CORE CRIMINAL LAW SUBJECTS: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3

2013 (September Term)

United States v. Moon, 73 M.J. 382 (appellant’s plea of guilty to possessing images of “nude minors and persons appearing to be nude minors,” in violation of Article 134, UCMJ, was improvident where (1) the military judge provided oscillating, inconsistent, and conflicting explanations of the conduct that he believed constituted the offense of possessing images of nude minors, appellant affirmed contradictory descriptions of the images at issue, and the confusion was never resolved, and (2) the military judge failed adequately to elicit from appellant that he clearly understood the critical distinction between criminal and constitutionally protected conduct).

(under appropriate circumstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces). 

(where an Article 134 charge implicates constitutionally protected conduct, the heightened plea inquiry requirements of Hartman (69 MJ 467 (CAAF 2011)) apply: the colloquy must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior). 

United States v. Kearns, 73 M.J. 177 (18 USC § 2423(a) prohibits a person from knowingly transporting a minor in interstate commerce “with intent” to engage in criminal sexual activity; the phrase “with intent” does not require the government to prove that appellant’s “dominant,” “predominant,” “significant,” or “efficient and compelling” reason for transporting the minor across states lines was to have sex with her; rather, as long as illegal sexual activity is a purpose, or one of the purposes, for transporting a minor across state lines, and is not merely incidental to the travel, the intent element of 18 USC § 2423(a) is met). 

(under 18 USC § 2423(a), there is no requirement that the intended unlawful sexual activity actually occur; rather, all that is required is that the mensrea of intent coincide with the actusreus of crossing state lines). 

(in this case, the evidence adduced at trial was legally sufficient to prove that, under the provisions of 18 USC § 2423(a), appellant had the requisite intent to engage in criminal sexual activity with a minor when he facilitated that minor’s travel in interstate commerce; although appellant argued that his purpose in facilitating the minor’s travel across state lines was to remove her from a sexually abusive environment and appellant claimed that prior to the minor crossing state lines, he and the minor had agreed that they would no longer engage in sexual activity until the minor reached eighteen years of age, the government met its burden in proving the necessary intent in this case, and the mens rea of intent coincided with the actusreus of crossing state lines, where the record showed that (1) appellant had sexual intercourse with the minor on at least two occasions in the two months prior to the point when he orchestrated her transportation across state lines, (2) appellant went so far as to climb in the second-story window of the minor’s bedroom in order to have sex with her, (3) shortly before the trip, the minor sent appellant a photo of her naked breast and appellant did not object to this action, (4) appellant paid a stripper with whom he had a sexual relationship a substantial sum of money to transport the minor to his state, and (5) appellant planned to have the minor live near him; these are all facts that the panel could have considered and relied upon in reaching its decision that appellant transported the minor across state lines “with intent” to engage in illegal sexual activity with her).

United States v. Finch, 73 M.J. 144 (the specifications in this case alleging that appellant distributed child pornography and received and possessed child pornography, both in violation of Article 134, UCMJ (conduct prejudicial to good order and discipline and service-discrediting conduct), were directly analogous to the federal offenses of distribution of child pornography (18 USC § 2252A(a)(2)) and possession of child pornography (18 USC § 2252A(a)(5)) in calculating the maximum punishment for those offenses; because the offenses were directly analogous to 18 USC § 2252A(a)(2) and (5), they were punishable by sentences of twenty years and ten years respectively; all the elements of the federal offenses, except the jurisdictional element, were included in the specifications; the offenses alleged images of minors, not images of virtual minors, and thus were not charged as simple disorders punishable by four months of confinement; the term child pornography is defined in § 2256(8)(B) to include any visual depiction of a minor engaging in sexually explicit conduct; the definition does not distinguish between minors and actual minors; as such, the CCA did not err in holding that the maximum possible sentence was based on the analogous portions of 18 USC § 2252A, which address essentially the same offenses as charged herein).   

United States v. Warner, 73 M.J. 1 (the first and second clauses of Article 134, UCMJ, permit the criminalization of certain conduct not otherwise prohibited that is either prejudicial to good order and discipline or service discrediting). 

(it is settled that a servicemember may be prosecuted for service-discrediting conduct under the general article, Article 134, UCMJ, even if the conduct is not specifically listed in the MCM;  however, due process requires that a servicemember have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations). 

(neither federal law, state law, military case law, military custom and usage, or military regulations provided appellant notice that possession of images that depict minors as sexual objects or in a sexually suggestive way, without involving nudity or sexually explicit conduct, was subject to sanction under Article 134; simply put, although child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice; thus, charging appellant under the general article for possessing such images violated due process). 

United States v. Merritt, 72 M.J. 483 (Article 134, UCMJ, the general article, criminalizes service-discrediting conduct by military service members; although certain specified offenses are included under this article, conduct that is not listed in the MCM may nonetheless constitute service discrediting conduct and may be used to allege the offense).    

(as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice is found in the MCM, federal law, state law, military case law, military custom and usage, and military regulations).   

(appellant did not have sufficient notice that the viewing of child pornography was subject to criminal sanction in 2006, as required for conviction under the general article, Article 134, UCMJ, for service discrediting conduct, where the viewing of child pornography was not criminalized under the UCMJ, the MCM, military custom or usage, the comprehensive federal statutes, federal or military court decisions, or the majority of state statutes; the fact that three states criminalized the conduct did not satisfy the constitutional requirement of fair notice).

2012 (September Term)

United States v. Schell, 72 M.J. 339 (the plain language of 18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, is unambiguous; nothing in the plain language of § 2422(b) indicates that an accused must intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity; because the terms “entice,” “induce,” and “persuade” in 18 USC § 2422(b) are not statutorily defined, they are accorded their ordinary meaning, and in ordinary usage, they are effectively synonymous - the idea conveyed is of one person leading or moving another by persuasion or influence, as to some action or state of mind; the legislative history indicates that Congress intended the statute to address those who lure children out to actually engage in illegal sexual activity, but also to more broadly protect children and families from online harm; there is nothing in the legislative history suggesting that an accused had to intend to actually engage in a sexual crime).  

(to establish an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the government must prove that an accused: (1) had the intent to commit the substantive offense; and (2) took a substantial step toward persuading, inducing, enticing or coercing a minor to engage in illegal sexual activity; the second element - the substantial step requirement - ensures that mere thought crimes are not prosecuted). 

(18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, does not require that the accused have the specific intent that the minor, ultimately, actually engage in illegal sexual activity as a result of his enticement; the intent required to support an attempt conviction under § 2422(b) is the intent to commit the predicate offense - that is, the intent to entice a minor for the purpose of engaging in illegal sexual activity). 

(where appellant pleaded guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), he did not raise a matter inconsistent with his guilty in his unsworn statement during sentencing when he stated that he did not actually intend to engage in illegal sexual activity with the minor; because he admitted in a detailed stipulation of fact and during the plea colloquy that he intended to entice her to engage in illegal sexual activity, he had the requisite intent to support an attempt conviction under § 2422(b); the offense did not require that he have the specific intent to actually engage in illegal sexual activity with the minor – only the intent to entice the minor into engaging in illegal sexual activity). 

(during a providence inquiry with an accused pleading guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the military judge erred in defining the elements of the offense because she failed to instruct the accused that he had to take a substantial step toward enticing a minor in order to plead guilty to an attempt under Article 134, UCMJ; additionally, neither the specification nor the stipulation of fact mentioned that a substantial step was an element of the Article 134, UCMJ, offense; although the accused was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step, the record had to objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense; that the accused admitted facts during his plea colloquy that were likely sufficient to prove that he took a substantial step towards enticing a minor did not answer the altogether different question whether he understood that a substantial step was necessary to make his conduct criminal; even though the accused agreed that the military judge correctly described his crime, and admitted that he took steps to attempt to entice the minor, the record did not demonstrate that the accused understood how the law related to the facts; as such, there was a substantial basis in law to question the providence of the plea). 

United States v. Gaskins, 72 M.J. 225 (where an Article 134, UCMJ, specification neither expressly alleges nor necessarily implies the terminal element, the specification is defective).

