UNITED STATES, Appellee
v.
Robert J. MEDINA, Staff Sergeant
U.S. Army, Appellant
No. 07-0096
Crim. App. No. 20040327
United States Court of Appeals for the Armed Forces
Argued October 1, 2007
Decided February 14, 2008
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain Teresa L. Raymond (argued); Lieutenant
Colonel Steven C. Henricks and Major Sean F. Mangan (on brief);
Colonel John T. Phelps II, Major Billy B. Ruhling II, and
Captain Tyesha E. Lowery.
For Appellee: Captain Adam S. Kazin (argued); Colonel John W.
Miller II, Major Tami L. Dillahunt, Major Elizabeth G. Marotta
(on brief); Captain Mason S. Weiss.
Military Judge: Robert L. Swann
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Medina, No. 07-0096/AR
Judge BAKER delivered the opinion of the Court.
Pursuant to his pleas, Appellant was convicted by general
court-martial before a military judge of three specifications of
possessing and transporting child pornography and coercing a
minor to produce child pornography in violation of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000);
four specifications of indecent acts with a minor also in
violation of Article 134, UCMJ; and disobeying a noncommissioned
officer, in violation of Article 91, UCMJ, 10 U.S.C. § 891
(2000). The child pornography offenses alleged violations of
the Child Pornography Prevention Act (CPPA), 18 U.S.C. §§
2251(a), 2252A(a)(1), 2252A(a)(5)(A) (2000), as crimes and
offenses not capital under clause 3 of Article 134, UCMJ. The
adjudged sentence included a dishonorable discharge, confinement
for twenty-five years, forfeiture of all pay and allowances, and
reduction to E-1. Pursuant to a pretrial agreement, the
convening authority approved only so much of the sentence
providing for a dishonorable discharge, confinement for fifteen
years, and reduction to E-1. The United States Army Court of
Criminal Appeals amended the findings of two of the CPPA
offenses and affirmed lesser included offenses under clause 2 of
Article 134, UCMJ. It then affirmed the remaining findings and
the sentence as approved. United States v. Medina, No. ARMY
20040327, slip op. at 6 (A. Ct. Crim App. Aug 31, 2006).
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Appellant’s petition was granted on the following issue
specified by the Court:
WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN
AMENDING SPECIFICATIONS 2 AND 3 OF CHARGE I FROM
VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND
OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134,
UCMJ, CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDS AN
ELEMENT TO THE OFFENSES IN CONTRAVENTION OF APPRENDI
V. NEW JERSEY, 530 U.S. 466 (2000), JONES V. UNITED
STATES, 526 U.S. 227 (1999), AND SCHMUCK V. UNITED
STATES, 489 U.S. 705 (1989).
BACKGROUND
Appellant was charged, among other things, with three
violations of the CPPA as offenses under clause 3 of Article
134, UCMJ. Specifically, it was alleged that he did “knowingly
mail, transport, or ship in interstate or foreign commerce child
pornography, in violation of Title 18, U.S. Code Section
2252A(a)(1)” and that he did “coerce [BM], a minor, to engage in
sexually explicit conduct for the purpose of producing visual
depictions of such conduct for the purpose of transporting said
visual depictions in interstate or foreign commerce, in
violation of Title 18, U.S. Code Section 2251(a).”1
1
The two specifications at issue in the case, Specifications 2
and 3 of Charge I, are set out in relevant part as follows:
Specification 2: In that [Appellant] did, at or near
Vilseck, Germany, and Fort Knox, Kentucky, on divers
occasions between on or about 1 October 2002 and on or
about 30 September 2003, knowingly mail, transport or
ship in interstate or foreign commerce child
pornography, in violation of Title 18, U.S. Code
Section 2252A(a)(1).
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During the plea inquiry into these offenses, the military
judge described the elements of the two Title 18 offenses. For
the first offense he advised Appellant of the following elements
of 18 U.S.C. § 2252A(a)(1):
(1) that at Vilseck, Germany and Fort Knox the accused
knowingly mailed or transported or shipped child
pornography in interstate or foreign commerce by some
means;
(2) that at the time the accused knew the material [he was]
mailing, transporting or shipping was, in fact, child
pornography;
(3) that the accused’s acts were wrongful; and
(4) that at the time, Title 18 U.S.C. § 2252A(a)(1) was in
existence;
The military judge also gratuitously added an additional fifth
element of service discrediting conduct and conduct prejudicial
to good order and discipline for each offense:
(5) that the accused’s conduct was conduct prejudicial to
good order and discipline or of a nature to bring discredit
upon the armed forces.
