IN THE
CASE OF
UNITED
STATES, Appellee
v.
Wesley B.
NEGRON, Corporal
No.
03-0651
Crim. App.
No.
200100844
Argued
Decided
GIERKE,
J., delivered the opinion of the Court, in which CRAWFORD, C.J., EFFRON, BAKER and
ERDMANN, JJ., joined.
Counsel
For Appellant:
Commander
Michael J. Wentworth, JAGC, USNR (argued); Lieutenant Colonel
Eric B.
Stone, USMC (on brief); Lieutenant Commander E. J. McDonald,
JAGC,
USN.
For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR (argued); Commander R.
P. Taishoff, JAGC, USN, (on brief); Lieutenant
Frank L.
Gatto, JAGC, USNR.
Military Judge:
T. L.
Miller
This
opinion is subject to editorial correction before final publication.
Judge
GIERKE delivered the opinion of the Court.
Our
review of this case relates only to
Appellant’s guilty plea to depositing obscene matter in the mail. In the providency
inquiry, the military judge erroneously gave the definition of
“obscene”
relating to indecent acts to define the “obscene” language that renders
this
offense punishable. The principal issue
before this Court is whether the military judge’s use of this erroneous
definition of “obscene” and his questioning of the Appellant using
primarily
leading questions about this offense were deficient, thereby rendering
Appellant’s plea improvident.
A
military judge sitting as a general
court-martial
convicted
Appellant, pursuant to his pleas, of one specification of wrongful
appropriation, one specification of making and uttering a worthless
check, and
one specification of the offense at issue in this appeal, in violation
of
Articles 121 and 134, Uniform Code of Military Justice [hereinafter
UCMJ], 10
U.S.C. §§ 921 and 934 (2000), respectively.
The adjudged sentence provides for a bad-conduct discharge,
reduction to
the lowest enlisted grade, total forfeitures, and confinement for 18
months. The convening authority approved
the
sentence, but suspended confinement in excess of 12 months in
accordance with
the pretrial agreement.
In
its original decision, the Court of Criminal Appeals set aside the
conviction
of depositing obscene matter in the mail, reassessed and modified the
sentence. United States v. Negron,
NMCM No. 200100844, slip op. (N-M.
This
Court granted review of the following
issues:
I.
WHETHER THE
II.
WHETHER THE
For
the reasons set forth below we reverse
the decision of the Court of Criminal Appeals.
We hold Appellant’s guilty plea improvident to the offense of
depositing
obscene matter in the mail and set aside Appellant’s conviction of this
offense.
FACTS
Working
overseas as a postal clerk, Appellant wrongfully took $1,540.00 cash
from the
postal safe and used it for personal spending.
On another occasion, Appellant wrote a check for $500.00 on his
account
at the Marine Federal Credit Union (Credit Union), but later withdrew
funds
from that account thereby causing the prior check to be dishonored when
it was
presented for payment.
In
an attempt to obtain funds to replenish
his checking account, Appellant applied for a loan from the same Credit
Union,
but his request was denied. After
reading the letter informing him that his loan application was
rejected, Appellant
immediately wrote a letter to the Credit Union and placed it in the
Oh, yeah,
by the way y’all can kiss my ass too!!
Worthless bastards! I hope y’all
rot in hell you scumbags. Maybe when I
get back to the states, I’ll walk in your bank and apply for a blowjob,
a nice
dick sucking, I bet y’all are good at that, right?
Facing several charges arising from his
offenses, Appellant negotiated a pretrial agreement.
Consistent with this agreement, Appellant
pleaded guilty to several offenses including the offense of depositing
obscene
matter in the mail. For purposes of this
appeal, we focus on the providency inquiry
relating
to this single offense.
Initially,
the judge advised Appellant of
the elements of this offense including: that Appellant deposited in the
United
States mail a letter with the previously identified language, that he
did this
wrongfully and knowingly, that the matter deposited was obscene, and
that his
conduct was to the prejudice of good order and discipline in the armed
forces
or was of such a nature to bring discredit upon the armed forces. As to the definition of obscene, the military
judge stated:
The
term "obscene" as referred to in the specification refers to that
form of immorality relating to sexual impurity with (sic) is not only
grossly
vulgar and repugnant to common society, but which tends to excite lust
and
deprave the morals with respect to sexual relations.
