CORE CRIMINAL LAW SUBJECTS: Crimes: Article 134 - General Article

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). 

2012 (September Term)

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). 

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). 


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. 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). 


(
as a matter of law, it is well-established that, when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133). 

 

(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). 


2008 (Transition)


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). 


(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. 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).  

 


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