five months
of confinement, reduction to E-1, and a bad-conduct dis-
charge. The convening authority approved only so much of the
sentence as provided for reduction to E-1 and a bad-conduct
discharge, and the ACCA affirmed in a per curiam opinion.
United States v. Avery, No. ARMY 20140202 (A. Ct. Crim.
App. Feb. 19, 2019).
    The charges stem from interactions between Appellant
and a twelve-year-old girl, HK, whom he hired as a babysitter
for his three children. The ACCA summarized those interac-
tions as follows:
       [A]ppellant and HK frequently exchanged Facebook
       messages and met up clandestinely to engage in
       “make out” sessions that included kissing. The Face-
       book messages included one session wherein
       [A]ppellant and HK engaged in a name-calling duel.
       During this session, [A]ppellant called the twelve
       year-old girl a “cum guzzling gutter slut,” which is
       the basis for the indecent language charge.
Avery, 2017 CCA LEXIS 739, at *2–3, 2017 WL 6021317, at
*1.1



   1Whether language is indecent depends in part on context. See
United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010) (“[T]he in-
decency of a word or sound must be evaluated in the context in



                                 2
              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

    Because both Articles 120b and 134, UCMJ, criminalize
indecent language to a child under the age of sixteen, we
granted review to determine whether the former preempts
the latter. We hold that, applied to the offense as charged in
this case, it does not.
                         II. DISCUSSION

                      A. Preemption Doctrine
   Whether an Article 134, UCMJ, offense “is preempted
depends on statutory interpretation, which is a question of
law we review de novo.” United States v. Wheeler, 77 M.J. 289,
291 (C.A.A.F. 2018). The general article, Article 134, UCMJ,
provides:
          Though not specifically mentioned in this chap-
       ter, all disorders and neglects to the prejudice of
       good order and discipline in the armed forces, all
       conduct of a nature to bring discredit upon the
       armed forces, and crimes and offenses not capital, of
       which persons subject to this chapter may be guilty,
       shall be taken cognizance of by a general, special, or
       summary court-martial, according to the nature and
       degree of the offense, and shall be punished at the
       discretion of that court.



which it is made.”). For that reason, the “name-calling duel” is laid
out below:
       [HK:] Your [sic] a squished whale
       [RA:] Are you calling me fat?
       [HK:] No just a squised [sic] whale
       [RA:] Meanie
       [HK:] hobo
       [RA:] Queer
       [HK:] Fag
       [RA:] Biatch
       [HK:] Motherfucker
       [RA:] Cum guzzling gutter slut
             Ooooooo burn




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              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

The “preemption doctrine” limits the general article’s expan-
sive scope, prohibiting “application of Article 134 to conduct
covered by Articles 80 through 132.”2 Manual for Courts-Mar-
tial, United States pt. IV, para. 60.c.(5)(a) (2012 ed.) (MCM).
This doctrine is “designed to prevent the government from
eliminating elements from . . . offenses under the UCMJ, in
order to ease [its] evidentiary burden at trial.” Wheeler, 77
M.J. at 293; see also United States v. Gleason, 78 M.J. 473,
477 (C.A.A.F. 2019) (Ryan, J., dissenting) (Preemption “pre-
clud[es] the government from taking an existing UCMJ of-
fense . . . removing an important element—such as the requi-
site intent—and charging the remaining elements as a ‘novel’
Article 134, UCMJ, offense.”).
    An offense listed in Articles 80 through 132, UCMJ, will
only preempt an Article 134, UCMJ, offense if “(1) Congress
intended to limit prosecution for . . . a particular area of mis-
conduct to offenses defined in [those] specific articles of the
Code, and (2) the offense charged is composed of a residuum
of elements of a specific offense.” United States v. Curry, 35
M.J. 359, 360–61 (C.M.A. 1992) (first alteration in original)
(internal quotation marks omitted); see also United States v.
Kick, 7 M.J. 82, 85 (C.M.A. 1979) (“[S]imply because the of-
fense 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.” (citation omit-
ted)). This Court will only find a congressional intent to
preempt in the context of Article 134, UCMJ, where Congress
has indicated “through direct legislative language or express
legislative history that particular actions or facts are limited
to the express language of an enumerated article.” United
States v. Anderson, 68 M.J. 378, 387 (C.A.A.F. 2010) (legisla-
tive history of Article 104, UCMJ, aiding the enemy, did not
clearly indicate Congress intended that article to preempt the


   2 A similar limitation prevents the government from charging
conduct under a novel Article 134, UCMJ, specification where that
conduct is already criminalized by an enumerated Article 134,
UCMJ, offense. MCM pt. IV, para. 60.c.(6)(c); see, e.g., United States
v. Guardado, 77 M.J. 90, 95–96 (C.A.A.F. 2017).