(an Article 134, UCMJ, specification that fails to plead the terminal element does not put an accused on fair notice of which clause or clauses of the terminal element he must defend against).

(to punish conduct that is to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, the government must establish (1) a predicate act or failure to act, and (2) the terminal element; in charging an Article 134, UCMJ, offense, language describing (1) does not fairly imply (2)).  

(in this case, it was plain and obvious error for the government not to allege the terminal element in the specifications under Article 134, UCMJ, alleging indecent acts with a child and indecent assault; even though evidence of the bad acts themselves may have been legally sufficient to prove the terminal element at trial, where the government failed to allege the terminal element, mention it during trial, or put on independent evidence of it, and appellant did not defend against it, appellant suffered material prejudice to his substantial right to notice and to defend himself; the argument that an accused is not prejudiced by the government’s failure to allege the terminal element because it is intuitive that the bad acts discredited the military runs contrary to long-established principles of fair notice; suggesting that there was no prejudice because the predicate acts were intuitively prejudicial to good order and discipline and service discrediting fails to recognize Article 134, UCMJ’s terminal element for what it is – a discrete element of a criminal offense; here, no direct evidence was put on to prove the terminal element; neither clause 1 nor 2 was directly or indirectly mentioned by either party until the military judge instructed the members on the elements of the Article 134, UCMJ, specifications, nor did the government proffer any physical evidence or witness testimony as to how appellant’s acts might have affected either his unit or the public’s opinion of the armed forces, nor did the defense indicate that they knew they were defending against either theory of liability; under these circumstances, both appellant and the appellate court lack knowledge of a matter of critical significance - namely, on which theory of criminality appellant was tried and convicted; because appellant was never given notice of the theory of criminality the government pursued, and no evidence was introduced on any theory, the errors in the Article 134, UCMJ, specifications were not cured; the government’s failure to allege the terminal element was thus plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against). 

(in the context of a defective Article 134, UCMJ, specification raised for the first time on appeal, the failure to allege the terminal element is not necessarily structural error warranting automatic dismissal, but error that can be tested for prejudice). 

United States v. Goings, 72 M.J. 202 (in a contested case involving an Article 134, UCMJ, offense, the terminal element must be pleaded or fairly implied, and the allegation of the act itself is insufficient to support a fair implication of the terminal element).

(Article 134, UCMJ, has two elements: (1) a predicate act or failure to act, and (2) a terminal element; the terminal element of an Article 134, UCMJ, offense may not be fairly implied from nothing more than the language describing the alleged act or failure to act itself). 

United States v. Caldwell, 72 M.J. 137 (Article 134, UCMJ, criminalizes all disorders and neglects to the prejudice of good order and discipline in the armed forces and all conduct of a nature to bring discredit upon the armed forces). 

(under Article 134, UCMJ, conduct that is prejudicial to good order and discipline is conduct that causes a reasonably direct and palpable injury to good order and discipline; the acts in question must be directly prejudicial to good order and discipline, and not prejudicial only in a remote or indirect sense; conduct of a nature to bring discredit on the armed forces must have a tendency to bring the service into disrepute or it must tend to lower it in the public esteem).    

United States v. Bowersox, 72 M.J. 71 (the statute, 18 USC § 1466A(b)(1), which prohibits the possession of obscene visual depictions of a minor engaging in sexually explicit conduct, does not require proof that the depictions represent “real” minors; the statute expressly provides that the minors depicted need not actually exist; as such, the statute applied to appellant’s conduct, who possessed 198 of such images on his computers in his shared US barracks room, even though none of images depicted real children; furthermore, the statute is constitutional as applied to appellant because the statute requires that the proscribed visual depiction be obscene, and the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home,” did not extend to appellant’s possession of obscene materials in his shared barracks room). 

2011 (September Term)

United States v. Humphries, 71 M.J. 209 (the terminal element of Article 134, UCMJ, like any element of any criminal offense, must be separately charged and proven, and regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication). 

(a defective adultery specification in a contested case that failed to allege the terminal element under Article 134, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, resulted in material prejudice to the accused’s substantial right to notice under the Fifth and Sixth Amendments, where neither the specification nor the record provided notice of which terminal element or theory of criminality the government pursued in this case; the government never mentioned the adultery charge in its opening statement, did not present any specific evidence or call a single witness to testify as to why the accused’s conduct satisfied either clause 1, clause 2, or both clauses of the terminal element of Article 134, UCMJ, and made no attempt to tie any of the evidence or witnesses that it did call to the Article 134, UCMJ, adultery charge; although the military judge’s panel instructions correctly listed and defined the terminal element of Article 134, UCMJ, as an element of the adultery specification, this came after the close of evidence and, again, did not alert the accused to the government’s theory of guilt). 

United States v. Barberi, 71 M.J. 127 (four electronic images depicting appellant’s stepdaughter in various stages of undress were not child pornography within meaning of the Child Pornography Prevention Act because the images did not contain an exhibition of the stepdaughter’s genitals or pubic area).

(four electronic images depicting appellant’s stepdaughter in various stages of undress that were not child pornography within meaning of the Child Pornography Prevention Act constituted constitutionally protected speech, and the government may not suppress lawful speech as the means to suppress unlawful speech).

(under appropriate circumstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces). 

(charges for the possession of child pornography could be brought pursuant to clauses (1) or (2) of Article 134 without reference to the definitions laid out in the Child Pornography Prevention Act, thereby creating a completely different set of elements required for conviction). 

(where four out of six images introduced by the government in support of appellant’s conviction for possession of child pornography in violation of Article 134 were constitutionally protected and where it is unknown which images formed the basis for the finding of guilt to the possession of child pornography charge and the finding may have been based on the constitutionally protected images, the general verdict of guilt must be set aside). 

(the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered). 

United States v. Hayes, 71 M.J. 112 (many violations of state law can be prosecuted under Article 134, UCMJ, 10 USC § 934, through the federal Assimilative Crimes Act, 18 USC § 13, assuming at least concurrent federal jurisdiction over the situs of the offense). 

United States v. McClain, 71 M.J. 80 (the evidence in this case was legally sufficient to sustain appellant’s conviction for possessing child pornography in violation of Article 134, UCMJ, where (1) appellant’s own statement, admitted into evidence and sufficiently corroborated by other evidence, provided direct evidence that he intentionally sought pornography on the Internet using a Limewire software program that he installed on his computer, knowingly downloaded what he thought were videos containing child pornography, and then viewed those videos, (2) where a CID agent testified that when he showed appellant the names of the four video files that were found saved in a shared folder on appellant’s computer, appellant admitted that he had downloaded those files to his computer, and (3) where an NCIS agent also testified that the characteristics of the files he found in the shared folder on appellant’s computer were identical with the characteristics of four videos admitted into evidence of suspected child pornography that he downloaded from a Limewire share folder, including the fact that they had the same title, they were the same size files, they were the same type of file (i.e., videos), and they shared the same SHA1 value (digital signature); based on this evidence, including every reasonable inference that can be drawn from the evidence when viewed in the light most favorable to the government, a rational trier of fact could find the essential elements of the charged offense of possession of child pornography beyond a reasonable doubt despite the fact that the four video files of suspected child pornography on appellant’s computer could not be downloaded or viewed). 

United States v. St. Blanc, 70 M.J. 424 (appellant was charged with possession of “what appears to be” child pornography, yet his maximum sentence was determined by reference to the Child Pornography Prevention Act; Beaty (70 MJ 39) held that the maximum sentence for a specification of possessing “what appears to be” child pornography cannot be determined by reference to the CPPA; as a result, and in the absence of the President setting a sentence maximum for such an offense, the maximum sentence for that offense is that of a general or simple disorder under Article 134, UCMJ - four months of confinement and forfeiture of two-thirds pay per month for four months).

United States v. Winckelmann, 70 M.J. 403 (the underage enticement statute, 18 USC § 2422(b), criminalizes attempts to knowingly persuade, induce, entice, or coerce any minor to engage in any sexual activity using a means of interstate commerce; to be guilty of an attempt under § 2422(b), the government must prove, inter alia, that the defendant (1) had the intent to entice, and (2) took a substantial step toward enticement).