The
matter must violate community standards of decency or obscenity and
must go
beyond customary limits of expression.
The [community’s] standards of decency or obscenity are to be
judged
according to the average person in the military community as a whole
rather
than the most prudish or [tolerant].
Proof
that you believe the matter to be obscene is not required.
It is sufficient, however, if you knew the
contents of the matter at the time of the depositing.
Later
during the providency inquiry, the judge
engaged
Appellant in a dialogue as to the factual basis for the guilty plea. The relevant discussion of this offense
follows:
MJ: Let's look
at this last Additional Charge,
supporting specification of Additional Charge II. On
ACC: Yes,
sir.
MJ:
Now, who wrote that letter?
ACC: I did, sir.
.
. . .
MJ: Now, did
you deposit the letter for mailing
in the
ACC: Yes, sir.
MJ:
Did the letter you deposited on 10 April, year 2000, contain
language to
this effect: "Oh yeah, by the way y’all can kiss my ass too!! Worthless bastards! I
hope y’all rot in hell, you scumbags. Maybe
when I get back to the states, I'll
walk in your bank and apply for a blowjob.
A nice dick sucking.
I bet y'all are good at that; right,"
or words to that effect?
ACC: Yes, sir.
MJ:
Now, did you write that language on the letter?
ACC: Yes, sir.
MJ: Did you
know the letter contained that
language when you deposited it in the mail?
ACC: Yes, sir.
MJ: Did anyone
force you to write that letter or
deposit it in the mail?
ACC: No, sir.
MJ: Was the
writing and depositing -- was
[writing] and depositing that letter in the mail the result of a
freely-made
decision on your part?
ACC:
Yes, sir.
MJ: Do you
believe you knowingly and wrongfully
deposited that letter in the mail?
ACC: [No response].
MJ: I'll
repeat that question for you. Do you
believe that you knowingly and
wrongfully deposited that letter in the mail?
ACC: Yes, sir.
MJ: Now, was
the letter deposited on 10 April to
the Marine Corps Federal Credit Union?
ACC: Yes, sir.
MJ:
Did you write that letter in response to a problem you were
having with
the Marine Corps Federal Credit Union?
ACC: Yes, sir.
MJ: What was the problem?
ACC: Well, sir, I was trying to
solve this problem, sir, by getting a loan from them, and I felt like
that was
my last way out of the situation that I was in, sir.
And when they denied it, that's when I --
that frustrated me, sir, and that's what caused me the write the
letter, sir.
. . . .
MJ:
Did you know anyone there that you sent it to?
ACC: No, sir. I didn't attention
it to anybody.
MJ: Do you
feel that this was a joke?
ACC:
No, sir.
MJ: Did you
feel that this was funny or obscene?
ACC:
No, sir. It was obscene, sir, but it
wasn't funny.
MJ:
Do you think that this letter would probably offend the people
there at
the Marine Corps Federal Credit Union?
ACC: Yes, sir.
MJ: Now, I --
these words that I'm going to use.
Corporal Negron, are not intended to embarrass
you. They are just -- I have to make
clear in my mind that you are, in fact, guilty of this offense. Now, the words, "kiss my ass" might
mean that you wanted someone at the Marine Corps Federal Credit Union
to kiss your
rear end. Is that what you intended to
convey to the reader?
ACC:
No, sir. I was just angry and I intended
to offend them and get back at them for denying me.
MJ:
Okay. Did you intend to convey to
them the message though that somebody there at the Marine Corps Federal
Credit
Union could kiss your rear end?
ACC: Yes, sir.
MJ: Now, a
"bastard" might define
someone of illegitimate birth. Were you
describing someone of illegitimate birth in your letter?
ACC: No, sir.
MJ: What did
you mean by the word
"bastard"? You might want to
discuss that with Major Woodworth.
The accused conferred, with his
defense counsel.
ACC: I wasn't paying so much
attention to the technical definition of what it was, sir, I just threw
the
word out to offend them.