Specification 3: In that [Appellant] did, at or near
Vilseck, Germany, and Fort Knox, Kentucky, on divers
occasions between on or about 1 October 2002 and on or
about 30 September 2003, coerce [BM], a minor, to
engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct for the
purpose [of] transporting said visual depictions in
interstate or foreign commerce, in violation of Title
18, U.S. Code Section 2251(a).
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United States v. Medina, No. 07-0096/AR
With regard to the clause 1 and 2 aspect of the offense the
colloquy between the military judge and Appellant went as
follows:
MJ: Do you agree that your mailing and transporting and
shipping in interstate or foreign commerce the
photographs of your daughter on divers occasions at
Vilseck, Germany and Fort Knox, Kentucky between on or
about 1 October 2002 and on or about 30 September 2003
was conduct prejudicial to good order and discipline
or service discrediting conduct?
ACC: Yes, your Honor.
MJ: Service discrediting conduct, again?
ACC: Yes, your Honor.
MJ: Why do you believe that?
ACC: It’s not something that professional soldiers should
do, Your Honor.
Regarding Specification 3, the military judge advised Appellant
as follows, again gratuitously adding the service discrediting
element:
(1) that the accused coerced BM to engage in sexually
explicit conduct;
(2) that the accused’s purpose in coercing BM to engage in
this behavior was to produce a visual depiction of
that conduct;
(3) that at the time, the accused knew that by taking
these pictures, these photographs constituted child
pornography;
(4) that the accused intended to transport these visual
depictions in interstate or foreign commerce;
(5) that the accused’s actions were wrongful;
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United States v. Medina, No. 07-0096/AR
(6) that the accused knew that BM was under the age of
eighteen; and
(7) that the accused’s conduct was prejudicial to good
order and discipline or of a nature to bring discredit
upon the armed forces.
The colloquy between the military judge and Appellant on the
last element was as follows:
MJ: Now, do you believe that your activities here were
prejudicial to good order and discipline or service
discrediting conduct?
ACC: Yes, your Honor.
MJ: Why do you believe that?
ACC: It makes the Army look bad in front of the eyes of the
public, Your Honor.
The final element as given by the military judge for each of the
offenses was not an essential element of either of the statutory
offenses charged under Title 18.
On appeal, the lower court, citing our decision in United
States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005), declined to
affirm the findings as crimes and offenses not capital in
violation of clause 3 of Article 134, UCMJ, on the ground that
the CPPA provisions violated did not have extraterritorial
application to Appellant’s actions in Germany. Medina, No. ARMY
20040327, slip op. at 4 n.4. However, the lower court
“conform[ed] the findings to the evidence adduced during the
plea inquiry,” and affirmed the findings of guilty of
Specifications 2 and 3 of Charge I, as amended, as lesser
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United States v. Medina, No. 07-0096/AR
included offenses under clause 2 of Article 134, UCMJ. Medina,
No. ARMY 20040327, slip op. at 5-6.2
The question implicitly raised by the specified issue is
whether Appellant’s guilty pleas to violations of Article 134,
UCMJ, clause 2 were knowing and voluntary where Appellant
admitted the service discrediting nature of his conduct in
pleading guilty to the offenses alleged under clause 3.
DISCUSSION
A. Lesser Included Offenses
A lesser included offense is defined in Article 79, UCMJ,
10 U.S.C. § 879 (2000), as “an offense necessarily included in
the offense charged.” “[A]ny reviewing authority with the power
to approve or affirm a finding of guilty may approve or affirm,
2
The Army court amended the findings of guilt to Specification 2
as follows:
In that [Appellant] did, at or near Vilseck, Germany
and Fort Knox, Kentucky, . . . knowingly mail
transport, or ship child pornography in interstate or
foreign commerce, which conduct was of a nature to
bring discredit upon the armed forces in violation of
Article 134, UCMJ.