(there is an elusive line separating mere preparation from a substantial step in an attempt prosecution; for an attempt conviction, a substantial step must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances).

(in the context of the underage enticement statute, 18 USC § 2422(b), different types of evidence can establish a substantial step depending on the facts of a particular case; for example, travel constitutes a substantial step in § 2422(b) cases; but travel is not a sine qua non of finding a substantial step in a section 2422(b) case; in non-travel cases involving online dialogue on the Internet, courts analyze the factual sufficiency of the requisite substantial step using a case-by-case approach; the online dialogue must be analyzed to distinguish hot air and nebulous comments from more concrete conversation that might include making arrangements for meeting the supposed minor, agreeing on a time and place for a meeting, making a hotel reservation, purchasing a gift, or traveling to a rendezvous point; where an accused has not traveled to a rendezvous point and not engaged in such concrete conversation, an accused may be found to have taken a substantial step toward enticement of a minor where there is a course of more nebulous conduct, characterized as grooming the victim).    

(under the facts of this case, an online chat line “u free tonight” from the accused to the alleged victim did not constitute a substantial step toward enticement of a minor to engage in sexual activity in violation of 18 USC § 2422(b), and the evidence was thus not legally sufficient; there was no travel, no concrete conversation, such as a plan to meet, and no course of conduct equating to grooming behavior; viewing the question “u free tonight” in the light most favorable to the government, it is simply too preliminary to constitute a substantial step; the accused engaged in a single chat with the alleged victim containing 41 lines of text; even though the chat was sexually explicit, the accused did not discuss when and where they would meet, how they would find each other, what they would do when they met, or make any other specific arrangements to facilitate the rendezvous, and left it up to the alleged victim to contact him if he wanted to get together; consequently, there was no evidence when the chat ended that either enticement or sexual activity with a minor would take place unless interrupted by independent circumstances; rather, the enticement or sexual activity could only occur if the alleged victim contacted the accused; therefore, the accused’s actions did not exceed the threshold level of evidence required for a substantial step under the fact-specific analysis required in 18 USC § 2422(b) cases, and the evidence was not legally sufficient for a finding of guilt).

United States v. Pierce, 70 M.J. 391 (clause 3 offenses under Article 134, UCMJ, involve noncapital crimes or offenses which violate Federal law; when alleging a clause 3 violation, each element of the federal statute must be alleged expressly or by necessary implication). 

(in this case, appellant was charged with using the Internet to attempt to entice a minor to engage in sexual activity in violation of 18 USC § 2422(b); in order to be guilty of that offense, an accused must use, inter alia, any facility or means of interstate commerce to knowingly entice a minor; this element recognizes that regulating activity under the Commerce Clause provides a means for Congress to create federal crimes). 

(the question whether an activity constitutes a facility or means of interstate commerce within the meaning of 18 USC § 2422, which prohibits the use of a facility or means of interstate commerce to attempt to entice a minor to engage in sexual activity, is a question of law). 

(the question whether the Internet was a facility or means of interstate commerce within the meaning of 18 USC § 2422, which prohibits the use of a facility or means of interstate commerce to attempt to entice a minor to engage in sexual activity, is one of statutory interpretation, a question of law to be answered by the military judge; there is no support for the proposition that it is within the province of the members to either interpret statutory language or to traverse Commerce Clause jurisprudence, as would be necessary to determine whether the Internet was a constitutionally sufficient facility or means of interstate commerce).   

(as a point of law, the Internet constitutes a facility or means of interstate commerce within the meaning of 18 USC § 2422, which prohibits the use of a facility or means of interstate commerce to attempt to entice a minor to engage in sexual activity). 
 

(the question whether the Internet was used to commit the attempted enticement of a minor in violation of 18 USC § 2422 is one of fact to be decided by the trier of fact; in this case, the members were instructed that they must find that the accused knowingly used the Internet to attempt to entice a minor, there was no error in this instruction, and the evidence on this point was legally sufficient).
 
2010 (September Term)

United States v. Fosler, 70 M.J. 225 (to establish a violation of Article 134, UCMJ, the government must prove beyond a reasonable doubt both that the accused engaged in certain conduct and that the conduct satisfied at least one of three listed criteria; the latter element is commonly referred to as the terminal element of Article 134 and the government must prove that at least one of the article’s three clauses has been met:  that the accused’s conduct was (1) to the prejudice of good order and discipline, (2) of a nature to bring discredit upon the armed forces, or (3) a crime or offense not capital; if the government fails to allege at least one of the three clauses either expressly or by necessary implication, the charge and specification fail to state an offense under Article 134). 

(the three clauses of Article 134 constitute three distinct and separate parts; violation of one clause does not necessarily lead to a violation of the other clauses; clause 1, disorders and neglects to the prejudice of good order and discipline, is not synonymous with clause 2, conduct of a nature to bring discredit upon the armed forces, although some conduct may support conviction under both clauses; this is particularly true of clause 3, crimes and offenses not capital). 

(an accused charged under Article 134 must be given notice as to which clause or clauses he must defend against; this requirement is based on fair notice). 

(the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element). 

(when the phrase “Article 134” appears in the charge, the charge and specification do not allege the terminal element expressly or by necessary implication; to the extent that prior decisions such as Mayo (12 MJ 286 (CMA 1982)) and Marker (1 CMA 393, 3 CMR 127 (1952)) hold to the contrary, they are overruled). 

(because an accused must be notified which of the three clauses under Article 134, UCMJ, he must defend against, to survive an RCM 907 motion to dismiss, the terminal element must be set forth in the charge and specification). 

United States v. Phillips, 70 M.J. 161 (to establish a violation of clause 2 of Article 134, UCMJ, the government must prove beyond a reasonable doubt that (1) the accused engaged in certain conduct; and (2) that the conduct was of a nature to bring discredit upon the armed forces).

(evidence that the public was actually aware of the accused’s conduct is not necessarily required to prove a violation of clause 2 of Article 134, UCMJ; military law does not require that the public know of the accused’s conduct for an accused to be convicted of a clause 2 offense; furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces). 

(a presumption that possession of child pornography is conclusively service discrediting under clause 2 of Article 134, UCMJ, is constitutionally impermissible). 

(the terminal element in a clause 1 or 2 Article 134 case is an essential element of the offense as to which members must be instructed, like any other; conduct need not be violative of any other criminal statute to violate clause 1 or 2; the terminal element must be proved beyond a reasonable doubt like any other element; whether any given conduct violates clause 1 or 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; and it cannot be conclusively presumed from any particular course of action). 

(clause 2 of Article 134, UCMJ, is not restricted to subjecting noncommissioned officers on the retired list to criminal sanctions; the provision applies to all active-duty personnel). 

(the focus of clause 2 of Article 134, UCMJ, is on the nature of the conduct, whether the accused’s conduct would tend to bring discredit on the armed forces if known by the public, not whether it was in fact so known; the statute, which requires proof of the nature of the conduct, does not require the government to introduce testimony regarding views of the public or any segment thereof; the responsibility for evaluation of the nature of the conduct rests with the trier of fact; the degree to which others became aware of the accused’s conduct may bear upon whether the conduct is service discrediting, but the statute does not establish a requirement that the accused’s conduct must in every case be in some respect public knowledge). 

(to convict an accused under clause 2 of Article 134, UCMJ, the trier of fact must determine beyond a reasonable doubt that the conduct alleged actually occurred and must also evaluate the nature of the conduct and determine beyond a reasonable doubt that the accused’s conduct would tend to bring the service into disrepute if it were known). 

(in general, in a clause 2 prosecution under Article 134, UCMJ, the government is not required to present evidence that anyone witnessed or became aware of the conduct; nor is the government required to specifically articulate how the conduct is service discrediting; rather, the government’s obligation is to introduce sufficient evidence of the accused’s allegedly service discrediting conduct to support a conviction; in a panel case, the military judge must instruct the members how to evaluate that evidence; when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly). 

