2019 (October Term)
United States v. Rice, 80 M.J. 36 (there is no evidence that Congress intended Article 134, UCMJ, to serve as a vehicle for the military to reprosecute Title 18 offenses tried in a federal civilian court simply by removing a jurisdictional element and charging it as a violation of clause 1 or 2).
(in this case, the civilian possession offense of child pornography under 18 USC § 2252A was a lesser included offense of the offense of child pornography charged under Article 134, UMCJ; the Article 134, UCMJ, offense as charged wholly encompassed the civilian possession offense and required the government to additionally prove the conduct was service discrediting, thus making it the greater offense; as such. the military possession specifications were thus barred by both Article 44, UCMJ, and the Fifth Amendment’s Double Jeopardy Clause).
2018 (October Term)
United States v. Coleman, 79 M.J. 100 (the terminal element of an Article 134, UCMJ, offense is not inherently included within other elements and is instead a separate and distinct element that the government must prove).
United States v. Tucker, 78 M.J. 183 (negligence is an insufficient mens rea with respect to the Article 134, UCMJ, offense of providing alcohol to minors).
(the minimum mens rea for the Article 134, UCMJ, offense of providing alcohol to underage individuals charged under clause 1 and clause 2 is recklessness; a recklessness mens rea sufficiently separates wrongful conduct from otherwise innocent conduct).
(a servicemember who provides alcohol to someone he honestly, but mistakenly, believes to be of legal drinking age will not be subject to conviction under Article 134, UCMJ, for the offense of providing alcohol to a minor, but a servicemember who provides alcohol to someone while consciously disregarding the known risk will be subject to conviction).
(appellant’s admission to conduct that facially satisfied a mens rea of recklessness cannot save his guilty plea to an Article 134 clause 1 and clause 2 offense of providing alcohol to an underage individual where (1) the military judge instructed appellant only on a negligence mens rea requirement and, there is no Article 134, UCMJ, offense of negligently providing alcohol to minors, (2) unlike in those cases where a military judge failed to define correctly a legal concept or failed to explain each and every element of the charged offense to the accused in a clear and precise manner, here the military judge affirmatively misstated the applicable legal concepts and the elements of the charged offense, and (3) the record did not reflect that despite the erroneous explanation of the mens rea, appellant otherwise knew the proper elements, admitted them freely, and pleaded guilty because he was guilty).2017 (October Term)
United States v. Wheeler, 77 M.J. 289 (charging appellant under clause three of Article 134, UCMJ, for attempting to persuade, induce, or entice a minor into engaging in sexual activity, in violation of a federal statute, 18 USC § 2422(b) (entitled coercion and enticement), was not preempted by Article 120b(c), UCMJ (entitled sexual abuse of a child and as enacted in 2011); the precise language of Article 120b(c), UCMJ, and 18 USC § 2422(b), have little in common other than that they are both aimed at criminalizing the sexual predation of children; moreover, enticement is not addressed expressly under Article 120b, UCMJ, or otherwise under the provisions subject to the preemption doctrine, Articles 80–132, UCMJ, as a distinct offense; and while it might be possible to contort the then extant version of Article 120b(c), UCMJ, to accommodate enticement of a child to engage in sexual activity, it fits precisely under the federal statute specifically aimed at proscribing that activity; in this context, enticement may be prosecuted under Article 134, UCMJ; furthermore, the government has not turned to a hypothetical federal noncapital crime that lessened its evidentiary burden at trial by circumventing the mens rea element or removing a specific vital element from an enumerated UCMJ offense).
(Article 134, UCMJ, expressly permits charging military members for crimes and offenses not capital that are not specifically mentioned in the UCMJ, and which include, inter alia, crimes and offenses prohibited by the United States Code).(clause three of Article 134, UCMJ, clearly contemplates and permits the incorporation of noncapital federal crimes under its aegis).
(the preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 to 132, and is designed to prevent the government from eliminating elements from congressionally established offenses under the UCMJ in order to ease their evidentiary burden at trial).
2014 (September Term)
United States v. Blouin, 74 M.J. 247 (in this case, the military judge erred in accepting appellant’s guilty plea to possession of child pornography as defined in 18 USC § 2256(8) in violation of Article 134(1) (conduct prejudicial to good order and discipline) where the genitals or pubic area in the images were clothed and the record reflected a substantial basis in law and fact for questioning the plea; the military judge provided appellant with three mutually exclusive definitions reflecting the three subsections of 18 USC § 2256(8) that define child pornography, but appellant was not advised as to which of the three subsections he was charged with; the distinctions between the subsections are not inconsequential and nowhere in the record is this inconsistency clarified; to be clear, it is not necessary for the charge or plea inquiry to specify a subsection under 18 USC § 2256 if the applicable subsection is clear from the record and there is no inconsistency; however, in this case, without knowledge of which subsection he was pleading guilty to, appellant could not have an understanding as to how the law related to his factual admissions; due to the inconsistencies in the manner in which the offenses were explained to appellant, combined with the military judge’s failure to make further inquires once he ruled that nine of the twelve images to which appellant had pleaded guilty did not constitute child pornography, there existed a substantial basis in law and fact to question the providence of the guilty plea).
(the definition of child pornography found 18 USC § 2256(8)(A) makes criminal any photograph, film, video, or picture of actual children engaging in sexually explicit conduct; subsection (B) makes criminal digital images of either actual children or those indistinguishable from actual children engaging in sexually explicit conduct; subsection (B) also contains the requirement that, in addition to being lascivious, all digital images must be graphic, which means that a viewer can observe any part of the genitals or pubic area of any depicted person; the more onerous graphic requirement applies only to digital images because of the constitutional danger that the images might not be of actual children; the distinctions between the subsections are not inconsequential; if an accused were charged under subsection (A), the government would not need to prove the images at issue were graphic, but would need to prove the images were of real children; if charged under subsection (B), the government would need to prove the digital images were both graphic and lascivious, but would not be required to show the minors were actual children).
(Knox II (32 F.3d 733 (3d Cir. 1994)) is rejected as controlling precedent for the proposition that nudity or the discernibility of the genitalia or pubic area is not required to establish whether an image is graphic as defined in 18 USC § 2256; the 2003 amendments of 18 USC § 2256(8) added the graphic requirement for digital images, meaning that a viewer can observe any part of the genitals or pubic area of any depicted person; accordingly, the requirement that lascivious exhibitions be graphic under the PROTECT Act’s amended obscenity definition likely eliminates a Knox result under the obscenity statute).
United States v. Norman, 74 M.J. 144 (proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces).
(it is better practice for a trial counsel to make the government’s theory of service discrediting conduct apparent during closing argument).
