with whom EVERETT, Senior Judge, joins (dissenting):
This is the kind of case that makes my hair turn gray. Perhaps I was a trial judge too long. Why are we trying so hard to make something so simple so complicated?
Has anybody stopped to ask the questions: “What did Oatney do?”; “Why did he do it?”; and ‘What provision of the Uniform Code of Military Justice did he violate?”
The answers are not difficult.
1. He communicated a threat.
2. He did it to obstruct justice.
3. He violated Article 134, Uniform Code of Military Justice, 10 USC § 934.
That is all he did! If you take away the fact that his intent was to obstruct justice, what is left? His conduct, communicating a threat, was still prejudicial to good order and discipline, and violated Article 134: The Blockburger rule. See Blockburger v. United States, 284 U.S. 299, 303-04, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). Remember that one?
If you take away his conduct, what is left? Nothing! Piling on. 15-yard penalty! United States v. Foster, 40 MJ 140, 144 n. 4 (CMA 1994).
In United States v. Teters, 37 MJ 370 (CMA 1993), we were not looking at one act that violated one statute but, rather, at one transaction that violated two separate and distinct statutes. If Oatney had assaulted the victim instead of threatening him, then his conduct would have violated two separate statutes, each of which would have required proof of an element not required by the other, thus two offenses under Teters. This case involves one act that violates one statute, and it is governed by United States v. Weymouth, 43 MJ 329 (1995).
I am not trying to criticize my colleague’s learned opinion. He uses the right buzzwords and the right analytical approach. The fact is, however, that he ignores Article 79, UCMJ, 10 USC § 879, and the legion of cases dealing with the doctrine of lesser-included offenses. Article 134, unlike the enumerated articles, proscribes conduct prejudicial to good order and discipline. It does not subdivide one act into multiple components and authorize numerous convictions and multiple sentences for one act. Therefore, once the conduct is defined, we must look at the pleadings and the facts of the case to determine the appropriate punishment for the act of misconduct.
If we carried the analysis used by the majority opinion to its logical conclusion, we would hold that larceny is not included in robbery because it is theoretically possible to commit the offense of larceny without having committed the offense of robbery. Likewise, one could be convicted of both rape and assault, because it is possible to assault someone without raping them. It is true that one can communicate a threat without obstructing justice. But it cannot be done in this case.