(whether conduct is of a nature to bring discredit upon the armed forces in a clause 2 prosecution under Article 134, UCMJ, is a question that depends on the facts and circumstances of the conduct, which includes facts regarding the setting as well as the extent to which the accused’s conduct is known to others; the trier of fact must consider all the circumstances, but such facts - including the fact that the conduct may have been wholly private - do not mandate a particular result unless no rational trier of fact could conclude that the conduct was of a nature to bring discredit upon the armed forces; the extent to which conduct is constitutionally protected may impact whether the facts of record are sufficient to support a conviction). 

(in this case, the evidence was legally sufficient to sustain appellant’s conviction for possession of child pornography under clause 2 of Article 134, UCMJ, where forensic analysis of appellant’s computer showed that searches had been performed seeking filenames associated with child pornography, and appellant admitted downloading child pornography and viewing the images on several occasions; of the images, five images and two movies matched known child victims engaged in sexually explicit conduct; although the government did not introduce any direct evidence that the public was or would have become aware of appellant’s conduct, or that anyone at all was aware of it before appellant mentioned it to a criminal investigator, the government was not required to do so; regardless of public knowledge, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant’s activity would have tended to bring discredit upon the service had the public known of it). 

United States v. Beaty, 70 M.J. 39 (possession of child pornography, whether actual or virtual, may constitutionally be prosecuted under clauses 1 and 2, Article 134, UCMJ). 

(the maximum sentence for the offense with which appellant was charged, possession of “what appears to be” child pornography charged under clause 1 or clause 2 of Article 134, UCMJ, cannot be determined with reference to 18 USC § 2252A or 18 USC § 2252(a)(4)(B); the US Code does not criminalize possession of “what appears to be” child pornography; an offense comprised of acts that cannot be criminally charged under the US Code at all is neither directly analogous nor essentially the same as one that can be; as such, it was error to reference either federal statute to determine the maximum punishment in this case, because under neither statute is the offense with which appellant was charged punishable at all). 

(while the government can charge an offense of possession of “what appears to be” child pornography under Article 134, UCMJ, the maximum punishment under the US Code for possession of “what appears to be” child pornography is no punishment at all). 

(under RCM 1003(c)(1)(B)(ii), where an Article 134, UCMJ, offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the US Code, the maximum punishment is that authorized by the custom of the service).

(when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the US Code, and where there is no maximum punishment authorized by the custom of the service, they are punishable as general or simple disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months).  

(the maximum sentence for appellant’s offense of possession of “what appears to be” child pornography charged as an Article 134, clause 1 or 2 offense, was four months of confinement and forfeiture of two-thirds pay per month for four months, where the offense was not listed in the MCM, not included in or closely related to any other offense listed in Part IV of the MCM, and not provided for in the US Code, where there was no custom of the service specific to the offense, and where use of confinement for life without eligibility for parole as the jurisdictional maximum for a GCM would violate the rule of lenity). 

2009 (September Term)

United States v. Diaz, 69 M.J. 127 (the mens rea requirement contained in § 793(e) of the Espionage Act, a section that bars the willful communication of classified information, does not include an element of bad faith or ill intent).

 

(willfulness, in the context of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information, arises not in the context of bad intent, but in the conscious choice to communicate covered information). 

 

(classification alone does not satisfy the mens rea requirement of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information; although classification may demonstrate that an accused has reason to believe that information relates to national defense and could cause harm to the United States, not all information that is contained on a classified or closed computer system pertains to national defense; likewise not all information that is marked as classified, in part or in whole, may in fact meet the criteria for classification). 

 

(appellant’s conduct in disclosing classified information about detainees at Guantanamo Bay naval base satisfied the mens rea requirement of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information, where (1) the information disclosed, including internment serial numbers of the detainees, the interrogation team assigned to the detainees, and the source identification numbers, could have revealed sources and methods of intelligence gathering, (2) appellant knew he was dealing with sensitive material derived from a classified computer system, and (3) appellant intentionally revealed the material to an employee of an outside organization in a clandestine manner; appellant knew or should have known that the information could be used to the injury of the United States or to the advantage of any foreign nation; and evidence of motive derived from the proffered evidence would not have negated this mens rea element). 

 

(proof of appellant’s motive is irrelevant the mens rea requirement of § 793(e) of the Espionage Act, a section that bars the willful communication of classified information on this issue; although motive evidence may be relevant where it is circumstantial evidence of intent, in this case, appellant’s motive was unrelated to his intent; any noble motives appellant might have harbored when he released classified information about detainees at Guantanamo bay naval base, including what he may have thought was in compliance with a Supreme Court ruling, were irrelevant to his intentional act of physically mailing the names of detainees and coding information related to these names in violation of the Espionage Act). 

 

2008 (September Term)

United States v. Miller, 67 M.J. 385 (the courts of criminal appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the UCMJ, may not affirm a conviction to a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles; Article 134, UCMJ, is not an “offense necessarily included” under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ).

 

(a simple disorder under Article 134, UCMJ, is not a lesser included offense of resisting apprehension under Article 95, UCMJ, because Article 134, UCMJ, has an element not present in Article 95, UCMJ; clauses 1 and 2 of Article 134, UCMJ, include the element that, in addition to doing or failing to do a certain act, “under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces” - an element not contained in the textual exposition of Article 95, UCMJ).

 

(clauses 1 and 2 of Article 134, UCMJ, are not per se included in every enumerated offense under the UCMJ, overruling United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000), United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997), and United States v. Foster, 40 M.J. 140 (C.M.A. 1994)). 

 

United States v. Nance, 67 M.J. 362 (in a guilty plea to wrongful use of coricidin cough and cold medicine as conduct prejudicial to good order and discipline under Article 134, UCMJ, the factual circumstances as revealed by the accused himself objectively supported his plea where appellant admitted that he repeatedly gathered with other airmen to abuse the medicine with the intent of getting high and that this conduct would affect military readiness; in a stipulation of fact, appellant admitted that he met on five occasions with four fellow airmen, including one of lower rank, and one enlisted member of the U.S. Army to abuse the medicine with the intent to become intoxicated, and that in addition to making him high, abusing the medicine impaired his motor skills and sometimes made him pass out or enter into a dream-like state from which he emerged disoriented; appellant repeated the same facts during the plea inquiry, stating that he experienced nausea, blackouts, and extremely impaired motor skills after taking the medicine; these facts legally and factually supported the prejudicial to good order and discipline element of the charged violation of Article 134, UCMJ). 


United States v. Kuemmerle, 67 M.J. 141 (distribution of child pornography through the Internet under the Child Pornography Prevention Act, as factually presented in this case, consisted of two acts -- (1) the posting of the image, whereby the image left the possession of the original user, and (2) delivery of the image, whereby another user accessed and viewed the image).  


(appellant, who posted a pornographic image of a child to his profile on an Internet public bulletin board before he entered military service, distributed child pornography within the meaning of the Child Pornography Prevention Act while he was on active duty, as required for court-martial jurisdiction, when a government agent viewed the image at a time when appellant maintained control over the content on his profile and was on active duty and subject to the UCMJ). 


2008 (Transition)

United States v. Wilcox, 66 M.J. 442 (the CAAF’s jurisprudence on charged violations of Article 134, UCMJ, involving speech recognizes the importance of the context of that speech; consistent with the focus on context necessary to establish a violation of Article 134, UCMJ, while speech that would be impervious to criminal sanction in the civilian world may be proscribed in the military, the CAAF has long recognized that when assessing a criminal violation implicating the First Amendment, the proper balance must be struck between the essential needs of the armed services and the right to speak out as a free American; necessarily, the CAAF must be sensitive to protection of the principle of free thought; prior to applying this balancing test to a charged violation of Article 134, UCMJ, involving speech, two threshold determinations must be made:  first, the speech involved must be examined to determine whether it is otherwise protected under the First Amendment, and second, the government must have proved the elements of an Article 134, UCMJ, offense). 