United States v. Piolunek, 74 M.J. 107 (in this case, where appellant was found guilty of wrongfully and knowingly receiving and possessing visual depictions of a sexually explicit nature of a minor child on divers occasions in violation of clause 2 of Art. 134, UCMJ, the military judge instructed members that it was their role to find which, if any, images in question exhibited the features that met the definition of minors engaging in sexually explicit conduct; absent an unconstitutional definition of criminal conduct, flawed instructions, or evidence that members did not follow those instructions, none of which are present here, there is simply no basis in law to upset the ordinary assumption that members were well suited to assess the evidence in light of the military judge’s instructions).
(images that meet the Child Pornography Prevention Act of 1996’s definition of child pornography are not constitutionally protected).
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).United States v. Kearns, 73 M.J. 177 (18 USC § 2423(a) prohibits a person from knowingly transporting a minor in interstate commerce “with intent” to engage in criminal sexual activity; the phrase “with intent” does not require the government to prove that appellant’s “dominant,” “predominant,” “significant,” or “efficient and compelling” reason for transporting the minor across states lines was to have sex with her; rather, as long as illegal sexual activity is a purpose, or one of the purposes, for transporting a minor across state lines, and is not merely incidental to the travel, the intent element of 18 USC § 2423(a) is met).
(under 18 USC § 2423(a), there is no requirement that the intended unlawful sexual activity actually occur; rather, all that is required is that the mensrea of intent coincide with the actusreus of crossing state lines).
(in this case, the evidence adduced at trial was legally sufficient to prove that, under the provisions of 18 USC § 2423(a), appellant had the requisite intent to engage in criminal sexual activity with a minor when he facilitated that minor’s travel in interstate commerce; although appellant argued that his purpose in facilitating the minor’s travel across state lines was to remove her from a sexually abusive environment and appellant claimed that prior to the minor crossing state lines, he and the minor had agreed that they would no longer engage in sexual activity until the minor reached eighteen years of age, the government met its burden in proving the necessary intent in this case, and the mens rea of intent coincided with the actusreus of crossing state lines, where the record showed that (1) appellant had sexual intercourse with the minor on at least two occasions in the two months prior to the point when he orchestrated her transportation across state lines, (2) appellant went so far as to climb in the second-story window of the minor’s bedroom in order to have sex with her, (3) shortly before the trip, the minor sent appellant a photo of her naked breast and appellant did not object to this action, (4) appellant paid a stripper with whom he had a sexual relationship a substantial sum of money to transport the minor to his state, and (5) appellant planned to have the minor live near him; these are all facts that the panel could have considered and relied upon in reaching its decision that appellant transported the minor across state lines “with intent” to engage in illegal sexual activity with her).
United States v. Finch, 73 M.J. 144 (the specifications in this case alleging that appellant distributed child pornography and received and possessed child pornography, both in violation of Article 134, UCMJ (conduct prejudicial to good order and discipline and service-discrediting conduct), were directly analogous to the federal offenses of distribution of child pornography (18 USC § 2252A(a)(2)) and possession of child pornography (18 USC § 2252A(a)(5)) in calculating the maximum punishment for those offenses; because the offenses were directly analogous to 18 USC § 2252A(a)(2) and (5), they were punishable by sentences of twenty years and ten years respectively; all the elements of the federal offenses, except the jurisdictional element, were included in the specifications; the offenses alleged images of minors, not images of virtual minors, and thus were not charged as simple disorders punishable by four months of confinement; the term child pornography is defined in § 2256(8)(B) to include any visual depiction of a minor engaging in sexually explicit conduct; the definition does not distinguish between minors and actual minors; as such, the CCA did not err in holding that the maximum possible sentence was based on the analogous portions of 18 USC § 2252A, which address essentially the same offenses as charged herein).
United States v. Warner, 73 M.J. 1 (the first and second clauses of Article 134, UCMJ, permit the criminalization of certain conduct not otherwise prohibited that is either prejudicial to good order and discipline or service discrediting).
(it is settled that a servicemember may be prosecuted for service-discrediting conduct under the general article, Article 134, UCMJ, even if the conduct is not specifically listed in the MCM; however, due process requires that a servicemember have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations).
(neither federal law, state law, military case law, military custom and usage, or military regulations provided appellant notice that possession of images that depict minors as sexual objects or in a sexually suggestive way, without involving nudity or sexually explicit conduct, was subject to sanction under Article 134; simply put, although child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice; thus, charging appellant under the general article for possessing such images violated due process).
United States v. Merritt, 72 M.J. 483 (Article 134, UCMJ, the general article, criminalizes service-discrediting conduct by military service members; although certain specified offenses are included under this article, conduct that is not listed in the MCM may nonetheless constitute service discrediting conduct and may be used to allege the offense).
(as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice is found in the MCM, federal law, state law, military case law, military custom and usage, and military regulations).
(appellant did not have sufficient notice that the viewing of child pornography was subject to criminal sanction in 2006, as required for conviction under the general article, Article 134, UCMJ, for service discrediting conduct, where the viewing of child pornography was not criminalized under the UCMJ, the MCM, military custom or usage, the comprehensive federal statutes, federal or military court decisions, or the majority of state statutes; the fact that three states criminalized the conduct did not satisfy the constitutional requirement of fair notice).
2012 (September Term)
United States v. Schell, 72 M.J. 339 (the plain language of 18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, is unambiguous; nothing in the plain language of § 2422(b) indicates that an accused must intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity; because the terms “entice,” “induce,” and “persuade” in 18 USC § 2422(b) are not statutorily defined, they are accorded their ordinary meaning, and in ordinary usage, they are effectively synonymous - the idea conveyed is of one person leading or moving another by persuasion or influence, as to some action or state of mind; the legislative history indicates that Congress intended the statute to address those who lure children out to actually engage in illegal sexual activity, but also to more broadly protect children and families from online harm; there is nothing in the legislative history suggesting that an accused had to intend to actually engage in a sexual crime).
(to establish an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the government must prove that an accused: (1) had the intent to commit the substantive offense; and (2) took a substantial step toward persuading, inducing, enticing or coercing a minor to engage in illegal sexual activity; the second element - the substantial step requirement - ensures that mere thought crimes are not prosecuted).
(18 USC § 2422(b), a statute that prohibits the enticement of a minor to engage in illegal sexual activity, does not require that the accused have the specific intent that the minor, ultimately, actually engage in illegal sexual activity as a result of his enticement; the intent required to support an attempt conviction under § 2422(b) is the intent to commit the predicate offense - that is, the intent to entice a minor for the purpose of engaging in illegal sexual activity).
