2023 (October Term)
United States v. Wells, 85 M.J. 154 (Article 134, UCMJ, creates three different types of crimes, commonly referred to as Clauses 1, 2, and 3 offenses; clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces; clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces; and clause 3 offenses involve noncapital crimes or offenses which violate federal law, including law made applicable through the Federal Assimilative Crimes Act).
(in this case, for appellant to be found guilty of the offense of extramarital sexual conduct, charged under clause 2 of Article 134, UCMJ, the government was required to prove beyond a reasonable doubt that appellant: (1) wrongfully engaged in extramarital conduct with the victim; (2) appellant knew at the time that he was married to someone else; and (3) under the circumstances, the conduct was of a nature to bring discredit upon the armed forces).
(a conviction under a clause 2 service discrediting theory does not require proof of the public's knowledge of an accused's conduct; the focus of clause 2 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; the government need not prove anyone was aware of an accused's conduct or to specifically articulate how the conduct is service discrediting; instead, the government must introduce sufficient evidence of the accused's allegedly service discrediting conduct to support a conviction; whether conduct is of a nature to bring discredit upon the armed forces is a question that depends on the facts and circumstances of the conduct).
(in this case, even though the victim's testimony at trial revealed that her personal opinion of the armed forces was untarnished by appellant's actions, there was sufficient evidence for the trier of fact to determine beyond a reasonable doubt that appellant's conduct under the facts and circumstances would tend to bring the service into disrepute if it were known; appellant's sexual relationship with the victim was neither private nor discreet and therefore tended to bring the service into disrepute; the evidence established that appellant showed a video of his extramarital sexual conduct to others and made it available to the general public to view on a website; as the video depicts appellant engaging in intimate sexual acts with the victim, it was strong evidence of the open or notorious nature of the extramarital conduct; the victim's opinion did not operate to contradict or minimize the service discrediting nature of appellant's conduct but merely reflected the opinion of one person).
(whether any given conduct violates clause 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; it cannot be conclusively presumed from any particular course of conduct).
United States v. Grijalva, 84 M.J. 433 (the first clause of Article 134, UCMJ, which addresses conduct that is contrary to good order and discipline, is not void for vagueness and that the government can use the first clause of Article 134, UCMJ, to punish some speech that might otherwise be protected in civilian life; however, the very broad reach of the literal language of the first clause of Article 134, UCMJ, has been narrowed such that it only applies to conduct that is directly and palpable - as distinguished from indirectly and remotely - prejudicial to good order and discipline).
(if the government attempts to use the second clause of Article 134, UCMJ, to punish speech that would be impervious to criminal sanction in the civilian world, the government must prove a direct and palpable connection between the speech and the military mission or military environment; his requirement exists to strike the proper balance between the essential needs of the armed services and the right to speak out as a free American).
(a specification alleging that appellant violated the service discrediting clause of Article 134, UCMJ, by broadcasting intimate visual images of a civilian without her explicit consent was preempted by Article 117a, UCMJ, where the elements of both are virtually the same; Article 117a, UCMJ, covers the offense of broadcasting intimate images without the consent of the person depicted and the same conduct cannot be charged under Article 134, UCMJ; any differences between the specification alleged under Article 134, UCMJ, and Article 117a, UCMJ, were illusory where (1) the use of the words without her explicit consent implied that the victim was at least 18 years of age and old enough to consent and (2) the government was required to prove a military connection because it alleged conduct implicating the First Amendment in the civilian context).
(the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ; in this case, there was no congressional intent to allow conduct already punishable by Article 117a, UCMJ, to also be punishable by Article 134, UCMJ).
United States v. Rocha, 84 M.J. 346 (Article 134, among other things, criminalizes service discrediting conduct by servicemembers).
(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).
2021 (October Term)
United States v. Richard, 82 M.J. 473 (to obtain a conviction for producing, possessing, and distributing child pornography charged under Article 134, UCMJ, the government is required to prove beyond a reasonable doubt both that appellant engaged in the alleged conduct and that the general article’s “terminal element” was satisfied, meaning that the conduct either: (1) prejudiced good order and discipline in the armed forces; (2) was of a nature to bring discredit upon the armed forces; or (3) was otherwise a noncapital crime or offense).
(it is well established that the terminal element of the general article is an essential element of the offense).
(Article 134, UCMJ, only applies to conduct that is directly and palpably, as distinguished from indirectly and remotely, prejudicial to good order and discipline).
(the three clauses of the terminal element of Article 134, UCMJ, are separate and distinct, and disorders and neglects to the prejudice of good order and discipline is not synonymous with conduct of a nature to bring discredit upon the armed forces).
(no misconduct can be considered per se prejudicial to good order and discipline under Article 134, UCMJ).
(with respect to misconduct that is prejudicial to good order and discipline under Article 134, the misconduct must be activity against good order that affects the condition of tranquility, security, and good government of the military service).
(prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused).
(in this case, where the government charged appellant with producing, possessing, and distributing child pornography under Article 134, UCMJ, and elected to charge only that appellant’s conduct was prejudicial to good order and discipline as the terminal element, appellant’s child pornography-related convictions under the general article were not legally sufficient where the government failed to proffer any evidence at appellant’s court-martial that demonstrated how appellant’s behavior prejudiced good order and discipline, and instead focused on proving the solely that appellant had engaged in the alleged misconduct).
United States v. Moratalla, 82 M.J. 1 (Article 134, UCMJ, extends court-martial jurisdiction over noncapital crimes or offenses which violate federal law; one such federal offense is contained in the federal bank fraud statute, which makes it a crime to knowingly execute, or attempt to execute, a scheme or artifice (1) to defraud a financial institution, or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises).
(the bank fraud statute punishes not only completed frauds, but also fraudulent schemes, including attempted fraudulent schemes).
(just as an accused’s belief in the truth of the misrepresentations may negate intent to defraud, an accused’s belief in the falsity of his or her statements tends to establish the intent to defraud).
(appellant’s guilty plea to bank fraud under 18 U.S.C. § 1344 and charged under Article 134, UCMJ, was provident where the military judge established during the plea colloquy that (1) in order for appellant to secure funds for a house flipping business, she enlisted the help of a co-worker who agreed to apply for a loan at a credit union and to falsely represent to the credit union that he would use the loan proceeds to purchase appellant’s vehicle, (2) appellant had the specific intent to defraud the credit union, and (3) appellant took a substantial step in furtherance of the scheme to defraud when she met with the co-worker at the credit union to apply for the loan; contrary to appellant’s argument, it was irrelevant to the disposition of this case whether or not appellant actually sold her vehicle to the co-worker when she transferred the title to him after the bank loan had been secured; at the time of the application for the bank loan, appellant subjectively believed that her actions would not effect a car sale and intended that the credit union would rely to its detriment on representations she believed to be false; such actions clearly amounted to an attempt to execute a scheme to defraud the credit union, and the bank fraud statute punishes not only completed frauds, but also fraudulent schemes, including attempted fraudulent schemes; thus there was nothing in the record that raised a substantial question regarding appellant’s guilty plea).