 

(for any offense charged under Article 134, UCMJ, clauses 1 or 2, the government must prove:  (1) that the accused did a certain act, and (2) that the act was, under the circumstances, to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces; in the context of the First Amendment, in order to meet the second element for conduct charged under a prejudice of good order and discipline theory, the prosecution must show a reasonably direct and palpable connection between an appellant’s statements and the military mission; a direct and palpable connection between speech and the military mission or military environment is also required for an Article 134, UCMJ, offense charged under a service discrediting theory). 

 

(if an accused’s speech is otherwise protected by the First Amendment, and if a reasonably direct and palpable connection between the speech and the military mission or military environment is established, only then need an appellate court determine whether criminalization of that speech is justified despite First Amendment concerns; ultimately, an appellate court must weigh the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach, to determine whether the conviction is warranted; where the record does not establish a reasonably direct and palpable connection between the speech and the military at all, let alone the military mission or military environment, the balancing test is mooted by the legal insufficiency of the charged offense). 


(appellant’s statements on the Internet that formed the basis for the charge of violating the general article by wrongfully advocating anti-government and disloyal sentiments, and advocating racial intolerance, while distasteful and repugnant, constituted protected speech under the First Amendment, absent evidence that they constituted dangerous speech that interfered with or prevented the orderly accomplishment of the mission or presented a clear danger to loyalty, discipline, mission, or morale of the troops). 


(the evidence was legally insufficient to support appellant’s conviction for violating the general article by wrongfully advocating anti-government and disloyal sentiments, and advocating racial intolerance, based on his Internet online profiles, his communications with others on Internet message boards, and his statements made on the Internet to an undercover CID agent; the mere possibility that a servicemember or member of the public might stumble upon appellant’s expression of his beliefs, believe he was in the military, and attribute his views to the military, was so tenuous and speculative as to be legally insufficient to satisfy the element of either service discrediting behavior or conduct prejudicial to good order or discipline). 


United States v. Ober, 66 M.J. 393 (evidence that appellant used KaZaA, a peer-to-peer file sharing network, to download child pornography to his computer from other participants in a file sharing network, thereby causing an upload on the host user’s computer, was legally sufficient to support a finding that appellant was guilty of transporting child pornography in interstate commerce in violation of 18 USC 2252A(a)(1), considering appellant’s pretrial confession to CID agents, the expert testimony regarding the files found on appellant’s computer, and the testimony regarding the underlying investigation of appellant). 

 

United States v. Medina, 66 M.J. 21 (clauses 1 and 2 of Article 134, UCMJ, are not necessarily lesser included offenses of offenses alleged under clause 3 of Article 134, UCMJ, although they may be, depending on the drafting of the specification). 

 

(for the purposes of a guilty plea under Article 134, UCMJ, it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a disorder or neglect under clause 1, conduct proscribed under clause 2, or all three; as a result, while it is appropriate for an appellate court to affirm a lesser included offense, an accused has a right to know to what offense and under what legal theory he or she is pleading guilty; this fair notice resides at the heart of the plea inquiry). 

 

(in a contested case involving a guilty plea to a clause 3 offense under Article 134, a reviewing court must consider whether or not the prosecution proceeded on the premise or theory that the conduct alleged under clause 3 was also prejudicial to good order or service discrediting in order to affirm lesser included offenses under clauses 1 or 2 in the event the clause 3 theory is invalidated; in such a case, the members will normally have been instructed as to the alternative theory; this is consistent with the principle that an appellate court may not affirm on a theory not presented to the trier of fact and adjudicated beyond a reasonable doubt). 

 

(with respect to Article 134, UCMJ, given its structure and elements, an accused must also know under what clause he is pleading guilty; this is accomplished either through advice by the military judge or through operation of the lesser included offense doctrine). 

 

(in this case, appellant’s guilty pleas to clause 3 child pornography offenses under Article 134, UCMJ, were not knowing and voluntary to lesser offenses under clause 2 where appellant was not advised during the plea inquiry that in addition to pleading guilty to clause 3 offenses, he was by implication also pleading guilty to clause 2 offenses not charged or otherwise included in the specifications as drafted; although appellant admitted to service discrediting conduct in the context of pleading guilty to violations of clause 3, he did so without knowledge that in pleading guilty to clause 3 offenses, he was not required to plead guilty to service discrediting conduct under clause 2; it bears emphasis that this is a question about the knowing and voluntary nature of the plea and not the adequacy of the factual basis supporting the plea).  

 

United States v. Navrestad, 66 M.J. 262 (sending a hyperlink to a public website during an internet chat session, where that website contained child pornography images, was not legally sufficient to constitute distribution of child pornography as that term is defined in 18 USC § 2256(5) and (8) of the Child Pornography Prevention Act, because the data contained in that hyperlink was not capable of being converted into any type of visual image, but rather was simply only a path or address to the website).

 
(appellant’s use of a public computer to view images of child pornography on a public website was not legally sufficient to constitute possession of child pornography under Article 134, UCMJ, clause 1 or 2, where appellant lacked the dominion and control necessary to constitute possession of the child pornographic images; although he viewed the images on the website, viewing alone does not constitute control, and his actions with the images went no further; he could not access the computer’s hard drive where the images were automatically saved as temporary internet files nor could he download the images to a portable storage device; moreover, there was no evidence that he e-mailed, printed, or purchased copies of the images or that he was even aware that he could take any of these actions).    

 

2007

United States v. Leonard, 64 M.J. 381 (Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code; those categories are separated into three clauses; clause 1 prohibits conduct to the prejudice of good order and discipline in the armed forces; clause 2 prohibits conduct of a nature to bring discredit upon the armed forces; and clause 3 covers noncapital crimes or offenses which violate federal law; when the decision is made to charge the offense under clause 3, the proof must establish every element of the crime or offense as required by the applicable law; but when the offense is charged under clauses 1 or 2, the specification need only allege that the accused did or failed to do certain acts, and that, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces respectively; the MCM states no preference as to which clause of Article 134, UCMJ, must be used in a particular case). 

 

(the maximum punishment for an offense charged under Article 134, UCMJ, clauses 1 and 2, barring conduct prejudicial to good order and discipline or conduct of a nature to bring discredit upon the armed forces, and not otherwise listed in the MCM, may be determined by reference to the maximum punishment for a violation of a federal statute that proscribes and criminalizes the same criminal conduct and mental state included in the specification). 


2006

 

United States v. Brisbane, 63 M.J. 106 (the knowing possession of images depicting sexually explicit conduct by minors, whether actual or virtual, when determined to be service-discrediting conduct or conduct prejudicial to good order and discipline, is an offense under Article 134). 

 

(in this case, the evidence was legally sufficient to sustain the accused’s conviction for possession of child pornography under the general article as service-discrediting or prejudicial to good order and discipline where the accused told his neighbor that he possessed seven pictures of child pornography, and the disclosure alarmed the neighbor enough that he contacted OSI to determine whether any of the pictures included images of his children).


United States v. Roderick, 62 M.J. 425 (the receipt or possession of virtual child pornography can, like actual child pornography, be service-discrediting or prejudicial to good order and discipline; thus, a military judge’s definition of child pornography that included both actual and virtual images does not impact a service-discrediting charge). 

 

(18 U.S.C. § 2251(a) prohibits any person from using, persuading, inducing, enticing, or coercing any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means; the term “sexually explicit conduct” as defined by 18 U.S.C. § 2256(2) includes five different categories of conduct:  sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or “lascivious exhibition of the genitals or pubic area of any person;” whether a particular photograph contains a “lascivious exhibition” is determined by combining a review of the Dost factors with an overall consideration of the totality of the circumstances; the Dost factors are: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer). 

 

(nude or partially nude photographs of a minor daughter that did not depict her genitals or pubic area, a requirement of § 2256(2) and a prerequisite to any analysis under Dost, did not depict “sexually explicit conduct” as is required for a conviction under 18 U.S.C. § 2251(a), and therefore the evidence was legally insufficient).