(where appellant pleaded guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), he did not raise a matter inconsistent with his guilty in his unsworn statement during sentencing when he stated that he did not actually intend to engage in illegal sexual activity with the minor; because he admitted in a detailed stipulation of fact and during the plea colloquy that he intended to entice her to engage in illegal sexual activity, he had the requisite intent to support an attempt conviction under § 2422(b); the offense did not require that he have the specific intent to actually engage in illegal sexual activity with the minor – only the intent to entice the minor into engaging in illegal sexual activity).
(during a providence inquiry with an accused pleading guilty to an attempt to entice a minor to engage in illegal sexual activity under 18 USC § 2422(b), the military judge erred in defining the elements of the offense because she failed to instruct the accused that he had to take a substantial step toward enticing a minor in order to plead guilty to an attempt under Article 134, UCMJ; additionally, neither the specification nor the stipulation of fact mentioned that a substantial step was an element of the Article 134, UCMJ, offense; although the accused was not entitled to receive a hornbook review of the distinction between mere preparation and a substantial step, the record had to objectively reflect that he understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense; that the accused admitted facts during his plea colloquy that were likely sufficient to prove that he took a substantial step towards enticing a minor did not answer the altogether different question whether he understood that a substantial step was necessary to make his conduct criminal; even though the accused agreed that the military judge correctly described his crime, and admitted that he took steps to attempt to entice the minor, the record did not demonstrate that the accused understood how the law related to the facts; as such, there was a substantial basis in law to question the providence of the plea).
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).
United States v. Bowersox, 72 M.J. 71 (the statute, 18 USC § 1466A(b)(1), which prohibits the possession of obscene visual depictions of a minor engaging in sexually explicit conduct, does not require proof that the depictions represent “real” minors; the statute expressly provides that the minors depicted need not actually exist; as such, the statute applied to appellant’s conduct, who possessed 198 of such images on his computers in his shared US barracks room, even though none of images depicted real children; furthermore, the statute is constitutional as applied to appellant because the statute requires that the proscribed visual depiction be obscene, and the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home,” did not extend to appellant’s possession of obscene materials in his shared barracks room).
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).
(a defective adultery specification in a contested case that failed to allege the terminal element under Article 134, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, resulted in material prejudice to the accused’s substantial right to notice under the Fifth and Sixth Amendments, where neither the specification nor the record provided notice of which terminal element or theory of criminality the government pursued in this case; the government never mentioned the adultery charge in its opening statement, did not present any specific evidence or call a single witness to testify as to why the accused’s conduct satisfied either clause 1, clause 2, or both clauses of the terminal element of Article 134, UCMJ, and made no attempt to tie any of the evidence or witnesses that it did call to the Article 134, UCMJ, adultery charge; although the military judge’s panel instructions correctly listed and defined the terminal element of Article 134, UCMJ, as an element of the adultery specification, this came after the close of evidence and, again, did not alert the accused to the government’s theory of guilt).
United States v. Barberi, 71 M.J. 127 (four electronic images depicting appellant’s stepdaughter in various stages of undress were not child pornography within meaning of the Child Pornography Prevention Act because the images did not contain an exhibition of the stepdaughter’s genitals or pubic area).
(four electronic images depicting appellant’s stepdaughter in various stages of undress that were not child pornography within meaning of the Child Pornography Prevention Act constituted constitutionally protected speech, and the government may not suppress lawful speech as the means to suppress unlawful speech).
(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).
(charges for the possession of child pornography could be brought pursuant to clauses (1) or (2) of Article 134 without reference to the definitions laid out in the Child Pornography Prevention Act, thereby creating a completely different set of elements required for conviction).
(where four out of six images introduced by the government in support of appellant’s conviction for possession of child pornography in violation of Article 134 were constitutionally protected and where it is unknown which images formed the basis for the finding of guilt to the possession of child pornography charge and the finding may have been based on the constitutionally protected images, the general verdict of guilt must be set aside).
(the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered).
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. McClain, 71 M.J. 80 (the evidence in this case was legally sufficient to sustain appellant’s conviction for possessing child pornography in violation of Article 134, UCMJ, where (1) appellant’s own statement, admitted into evidence and sufficiently corroborated by other evidence, provided direct evidence that he intentionally sought pornography on the Internet using a Limewire software program that he installed on his computer, knowingly downloaded what he thought were videos containing child pornography, and then viewed those videos, (2) where a CID agent testified that when he showed appellant the names of the four video files that were found saved in a shared folder on appellant’s computer, appellant admitted that he had downloaded those files to his computer, and (3) where an NCIS agent also testified that the characteristics of the files he found in the shared folder on appellant’s computer were identical with the characteristics of four videos admitted into evidence of suspected child pornography that he downloaded from a Limewire share folder, including the fact that they had the same title, they were the same size files, they were the same type of file (i.e., videos), and they shared the same SHA1 value (digital signature); based on this evidence, including every reasonable inference that can be drawn from the evidence when viewed in the light most favorable to the government, a rational trier of fact could find the essential elements of the charged offense of possession of child pornography beyond a reasonable doubt despite the fact that the four video files of suspected child pornography on appellant’s computer could not be downloaded or viewed).
United States v. St. Blanc, 70 M.J. 424 (appellant was charged with possession of “what appears to be” child pornography, yet his maximum sentence was determined by reference to the Child Pornography Prevention Act; Beaty (70 MJ 39) held that the maximum sentence for a specification of possessing “what appears to be” child pornography cannot be determined by reference to the CPPA; as a result, and in the absence of the President setting a sentence maximum for such an offense, the maximum sentence for that offense is that of a general or simple disorder under Article 134, UCMJ - four months of confinement and forfeiture of two-thirds pay per month for four months).
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 in an attempt prosecution; 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).
United States v. Phillips, 70 M.J. 161 (to establish a violation of clause 2 of Article 134, UCMJ, the government must prove beyond a reasonable doubt that (1) the accused engaged in certain conduct; and (2) that the conduct was of a nature to bring discredit upon the armed forces).
(evidence that the public was actually aware of the accused’s conduct is not necessarily required to prove a violation of clause 2 of Article 134, UCMJ; military law does not require that the public know of the accused’s conduct for an accused to be convicted of a clause 2 offense; furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces).
(a presumption that possession of child pornography is conclusively service discrediting under clause 2 of Article 134, UCMJ, is constitutionally impermissible).
(the terminal element in a clause 1 or 2 Article 134 case is an essential element of the offense as to which members must be instructed, like any other; conduct need not be violative of any other criminal statute to violate clause 1 or 2; the terminal element must be proved beyond a reasonable doubt like any other element; whether any given conduct violates clause 1 or 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; and it cannot be conclusively presumed from any particular course of action).