MJ:
All right. Well, a
"bastard" might be somebody of illegitimate birth or it might mean
somebody that is just a mean or despicable person.
ACC:
Yes, sir.
MJ: Were you
just trying to describe somebody
that was a mean or despicable person?
ACC: Yes, sir.
MJ: All right.
Now, a “blowjob” and “dick sucking" as referred to in the
language
are slang terms for sodomy. Do you
understand that?
ACC: Yes, sir.
MJ:
Now, "sodomy" means for a person to take into that person's
mouth the sexual organ of another person. Now,
is that the message that you were trying
to convey?
ACC: Yes, sir.
MJ:
Okay. So was the message that you
were trying to convey to the Marine Corps Federal Credit Union that
they were
mean people who could kiss your rear end and commit sodomy on you?
ACC: Yes, sir.
MJ: Do you
believe and admit that the depositing
of the letter referred to in the specification was done wrongfully and
knowingly?
ACC: Yes, sir.
MJ: Now, let
me define for you again the term
“obscene”. [The judge repeats the
definition he stated earlier.]
.
. . .
Do
you believe and admit, Corporal Negron, that the language you used in
this
letter was obscene?
ACC:
Yes, sir.
MJ: Do you
believe and admit that this language
used in your letter was calculated to corrupt morals or excite lustful
thoughts?
ACC: Yes, sir.
MJ:
Now, on 10 April when you deposited that letter, was your
conduct
substantially prejudicial to the good order and discipline in the armed
forces?
ACC: Yes, sir.
MJ: Do you believe also that
your conduct was of
a nature to bring discredit upon the armed forces?
ACC: Yes, sir.
MJ:
Do you believe that
members of the
Marine Corps Federal Credit Union who read your letter would look down
on the
United States Marine Corps for writing this grossly vulgar and obscene
matter?
ACC: Yes, sir.
MJ: Do you
believe they were grossly offended by
your letters?
ACC: Yes, sir.
Based
on his questions and Appellant’s responses, the military judge found
Appellant’s guilty plea to this offense provident, with a factual
basis, and
accepted it as well as Appellant’s guilty pleas to other offenses.
On
appeal at the lower court and before this Court, Appellant argues that
the
language in the letter he sent to the Credit Union was not obscene. Appellant claims that he was angry that his
loan application was denied and that the letter “was not calculated to
corrupt
morals or excite libidinous thoughts.”
Appellant also claims that his answers throughout the providency inquiry were in response to leading
questions
posed by the military judge and failed to establish a factual basis to
support
the guilty plea to this offense.
The
Government argues, in general, that
Appellant’s plea is provident because Appellant admitted facts to
establish
every element of the offense and, in particular, that Appellant’s
responses
establish his language was obscene as the purpose of Appellant’s letter
to the
Credit Union was to offend its employees “by means of a graphic
description of
a deviant sexual act.” Before this Court,
the Government acknowledges the test of obscene language stated by this
Court
in United States v. French, 31 M.J. 57 (C.M.A. 1990), and
applied in United
States v. Brinson, 49 M.J. 360 (C.A.A.F. 1998).
However, the Government claims that these
cases do not present the complete test for obscene and indecent
language. And
the Government joins the lower court in requesting this court to
reevaluate Brinson
and to overrule its definition of “obscene” as it is inconsistent with
the
definition stated by the President in Manual for Courts-Martial,
United
States (2002 ed.) [hereinafter MCM],
Part
IV, para. 89.c.
In
its original decision, a divided lower court found that Appellant’s
plea was
improvident because the language used in the letter was not “calculated
to
corrupt morals or excite libidinous thoughts” as required by French
and Brinson. Almost 16 months
later a divided en banc
court vacated its earlier decision. Six
of the judges affirmed Appellant’s conviction for depositing obscene
matter in
the mail, two of the judges voted to affirm a lesser-included offense
of
service discrediting conduct under Article 134(2), UCMJ, and one judge
would
neither affirm the conviction for depositing obscene matter in the mail
nor the
lesser-included offense.