 

(where fully or partially nude photographs of a minor daughter depicted the pubic area, where the pubic area could be considered the focal point of the images, and where a reasonable factfinder could have concluded that the photos were intended or designed to elicit a sexual response in the viewer, the first, fourth, and sixth Dost factors point to a “lascivious exhibition” of the pubic area and support a finding of “sexually explicit” images; when other factors, such as the fact that the accused had nude photographs of more than one minor daughter, that his ex-wife characterized him as “highly interested” in pornography, and that he admitted to downloading and possessing numerous images of child pornography, are viewed in combination with the Dost factors, there is a clear basis on which a reasonable factfinder could have concluded that the photos of the minor satisfied the definition of “sexually explicit” photographs).

 

(although the nude and partially nude photos that the accused took of one of his minor daughters were not sexually explicit, there was ample evidence in the record on which a reasonable factfinder could conclude that he took the pictures and did so to arouse, appeal to or gratify his own sexual desires; this evidence, viewed in a light most favorable to the Government, is legally sufficient to support the offense of taking indecent liberties with a child). 

 

United States v. Wolford, 62 M.J. 418 (images alone can constitute legally sufficient evidence as to whether an actual child was used to produce child pornography; the finder of fact can make a determination that an actual child was used to produce the images in question based upon a review of the images alone).

 

(it was not error for the military judge to use the introductory language of 18 U.S.C. § 2256(8) in his instructions on the definition of child pornography; the reference to “computer generated image” was not unconstitutional where the Supreme Court left intact 18 U.S.C. § 2256(8)(C) which prohibits computer morphing; therefore, some types of “computer generated images” are not constitutionally protected). 

 

(in this case, the military judge erred in his affirmative defense instruction with respect to sending, receiving, and reproducing child pornography by using the phrase “conveys the impression,” language found by the Supreme Court to be unconstitutional).


(the military judge’s instruction on the definition of “child pornography” that included the language of 18 U.S.C. § 2256(8)(D) without the “conveys the impression” phrase was not erroneous; it is clear that the Supreme Court’s concern with § 2256(8)(D) centered on the “conveys the impression” language, its impact, and how it addressed how speech was presented, and not on what was actually depicted).
 

United States v. Cendejas, 62 M.J. 334 (in order to sustain a conviction under the Child Pornography Prevention Act, 18 USC 2252A, the Government must prove that an image depicts an actual child; it is no longer enough to knowingly possess, receive or distribute visual depictions that “appear to be” of a minor engaging in sexually explicit conduct; instead, proof that an actual child under the age of eighteen was used in the production of the images is a required element of a charge under the CPPA; the government bears the burden of proving each and every element of a crime beyond a reasonable doubt; and the Government is not released from its burden of proof by an accused’s failure to argue, or by an absence of evidence otherwise suggesting, the artificiality of the children portrayed).

 

(certain portions of the definition of child pornography in 18 USC § 2256(8) are unconstitutional, specifically the “or appears to be” language of § 2256(8)(B), and the “conveys the impression” language of § 2256(8)(D)).  

 

(a factfinder has the prerogative to decide without expert testimony whether images of child pornography are actual or virtual; a factfinder can make a determination that an actual child was used to produce the images in question based upon a review of the images alone; in the military justice system, this includes the military judge and, under appropriate circumstances, a court of criminal appeals).

(a servicemember can be prosecuted under clauses 1 and 2 of Article 134 for offenses involving virtual child pornography even though such conduct is constitutionally protected in civilian society; accordingly, in cases prosecuted under clauses 1 and 2, the government bears no burden of demonstrating that the images depict actual children –- with or without expert testimony).

2005

 
United States v. Hays
, 62 M.J. 158 (an improvident plea to an offense of a CPPA violation charged under clause 3 of Article 134 may be upheld on a proper record as a provident plea to a lesser included offense under the first two clauses of Article 134; in this case, appellant’s improvident guilty pleas to CPPA violations were provident to lesser included offenses based on the same conduct under clause 2 of the general article, where the record reflected that appellant admitted that his conduct was service-discrediting and why and that he clearly understood the nature of the prohibited conduct).


(the Child Pornography Protection Act has no extraterritorial application; because appellant engaged in the conduct underlying the CPPA-based charges in Germany, the guilty pleas to those charges were improvident).
 

United States v. Reeves, 62 M.J. 88 (conduct is punishable under Article 134 if it prejudices “good order and discipline in the armed forces” (clause 1), if it is “of a nature to bring discredit upon the armed forces” (clause 2), or if it is “a crime or offense not capital” (clause 3)).


(the Child Pornography Prevention Act is subject to a presumption against extraterritoriality and there is nothing in the language of the statute or the legislative history to overcome that presumption).
 

(because the Child Pornography Prevention Act does not have extraterritorial application, it was inapplicable to an accused’s receipt and possession of child pornography in Germany charged under clause 3 of Article 134 as a violation of that Act).


(the section of the Child Pornography Prevention Act prohibiting the production of a visual depiction of sexually explicit conduct by a minor (18 U.S.C. § 2251(a)) does not apply extraterritorially). 


(there was no basis for finding a domestic application of the Child Pornography Prevention Act where the specification charged the accused under clause 3 for violating the Act in Germany by possessing child pornography on land used by and under the control of the United States Government; the specification was a “situs” based possession charge and did not allege movement of child pornography through the Internet into the United States; thus, the principle of “continuing jurisdiction” was inapplicable to the specification). 


(there was no basis for finding a domestic application of the Child Pornography Prevention Act where the specification charged the accused under clause 3 for violating the Act in Germany by receiving child pornography that had been transported through the Internet; although the accused admitted during his providence inquiry that the images were sent from the U.S. through the Internet to him, he did not knowingly receive the images until he accessed the pictures in Germany and the act of opening the images did not trigger a chain of events that continued into the United States). 


(there was no basis for finding a domestic application of the Child Pornography Prevention Act where the specification charged the accused under clause 3 for violating the Act in Germany by using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct; although the accused admitted that the camcorder he used to videotape the German girls had been manufactured in Japan, purchased in the United States, and transported by him to Germany, in videotaping the girls, he did not begin any conduct that continued into the United States). 


(an improvident plea to a Child Pornography Prevention Act-based clause 3 offense may, under certain circumstances, be upheld as a provident plea to a lesser-included offense under clause 2 of Article 134). 


(the accused’s improvident guilty pleas to possessing, receiving, and producing child pornography in Germany charged as Child Pornography Prevention Act-based clause 3 offenses under Article 134 could not be deemed provident with respect to lesser-included offenses under clause 1 or 2 where there was an absence of any inquiry or discussion of service discrediting conduct or conduct that is prejudicial to good order and discipline; the military judge did not list service discrediting conduct or conduct that is prejudicial to good order and discipline as an element of any of the child pornography offenses; and the plea inquiry focused entirely on the elements of the clause 3 offenses).


United States v. Martinelli, 62 M.J. 52 (conduct is punishable under Article 134 if it “prejudices good order and discipline in the armed forces” (clause 1), if it is “of a nature to bring discredit upon the armed forces” (clause 2), or if it is a crime or offense not capital (clause 3); a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States).

(the Child Pornography Prevention Act does not have extraterritorial application and therefore does not extend to conduct engaged in outside the territorial boundaries of the United States when charged under clause 3 of Article 134, UCMJ).


(the Child Pornography Prevention Act does not fall within the category of criminal offenses involving frauds or obstructions against the government that are exempt from the application of the presumption against extraterritoriality; the ultimate objective behind the criminal proscription of activities pertaining to child pornography is to protect children from abuse; while few crimes are more serious or morally repugnant, child abuse does not involve fraud or obstruction against the government).


(servicemembers can be prosecuted under clauses 1 and 2 of Article 134 for child pornography offenses involving “virtual” children).


(because the Child Pornography Prevention Act does not have extraterritorial application, the accused’s guilty pleas to possessing, receiving, and reproducing child pornography charged as CPPA-based clause 3 offenses under Article 134 were improvident where the underlying conduct occurred in Germany).


(even though the Child Pornography Prevention Act does not have extraterritorial application, the accused’s guilty plea to using e-mail in Germany to send child pornography through the Internet charged as a CPPA-based clause 3 offense under Article 134 was not improvident because his e-mails were electronically routed through servers located in the United States and thus a domestic application of the CCPA was appropriate).


