2004
United
States v. Negron, 60 MJ 136 (depositing obscene matter
in the
mail is not specifically enumerated in the UCMJ as a criminal offense,
but it
is punishable under Article 134, UCMJ; it is clear that the focus of
this
offense is on “obscene” words; whether something is obscene is a
question of
fact; obscene is synonymous with “indecent” as that word is defined for
indecent language under Article 134, UCMJ, in MCM, Part IV, para. 89.c;
the
matter must violate community standards of decency or obscenity and
must go
beyond customary limits of expression).
(in
the
providence inquiry into the obscene mail offense in this case, the
military
judge erroneously used the definition of “indecent” from the offense of
indecent acts with another rather than from the offense of indecent
language;
this fundamental definitional error rendered the plea improvident;
moreover,
the military judge’s questioning of appellant using primarily leading
questions
about this offense rendered the providence inquiry fatally deficient).
(the
test for
obscene language at the time of appellant’s court-martial, set forth in
French
and applied in Brinson, was whether the particular language was
calculated (i.e., intended or planned) to corrupt the morals or excite
libidinous thoughts; in fact, the clear and unequivocal holding of Brinson
was that only language calculated to corrupt morals or excite
libidinous
thoughts was obscene; in the providence inquiry in this case, the
language used
by appellant was clearly calculated or intended to express his rage,
not any sexual
desire or moral dissolution; thus, under the narrow definition of
indecent
language applied in Brinson, appellant’s language was not
obscene).
(regarding
the
definition of “indecent” applicable to a charge of indecent language
and
synonymous with “obscene,” MCM, Part IV, para. 89.c presents two
different
definitions to measure speech that may be a crime, dependent on the
context in
which it is spoken; we adopt and will apply this plain language of the
Manual
prospectively to cases tried after the date of this decision).