And Specification 3 as follows:
In that [Appellant] did, at or near Vilseck, Germany,
and Fort Knox, Kentucky, . . . coerce BM, a minor, to
engage in sexually explicit conduct for the purpose of
producing visual depictions of such conduct and
transporting said visual depictions in interstate or
foreign commerce, which conduct was of a nature to
bring discredit upon the armed forces in violation of
Article 134, UCMJ.
7
United States v. Medina, No. 07-0096/AR
instead, so much of the finding as includes a lesser included
offense.” Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2000).
The Government argues, as the lower court concluded, that
Article 134(2), UCMJ, is inherently a lesser included offense of
Article 134(3), UCMJ. Thus, Appellant was on notice that a plea
to an offense alleged under Article 134(3), UCMJ, was, by
operation of law, a voluntary and knowing plea to the lesser
included offenses within the scope of the plea inquiry.
Appellant argues that the military judge erred in adding an
additional element of discrediting conduct to the clause 3
offense and then failing to advise the Appellant as to the
significance of the additional element with respect to a
potential clause 2 offense.
To determine whether a lesser offense is necessarily
included in the offense charged this Court applies the “elements
test” derived from United States v. Schmuck, 489 U.S. 705, 716
(1989). United States v. Teters, 37 M.J. 370, 376 (C.M.A.
1993). “[T]he comparison to be drawn is between offenses.
Since offenses are statutorily defined, that comparison is
appropriately conducted by reference to the statutory elements
of the offenses in question, and not, as the inherent
relationship approach would mandate, by reference to conduct
proved at trial regardless of the statutory definitions.”
Schmuck, 489 U.S. at 716-17 (emphasis omitted). “One offense is
8
United States v. Medina, No. 07-0096/AR
not ‘necessarily included’ in another unless the elements of the
lesser offense are a subset of the elements of the charged
offense.” Id. at 716.
This case tests whether an offense arising under clauses 1
and/or 2 of Article 134, UCMJ, depending on the facts,
necessarily stands as an included offense to an offense arising
under clause 3 of Article 134, UCMJ.3
If, as the Government argues, a clause 1 or 2 offense is
always a lesser included offense of every federal offense
charged under clause 3, then the situation is no different than
the typical situation when a lesser offense is ultimately
affirmed when the plea colloquy fails to sustain the greater
offense. However, if clauses 1 and 2 are not lesser included
offenses under clause 3, but rather alternative means or
theories of violating Article 134, UCMJ, then the accused must
be so advised and must agree to admit his conduct satisfies the
alternate legal theory of guilt under Article 134, UCMJ.
Clauses 1 and 2 of Article 134, UCMJ, require two elements
of proof:
If the conduct is punished as a disorder or neglect to
the prejudice of good order and discipline in the
armed forces, or of a nature to bring discredit upon
3
Thus, our conclusions and analysis are limited in their reach
to this question. Whether, and if so, how this analysis applies
to Article 134, UCMJ, offenses as lesser included offenses to
the enumerated offenses of the UCMJ (Articles 80-132, UCMJ,
U.S.C. §§ 880-932 (2000)) are not issues before this Court.
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United States v. Medina, No. 07-0096/AR
the armed forces, then the following proof is
required:
(1) That the accused did or failed to do certain
acts; and
(2) 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.
Manual for Courts-Martial, United States pt. IV, para. 60.b
(2005 ed.). A clause 3 offense, of course, incorporates the
elements of the federal offense in question.
As a starting point, it is evident that the elements of
clauses 1 and 2 are not textually contained within the clause 3
offenses charged in this case. This leaves open the possibility
that the elements of disorder and discredit are in some manner
implicitly included in any offense arising under clause 3. The
UCMJ does not answer the question and our case law provides
arguments on both sides of this issue.
On the one hand, in United States v. Sapp, 53 M.J. 90, 92
n.2 (C.A.A.F. 2000), this Court suggested that the elements of
prejudice to good order and discipline and discredit to the
armed forces were as implicit under an offense under clause 3 as
United States v. Foster, 40 M.J. 140, 143 (C.M.A. 1994), stated
they were under the enumerated offenses. In Sapp, the accused
pleaded guilty to an offense of possession of child pornography
charged under clause three of Article 134, UCMJ, incorporating
10
United States v. Medina, No. 07-0096/AR
18 U.S.C. § 2252(a)(4)(A) (2000). The accused admitted all the
elements satisfying the requirements of the Title 18 offense.