(the accused’s guilty plea to using e-mail in Germany to send child pornography through the Internet charged as a Child Pornography Prevention Act-based clause 3 offense under Article 134 was improvident where the military judge used an unconstitutional definition of child pornography and failed to inquire into the distinction between “actual” and “virtual” child pornography). 


(conduct that may not constitute a violation of clause 3 of Article 134 in a foreign country may still be punishable under clauses 1 and 2).


(the accused’s improvident guilty pleas to possessing, receiving, reproducing, and sending child pornography in Germany charged as Child Pornograpny Prevention Act-based clause 3 offenses under Article 134 could not be deemed provident with respect to lesser-included offenses under clause 1 or 2 where there was no reference to or discussion during the providence inquiry of the accused’s conduct being either prejudicial to good order and discipline or service discrediting).


United States v. Disney, 62 M.J. 46 (Title 18 U.S.C. § 842 (h) (storing stolen explosives that have been shipped in interstate commerce) is a constitutional exercise of Congress’s authority under the Commerce Clause; the disposition of stolen explosives which are moving as, which are part of, which constitute, or which have been shipped or transported in, interstate or foreign commerce clearly falls within the scope of Congress’s enumerated Article I, Section 8 regulatory powers).    


(Title 18 U.S.C. § 842 (h) (storing stolen explosives that have been shipped in interstate commerce) is constitutional as applied to appellant’s conduct; first, the statute regulates economic activity and appellant’s conduct fell within the scope of that regulated activity; section 842(h) was enacted as an essential part of a comprehensive federal legislative scheme to effectively regulate the sale, storage, transfer, or other disposition of explosives in interstate commerce; second, the statute includes an express jurisdictional element, and appellant conceded this element at trial when he stated that the contraband had moved in interstate or foreign commerce because it had been produced outside of California (the locus of the crime); third, the stated purpose of section 842(h) and the statute’s associated legislative history demonstrate that Congress found the illegal use and unsafe storage of contraband explosives to be a substantial hazard to interstate commerce; and fourth, there is a rational basis for concluding that appellant’s storage of stolen explosives has substantial direct implications for commerce; regardless of the actual impact of appellant’s particular conduct, his storage of stolen explosives fell within a class of commercial activity within Congress’s power to regulate; appellant’s actions diverted explosives out of the legal interstate market where they could be monitored and regulated and diverted them to his garage where federal regulations no longer applied regarding their storage or possible reentry into the marketplace).
 

United States v. Erickson, 61 M.J. 230 (Article 134, UCMJ, prohibits all disorders and neglects to the prejudice of good order and discipline in the armed forces; but it is not such a catchall as to make every irregular, mischievous, or improper act a court-martial offense; conduct prejudicial to good order and discipline must cause a direct and palpable prejudice to good order and discipline).
 
(Appellant’s plea of guilty to wrongful inhalation of nitrous oxide under Article 134, UCMJ, was provident where he admitted that his inhalation of the substance could produce damage to the brain; the admission regarding impairment of mental faculties reflected Appellant’s understanding that he had engaged in conduct that would undermine his capability and readiness to perform military duties -- a direct and palpable effect on good order and discipline; Appellant has provided no information on appeal that would undermine the validity of his acknowledgement at trial as to the harmful effects of inhalation of nitrous oxide; on the contrary, this Court takes judicial notice of the fact that a number of states have recognized the harmful effects of the inhalation of nitrous oxide by criminalizing it; however, such state action is not necessary to sustain a wrongful inhalation conviction under Article 134; the state laws here simply underscore the absence of a basis in the present case for questioning the factual sufficiency of Appellant’s statements during the plea inquiry). 
 
(the military preemption doctrine limits the application of Article 134, UCMJ, with respect to conduct covered by the specific punitive articles; this statutory interpretation doctrine does not necessarily preclude treatment of offenses under Article 134 whenever there is a similar offense in the specific punitive Articles; simply because the offense charged under Article 134 embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine; for an offense to be excluded from Article 134 based on preemption, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way). 
 
(the inhalation of an intoxicating substance charged under Article 134, UCMJ, is not preempted by Article 112a, UCMJ, which bears the heading “Wrongful use, possession, etc., of controlled substances”; the legislative history of Article 112a reflects congressional intent to not cover the class of drug-related offenses in a complete way; there is nothing on the face of the statute creating Article 112a or in its legislative history suggesting that Congress intended to preclude the armed forces from relying on Article 134 to punish wrongful use by military personnel of substances, not covered by Article 112a, capable of producing a mind-altered state; to the extent that dicta in Reichenbach, suggests otherwise with respect to prejudicial or service-discrediting conduct, see 29 M.J. at 136-37, we decline to adhere to that view).


United States v. Brooks, 60 M.J. 495 (a conviction under 18 U.S.C. § 2422(b) does not require an accused to communicate directly with an a minor). 
 
(a conviction under 18 U.S.C. § 2422(b) does not require the direct inducement of a minor; an accused’s acts may constitute inducement under the statute where, by negotiating with a purported relative of a minor, an accused attempted to stimulate or cause the minor to engage in sexual activity with him).
 
(the relevant criminal intent under 18 U.S.C. § 2422(b) is the intent to induce as opposed to the intent to commit the actual sexual act; a conviction under § 2422(b) does not require an accused to attempt an actual sexual act; a § 2422(b) conviction requires only an intent to persuade or to attempt to persuade; Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves).
 
(an attempt conviction under 18 U.S.C. § 2422(b) does not require communication with an actual minor).  
 
(appellant’s conviction for a criminal attempt under 18 U.S.C. § 2422(b) is well supported by the facts; appellant acted with the intent to induce a minor to engage in unlawful sexual activity; and appellant’s travel to a designated location and his arrival there with gifts for a child constituted the overt act that was the substantial step toward persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity). 
 
(in this case, the evidence presented at trial strongly supported a conviction under 18 U.S.C. § 2422(b) where appellant knowingly induced a woman to bring her minor sister to a designated location for sex, where before the meeting, appellant bought gifts suitable for a young child, and where appellant was apprehended at the door of the designated location). 


2004


United States v. Irvin, 60 MJ 23 (in past cases, we have affirmed convictions for a lesser-included offense under clause 2 of Article 134 for the “possession of images depicting sexually explicit conduct by minors”; as in those cases, appellant in this case admitted to and discussed with the military judge the character of his conduct as service-discrediting and prejudicial to good order and discipline; under these circumstances, the record reflects no substantial basis in law or fact for questioning the providence of his guilty plea).

 

United States v. Mason, 60 MJ 15 (we expressly acknowledged in O’Connor, but did not answer, the question as to whether, in the wake of Free Speech Coalition, the possession, receipt or distribution of images of minors engaging in sexually explicit conduct (regardless of their status as “actual” or “virtual”) could constitute service-discrediting conduct for purposes of Article 134; such inquiry must necessarily be undertaken on a case-by-case basis; in analyzing this constitutional dimension, the ultimate question is whether the status of the images in the present case as “virtual” or “actual” is of consequence in the context of assessing the providence of appellant’s guilty plea under clauses 1 and 2; we conclude that it is not). 

 

(the receipt or possession of “virtual” child pornography can, like “actual” child pornography, be service-discrediting or prejudicial to good order and discipline; even if we were to assume that the specific images that serve as the basis for appellant’s “child pornography” charge are “virtual” in nature, this still involves a commissioned officer of the United States Air Force receiving and viewing such images on a government computer in his workplace; under those circumstances, the distinction between “actual” child pornography and “virtual” child pornography does not alter the character of appellant’s conduct as service-discrediting or prejudicial to good order and discipline).

 

(while the issue as to whether the images of child pornography are “virtual” or “actual” may have a potentially dispositive effect in prosecutions under the CPPA in both civilian and military settings, it is not inherently dispositive of their impact on the esteem of the armed forces or good order and discipline; those are the yardsticks by which the criminality of conduct under clauses 1 and 2 are measured; even assuming the images at issue here are “virtual,” appellant’s conduct in receiving those images on his government computer can constitutionally be subjected to criminal sanction under the uniquely military offenses embodied in clauses 1 and 2 of Article 134). 