DISCUSSION
Depositing
obscene matter in the mail is
not specifically enumerated in the Code as a criminal offense, but it
is
punishable under Article 134, UCMJ; See MCM, Part IV, para.
94.b. This provision of
the MCM states that the elements for this offense are:
(1) That
the accused deposited or caused
to be deposited in the mails certain matter for mailing and delivery;
(2) That
the act was done wrongfully
and knowingly;
(3) That
the matter was obscene; and
(4)That,
under the circumstances,
the conduct of the accused 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.
From
this provision and its explanation, it is clear that the focus of this
offense
is on “obscene” words. The explanation
states: “Whether something is obscene is
a question of fact. ‘Obscene’ is
synonymous with ‘indecent’ as the latter is defined in paragraph 89.c. The matter must violate community standards
of decency or obscenity and must go beyond customary limits of
expression.”
Paragraph
89.b of Part IV of the MCM states the elements for the charge
of orally
or in writing communicating to another person indecent language. Because its definition of “indecent” is
synonymous with “obscene” in paragraph 94.c, it is this precise
language that is
the focus of our attention. Paragraph
89.c states:
“Indecent” language is that which
is grossly offensive to modesty, decency, or propriety, or shocks the
moral
sense because of its vulgar, filthy, or disgusting nature, or its
tendency to
incite lustful thought. Language is
indecent if it tends reasonably to corrupt morals or incite libidinous
thoughts. The language must violate
community standards.
Addressing
the scope of this provision in Brinson, this Court stated that
“[w]hen
the Government makes speech a crime, the judges on appeal must use an
exacting
ruler.” 49 M.J. at
361. This Court also embraced the
narrow French test to determine if language is indecent, that
is,
“whether the particular language is calculated to corrupt the
morals or excite
libidinous thoughts.”
In
Brinson, this Court applied this test to circumstances where
Appellant
had used gross, vulgar, and profane language in an outrageous reaction
to
police officers performing their legitimate duties.
This Court found that the evidence did not
support a conviction of communicating indecent language because the
language
Appellant used “was clearly calculated or intended to express his rage,
not any sexual desire or moral
dissolution.”
There
was a dissent in Brinson
pointing out that MCM, Part IV, paragraph 89.c, “provides for
at least
two definitions of ‘indecent language,’ either of which can be the
basis for a
conviction.” Brinson,
49 M.J. at 368 (Crawford, J., joined by Gierke,
J.,
dissenting in part and concurring in the result).
The dissent stated the second definition of
‘indecent language’ found in paragraph 89.c
“provides that indecent language includes language that is
‘grossly
offensive to modesty, decency, or propriety, or shocks the moral sense,
because
of its vulgar, filthy, or disgusting nature, or its tendency to incite
lustful
thought.’”
Notwithstanding
the disagreement in Brinson,
the majority view stated the law defining obscene matter at the time of
Appellant’s court-marital. The clear and
unequivocal holding of Brinson was that only language
“calculated to
corrupt morals or excite libidinous thoughts” was obscene.
See French, 31
M.J. at 60.
As
Appellant proferred
a guilty plea, the military judge had the duty to apply this precedent,
that
is, to accurately inform Appellant of the nature of his offense and
elicit from
him a factual basis to support his plea.
See
But
such an error in advising an accused
does not always render a guilty plea improvident. Where
the record contains “factual
circumstances” that “objectively support” the guilty plea to a more
narrowly
construed statute or legal principle, the guilty plea may be accepted. See
In
the present case, the providency inquiry
was deficient because the military judge
used an erroneous definition of “obscene.”
The judge’s definition of obscene is in large part taken from
the
definition of “indecent” in the Article 134 offense of indecent actions
with
another. The explanation of this offense
states, “‘Indecent’ signifies that form of immorality relating to
sexual impurity
which is not only grossly vulgar, obscene, and repugnant to common
propriety,
but tends to excite lust and deprave the morals with respect to sexual
relations.” MCM,
Part IV, para. 90.c. The military judge possibly attempted to
blend the language from this paragraph with the language from MCM,
Part
IV, para. 94.c as he added the requirement that the language
“must
violate community standards.” Regarding
this blended definition of obscene language, six of the judges agreed
in noting
the following:
In
providing this definition, the
military judge gave the definition of “obscene” contained in the then
current
Military Judges’ Bench book for use with the offense of depositing
obscene
matter in the mail. . . . [T]he shadow of this pronouncement of what is
“obscene” adequately covers both the definition provided in MCM,
Part
IV, ¶89.c and the test for
obscenity adopted by our superior Court in French and
reaffirmed and
expanded somewhat in Brinson.