He also admitted that his conduct was service discrediting.
Sapp, 53 M.J. at 91. On appeal, the Court of Criminal Appeals
concluded that the military judge had improperly explained the
elements of the federal statute and affirmed instead the “lesser
included offense” of service discrediting conduct. Id. This
Court affirmed on the ground that the offense of service
discrediting conduct was an offense “closely related” to a
violation of the federal statute under the facts of that case.
Id. at 92-93. However, this Court also seemed to embrace the
lower court’s reasoning, stating:
Article 59(b), UCMJ, 10 U.S.C. § 859(b), provides: “Any
reviewing authority with the power to approve or affirm a
finding of guilty may approve or affirm, instead, so much
of the finding as includes a lesser included offense.”
That is exactly what the Court of Criminal Appeals did in
this case, and properly so.
Id. The analysis in Sapp has been endorsed in subsequent cases
as well. See United States v. Martinelli, 62 M.J. 52, 66-67
(C.A.A.F. 2005); United States v. Hays, 62 M.J. 158, 168
(C.A.A.F. 2005); United States v. Reeves, 62 M.J. 88, 95
(C.A.A.F. 2005); United States v. Mason, 60 M.J. 15, 18-19
(C.A.A.F. 2004); United States v. O’Connor, 58 M.J. 450, 454
(C.A.A.F. 2003); United States v. Augustine, 53 M.J. 95, 96
(C.A.A.F. 2000). Therefore, it might follow from Sapp that if
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United States v. Medina, No. 07-0096/AR
service discrediting conduct is an implicit element to a
violation of an enumerated offense under the UCMJ, as stated in
Foster, 40 M.J. at 143, then arguably an offense “incorporated”
into the UCMJ through operation of clause 3 necessarily bears
the same implicit element.
On the other hand, Sapp can be read to support an
alternative reading of Article 134, UCMJ. For example, in Sapp,
the Court stated, “The three clauses do not create separate
offenses. Instead, they provide alternative ways of proving the
criminal nature of the charged misconduct.”4 Sapp, 53 M.J. at
92. This view is consistent with the view first stated in
United States v. Herndon, 1 C.M.A. 461, 463, 4 C.M.R. 53, 55
(1952), and confirmed later in O’Connor.5 58 M.J. at 452.
Viewing the clauses of Article 134, UCMJ, as alternative
theories of prosecution is consistent with the elements test of
Teters, for as noted above, the elements of an offense under
4
The common law moves in small and necessary steps, with courts
tending to address only the issue immediately before them. In
fairness to the parties, cases of the lower courts as well as
this Court have not previously focused on the particular
distinctions identified here between closely related offenses,
lesser included offenses, and alternative theories of proof.
The Sapp opinion, for example, appears to conflate the concepts
by suggesting that since the clause three offense and the clause
two offense are “closely related,” they are lesser included
offenses.
5
The clauses of Article 134, UCMJ, have also been described as
“three classes of offenses.” United States v. Long, 2 C.M.A.
60, 65, 6 C.M.R. 60, 65 (1952).
12
United States v. Medina, No. 07-0096/AR
clauses 1 or 2 are not textually included as “subsets” of an
offense charged as a crime or offense not capital. Moreover,
there is no indication that Congress codified any of the
numerous offenses contained in the United States Code with the
concepts of service discrediting conduct or good order in the
military in mind. Obviously, in the case of a civilian
prosecution the government need not prove the elements of
service disorder or discrediting conduct. Nor are such elements
implied. This conclusion is also consistent with the manner in
which state crimes are assimilated under clause 3 of Article
134, UCMJ. “Not every violation of a state statute is
discrediting conduct.” United States v. Rowe, 13 C.M.A. 302,
308, 32 C.M.R. 302, 308 (1962); United States v. Grosso, 7 C.M.A
566, 571, 23 C.M.R. 30, 35 (1957).
