UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              YOB, KRAUSS, and BURTON
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                         Specialist ANTHONY J. MARINO
                          United States Army, Appellant

                                   ARMY 20120107

                            Headquarters, V Corps
           Wendy Daknis and Christopher T. Fredrikson, Military Judges
                Colonel Mark D. Maxwell, Staff Judge Advocate



For Appellant: Captain Susrut A. Carpenter, JA (argued); Colonel Patricia A. Ham,
JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA (on
brief).

For Appellee: Captain Jessica J. Morales, JA (argued); Lieutenant Colonel Amber J.
Roach, JA; Major Catherine L. Brantley, JA (on brief).


                                      30 May 2013

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

Per Curium:

       A military judge, sitting as a general court-martial, convicted appellant
pursuant to his pleas, of two specifications of possession of child pornography in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for eighteen months, forfeiture of all pay and allowances,
and reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening
authority approved fourteen months of confinement and the remainder of the
sentence as adjudged.

       This case is before the court for review under Article 66, UCMJ. We have
considered the record of trial and written briefs of the parties in which appellant
raises one assignment of error, and enjoyed the benefit of oral argument on this
MARINO — ARMY 20120107

issue. We have also considered the matter personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find it to be without
merit.

       In his assignment of error, appellant asserts that his conviction for possessing
child pornography in Germany should be dismissed because the government charged
his conduct as a violation of Clause 2, Article 134, UCMJ, (conduct of a nature to
bring discredit upon the armed forces). Appellant argues that charging in this
manner was preempted by Article 92, UCMJ, (failure to obey an order of regulation)
since, at the time of appellant’s offense, U.S. Army Europe Regulation 600-1,
Regulated Activities in Europe, para. 36 (20 May 2009), prohibited the possession of
child pornography in Europe. In sum, appellant contends that since child
pornography is prohibited by a general regulation, Article 92, UCMJ, preempts
prosecution of that same conduct under Clause 1 or 2 of Article 134, UCMJ. We
disagree.

       Whether a punitive article of the UCMJ is preempted by another is a question
of law this court reviews de novo. United States v. Kowalski, 69 M.J. 705, 706
(C.G. Ct. Crim. App. 2010). The preemption doctrine prohibits application of
Article 134, UCMJ, to conduct covered by Articles 80 through 132, UCMJ. Manual
for Courts-Martial, United States (2008 ed.) pt. IV, ¶ 60.c.(5)(a) (2008 ed.). In
order for preemption to apply, “it must be shown that Congress intended the other
punitive article to cover a class of offenses in a complete way.” United States v.
Kick, 7 M.J. 82, 85 (C.M.A. 1979) (citation omitted). Whether Congress intended to
cover a class of offenses in a complete way hinges upon two questions that must be
answered in the affirmative:

             The primary question is whether Congress intended to
             limit prosecution for wrongful conduct within a particular
             area or field to offenses defined in specific articles of the
             Code; the secondary question is whether the offense
             charged is composed of a residuum of elements of a
             specific offense and asserted to be a violation of either
             Articles 133 or 134, which, because of their sweep, are
             commonly described as the general articles.

United States v. McGuiness, 35 M.J. 149, 151–52 (C.M.A. 1992).

       We find no evidence that Congress intended to limit prosecution for
possession of child pornography to Article 92, UCMJ. Furthermore, the proscription
for possessing child pornography under Clause 2 of Article 134, UCMJ, is highly
distinguishable from disobeying a general order or regulation that proscribes
possession of that same material. These two offenses are directed at distinct
conduct. See United States v. Anderson, 68 M.J. 378, 387 (C.A.A.F. 2010). Here,



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MARINO — ARMY 20120107

the Clause 2, Article 134, UCMJ, charge is solely directed at the possession of child
pornography, whereas the gravamen of an Article 92, UCMJ, offense is the
disobedience itself. Further, in no way is the Clause 2, Article 134, UCMJ, offense,
as charged here, composed of a residuum of elements of an Article 92, UCMJ
offense.

                                   CONCLUSION

       On consideration of the entire record, the assignment of error raised, and the
issues personally specified by appellant pursuant to Grostefon, we hold the findings
and sentence as approved by the convening authority are correct in law and fact.
Moreover, the sentence as approved by the convening authority is appropriate.
Therefore, the findings of guilty and the sentence are AFFIRMED.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                        MALCOLMH.
                                       MALCOLM      H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                        Clerkof
                                       Clerk  ofCourt
                                                 Court




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