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).
United States v. Barberi, 71 M.J. 127 (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).
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. Nealy, 71 M.J. 73 (although it was error to fail to allege, expressly or by necessary implication, the terminal element of the offense of communicating a threat charged under Article 134, UCMJ, nonetheless, there was no prejudice to appellant’s substantial rights where he pleaded guilty to a specification that was legally sufficient at the time of trial, where during the providence inquiry, the military judge described and defined clauses 1 and 2 of the terminal element, and where appellant did in fact admit that his actions were prejudicial to good order and discipline in violation of clause 1).
United States v. Watson, 71 M.J. 54 (in this case, although the failure to allege the terminal element in the specifications alleging the offenses of communicating a threat and indecent language under Article 134 was error, the error was not prejudicial to appellant’s substantial rights where he admitted in his stipulation of fact that his conduct in each incident was service discrediting, entered into a pretrial agreement and pleaded guilty to the charges, and specifically explained during the plea colloquy why his conduct was service discrediting as to both specifications).
United States v. Ballan, 71 M.J. 28 (while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused).
(whether specifications for charged violations of Article 134, UCMJ, may be upheld in the guilty plea context where the terminal element is not alleged cannot be answered by determining that the act that an accused did or failed to do, is inherently, impliedly, or as a matter of common sense, prejudicial to good order and discipline or service discrediting).
(the terminal element of an Article 134, UCMJ, offense, which may be charged in three different ways, is an actual and distinct element; as such, the terminal element, like any element of any criminal offense, must be separately charged and proven).
(a violation of any of the three clauses of Article 134, UCMJ, does not necessarily lead to a violation of the other clauses, and the principle of fair notice requires that an accused know to which clause he is pleading guilty, and against which clause or clauses he must defend; regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication).
(while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2).
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; 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).
2009 (September Term)
United
States v. Jones, 68 M.J. 465 (an LIO, the
subset necessarily included in
the greater offense, must be determined with reference to the elements
defined
by Congress for the greater offense; however, this opinion does not,
and should
not, be read to question the President’s ability to list examples of
offenses
with which one could be charged under Article 134, UCMJ; the President
in those
instances is not defining offenses but merely indicating various
circumstances
in which the elements of Article 134 could be met; the President’s
listing of
offenses under Article 134 is persuasive authority to the courts, and
offers
guidance to judge advocates under his command regarding potential
violations of
the article).
United
States v. Anderson, 68 M.J. 378 (the preemption
doctrine prohibits application
of Article 134 to conduct covered by Articles 80 through 132; however,
simply
because the offense charged under Article 134, UCMJ, embraces all but
one
element of an offense under another article does not trigger operation
of the
preemption doctrine; in addition, it must be shown that Congress,
through
direct legislative language or express legislative history, intended
the other
punitive article to cover a class of offenses in a complete way).
(charges of attempting to give
intelligence to
the enemy, attempting to communicate with the enemy, and attempting to
aid the
enemy did not preempt the charge of conduct prejudicial to good order
and
discipline or service discrediting conduct under the general article;
the
legislative history of Article 104, UCMJ, does not clearly indicate
that
Congress intended for offenses similar to those at issue to only be
punishable
under Article 104, UCMJ, to the exclusion of Article 134, UCMJ;
furthermore,
while the two charges in this case have parallel facts, as charged they
are
nonetheless directed at distinct conduct; the Article 104, UCMJ, charge
was
directed at appellant’s attempt to aid the enemy directly; the Article
134,
UCMJ, charge was directed towards the distribution of sensitive
material to
individuals not authorized to receive it; unlike Article 104, UCMJ, the
general
offense as charged prohibits the dissemination of the information
regardless of
the intent behind that dissemination; if this distinction was not
permissible
in light of Article 104, UCMJ, Congress was free to clearly state that
Article
104, UCMJ, supersedes Article 134, UCMJ, in this context).
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. Conliffe, 67 M.J. 127 (whereas the
military preemption doctrine bars
the government from charging an accused under Article 134(1), UCMJ, and
Article
134(2), UCMJ, for conduct that is appropriately charged under an
enumerated article,
this same doctrine does not apply to conduct unbecoming an officer and
a
gentleman charged under Article 133, UCMJ).
(Article
134, UCMJ, punishes, among other things, conduct which is or generally
has been
recognized as illegal under the common law or under most statutory
criminal
codes; such activity, by its unlawful nature, tends to prejudice good
order or
to discredit the service).
(conduct
unbecoming an officer rationally entails a higher level of dishonor or
discredit than simple prejudice to good order and discipline; thus,
when a
servicemember engages in conduct unbecoming an officer and a gentleman,
he or
she also necessarily engages in service discrediting conduct or conduct
prejudicial to good order and discipline).
United
States v. Wilcox, 66 M.J. 442 (the Supreme
Court has upheld Article 134,
UCMJ, against constitutional attack for vagueness and overbreadth in
light of
the narrowing construction developed in military law through the
precedents of
the CAAF and limitations within the MCM; as such, a limited Article
134, UCMJ,
does not make every irregular or improper act a court-martial offense
and does
not reach conduct that is only indirectly or remotely prejudicial to
good order
and discipline; if it were otherwise, the forces of narrowing
interpretation that
saved Article 134, UCMJ, from constitutional challenge would fail).
(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).
(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. 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).