Based on the foregoing, we conclude that clauses 1 and 2
are not necessarily lesser included offenses of offenses alleged
under clause 3, although they may be, depending on the drafting
of the specification. This reasoning is further buttressed by
the principle of fair notice when pleading.
B. Fair Notice
The providence of a plea is based not only on the accused’s
understanding and recitation of the factual history of the
crime, but also on an understanding of how the law relates to
those facts. United States v. Care, 18 C.M.A. 535, 538-39, 40
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United States v. Medina, No. 07-0096/AR
C.M.R. 247, 250-51 (1969). A voluntary and knowing
relinquishment of the constitutional rights an accused waives in
pleading guilty is not possible without knowledge of the nature
of the charges brought against him or her, including by
implication any applicable lesser included offenses. Id.;
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Thus, for the
purposes of 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.
Where an offense is a lesser included offense of the
charged offense, an accused is by definition on notice because
it is a subset of the greater offense alleged. However, where a
distinct offense is not inherently a lesser included offense,
during the guilty plea inquiry the military judge or the charge
sheet must make the accused aware of any alternative theory of
guilt to which he is by implication pleading guilty.6
6
While we remain satisfied with the plea inquiries in the Sapp
line of cases, we take this opportunity to clarify what the
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Similarly, in a contested case, 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 under clauses 1 or 2 in the event the clause 3 theory is
invalidated. United States v. Smith, 21 C.M.A. 264, 267, 45
C.M.R. 38, 41 (1972); United States v. Mayo, 12 M.J. 286, 292
(C.M.A. 1982). 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. United States v. Riley,
50 M.J. 410, 415 (C.A.A.F. 1999).
C. Applying the Analysis to This Case
In this case, Appellant was not advised during the plea
inquiry that in addition to pleading guilty to the incorporated
offenses under 18 U.S.C. §§ 2251 and 2552A, he was by
implication also pleading guilty to Article 134(2) UCMJ,
offenses not charged or otherwise included in the specification
as drafted. Moreover, while we know that Appellant admitted to
service discrediting conduct in the context of pleading guilty
standard should be in these types of cases and that in the
future, we will review these cases under this standard to ensure
that the plea is knowing and voluntary to any alternate theories
under Article 134, UCMJ, before a conviction will be affirmed
under that theory.
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United States v. Medina, No. 07-0096/AR
to the violations of Title 18, we do not know whether he would
have done so with the knowledge that he was not required to
admit his conduct satisfied the alternate theory under Article
134(2).7 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.
It is intuitive that the viewing of child pornography
discredits those who do it, as well as the institutions with
which those persons are identified. It is also clear that
Appellant admitted to conduct that is discrediting. However, it
is less intuitive that he knowingly and voluntarily pled guilty
to an Article 134(2), UCMJ, offense standing alone. That is
because Appellant’s admission of discrediting conduct was in the
context of admitting guilt to a violation of Title 18. In other
words, there is no indication in the record that Appellant was
apprised or understood that he was not required to admit that
his conduct charged under clause 3 was also service
discrediting.
The point is better illustrated in a somewhat different and
less visceral criminal context. For example, the Endangered
Species Act, 16 U.S.C. § 1531-1544 (2000), authorizes criminal
7
Of course, the parties may agree pursuant to a pretrial
agreement that during the plea inquiry the accused will admit
his conduct satisfies the requirements of clauses 1 and 2 of
Article 134, UCMJ.
16
United States v. Medina, No. 07-0096/AR
sanctions for taking or possessing, among other things, a
variety of wildlife species listed by the Secretary of the
Interior as endangered. Presumably, an accused could be charged
and could plead guilty to violations of this act under the
“crimes or offenses not capital” clause of Article 134, UCMJ.
As in this case, he might even agree that his conduct was
service discrediting. If, however, on appeal it is discovered
that the particular species was, for instance, removed from the
list before the date of the alleged offense, then the accused
would only stand convicted of conduct that without the express
proscription under federal law would not otherwise be criminal
under the United States Code.
The approach we take today builds on Mason and Martinelli,
which were both decided after Sapp. In Martinelli we said:
the record must conspicuously reflect that the accused
“clearly understood the nature of the prohibited conduct”
as being in violation of clause 1 and clause 2, Article
134, apart from how it may or may not have met the elements
of the separate criminal statute underlying the clause 3
charge.