58 M.J. at
840-41 (footnotes omitted).
We
reject the lower court’s reasoning that
the “shadow” of the definition of indecent acts “adequately covers” the
definition of what is “obscene” language.
Where speech is an alleged crime, judges must evaluate the
speech using
the definition provided by the President and not a “shadow.” See Brinson, 49
M.J. at 261. Many of the same
root words appear in both the definition of “indecent language” and
“indecent
acts,” such as, “grossly,” “propriety,” “vulgar,” and “lust.” But sharing common words does not render the
definitions fungible.
The
President elected to punish under
Article 134, UCMJ, the separate offenses of indecent acts and indecent
language. The President also used
different definitions of “indecent” as to each offense.
Compare MCM, Part IV, para. 89.c
with para. 90.c. We will use the definition the President has
provided for each offense and scrutinize any attempt to substitute one
for the
other.
The
linchpin of this case is the judge’s
erroneous use of the definition of “indecent acts” to evaluate
Appellant’s
alleged “indecent language.” In light of
this fundamental definitional error, had the military judge conducted
an
otherwise perfect providency colloquy with
Appellant,
Appellant’s plea to the charged offense would still have been
improvident. Appellant simply could not
have providently
pleaded guilty to a charged offense of placing obscene material in the
mail
when the military judge used the substantively different definition of
indecent
found in MCM, Part IV, para. 90.c.
Moreover,
this definitional error by the military judge tainted the entire providency inquiry pertaining to the charge at
issue. It induced him to focus the providency inquiry on the indecent nature of the
acts that
were the subject of Appellant’s language rather than Appellant’s
“planned” and
“intended” result from use of his language.
In
the providency
inquiry Appellant stated that he wrote the letter because he was
“frustrated”
and “angry.” Appellant repeatedly stated
that his intention was to “offend” the reader of his letter. But
Appellant
never stated that he planned or intended to engage in or to solicit
sexual
acts. Similarly, Appellant never stated
that he intended to excite libidinous thoughts in the reader of his
letter. To the contrary, when the
military judge asked what he intended in using the words “kiss my ass,”
Appellant denied that he wanted someone to actually “kiss [his] rear
end.” Appellant also admitted using slang
words for
sodomy, but again he never stated that he sought to engage in these
sexual acts
or intended to invite the reader of his letter to actually perform them. Appellant explained his choice of words by
informing the judge, “I wasn't paying so much attention to the
technical
definition of what it was, sir, I just threw the word out to offend
them.” These statements by Appellant belie
any
assertion that Appellant “planned” or “intended” his language to incite
lustful
or libidinous thought.
In
response to one leading question, Appellant merely stated, “Yes” when
the
military judge asked him if he was trying to convey the message that
“they
[unidentified Credit Union employees who denied his loan] were mean
people who
could kiss your rear end and commit sodomy on you[.]”
Appellant also merely answered “Yes” to the
leading question whether his language “was calculated to corrupt morals
or
excite lustful thoughts[.]”
We view the military judge’s inquiry as
establishing only that Appellant used certain words that related to
sexual
acts. The military judge failed to have
Appellant present any facts that explain how the Appellant’s language
“was
calculated to corrupt morals or excite lustful thoughts.”
Here, just as in Brinson, the facts
establish only that an angry and frustrated servicemember
resorted to using improper language to express his feelings. Under the narrow definition of indecent
language applied in Brinson, Appellant’s language was not
obscene.
We
have repeatedly advised against and cautioned judges regarding the use
of
conclusions and leading questions that merely extract from the
Appellant “yes”
and “no” responses during the providency
inquiry. See
Our
consideration of this case does not terminate here.