(clause 2 of Article 134, UCMJ, is not restricted to subjecting noncommissioned officers on the retired list to criminal sanctions; the provision applies to all active-duty personnel).
(the focus of clause 2 of Article 134, UCMJ, is on the nature of the conduct, whether the accused’s conduct would tend to bring discredit on the armed forces if known by the public, not whether it was in fact so known; the statute, which requires proof of the nature of the conduct, does not require the government to introduce testimony regarding views of the public or any segment thereof; the responsibility for evaluation of the nature of the conduct rests with the trier of fact; the degree to which others became aware of the accused’s conduct may bear upon whether the conduct is service discrediting, but the statute does not establish a requirement that the accused’s conduct must in every case be in some respect public knowledge).
(to convict an accused under clause 2 of Article 134, UCMJ, the trier of fact must determine beyond a reasonable doubt that the conduct alleged actually occurred and must also evaluate the nature of the conduct and determine beyond a reasonable doubt that the accused’s conduct would tend to bring the service into disrepute if it were known).
(in general, in a clause 2 prosecution under Article 134, UCMJ, the government is not required to present evidence that anyone witnessed or became aware of the conduct; nor is the government required to specifically articulate how the conduct is service discrediting; rather, the government’s obligation is to introduce sufficient evidence of the accused’s allegedly service discrediting conduct to support a conviction; in a panel case, the military judge must instruct the members how to evaluate that evidence; when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly).
(whether conduct is of a nature to bring discredit upon the armed forces in a clause 2 prosecution under Article 134, UCMJ, is a question that depends on the facts and circumstances of the conduct, which includes facts regarding the setting as well as the extent to which the accused’s conduct is known to others; the trier of fact must consider all the circumstances, but such facts - including the fact that the conduct may have been wholly private - do not mandate a particular result unless no rational trier of fact could conclude that the conduct was of a nature to bring discredit upon the armed forces; the extent to which conduct is constitutionally protected may impact whether the facts of record are sufficient to support a conviction).
(in this case, the evidence was legally sufficient to sustain appellant’s conviction for possession of child pornography under clause 2 of Article 134, UCMJ, where forensic analysis of appellant’s computer showed that searches had been performed seeking filenames associated with child pornography, and appellant admitted downloading child pornography and viewing the images on several occasions; of the images, five images and two movies matched known child victims engaged in sexually explicit conduct; although the government did not introduce any direct evidence that the public was or would have become aware of appellant’s conduct, or that anyone at all was aware of it before appellant mentioned it to a criminal investigator, the government was not required to do so; regardless of public knowledge, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant’s activity would have tended to bring discredit upon the service had the public known of it).
United States v. Beaty, 70 M.J. 39 (possession of child pornography, whether actual or virtual, may constitutionally be prosecuted under clauses 1 and 2, Article 134, UCMJ).
(the maximum sentence for the offense with which appellant was charged, possession of “what appears to be” child pornography charged under clause 1 or clause 2 of Article 134, UCMJ, cannot be determined with reference to 18 USC § 2252A or 18 USC § 2252(a)(4)(B); the US Code does not criminalize possession of “what appears to be” child pornography; an offense comprised of acts that cannot be criminally charged under the US Code at all is neither directly analogous nor essentially the same as one that can be; as such, it was error to reference either federal statute to determine the maximum punishment in this case, because under neither statute is the offense with which appellant was charged punishable at all).
(while the government can charge an offense of possession of “what appears to be” child pornography under Article 134, UCMJ, the maximum punishment under the US Code for possession of “what appears to be” child pornography is no punishment at all).
(under RCM 1003(c)(1)(B)(ii), where an Article 134, UCMJ, offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the US Code, the maximum punishment is that authorized by the custom of the service).
(when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the US Code, and where there is no maximum punishment authorized by the custom of the service, they are punishable as general or simple disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months).
(the maximum sentence for appellant’s offense of possession of “what appears to be” child pornography charged as an Article 134, clause 1 or 2 offense, was four months of confinement and forfeiture of two-thirds pay per month for four months, where the offense was not listed in the MCM, not included in or closely related to any other offense listed in Part IV of the MCM, and not provided for in the US Code, where there was no custom of the service specific to the offense, and where use of confinement for life without eligibility for parole as the jurisdictional maximum for a GCM would violate the rule of lenity).
2009 (September Term)
United
States v. Diaz, 69 M.J. 127 (the mens rea
requirement contained in §
793(e) of the Espionage Act, a section that bars the willful
communication of
classified information, does not include an element of bad faith or ill
intent).
(willfulness, in the context
of § 793(e) of
the Espionage Act, a section that bars the willful communication of
classified
information, arises not in the context of bad intent, but in the
conscious
choice to communicate covered information).
(classification alone does
not satisfy the mens
rea requirement of § 793(e) of the Espionage Act, a section that bars
the
willful communication of classified information; although
classification may
demonstrate that an accused has reason to believe that information
relates to
national defense and could cause harm to the United States, not all
information
that is contained on a classified or closed computer system pertains to
national defense; likewise not all information that is marked as
classified, in
part or in whole, may in fact meet the criteria for classification).
(appellant’s conduct in
disclosing classified
information about detainees at Guantanamo Bay naval base satisfied the
mens rea
requirement of § 793(e) of the Espionage Act, a section that bars the
willful
communication of classified information, where (1) the information
disclosed,
including internment serial numbers of the detainees, the interrogation
team
assigned to the detainees, and the source identification numbers, could
have
revealed sources and methods of intelligence gathering, (2) appellant
knew he
was dealing with sensitive material derived from a classified computer
system,
and (3) appellant intentionally revealed the material to an employee of
an
outside organization in a clandestine manner; appellant knew or should
have
known that the information could be used to the injury of the United
States or
to the advantage of any foreign nation; and evidence of motive derived
from the
proffered evidence would not have negated this mens rea element).
(proof of appellant’s motive
is irrelevant the
mens rea requirement of § 793(e) of the Espionage Act, a section that
bars the
willful communication of classified information on this issue; although
motive
evidence may be relevant where it is circumstantial evidence of intent,
in this
case, appellant’s motive was unrelated to his intent; any noble motives
appellant might have harbored when he released classified information
about
detainees at Guantanamo bay naval base, including what he may have
thought was
in compliance with a Supreme Court ruling, were irrelevant to his
intentional
act of physically mailing the names of detainees and coding information
related
to these names in violation of the Espionage Act).