62 M.J. at 67. In Mason we concluded:
The record here thus contains what was missing in O’Connor
and was present in both Sapp and Augustine. The plea
colloquy between the military judge and Mason demonstrates
that he ‘clearly understood the nature of the prohibited
conduct’ in terms of that conduct being service-
discrediting and prejudicial to good order and discipline.
Those clause 1 and clause 2 elements were explained to him
as a basis for finding his conduct criminal apart from
clause 3 and his discussions with and admissions to the
military judge were made in that context.
17
United States v. Medina, No. 07-0096/AR
60 M.J. at 19 (citation omitted). For sure these cases involve
particular constitutional considerations arising out of Ashcroft
v. Free Speech Coalition, 535 U.S. 234 (2002), pertaining to the
relationship between conduct that might be protected by the
First Amendment in civilian life, but in the military context is
criminally sanctioned under Article 134(1) and (2), UCMJ.
However, the underlying principle is the same. An accused must
know to what offenses he is pleading guilty. Today we conclude
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.
Here, Appellant admitted conduct that was service
discrediting, but he did so without knowledge that in pleading
guilty to the Article 134(3), UCMJ, offenses, he was not
required to plead guilty to service discrediting conduct under
Article 134(2), UCMJ. However, it is unclear why the lower
court felt compelled to resort to clause 2 in the first place.
As the court itself observed, “the record contains ample
evidence to find that appellant committed CPPA violations as
alleged on divers occasions within the United States,” i.e.,
Fort Knox, Kentucky. Medina, No. ARMY 20040327, slip op. at 4.
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DECISION
The decision of the United States Army Court of Criminal
Appeals is set aside as to the sentence and the findings of
guilty to Specifications 2 and 3 of Charge I. The decision with
respect to the remaining findings is affirmed. The record of
trial is returned to the Judge Advocate General of the Army for
remand to that court to determine, in light of our decision,
whether any part of Specifications 2 and 3 of Charge I can be
affirmed and whether in any event, reassessment of the sentence
is necessary.
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STUCKY, Judge (dissenting):
I agree with the majority that the Army Court of Criminal
Appeals erred by amending the specification that was referred
against Appellant. But I dissent from the analysis of Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934
(2000), and the majority’s conclusion that Appellant’s guilty
plea was improvident.
I.
Article 134, UCMJ, provides as follows:
Though not specifically mentioned in this chapter, [1]
all disorders and neglects to the prejudice of good
order and discipline in the armed forces, [2] all
conduct of a nature to bring discredit upon the armed
forces, and [3] crimes and offenses not capital, of
which persons subject to this chapter may be guilty,
shall be taken cognizance of by a general, special, or
summary court-martial, according to the nature and
degree of the offense, and shall be punished at the
discretion of that court.
The majority concludes that “clauses 1 and 2 are not necessarily
lesser included offenses of offenses alleged under clause 3,
although they may be depending on the drafting of the
specification.” I disagree.
In Schmuck v. United States, 489 U.S. 705 (1989), the
Supreme Court announced that one offense is not a lesser
included offense of another “unless the elements of the lesser
offense are a subset of the elements of the charged offense.”
Id. at 716. And “[s]ince offenses are statutorily defined, that
United States v. Medina, No. 07-0096/AR
comparison is appropriately conducted by reference to the
statutory elements of the offenses in question.” Id. The plain
language of Article 134, UCMJ, makes evident that the statute
does not describe three separate offenses or theories of
prosecution. Instead, it describes three distinct classes of
offenses not otherwise described in the punitive articles of the
UCMJ. Clause 1 makes criminal conduct that is prejudicial to
good order and discipline in the armed forces, while clause 2
makes criminal conduct that is service discrediting. That the
conduct was prejudicial to good order and discipline or was
service discrediting is an element of the offense. Clause 3
offenses do not require either of those elements; rather, they
require that the accused’s conduct be a non-capital offense that
is either (1) a violation of the United States Code that is
applicable to servicemembers regardless of where the wrongful
conduct occurred, or (2) a violation of federal law applicable
at the place of the offense or of state criminal statute
applicable to an accused under the Federal Assimilative Crimes
Act. Manual for Courts-Martial, United States (MCM) pt. IV,
para. 60.c.(4) (2005 ed.).