                                  4
              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

Article 134, UCMJ, offense of distributing sensitive material
to an unauthorized individual).
    In this case Appellant alleges that Article 120b(c), UCMJ,
sexual abuse of child—which prohibits lewd acts upon a child,
including indecent language to a child as described in Article
120b(h)(5)(C), UCMJ—preempts the enumerated Article 134,
UCMJ, offense of indecent language to a child. MCM pt. IV,
para. 89. We begin by outlining the development of these of-
fenses, as this informs the conduct that Article 120b(c),
UCMJ, and Article 134, UCMJ, indecent language, were in-
tended to cover. See Curry, 35 M.J. at 360–61.
       B. Development of Indecent Language Offenses
    The President first included indecent language as an enu-
merated offense under Article 134, UCMJ, in 1984. MCM pt.
IV, para. 89 (1984 ed.).3 That enumeration required a show-
ing that the accused orally or in writing communicated inde-
cent language in a manner that was prejudicial to good order
and discipline or service discrediting. Id. para. 89.b. Indecent
language was defined as language that “is grossly offensive to
modesty, decency, or propriety, or shocks the moral sense, be-
cause of its vulgar, filthy, or disgusting nature, or its tendency
to incite lustful thought. The language must violate commu-
nity standards.” Id. para. 89.c. Indecent language to a child
under the age of sixteen warranted a higher sentence. Id.
para. 89.e.(1). Additionally, indecent language communicated
in the physical presence of a child could constitute indecent
liberties with a child, another enumerated Article 134,
UCMJ, offense. Id. para. 87.c.(2).
    Until the 2008 edition of the MCM, there was no indecent
language offense in Articles 80 through 132 of the UCMJ. At
that time, Congress expanded Article 120, UCMJ, to include,
inter alia, a prohibition against “indecent liberty with a
child.” See National Defense Authorization Act for Fiscal Year


   3 Prior to this express incorporation, indecent language had been

charged as a novel Article 134, UCMJ, offense. See, e.g., United
States v. Riffe, 25 C.M.R. 650, 651 (A.B.R. 1957) (accused charged
with, inter alia, “communicating indecent language to a minor”); see
also MCM app. 6c, para. 158 (1969 rev. ed.) (including indecent lan-
guage in sample Article 134, UCMJ, specification).



                                 5
              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

2006, Pub. L. No. 109-163, 119 Stat. 3136, 3258 (2006). “Inde-
cent liberty,” in turn, was defined to include communicating
indecent language “in the physical presence of [a] child.” Ar-
ticle 120(j), (t)(11), UCMJ, 10 U.S.C. § 920(j), (t)(11) (2006 &
Supp. I 2007).
    Congress substantially revised Article 120, UCMJ, once
again in 2011. Section 541(b) of the National Defense Author-
ization Act for Fiscal Year 2012, titled “Rape and sexual as-
sault of a child,” created Article 120b. Pub. L. No. 112-81, 125
Stat. 1298, 1407–09 (2011) [hereinafter NDAA 2012]. This
new Article 120b included a prohibition against committing
lewd acts upon children. Article 120b(c), UCMJ. Congress de-
fined “lewd act” to include “intentionally communicating in-
decent language to a child by any means . . . with an intent to
abuse, humiliate, or degrade any person, or to arouse or grat-
ify the sexual desire of any person.” Article 120b(h)(5)(C),
UCMJ. Indecent language for purposes of Article 120b(c),
UCMJ, has not yet been defined by either Congress or the
President. See MCM pt. IV, para. 62.c.(2) (2019 ed.).
    Throughout these amendments to Articles 120 and 120b,
UCMJ, the enumerated offense of indecent language to a
child, which preceded them by several decades, remained un-
altered in Article 134, UCMJ. See, e.g., MCM pt. IV, para. 89
(2008 ed.). This is not, then, the situation against which the
preemption doctrine was intended to guard: namely, creating
an enumerated offense in order to ease the government’s evi-
dentiary burden with respect to a listed offense enacted by
Congress. “We cannot grant to the services unlimited author-
ity to eliminate vital elements from . . . offenses expressly de-
fined by Congress and permit the remaining elements to be
punished as an offense under Article 134.” United States v.
Norris, 2 C.M.A. 236, 239, 8 C.M.R. 36, 39 (1953). This con-
cern—that the government would take an extant UCMJ of-
fense and remove a vital element to create a diluted crime
under Article 134, UCMJ—is the very impetus for the
preemption doctrine.4 See Wheeler, 77 M.J. at 293.


