In United States v. Alkazahg, 81 M.J. 764 (N.M. Ct. Crim. App. 2021), the Navy-Marine Corps Court of Criminal Appeals considered application of Chevron deference to criminal law, specifically applying deference to an agency’s interpretation of a criminal statute.
In Alkazahg, the appellant was charged with a variety of offenses including possessing a bump stock. A bump stock is a device which allows a shooter to approximate the firing of an automatic rifle in a semi-automatic rifle by using the recoil of the rifle to continually engage the trigger. The effect allows for a similar rate of fire of an automatic rifle. The government alleged that the bump stock found in the appellant’s truck qualified as a “machine gun” under 26 U.S.C. § 5845(b). The appellant signed a pretrial agreement and pled guilty. The pretrial agreement allowed the appellant to conditionally pled guilty to possessing a bump stock. He argued that the government failed to state an offense because the bump stock did not meet the definition of machine gun under 26 U.S.C. § 5845(b).
The crux of the issue before the court was whether a bump stock like the appellant’s qualified as a machine gun under 26 U.S.C. § 5845(b). It is not a simple question. Section 5845(b) goes back to 1934, and it defines machine guns as “. . . any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically  more than one shot, without manual reloading, by a single function of the trigger.” Bump stocks go back to at least 2002 and the ATF has changed its position several times on whether bump stocks make a gun a machine gun or not.
The court’s opinion does a nice job recounting the history of the government’s changing view of bump stocks, most recently following the Las Vegas 2017 shooting. Following that tragedy, where 60 people were killed by a shooter using a bump stock, a bill was introduced in Congress but it was ever acted upon. But the President decided to act unilaterally, and directed the ATF to issue a new rule covering bump stocks. In March 2018, the ATF issued a notice of proposed rulemaking to clarify the definition of “single function of the trigger” and “automatically” as defined by 26 U.S.C. § 5845(b). The final rule was issued in December 2018 concluding bump stocks were machine guns.
As part of his conditional guilty plea, appellant was allowed to litigate a motion to dismiss on the grounds that the ATF’s interpretation of 26 U.S.C. § 5845(b) was invalid. The government responded, defending the ATF’s rulemaking and interpretation and invoked Chevron deference in resolving any statutory ambiguity.
The issue is not unique to the military-justice system. The court referenced three different appellate cases from circuit courts of appeals struggling, inconclusively, with the identical issue. And the Supreme Court has yet to directly rule on whether Chevron applies in a criminal context. The court referenced three principle arguments against applying Chevron in a criminal case. First, that criminal laws reflect the community’s standards and moral outrage, not an agency’s expertise. Second, that such deference would violate the separation-of-powers doctrine because the Executive could functionally change criminal laws without congressional approval. And third, that deference violates the rule of lenity and does not provide fair notice. Judge Easterbrook put it this way, “Certainly judges do not defer to the Attorney General’s interpretation of Title 18.” Evans v. United States Parole Comm’n, 78 F.3d 262, 265 (7th Cir. 1996).
The Navy-Marine Corps Court did an excellent job reviewing the Supreme Court’s dodging of the issue and conflicting statements over the years before musing in dicta, “On balance, we are skeptical that when the judiciary interprets an ambiguous criminal statute it must defer to the judgment of the same executive who is prosecuting the defendant.”
But the court never had to reach a decision because the government, both in writing and at argument, waived reliance on Chevron. So the court never had to rule whether the government was entitled to the deference it claimed at the court-martial. The court went on to analyze 26 U.S.C. § 5845(b) without benefit of deference and found the statute ambiguous. Applying the rule of lenity, the court held that the government had failed to state an offense and dismissed the specification. The court then determined the remaining sentence was inappropriate and reassessed an appropriate sentence.
Perhaps the issue will be definitely resolved by the Supreme Court in one of the pending circuit court cases, but courts have been reluctant to come down clearly on the issue. This isn’t the first time it has come up in the military-system, the Alakazahg court noted that the Court of Appeals for the Armed Forces has only cited Chevron twice and never applied Chevron deference. See United States v. Bartlett, 66 M.J. 426, 427 (C.A.A.F. 2008) and United States v. Kearns, 73 M.J. 177, 181 (C.A.A.F. 2014).
The Court also dodged the issue in United States v. Miller, 62 M.J. 471 (C.A.A.F. 2006) without ever explicitly citing Chevron. In Miller, the Court was faced with an issue of waiver of appellate review and the intersection between R.C.M. 1110(f) and Article 61, UCMJ. One of the three granted issues was:
To the extent that UCMJ Article 61 is ambiguous, and given that Congress has expressly granted the President rule-making authority in the field of military justice, must an Article I court defer to the President’s reasonable interpretation of that Article?
Miller was a Coast Guard case and both the Navy-Marine Corps Appellate Defense Division and the National Institute of Military Justice filed amici on the application of Chevron deference to the R.C.M.’s But the Court resolved the case without ever reaching the deference issue.
One interesting post-script is the petitioner in one of the circuit court cases looking at the issue, Aposhian v. Garland, No. 21-159 (10th Cir. 2021), cited the Alkazahg decision three times in his reply brief. And the Sixth Circuit mentioned the Alkazahg decision in its decision applying Chevron deference to the bump stock rule in Gun Owners of America, Inc. v. Garland, 19 F.4th 890, 912 (2021) just on 3 December 2021.
An application of Chevron and other types of deference in criminal cases could have far ranging consequences in the military-justice system because so much of it is driven by executive order. For these reasons, the Navy-Marine Corps Court of Criminal Appeals decision in Alkazahg is a story of the year.
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