2003

United States v. Vaughan, 58 MJ 29 (an Article 134 offense that is not specifically listed in the Manual for Courts-Martial must have words of criminality and provide an accused with notice as to the elements against which he or she must defend).

(as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice may be found in the Manual for Courts-Martial, federal law, state law, military case law, military custom and usage, and military regulations).

(child neglect, although not specifically listed in the Manual for Courts-Martial as an Article 134 offense, may be charged under that Article as a service discrediting offense; custom and regulation, state law, and military case law combine to meet the requirements for due process notice enunciated in Parker v. Levy, 417 U.S. 733 (1974)).

(child neglect requires culpably negligent conduct, unreasonable under the totality of the circumstances, that causes a risk of harm to the child; actual harm to the child is not required).

(whether a given act of child neglect amounts to criminal conduct under Article 134 and whether the conduct is service discrediting will invariably present questions of fact for the trier of fact to determine).

United States v. Saunders, 59 MJ 1 (it is well settled that conduct that is not specifically listed in the MCM may be prosecuted under Article 134, UCMJ; however, due process requires that a person have fair notice that an act is criminal before being prosecuted for it; potential sources of fair notice include federal law, state law, military case law, military custom and usage, and military regulations).

(a military accused is entitled to fair notice of the criminality of conduct charged as service discrediting under Article 134, UCMJ, which does not necessarily require published notice of the precise wording of the elements).

(a knowing and willful course of intimidation or harassment that places a reasonable person in fear of death or bodily harm or that causes emotional distress is patently conduct that would be service-discrediting under Article 134, UCMJ).

(in light of the federal and state criminal laws addressing stalking/harassing conduct as well as the military case law that has affirmed stalking/harassment convictions, appellant was on fair notice that he risked prosecution under Article 134, UCMJ, if he knowingly engaged in a course of conduct (stalking/harassment) that placed another person in reasonable fear of injury or emotional distress).

(in addition to notice that an act is a crime under Article 134, UCMJ, a person must also have fair notice as to the standard applicable to the forbidden conduct against which they must defend; thus, an Article 134, UCMJ, specification must contain words of criminality and provide the accused with notice of the elements of the crime alleged).

(where a specification required the members to determine that appellant carried out a knowing and willful course of conduct directed at a specific person which would cause substantial emotional distress in a reasonable person or which would place that person in reasonable fear of bodily injury, it adequately provided notice as to the requisite mental state; the requirements of emotional distress in a reasonable person and placing a person in reasonable fear are common legal standards).

(for military practice, harassment is appropriately charged as a general intent offense, when charged under clause 2 of Article 134, UCMJ; this is consistent with the prior application of Article 134, UCMJ, and it is consistent with the purpose behind the stalking and harassment statutes – to protect persons from reasonable fear generated by the unwanted advances and contacts of others, without consideration of the abstract motives, some pure, some not, that might have motivated the prohibited conduct; inadvertent or de minimis, but willful, contact would not constitute an offense under Article 134, UCMJ).

(the decision as to whether a given set of acts rises to the level of harassment is left to the fact finder; in addition to adequately informing the accused of the elements of the offense, the specification must also set out conduct that a fact finder could determine was service discrediting in the context presented; while the addition of words of criminality cannot make criminal acts which obviously are not, the allegation must serve to demonstrate the proscribed character of accused’s act).

(a reasonable fact finder could find that appellant’s conduct constituted harassment where appellant repeatedly called and visited his former fiancee, and entered her apartment against her wishes, all after receiving a no-contact order, and where his telephone calls and visits continued over several weeks and included suicide threats, unlawful entry, and angry demands for the return of gifts, all despite protestations by her that she did not want such conduct to continue).

(appellant’s subjective belief, caused by a delusional disorder and dependent personality disorder, that his course of conduct was not criminal because his former fiancee was his one true love is irrelevant to the issue of notice; it is settled law that notice is determined through application of an objective test as to whether a person could reasonably understand that his contemplated conduct is proscribed).

(the test of service discredit under Article 134, UCMJ, is whether appellant’s acts had a tendency to bring the service into disrepute or tended to lower it in the public esteem).

(a reasonable fact finder could find beyond a reasonable doubt that appellant’s course of conduct was service discrediting, where he repeatedly called and visited his former fiancee, and entered her apartment against her wishes, all after receiving a no-contact order, and where his telephone calls and visits continued over several weeks and included suicide threats, unlawful entry, and angry demands for the return of gifts, all despite protestations by her that she did not want such conduct to continue).

United States v. O'Connor, 58 MJ 450 (conduct is punishable under Article 134 if it prejudices good order and discipline in the armed forces [clause 1], if it is of a nature to bring discredit upon the armed forces [clause 2], or if it is a crime or offense not capital [clause 3]; the three clauses do not create separate offenses, but rather provide alternative ways of proving the criminal nature of the charged misconduct).

(in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court concluded that the First Amendment prohibits any prosecution under the Child Pornography Prevention Act based on "virtual" child pornography; in the wake of Free Speech Coalition, the "virtual" or "actual" status of the images at issue has constitutional significance).

 

(in order to plead guilty to knowingly possessing or receiving child pornography in violation of the Child Pornography Prevention Act under Article 134, UCMJ, it is no longer enough to knowingly possess or receive visual depictions that "appear to be" of a minor engaging in sexually explicit conduct; in the wake of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the relevant provisions the CCPA require that the visual depiction be of an actual minor engaging in sexually explicit conduct; the "actual" character of the visual depictions is now a factual predicate to any plea of guilty under the CPPA).

 
2001

United States v. Ogren, 54 MJ 481 (Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, requires that the Government prove two essential elements beyond a reasonable doubt: (1) that the threat rendered was a "true" threat, and (2) that the threat was knowing and willful).

(under Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, only “true threats” satisfy the statute’s threshold of criminal conduct and put the conduct beyond the protections of the First Amendment; whether a statement is a “true threat” is determined by (1) the context, (2) whether the threat is expressly conditional in nature, and (3) the reaction of the listeners).

(under Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, the threat must be “knowing and willful”; whether a threat is knowing and willful is determined by an objective test requiring only that the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President).

(appellant’s threats against the President of the United States, made while appellant was in pretrial confinement, where legally sufficient for a rational trier of fact to find that appellant threatened the life of the President, in violation of 18 USC § 871(a), where:  (1) the threats were “true threats” in that they were not conditional and the specific context as well as the reaction of the listeners set these words apart from appellant’s other expressions; and (2) the threats were knowing and willful because appellant should have reasonably foreseen that his threats would be understood to be more than a crude method of responding to his confinement).

2000

United States v. Sapp
, 53 MJ 90 (the three clauses of Article 134 do not create separate offenses; instead, they provide alternative ways of proving the criminal nature of the charged misconduct).

(conduct which violates no specific statute may still be an offense under Article 134 if it is found to be prejudicial to good order and discipline or if it is of a nature to bring discredit upon the armed forces).

(knowing possession of images depicting sexually explicit conduct by minors, when determined to be service-discrediting conduct, is a violation of Article 134).

United States v. Augustine, 53 MJ 95 (a finding of the lesser-included offense of knowing possession of images depicting sexually explicit conduct by minors, a violation of Article 134, could be affirmed where appellant admitted during the providence inquiry on a charge of violating 18 USC § 2252(a) that such conduct was prejudicial to good order and discipline and that it was of a nature to bring discredit upon the armed forces).

United States v. Murray
, 52 MJ 423 (evidence legally sufficient to support appellant’s conviction under 18 USC § 2252(a)(2) for unlawful receipt of sexually explicit depictions of minors from the Internet, specifically finding legally sufficient evidence of the appellant’s knowing receipt of the sexually explicit depictions of minors and sufficient evidence that the images passed through interstate commerce).

1999


United States v. Falk, 50 MJ 385 (conduct which may be to the prejudice of good order and discipline in the armed forces or service discrediting may also be a crime under Title 18 of the United States Code; therefore, an accuser in preferring charges, or trial counsel in prosecuting, may opt to rely on the generally applicable federal penal statute rather than to proceed under the first two clauses of Article 134).


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