## Facts

- Gregory L. Robbins, an Airman in the U.S. Air Force, was tried by a military judge sitting alone as a general court-martial.
- Robbins pleaded guilty to assault and battery on his wife on divers occasions and intentional infliction of grievous bodily harm, in violation of Article 128, UCMJ.
- Robbins’s wife was about 34 weeks pregnant when he repeatedly punched her in the face and body, breaking her nose and blackening her eye.
- The beating ruptured the uterus and tore the placenta, causing the unborn child to be expelled into the mother’s abdominal cavity and die before birth.
- Because the UCMJ then lacked a specific offense for killing an unborn child, the government charged Robbins with involuntary manslaughter for unlawfully terminating the pregnancy under Ohio Rev. Code § 2903.04, assimilated through the Federal Assimilative Crimes Act (18 U.S.C. § 13) and prosecuted under Article 134, UCMJ.
- The adjudged and approved sentence included a dishonorable discharge, 8 years’ confinement, and reduction to the lowest enlisted grade.
- The Air Force Court of Criminal Appeals affirmed the findings and sentence.

## Issues

1. Whether Robbins’s unconditional guilty plea waived his claim that the assimilated Ohio offense was barred by the UCMJ preemption doctrine and therefore failed to state an offense.
2. Whether the preemption doctrine barred use of the Federal Assimilative Crimes Act and Article 134 to assimilate Ohio’s involuntary manslaughter statute for unlawful termination of a pregnancy, given Articles 119 (manslaughter) and 128 (assault) of the UCMJ.

## Decision

- CAAF held that Robbins’s guilty plea did not waive the preemption challenge because claims of lack of jurisdiction or failure to state an offense are not waived by failure to raise them at trial, and a guilty plea waives only objections tied to factual guilt.
- CAAF held the preemption doctrine did not bar assimilation of Ohio Rev. Code § 2903.04 because the UCMJ’s homicide provisions did not specifically cover killing an unborn child and Congress had not indicated an intent to occupy that field.
- CAAF affirmed the lower court’s decision upholding the conviction and sentence.

## Legal Principles

- Under R.C.M. 910(j), a guilty plea waives objections only insofar as they relate to the factual issue of guilt; it does not waive a claim that the specification fails to state an offense.
- Under R.C.M. 905(e), fundamental defects such as lack of jurisdiction or failure to state an offense are not waived by failure to raise them at trial.
- The UCMJ preemption doctrine bars use of Article 134 (and assimilation) only when Congress has intended Articles 80–132 to be exclusive as to the misconduct charged.
- The Federal Assimilative Crimes Act permits assimilation of state criminal law to fill gaps where federal (including military) law does not punish the specific conduct, and assimilation is permissible when the state offense is distinct from, and not duplicative of, existing UCMJ offenses.

## Conclusion

CAAF ruled that Robbins’s guilty plea did not forfeit his preemption argument, but rejected the argument on the merits, holding that the UCMJ did not preclude assimilation of Ohio’s offense for unlawfully terminating a pregnancy; the affirmed convictions and sentence therefore remained intact.


United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999)