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. Kuemmerle, 67 M.J. 141 (distribution of
child pornography
through the Internet under the Child Pornography Prevention Act, as
factually
presented in this case, consisted of two acts -- (1) the posting of the
image,
whereby the image left the possession of the original user, and (2)
delivery of
the image, whereby another user accessed and viewed the image).
United
States v. Wilcox, 66 M.J. 442 (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).
(for any offense charged under
Article 134,
UCMJ, clauses 1 or 2, the government must prove: (1)
that the accused did a certain act, and
(2) that the act was, under the circumstances, to the prejudice of good
order
and discipline or was of a nature to bring discredit upon the armed
forces; in
the context of the First Amendment, in order to meet the second element
for
conduct charged under a prejudice of good order and discipline theory,
the
prosecution must show a reasonably direct and palpable connection
between an
appellant’s statements and the military mission; a direct and palpable
connection between speech and the military mission or military
environment is
also required for an Article 134, UCMJ, offense charged under a service
discrediting theory).
(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).
(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. Ober, 66 M.J. 393 (evidence that
appellant used KaZaA, a
peer-to-peer file sharing network, to download child pornography to his
computer from other participants in a file sharing network, thereby
causing an
upload on the host user’s computer, was legally sufficient to support a
finding
that appellant was guilty of transporting child pornography in
interstate
commerce in violation of 18 USC 2252A(a)(1), considering appellant’s
pretrial confession
to CID agents, the expert testimony regarding the files found on
appellant’s
computer, and the testimony regarding the underlying investigation of
appellant).
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).
United
States v. Navrestad, 66 M.J. 262 (sending a
hyperlink to a public
website during an internet chat session, where that website contained
child
pornography images, was not legally sufficient to constitute
distribution of
child pornography as that term is defined in 18
(appellant’s use of a public
computer to view images of child pornography on a public website was
not
legally sufficient to constitute possession of child pornography under
Article
134, UCMJ, clause 1 or 2, where appellant lacked the dominion and
control
necessary to constitute possession of the child pornographic images;
although he
viewed the images on the website, viewing alone does not constitute
control,
and his actions with the images went no further; he could not access
the
computer’s hard drive where the images were automatically saved as
temporary
internet files nor could he download the images to a portable storage
device;
moreover, there was no evidence that he e-mailed, printed, or purchased
copies
of the images or that he was even aware that he could take any of these
actions).
United States v. Leonard, 64 M.J. 381 (Article 134
makes punishable acts in three categories of offenses not specifically
covered in any other article of the code; those categories are
separated into three clauses; clause 1 prohibits conduct to the
prejudice of good order and discipline in the armed forces; clause 2
prohibits conduct of a nature to bring discredit upon the armed forces;
and clause 3 covers noncapital crimes or offenses which violate federal
law; when the decision is made to charge the offense under clause 3,
the proof must establish every element of the crime or offense as
required by the applicable law; but when the offense is charged under
clauses 1 or 2, the specification need only allege that the accused did
or failed to do certain acts, and that, under the circumstances, the
accused’s conduct 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 respectively; the MCM states no preference as to which clause of
Article 134, UCMJ, must be used in a particular case).
(the maximum punishment for
an offense charged under Article 134, UCMJ, clauses 1 and 2, barring
conduct prejudicial to good order and discipline or conduct of a nature
to bring discredit upon the armed forces, and not otherwise listed in
the MCM, may be determined by reference to the maximum punishment for a
violation of a federal statute that proscribes and criminalizes the
same criminal conduct and mental state included in the specification).
(in this case, the evidence was
legally sufficient to sustain the accused’s conviction
for possession of child pornography under the general article as
service-discrediting or prejudicial to good order and discipline where
the
accused told his neighbor that he possessed seven pictures of child
pornography, and the disclosure alarmed the neighbor enough that he
contacted OSI
to determine whether any of the pictures included images of his
children).
(18 U.S.C. §
2251(a) prohibits any person from
using,
persuading, inducing,
enticing, or coercing any minor to engage in any sexually explicit
conduct for
the purpose of producing any visual depiction of such conduct using
materials
that have been mailed, shipped, or transported in interstate or foreign
commerce by any means; the term “sexually explicit
conduct” as
defined by 18 U.S.C. § 2256(2) includes five different categories of
conduct: sexual intercourse, bestiality,
masturbation, sadistic or masochistic abuse, or “lascivious exhibition
of the
genitals or pubic area of any person;” whether a particular photograph
contains
a “lascivious exhibition” is determined by combining a review of the Dost
factors with an overall consideration of the totality of the
circumstances; the
Dost factors are: (1) whether the focal point of the visual
depiction is
on the child’s genitalia or pubic area; (2) whether the setting of the
visual
depiction is sexually suggestive, i.e. in a place or pose generally
associated
with sexual activity; (3) whether the child is depicted in an unnatural
pose,
or in inappropriate attire, considering the age of the child; (4)
whether the
child is fully or partially clothed, or nude; (5) whether the visual
depiction
suggests sexual coyness or a willingness to engage in sexual activity;
and (6) whether
the visual depiction is intended or designed to elicit a sexual
response in the
viewer).
(nude or
partially nude photographs of a minor daughter that did not depict her
genitals
or pubic area, a requirement of § 2256(2) and a prerequisite to any
analysis
under Dost, did not depict “sexually explicit conduct” as is
required
for a conviction under 18 U.S.C. § 2251(a), and therefore the evidence
was legally
insufficient).
(where fully or partially nude
photographs of a minor daughter depicted the pubic
area, where the
pubic area could be considered the focal point of the images, and where
a
reasonable factfinder could have concluded that the photos were
intended or
designed to elicit a sexual response in the viewer, the first, fourth,
and
sixth Dost factors point to a “lascivious exhibition” of the
pubic area and
support a finding of “sexually explicit” images; when other factors,
such as the
fact that the accused had nude photographs of more than one minor
daughter, that
his ex-wife characterized him as “highly interested” in pornography,
and that he
admitted to downloading and possessing numerous images of child
pornography, are
viewed in combination with the Dost factors, there is a clear
basis on
which a reasonable factfinder could have concluded that the photos of
the minor
satisfied the definition of “sexually explicit” photographs).
(although the
nude and partially nude photos
that the accused took of one of his minor daughters were not sexually
explicit,
there was ample evidence in the record on which a reasonable factfinder
could
conclude that he took the pictures and did so to arouse, appeal to or
gratify
his own sexual desires; this evidence, viewed in a light most favorable
to the
Government, is legally sufficient to support the offense of taking
indecent
liberties with a child).
(it was not
error for the military judge to
use the introductory language of 18 U.S.C. § 2256(8) in his
instructions on the
definition of child pornography; the reference to “computer generated
image”
was not unconstitutional where the Supreme Court left intact 18 U.S.C.
