2021 (October Term)
United States v. Richard, 82 M.J. 473 (to obtain a conviction for producing, possessing, and distributing child pornography charged under Article 134, UCMJ, the government is required to prove beyond a reasonable doubt both that appellant engaged in the alleged conduct and that the general article’s “terminal element” was satisfied, meaning that the conduct either: (1) prejudiced good order and discipline in the armed forces; (2) was of a nature to bring discredit upon the armed forces; or (3) was otherwise a noncapital crime or offense).
(it is well established that the terminal element of the general article is an essential element of the offense).
(Article 134, UCMJ, only applies to conduct that is directly and palpably, as distinguished from indirectly and remotely, prejudicial to good order and discipline).
(the three clauses of the terminal element of Article 134, UCMJ, are separate and distinct, and disorders and neglects to the prejudice of good order and discipline is not synonymous with conduct of a nature to bring discredit upon the armed forces).
(no misconduct can be considered per se prejudicial to good order and discipline under Article 134, UCMJ).
(with respect to misconduct that is prejudicial to good order and discipline under Article 134, the misconduct must be activity against good order that affects the condition of tranquility, security, and good government of the military service).
(prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused).
(in this case, where the government charged appellant with producing, possessing, and distributing child pornography under Article 134, UCMJ, and elected to charge only that appellant’s conduct was prejudicial to good order and discipline as the terminal element, appellant’s child pornography-related convictions under the general article were not legally sufficient where the government failed to proffer any evidence at appellant’s court-martial that demonstrated how appellant’s behavior prejudiced good order and discipline, and instead focused on proving the solely that appellant had engaged in the alleged misconduct).
United States v. Moratalla, 82 M.J. 1 (Article 134, UCMJ, extends court-martial jurisdiction over noncapital crimes or offenses which violate federal law; one such federal offense is contained in the federal bank fraud statute, which makes it a crime to knowingly execute, or attempt to execute, a scheme or artifice (1) to defraud a financial institution, or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises).
(the bank fraud statute punishes not only completed frauds, but also fraudulent schemes, including attempted fraudulent schemes).
(just as an accused’s belief in the truth of the misrepresentations may negate intent to defraud, an accused’s belief in the falsity of his or her statements tends to establish the intent to defraud).
(appellant’s guilty plea to bank fraud under 18 U.S.C. § 1344 and charged under Article 134, UCMJ, was provident where the military judge established during the plea colloquy that (1) in order for appellant to secure funds for a house flipping business, she enlisted the help of a co-worker who agreed to apply for a loan at a credit union and to falsely represent to the credit union that he would use the loan proceeds to purchase appellant’s vehicle, (2) appellant had the specific intent to defraud the credit union, and (3) appellant took a substantial step in furtherance of the scheme to defraud when she met with the co-worker at the credit union to apply for the loan; contrary to appellant’s argument, it was irrelevant to the disposition of this case whether or not appellant actually sold her vehicle to the co-worker when she transferred the title to him after the bank loan had been secured; at the time of the application for the bank loan, appellant subjectively believed that her actions would not effect a car sale and intended that the credit union would rely to its detriment on representations she believed to be false; such actions clearly amounted to an attempt to execute a scheme to defraud the credit union, and the bank fraud statute punishes not only completed frauds, but also fraudulent schemes, including attempted fraudulent schemes; thus there was nothing in the record that raised a substantial question regarding appellant’s guilty plea).