We return to Brinson to ensure that
justice is done both in this case and in the future.
Although
this Court in Brinson found that “coarse language” and the
“scurrilous
public denunciation” of a law enforcement officer was not indecent
language, we
also observed that the charged offense “necessarily includes an
allegation of a
simple military disorder.” 49 M.J. at 364. So
the Court concluded that the evidence was sufficient to establish the
offense
of disorderly conduct.
We
eschew the opportunity to resolve the issue of whether there was
disorderly
conduct or any other lesser included offense for four reasons. First, we observe that state courts are
divided on the issue of whether the mailing of a vile, profane, or
offensive
letter is disorderly conduct. Cf.
State v. Schwebke, 644 N.W.2d 666
(Wis. 2002)(holding that an anonymous
private harassment mailing is
punishable under a disorderly conduct statute) with People
v. Ohneth, 89 N.E.2d 433 (Ill. App.
Ct. 1949)(concluding
that the writing of a vile letter and mailing it without other evidence
of violent,
boisterous, turbulent or other act of a public nature was not
disorderly
conduct). Second, the President in the MCM
has explicitly defined the term “disorderly.”
MCM, Part IV, para.
73.c.2. Whether
Appellant’s conduct is “disorderly” under this definition is an issue
that the
parties have not addressed before this court.
Third, the deficiencies in the providency
inquiry previously discussed (including extracting little relevant
factual
information and often mere conclusions) give us pause in affirming any
lesser
included offense. Finally, the normal
remedy for finding a plea improvident is to set aside the finding based
upon
the improvident plea of guilty and to authorize a rehearing at which
the
accused is permitted to plead anew. See
Issue
II in this case questions whether Appellant’s conduct was service
discrediting
conduct. In light of our disposition of
this case, we need not address this issue.
One final
matter invites further
attention. Because
a rehearing is authorized, it is necessary that we also address the
confusion,
apparent in this case, perhaps arising from this Court's decision in Brinson,
regarding the definition of "indecent" applicable to charges of
indecent language.
The President in Part IV of the MCM
has provided that the use of certain expressly defined language is
punishable
for the offenses of indecent language and depositing obscene matter in
the
mail. MCM, Part
IV, para. 89.c,
provides two alternate definitions of "indecent language."
The use of the disjunctive in this paragraph
makes clear that either definition of indecent language may be the
legal
authority for a conviction. In addition
to criminalizing language that is grossly offensive because of “its
tendency to
incite lustful thought,” the President made punishable indecent
language that
“is grossly offensive to modesty, decency, or propriety, or shocks the
moral sense,
because of its vulgar, filthy, or disgusting nature.”
Simply stated, paragraph 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. See
United States v. Moore, 28 M.J. 366, 367 (C.M.A. 1989)(stating
new per
se rule against Government's use of peremptory challenges to excuse
members of accused's own race applies
prospectively only); United
States v. Crowley, 7 M.J. 336 (C.M.A. 1979)(applying rule
establishing
standards for plea bargain inquiries prospectively).
To
render language punishable for the offenses of indecent language and
depositing
obscene matter in the mail, the President has required that the
language and
conduct of the accused “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.” MCM,
Part IV, paras. 89.b.3
and 94.b.4. In part, it is this element
of these offenses that filters out from punishment language that is
colloquial
vocabulary and may be routinely used by service members.
As these offenses touch on First Amendment
free speech issues, the Government must always exercise care in both
charging
and proving these offenses to establish that the factual predicate for
these
offense is within the ambit of the “narrowly limited classes of
[punishable]
speech.” See Chaplinsky v.
DECISION
The
decision of the United States
Navy-Marine Court of Criminal Appeals as to Additional Charge II and
its single
specification is reversed. The decision
as to the remaining Charges and their specifications is affirmed. The findings of guilty to Additional Charge
II and its single specification and the sentence are set aside. The record is returned to the Judge Advocate
General of the Navy. A rehearing is
authorized. If a rehearing is deemed
impracticable, the dismissal of Additional Charge II and a reassessment
as to
sentence alone may be ordered.