§ 2256(8)(C)
which prohibits computer morphing; therefore, some types of “computer
generated
images” are not constitutionally protected).
(in this case,
the military judge erred in his
affirmative defense instruction with respect to sending, receiving, and
reproducing child pornography by using the phrase “conveys the
impression,” language
found by the Supreme Court to be unconstitutional).
United States v. Cendejas, 62 M.J. 334 (in order to
sustain a conviction under the Child Pornography Prevention Act, 18 USC
2252A, the
Government must prove that an image depicts an actual child; it is no
longer
enough to knowingly possess, receive or distribute visual depictions
that “appear
to be” of a minor engaging in sexually explicit conduct; instead, proof
that an
actual child under the age of eighteen was used in the production of
the images
is a required element of a charge under the CPPA; the government bears
the
burden of proving each and every element of a crime beyond a reasonable
doubt;
and the Government is not released from its burden of proof by an
accused’s
failure to argue, or by an absence of evidence otherwise suggesting,
the
artificiality of the children portrayed).
(certain
portions of the definition of child pornography in 18 USC § 2256(8) are
unconstitutional, specifically the “or appears to be” language of §
2256(8)(B),
and the “conveys the impression” language of § 2256(8)(D)).
(a factfinder
has the prerogative to decide without
expert testimony whether images of child pornography are actual or
virtual; a
factfinder can make a determination that an actual child was used to
produce
the images in question based upon a review of the images alone; in the
military
justice system, this includes the military judge and, under appropriate
circumstances, a court of criminal appeals).
United
States v. Hays, 62 M.J. 158 (an improvident plea to an offense
of a
CPPA violation charged under clause 3 of Article 134 may be upheld on a
proper
record as a provident plea to a lesser included offense under the first
two
clauses of Article 134; in this case, appellant’s improvident guilty
pleas to
CPPA violations were provident to lesser included offenses based on the
same
conduct under clause 2 of the general article, where the record
reflected that
appellant admitted that his conduct was service-discrediting and why
and that
he clearly understood the nature of the prohibited conduct).
(the Child
Pornography Protection Act has no
extraterritorial application; because appellant engaged in the conduct
underlying the CPPA-based charges in
(the Child Pornography
Prevention Act is
subject to a presumption against extraterritoriality and there is
nothing in
the language of the statute or the legislative history to overcome that
presumption).
(the section of
the Child Pornography Prevention
Act prohibiting the production of a visual depiction of sexually
explicit
conduct by a minor (18 U.S.C. § 2251(a)) does not apply
extraterritorially).
(there was no
basis for finding a domestic
application of the Child Pornography Prevention Act where the
specification
charged the accused under clause 3 for violating the Act in Germany by
possessing child pornography on land used by and under the control of
the
United States Government; the specification was a “situs” based
possession
charge and did not allege movement of child pornography through the
Internet
into the United States; thus, the principle of “continuing
jurisdiction” was
inapplicable to the specification).
(there was no
basis for finding a domestic
application of the Child Pornography Prevention Act where the
specification
charged the accused under clause 3 for violating the Act in Germany by
receiving
child pornography that had been transported through the Internet;
although the
accused admitted during his providence inquiry that the images were
sent from
the U.S. through the Internet to him, he did not knowingly receive the
images
until he accessed the pictures in Germany and the act of opening the
images did
not trigger a chain of events that continued into the United States).
(there was no
basis for finding a domestic
application of the Child Pornography Prevention Act where the
specification
charged the accused under clause 3 for violating the Act in Germany by
using a
minor to engage in sexually explicit conduct for the purpose of
producing a
visual depiction of such conduct; although the accused admitted that
the
camcorder he used to videotape the German girls had been manufactured
in Japan,
purchased in the United States, and transported by him to Germany, in
videotaping the girls, he did not begin any conduct that continued into
the
United States).
(an improvident
plea to a Child Pornography Prevention
Act-based clause 3 offense may, under certain circumstances, be upheld
as a
provident plea to a lesser-included offense under clause 2 of Article
134).
United
States v. Martinelli, 62 M.J. 52 (conduct is punishable under
Article 134
if it “prejudices good order and discipline in the armed forces”
(clause 1), if
it is “of a nature to bring discredit upon the armed forces” (clause
2), or if
it is a crime or offense not capital (clause 3); a person may not be
punished
under clause 3 of Article 134 when the act occurred in a foreign
country merely
because that act would have been an offense under the United States
Code had
the act occurred in the United States).
(the Child
Pornography Prevention
Act does not fall within the category of criminal offenses involving
frauds or
obstructions against the government that are exempt from the
application of the
presumption against extraterritoriality; the ultimate objective behind
the
criminal proscription of activities pertaining to child pornography is
to
protect children from abuse; while few crimes are more serious or
morally
repugnant, child abuse does not involve fraud or obstruction against
the
government).
(servicemembers
can be prosecuted
under clauses 1 and 2 of Article 134 for child pornography offenses
involving
“virtual” children).
(because the
Child Pornography Prevention
Act does not have extraterritorial
application, the
accused’s guilty pleas to possessing, receiving, and reproducing child
pornography charged as CPPA-based
clause 3 offenses under Article 134 were improvident where the
underlying
conduct occurred in Germany).
(even though the
Child Pornography Prevention
Act does not have extraterritorial application, the accused’s guilty
plea to
using e-mail in Germany to send child pornography through the Internet
charged
as a CPPA-based clause 3 offense under Article 134 was not improvident
because
his e-mails were electronically routed through servers located in the
United
States and thus a domestic application of the CCPA was appropriate).
(the accused’s
guilty plea to using
e-mail in Germany to send child pornography through the Internet
charged as a Child
Pornography Prevention Act-based clause 3 offense under Article 134 was
improvident where the military judge used an unconstitutional
definition of
child pornography and failed to inquire into the distinction between
“actual”
and “virtual” child pornography).
(conduct that may
not constitute a
violation of clause 3 of Article 134 in a foreign country may still be
punishable under clauses 1 and 2).
United
States v. Disney, 62
M.J. 46 (Title 18 U.S.C. § 842 (h) (storing stolen explosives that have
been
shipped in interstate commerce) is a constitutional exercise of
Congress’s
authority under the Commerce Clause; the
disposition
of stolen explosives which are moving as, which are part of,
which
constitute, or which have been shipped or transported in, interstate or
foreign
commerce clearly falls within the scope of Congress’s enumerated
Article I,
Section 8 regulatory powers).