   4This is not to say that the preemption doctrine applies only
where the Article 134, UCMJ, offense is created after its UCMJ
counterpart. We simply note that the order of events here is further



                                 6
                United States v. Avery, No. 19-0259/AR
                        Opinion of the Court

                      C. Residuum of Elements
    We now consider whether this Article 134, UCMJ, offense
is “composed of a residuum of elements of” Article 120b(c),
UCMJ. See Curry, 35 M.J. at 361. For purposes of this analy-
sis, we do not consider the terminal element of Article 134,
UCMJ. At first blush, under a strict facial comparison of the
elements of sexual assault of a child under Article 120b(c),
UCMJ, and indecent language under Article 134, UCMJ, it
appears that the latter is composed of a residuum of the for-
mer’s elements. Article 120b(c), UCMJ, prohibits committing
lewd acts upon children, which include “intentionally com-
municating indecent language to a child by any means . . .
with an intent to abuse, humiliate, or degrade any person, or
to arouse or gratify the sexual desire of any person.” Article
120b(c), (h)(5)(C), UCMJ. And Article 134, UCMJ, as charged
in this case, required a showing “(1) That the accused orally
or in writing communicated to another person certain lan-
guage; (2) That such language was indecent; and (3) That, un-
der the circumstances, the conduct of the accused . . . was of
a nature to bring discredit upon the armed forces.” MCM pt.
IV, para. 89.b. Where the victim is a child under the age of
sixteen, that element must be added as well. Id. Seemingly,
then, the only difference between the two offenses is the in-
tent element in Article 120b, UCMJ.5 Absent the fact that the
indecent language offense under Article 134, UCMJ, preceded
Article 120b(c), UCMJ, by decades, this fits hand in glove with
the President’s illustration of the doctrine.6


evidence that Congress did not implicitly intend to preempt the
enumerated Article 134, UCMJ, offense, at least insofar as it ap-
plies to indecent language that is not sexual.
   5We note that the parties have not raised, and we do not decide,
what mens rea the Article 134, UCMJ, indecent language offense
requires.
   6   That illustration follows:
          For example, larceny is covered in Article 121, and
          if an element of that offense is lacking—for example,
          intent—there can be no larceny or larceny-type of-
          fense, either under Article 121 or, because of
          preemption, under Article 134. Article 134 cannot be
          used to create a new kind of larceny offense, one



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              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

    But a closer examination of the nature of indecent
language as described in both case law and the MCM reveals
that the scope of indecent language prohibited under Article
134, UCMJ, extends well beyond that language that
constitutes the lewd acts with children with which Article
120b(c), UCMJ, is concerned. Article 120b(c), UCMJ, does not
itself define “indecent language,” but this Court has
recognized two alternative definitions for that phrase, as used
in Article 134, UCMJ: In addition to criminalizing language
that is grossly offensive because of “its tendency to incite
lustful thought,” the President made punishable language
that is “grossly offensive to modesty, decency, or propriety, or
shocks the moral sense, because of its vulgar, filthy, or
disgusting nature.” Green, 68 M.J. at 269 (internal quotation
marks omitted) (citation omitted); see also United States v.
Negron, 60 M.J. 136, 144 (C.A.A.F. 2004)); accord MCM pt.
IV, para. 89.c. (“Language is indecent if it tends reasonably to
corrupt morals or incite libidinous thoughts.” (emphasis
added)). The language must violate community standards.
See, e.g., Green, 68 M.J. at 269; United States v. French, 31
M.J. 57, 59–60 (C.M.A. 1990).
    Because there is a class of indecent language communi-
cated to a child that is, according to community standards,
“grossly offensive . . . or shocks the moral sense” because of
its “vulgar, filthy, or disgusting nature,” see, e.g., Green, 68
M.J. at 269 (internal quotation marks omitted) (citation omit-
ted), yet that is not sexual—and thus not, without more, a
lewd act—Article 134, UCMJ, is not merely a residuum of Ar-
ticle 120b, UCMJ.7 One element of Article 134, UCMJ, can be
satisfied in two different ways, and Article 120b(c), UCMJ,
covers only one of them.


       without the required intent, where Congress has al-
       ready set the minimum requirements for such an of-
       fense in Article 121.
MCM pt. IV, para. 60.c.(5)(a).
   7 We leave for another day the question whether Article 120b,
UCMJ, may preempt Article 134, UCMJ, insofar as it targets lan-
guage that is “grossly offensive . . . because of . . . its tendency to
incite lustful thought.” Id. para. 89.c.