A particular act or omission may be a crime or offense not
capital under clause 3 and still be prejudicial to good order
and discipline or service discrediting. The three clauses may
overlap in their coverage, but they are not coextensive, and one
2
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is not a lesser element of either of the others. As each of the
three classes of offenses under Article 134, UCMJ, requires a
different element, a clause 1 or clause 2 offense is not a
lesser included offense of a clause 3 offense.
II.
The specifications at issue alleged that at Vilseck,
Germany, and Fort Knox, Kentucky, Appellant (1) knowingly
mailed, transported, or shipped in interstate or foreign
commerce child pornography, in violation of 18 U.S.C. §
2252A(a)(1) (2000) (Specification 2), and (2) coerced a minor to
engage in sexually explicitly conduct for the purpose of
transporting a visual depiction of such conduct in interstate or
foreign commerce in violation of 18 U.S.C. § 2251(a) (2000)
(Specification 3).1
Neither specification alleged that such conduct was
prejudicial to good order and discipline or service
discrediting. That is not surprising in light of the MCM’s
direction that “[a] specification alleging a violation of
Article 134 need not expressly allege that the conduct was ‘a
disorder or neglect,’ that it was ‘of a nature to bring
_____________________
1
It is a mystery to me why, after this Court’s ten-year history
of invalidating convictions for child pornography offenses under
clause 3, and of upholding convictions for such offenses under
clause 2, we continue to see cases charged under clause 3.
3
United States v. Medina, No. 07-0096/AR
discredit upon the armed forces,’ or that it constituted ‘a
crime or offense not capital.’” MCM pt. IV, para. 60.c.(6)(a).
“A specification is sufficient if it alleges every element
of the charged offense expressly or by necessary implication.”
Rule for Courts-Martial (R.C.M.) 307(c)(3). By citation to the
federal statutes, the specifications at issue in this case
allege, by necessary implication, in crimes or offenses not
capital, in violation of clause 3. The language of the two
specifications does not state or necessarily imply that the
conduct was also prejudicial to good order and discipline or
service discrediting.
Nevertheless, this was a guilty plea, not a contested case.
During the providence inquiry, the military judge advised
Appellant of the elements of child pornography specifications as
clause 3 offenses but added two additional elements -- that
Appellant’s conduct was prejudicial to good order and discipline
or service discrediting. Without reservation, Appellant
admitted to these elements. He told the military judge that his
conduct was “not something professional soldiers should do”
(Specification 2) and “[i]t makes the Army look bad in front of
the eyes of the public” (Specification 3). By doing so,
Appellant admitted his conduct established violations of clause
1 or clause 2 under Article 134, UCMJ. Even though he was not
charged with violating either clause 1 or clause 2, his
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admissions are sufficient to sustain the military judge’s
conclusion that the plea was provident. See United States v.
Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000) (concluding that the
appellant’s plea inquiry established his guilt to clause 2 of
Article 134, UCMJ, when he was charged under clause 3); United
States v. Felty, 12 M.J. 438, 441-42 (C.M.A. 1982) (holding that
when the appellant’s guilty plea to escape from custody in
violation of Article 95(4), UCMJ, 10 U.S.C. § 895(4), could not
be sustained but his answers during the providence inquiry
established his guilt of escape from confinement in violation of
Article 95(4), UCMJ, “the technical variance between the offense
alleged and that which is established from an accused’s own lips
does not require setting aside the plea of guilty”).
The majority states that an accused cannot knowingly
relinquish the constitutional rights he waives in pleading
guilty without full knowledge of the nature of the charges
brought against him. I disagree. An accused need only have
full knowledge of the nature of the charges to which he pled
guilty. The military judge’s inquiry was sufficient for
Appellant to fully understand that he was pleading guilty under
Article 134, UCMJ, to (1) knowingly mailing, transporting, or
shipping child pornography, and (2) coercing a minor to engage
in sexually explicitly conduct for the purpose of transporting
visual depictions of conduct, and (3) that such conduct was
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prejudicial to good order and discipline or service
discrediting. Therefore, I would affirm the convictions of
Specification 2 under clause 1 and Specification 3 under
clause 2.
6