(Title 18 U.S.C. § 842 (h)
(storing
stolen explosives that have been shipped in interstate commerce) is
constitutional as applied to appellant’s conduct; first,
the statute regulates economic activity and appellant’s conduct fell
within the
scope of that regulated activity; section 842(h) was enacted as an
essential
part of a comprehensive federal legislative scheme to effectively
regulate the
sale, storage, transfer, or other disposition of explosives in
interstate
commerce; second, the statute includes an express jurisdictional
element, and
appellant conceded this element at trial when he stated that the
contraband had
moved in interstate or foreign commerce because it had been produced
outside of
California (the locus of the crime); third, the stated purpose of
section
842(h) and the statute’s associated legislative history demonstrate
that
Congress found the illegal use and unsafe storage of contraband
explosives to
be a substantial hazard to interstate commerce; and fourth, there is a
rational
basis for concluding that appellant’s storage of stolen explosives has
substantial direct implications for commerce; regardless of the actual
impact
of appellant’s particular conduct, his storage of stolen explosives
fell within
a class of commercial activity within Congress’s power to regulate; appellant’s
actions diverted explosives out of the legal interstate market where
they could
be monitored and regulated and diverted them to his garage where
federal
regulations no longer applied regarding their storage or possible
reentry into
the marketplace).
United
States v. Brooks, 60 M.J. 495 (a conviction
under 18 U.S.C. § 2422(b) does
not require an accused to communicate directly with an a minor).
(a conviction
under 18 U.S.C. § 2422(b) does
not require the direct inducement of a minor; an accused’s acts may
constitute
inducement under the statute where, by negotiating with a purported
relative of
a minor, an accused attempted to stimulate or cause the minor to engage
in
sexual activity with him).
(the relevant
criminal intent under 18 U.S.C.
§ 2422(b) is the intent to induce as opposed to the intent to
commit the actual
sexual act; a conviction under § 2422(b) does not require an
accused to attempt
an actual sexual act; a § 2422(b) conviction requires only an
intent to
persuade or to attempt to persuade; Congress has made a clear choice to
criminalize persuasion and the attempt to persuade, not the performance
of the
sexual acts themselves).
(an attempt
conviction under 18 U.S.C. §
2422(b) does not require communication with an actual minor).
(appellant’s
conviction for a criminal attempt
under 18 U.S.C. § 2422(b) is well supported by the facts;
appellant acted with
the intent to induce a minor to engage in unlawful sexual activity; and
appellant’s
travel to a designated location and his arrival there with gifts for a
child
constituted the overt act that was the substantial step toward
persuading,
inducing, enticing, or coercing a minor to engage in illegal sexual
activity).
(in this case,
the evidence presented at trial
strongly supported a conviction under 18 U.S.C. § 2422(b) where
appellant
knowingly induced a woman to bring her minor sister to a designated
location
for sex, where before the meeting, appellant bought gifts suitable for
a young
child, and where appellant was apprehended at the door of the
designated
location).
United
States v. Irvin, 60 MJ 23 (in past cases, we have
affirmed
convictions for a lesser-included offense under clause 2 of Article 134
for the
“possession of images depicting sexually explicit conduct by minors”;
as in
those cases, appellant in this case admitted to and discussed with the
military
judge the character of his conduct as service-discrediting and
prejudicial to
good order and discipline; under these circumstances, the record
reflects no
substantial basis in law or fact for questioning the providence of his
guilty
plea).
United
States v. Mason, 60 MJ 15 (we expressly acknowledged
in O’Connor,
but did not answer, the question as to whether, in the wake of Free
Speech
Coalition, the possession, receipt or distribution of images of
minors
engaging in sexually explicit conduct (regardless of their status as
“actual”
or “virtual”) could constitute service-discrediting conduct for
purposes of
Article 134; such inquiry must necessarily be undertaken on a
case-by-case
basis; in analyzing this constitutional dimension, the ultimate
question is
whether the status of the images in the present case as “virtual” or
“actual”
is of consequence in the context of assessing the providence of
appellant’s
guilty plea under clauses 1 and 2; we conclude that it is not).
(the
receipt or
possession of “virtual” child pornography can, like “actual” child
pornography,
be service-discrediting or prejudicial to good order and discipline;
even if we
were to assume that the specific images that serve as the basis for
appellant’s
“child pornography” charge are “virtual” in nature, this still involves
a
commissioned officer of the United States Air Force receiving and
viewing such
images on a government computer in his workplace; under those
circumstances,
the distinction between “actual” child pornography and “virtual” child
pornography does not alter the character of appellant’s conduct as
service-discrediting or prejudicial to good order and discipline).
(while
the issue
as to whether the images of child pornography are “virtual” or “actual”
may
have a potentially dispositive effect in prosecutions under the CPPA in
both
civilian and military settings, it is not inherently dispositive of
their
impact on the esteem of the armed forces or good order and discipline;
those
are the yardsticks by which the criminality of conduct under clauses 1
and 2
are measured; even assuming the images at issue here are “virtual,”
appellant’s
conduct in receiving those images on his government computer can
constitutionally be subjected to criminal sanction under the uniquely
military
offenses embodied in clauses 1 and 2 of Article 134).
2003
United
States v. Vaughan, 58 MJ 29 (an Article 134
offense that
is not specifically listed in the Manual for Courts-Martial must have
words of
criminality and provide an accused with notice as to the elements
against which
he or she must defend).
(as a matter of due process, a service member must have fair notice
that his
conduct is punishable before he can be charged under Article 134 with a
service
discrediting offense; such notice may be found in the Manual for
Courts-Martial, federal law, state law, military case law, military
custom and
usage, and military regulations).
(child neglect, although not specifically listed in the Manual for
Courts-Martial as an Article 134 offense, may be charged under that
Article as
a service discrediting offense; custom and regulation, state law, and
military
case law combine to meet the requirements for due process notice
enunciated in Parker
v. Levy, 417 U.S. 733 (1974)).
(child neglect requires culpably negligent conduct, unreasonable
under the
totality of the circumstances, that causes a risk of harm to the child;
actual
harm to the child is not required).
(whether a given act of child neglect amounts to criminal conduct
under
Article 134 and whether the conduct is service discrediting will
invariably
present questions of fact for the trier of fact to determine).
United
States v. Saunders, 59 MJ 1 (it is well settled
that
conduct that is not specifically listed in the MCM may be prosecuted
under
Article 134, UCMJ; however, due process requires that a person have
fair notice
that an act is criminal before being prosecuted for it; potential
sources of
fair notice include federal law, state law, military case law, military
custom
and usage, and military regulations).
(a military accused is entitled to fair notice of the criminality of
conduct
charged as service discrediting under Article 134, UCMJ, which does not
necessarily require published notice of the precise wording of the
elements).
