United States v. Dominguez-Sandoval--AFCCA

Dominguez-Sandoval "pled guilty to three specifications of cyber harassment, in violation of Subtitle 2, Part 5, Chapter 33, Section 4.1(a)(2), New Jersey Code of Criminal Justice (N.J. Stat. § 2C:33–4.1), assimilated into federal law through" UCMJ art. 134(3).

He was sentenced to 12 months, RiR, BCD, reprimand.

He raised three issues,

(1) whether his cyber-harassment convictions, which were based on New Jersey state law and assimilated into federal law, were barred by the specifically enumerated offense of indecent language under Article 134, UCMJ.

(2) in the alternative, whether Appellant’s guilty pleas to the same convictions were improvident due to the military judge’s use of the Manual for Courts-Martial’s definition of “indecent[.]”

(3) "[W]hether the “convictions were improvident” as Appellant’s language was not indecent when considered in the context of a pornographic website.

​Appellant argues the Government “could have, and should have” charged him with “the specifically enumerated offense of indecent language under Article 134, UCMJ,” instead of charging him with the New Jersey cyber-harassment offense, because the military judge focused on the indecent language used by Appellant during his providence inquiry. Under the assimilated New Jersey crime of cyber-harassment, Appellant faced a maximum confinement of 54 months, or 18 months for each specification. However, had Appellant been charged with indecent language under Article 134, UCMJ, he would have faced a maximum confinement of 18 months, or 6 months for each specification.

The court concludes that,

Applying the Lewis test, Appellant’s acts could have been charged under Article 134, UCMJ, Indecent language. However, we find the indecent language offense under Article 134 does not reveal an intent to eliminate an element as to exclude use of the New Jersey law. The New Jersey law does not interfere with the achievement of a federal policy, and it does not effectively rewrite an offense definition that Congress has already occupied. Thus, the Article 134 offense does not preclude application of the New Jersey law through assimilation.
 
In this case, the Government “incorporated a specific [state] statute aimed with precision at a particular type of intentional conduct with its own evidentiary burden.” Wheeler, 77 M.J. at 293 (citations omitted). Preemption doctrine would prevent the Government from assimilating New Jersey state law to “circumvent an element of an enumerated offense” or to “lessen[ ] its evidentiary burden at trial.” See id. However, that did not happen in this case. Quite the opposite: the Government was required to meet a specific, heightened mens rea with respect to Appellant’s intent to cause emotional harm. This heightened mens rea further undermines the claim that the New Jersey statue was preempted by Article 134’s enumerated indecent language offense. If anything, had this case been litigated, assimilating the New Jersey crime of cyber-harassment would have made obtaining a conviction more difficult given that there were more elements the Government would have to prove, the specific mens rea, and the foundational and evidentiary requirements needed to address the social media aspects of the crimes. Since the offense of cyber-harassment is cognizable by a court-martial, we find the Government was not preempted from charging New Jersey’s crime on cyber-harassment, and there is no substantial basis to overturn Appellant’s guilty plea on this ground.

The findings and sentence were affirmed.