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              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

                       D. Legislative Intent
    The “direct legislative language [and] express legislative
history,” Anderson, 68 M.J. at 387, of Article 120b(c), UCMJ—
to the extent they reveal congressional intent at all—support
this conclusion.8 They suggest at most an intent to occupy the
field as to misconduct characterized as sexual offenses
against children; they do not indicate an intent for that article
to occupy either the entire field of misconduct involving chil-
dren or indecent language generally.
    The Senate Report accompanying NDAA 2012 says noth-
ing about Article 120b(c), UCMJ, itself but generally de-
scribes Article 120b, UCMJ, as arising from “recom-
mend[ations] by the Joint Services Committee on Military
Justice and the Secretary of Defense to address deficiencies
in existing law that have been identified by military courts.”
S. Rep. No. 112-26, at 115 (2011). The Senate Committee on
Armed Services, considering these recommendations, advised
the Senate to
       separate Article 120, UCMJ, into three separate ar-
       ticles of the UCMJ: Article 120, UCMJ, would apply
       to the offenses of rape and sexual assault of any per-
       son; Article 120b, UCMJ, would apply to sexual of-
       fenses against children; and Article 120c, UCMJ,
       would apply to other non-consensual sexual miscon-
       duct offenses. Article 120a, UCMJ, which applies to
       the offense of stalking, would not be changed.
Id. at 114–15. This scant legislative history, if anything, indi-
cates that the ambit of Article 120b, UCMJ, is limited to sex-
ual offenses against children.


   8  We acknowledge the Supreme Court’s recent reminders that
“legislative history is not the law,” Azar v. Allina Health Servs., 139
S. Ct. 1804, 1814 (2019) (internal quotation marks omitted) (cita-
tion omitted), and that using legislative history to determine legis-
lative intent is “a relic from a bygone era of statutory construction.”
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364
(2019) (internal quotation marks omitted) (citation omitted). How-
ever minimal the legislative history of Article 120b(c), UCMJ, we
consider it in addition to the statute’s text because Anderson and
other precedents considered it in determining whether punitive ar-
ticles preempt enumerated offenses under Article 134, UCMJ, and
neither party has questioned this aspect of these precedents.



                                  9
                United States v. Avery, No. 19-0259/AR
                        Opinion of the Court

    The structure and language of Article 120b, UCMJ, pro-
vide further evidence that Congress intended only to cover the
field of sexual offenses against children. The statute does not
criminalize “indecent language” qua indecent language: In-
stead, Article 120b(c), UCMJ, proscribes “lewd act[s]” upon
children, and “lewd act[s]” is defined to include indecent lan-
guage “with an intent to abuse, humiliate, or degrade” or to
“gratify the sexual desire of any person.” Article
120b(h)(5)(C). It thus criminalizes neither all indecent lan-
guage, nor vulgar language as a whole, but only indecent lan-
guage that constitutes a “lewd act”—that is, a “sexually un-
chaste or licentious” act. Webster’s Third New International
Dictionary Unabridged 1301 (1986) (entry for “lewd”).
    Because no “direct legislative language or express legisla-
tive history,” Anderson, 68 M.J. at 387, compels the conclu-
sion that Congress intended to wholly subsume the field of
indecent language communicated to children within Article
120b(c), UCMJ, we cannot say “Congress intended to limit
prosecution” for all indecent language to that provision.
Curry, 35 M.J. at 360 (internal quotation marks omitted) (ci-
tation omitted). There is neither explicit nor implicit congres-
sional intent to preempt Article 134, UCMJ, indecent lan-
guage under the facts of this case. Cf. Kick, 7 M.J. at 85
(expressing extreme reluctance to find congressional intent to
preempt absent a clear showing of contrary intent).
                      E. Appellant’s Language
    Context matters, see Green, 68 M.J. at 270, and in this
case the indecent language was simply not a sexual or lewd
act as contemplated by Article 120b(c), (h)(5)(C). Because the
phrase charged invoked crude epithets, the ACCA aptly char-
acterized the exchange between Appellant and HK as a name-
calling duel. Further, HK’s cross-examination indicates that
the language she and Appellant used was not calculated to
“incite lustful thought,” but was a joke—albeit a “vulgar,
filthy, or disgusting” one.9 Green, 68 M.J. at 269 (internal quo-
tation marks omitted) (citation omitted).



9   This line of questioning is reproduced in part below:




                                   10
              United States v. Avery, No. 19-0259/AR
                      Opinion of the Court

    The Article 134, UCMJ, offense of indecent language is
more than a residuum of Article 120b(c), UCMJ, and Con-
gress has not expressly or indirectly indicated that it intended
Article 120b(c), UCMJ, to cover the entirety of offenses involv-
ing indecent language communicated to children. Accord-
ingly, we hold that Article 120b, UCMJ, does not preempt the
charged Article 134, UCMJ, offense of indecent language in
this case.
                          III. DECISION

   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




[Counsel:] And that’s when he called you a cum guzzling—some-
thing along those lines, right?
    [HK:] Yes, sir.
[Counsel:] Okay. And this was all in joke, right?
    [HK:] Yes, sir.
[Counsel:] This was in jest?
    [HK:] Yes, sir.
Appellant has not questioned that this language is legally and fac-
tually sufficient to satisfy a violation of Article 134, UCMJ, indecent
language.



                                  11