(a knowing and willful course of intimidation or harassment that
places a
reasonable person in fear of death or bodily harm or that causes
emotional
distress is patently conduct that would be service-discrediting under
Article
134, UCMJ).
(in light of the federal and state criminal laws addressing
stalking/harassing
conduct as well as the military case law that has affirmed
stalking/harassment
convictions, appellant was on fair notice that he risked prosecution
under
Article 134, UCMJ, if he knowingly engaged in a course of conduct
(stalking/harassment) that placed another person in reasonable fear of
injury
or emotional distress).
(in addition to notice that an act is a crime under Article 134,
UCMJ, a
person must also have fair notice as to the standard applicable to the
forbidden conduct against which they must defend; thus, an Article 134,
UCMJ,
specification must contain words of criminality and provide the accused
with
notice of the elements of the crime alleged).
(where a specification required the members to determine that
appellant
carried out a knowing and willful course of conduct directed at a
specific
person which would cause substantial emotional distress in a reasonable
person
or which would place that person in reasonable fear of bodily injury,
it
adequately provided notice as to the requisite mental state; the
requirements
of emotional distress in a reasonable person and placing a person in
reasonable
fear are common legal standards).
(for military practice, harassment is appropriately charged as a
general
intent offense, when charged under clause 2 of Article 134, UCMJ; this
is
consistent with the prior application of Article 134, UCMJ, and it is
consistent with the purpose behind the stalking and harassment statutes
– to
protect persons from reasonable fear generated by the unwanted advances
and
contacts of others, without consideration of the abstract motives, some
pure,
some not, that might have motivated the prohibited conduct; inadvertent
or de
minimis, but willful, contact would not constitute an offense under
Article
134, UCMJ).
(the decision as to whether a given set of acts rises to the level
of
harassment is left to the fact finder; in addition to adequately
informing the
accused of the elements of the offense, the specification must also set
out
conduct that a fact finder could determine was service discrediting in
the
context presented; while the addition of words of criminality cannot
make
criminal acts which obviously are not, the allegation must serve to
demonstrate
the proscribed character of accused’s act).
(a reasonable fact finder could find that appellant’s conduct
constituted
harassment where appellant repeatedly called and visited his former
fiancee,
and entered her apartment against her wishes, all after receiving a
no-contact
order, and where his telephone calls and visits continued over several
weeks
and included suicide threats, unlawful entry, and angry demands for the
return
of gifts, all despite protestations by her that she did not want such
conduct
to continue).
(appellant’s subjective belief, caused by a delusional disorder and
dependent personality disorder, that his course of conduct was not
criminal
because his former fiancee was his one true love is irrelevant to the
issue of
notice; it is settled law that notice is determined through application
of an
objective test as to whether a person could reasonably understand that
his
contemplated conduct is proscribed).
(the test of service discredit under Article 134, UCMJ, is whether
appellant’s acts had a tendency to bring the service into disrepute or
tended
to lower it in the public esteem).
(a reasonable fact finder could find beyond a reasonable doubt that
appellant’s course of conduct was service discrediting, where he
repeatedly
called and visited his former fiancee, and entered her apartment
against her
wishes, all after receiving a no-contact order, and where his telephone
calls
and visits continued over several weeks and included suicide threats,
unlawful
entry, and angry demands for the return of gifts, all despite
protestations by
her that she did not want such conduct to continue).
United
States v. O'Connor, 58 MJ 450 (conduct is punishable under
Article 134 if it prejudices good order
and
discipline in the armed forces [clause 1], if it is of a nature to
bring
discredit upon the armed forces [clause 2], or if it is a crime or
offense not
capital [clause 3]; the three clauses do not create separate offenses,
but
rather provide alternative ways of proving the criminal nature of the
charged
misconduct).
(in order to plead guilty to
knowingly possessing
or receiving child pornography in violation of the Child Pornography
Prevention
Act under Article 134, UCMJ, it is no longer enough to knowingly
possess or
receive visual depictions that "appear to be" of a minor engaging in
sexually explicit conduct; in the wake of Ashcroft v. Free Speech
Coalition,
535 U.S. 234 (2002), the relevant provisions the CCPA require that the
visual
depiction be of an actual minor engaging in sexually explicit conduct;
the
"actual" character of the visual depictions is now a factual
predicate to any plea of guilty under the CPPA).
United States v. Ogren, 54 MJ 481 (Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, requires that the Government prove two essential elements beyond a reasonable doubt: (1) that the threat rendered was a "true" threat, and (2) that the threat was knowing and willful).
(under Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, only “true threats” satisfy the statute’s threshold of criminal conduct and put the conduct beyond the protections of the First Amendment; whether a statement is a “true threat” is determined by (1) the context, (2) whether the threat is expressly conditional in nature, and (3) the reaction of the listeners).
(under Section 871(a) of Title 18, United States Code, prohibiting threatening the President of the United States, the threat must be “knowing and willful”; whether a threat is knowing and willful is determined by an objective test requiring only that the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President).
(appellant’s threats against the President of the United States, made while appellant was in pretrial confinement, where legally sufficient for a rational trier of fact to find that appellant threatened the life of the President, in violation of 18 USC § 871(a), where: (1) the threats were “true threats” in that they were not conditional and the specific context as well as the reaction of the listeners set these words apart from appellant’s other expressions; and (2) the threats were knowing and willful because appellant should have reasonably foreseen that his threats would be understood to be more than a crude method of responding to his confinement).
2000
United
States v. Sapp, 53
MJ 90 (the three clauses of
Article 134
do not create separate offenses; instead, they provide alternative ways
of
proving the criminal nature of the charged misconduct).
(conduct which violates no specific statute may still be an offense
under
Article 134 if it is found to be prejudicial to good order and
discipline or if
it is of a nature to bring discredit upon the armed forces).
(knowing possession of
images depicting sexually explicit conduct by
minors,
when determined to be service-discrediting conduct, is a violation of
Article
134).
United
States v. Augustine,
53 MJ 95 (a finding of the
lesser-included offense of knowing possession of images depicting
sexually
explicit conduct by minors, a violation of Article 134, could be
affirmed where
appellant admitted during the providence inquiry on a charge of
violating 18
USC § 2252(a) that such conduct was prejudicial to good order and
discipline
and that it was of a nature to bring discredit upon the armed forces).
United
States v. Murray,
52 MJ 423 (evidence legally sufficient to support
appellant’s conviction under 18 USC § 2252(a)(2) for unlawful receipt
of sexually explicit depictions of minors from the Internet,
specifically
finding legally sufficient evidence of the appellant’s knowing receipt
of the sexually explicit depictions of minors and sufficient evidence
that
the images passed through interstate commerce).
1999