UNITED STATES, Appellee
v.
Patrick M. LEONARD Jr., Airman First Class
U.S. Air Force, Appellant
No. 06-0615
Crim. App. No. 35740
United States Court of Appeals for the Armed Forces
Argued January 9, 2007
Decided March 20, 2007
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ., joined. BAKER, J., filed a
separate opinion concurring in part and in the result.
Counsel
For Appellant: Frank J. Spinner, Esq. (argued); Lieutenant
Colonel Mark R. Strickland and Major Anniece Barber (on brief).
For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce and Lieutenant Colonel Robert V. Combs (on
brief).
Military Judge: R. Scott Howard
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Leonard Jr., No. 06-0615/AF
Judge RYAN delivered the opinion of the Court.
This case presents the question whether the maximum
punishment for an offense charged under Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), clauses
1 and 2, and not otherwise listed in the Manual for Courts-
Martial, United States pt. IV, paras. 60-113 (2005 ed.) (MCM),
may be determined by reference to the maximum punishment for
violation of a federal statute that proscribes and criminalizes
the same criminal conduct and mental state included in the
specification. Answering that question in the affirmative, we
hold that the military judge’s calculation of the maximum
punishment in this case was correct and affirm the decision of
the court below.
A. Background
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his plea, of wrongfully
and knowingly receiving visual depictions of minors engaging in
sexually explicit conduct, which conduct was prejudicial to good
order and discipline or of a nature to bring discredit upon the
armed forces in violation of Article 134, UCMJ. During the
providence inquiry, Appellant admitted that he wrongfully and
knowingly received from the Internet, and downloaded onto his
home computer in South Dakota, visual depictions of actual
minors engaging in sexually explicit conduct. Prior to
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sentencing, the military judge, trial counsel, and defense
counsel agreed that the maximum term of imprisonment for
Appellant’s offense was fifteen years. In determining the
maximum sentence for Appellant’s offense, the trial counsel
referenced the maximum sentence for the analogous federal
statute, 18 U.S.C. § 2252(a)(2) (2000). This statute prohibits,
inter alia, the knowing receipt of any visual depiction,
transported in interstate or foreign commerce by any means, of a
minor engaging in sexually explicit conduct. At the time of the
offense, the maximum term of imprisonment for a violation of 18
U.S.C. § 2252(a)(2) was fifteen years. 18 U.S.C. § 2252(b)(1)
(amended Apr. 30, 2003).
The sentence adjudged by the court-martial included a
dishonorable discharge, confinement for forty-five months, and
reduction to E-1. The convening authority approved the findings
and the sentence. The United States Air Force Court of Criminal
Appeals affirmed. United States v. Leonard, No. ACM 35740, 2006
CCA LEXIS 74, at *5, 2006 WL 888157, at *1 (A.F. Ct. Crim. App.
Mar. 21, 2006) (unpublished).
We granted review of the following specified issues:
I. WHETHER THE MILITARY JUDGE ERRED IN CALCULATING THE
MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT’S PLEA
WAS IMPROVIDENT BECAUSE IT WAS BASED UPON A SUBSTANTIAL
MISUNDERSTANDING OF THE MAXIMUM PUNISHMENT.
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II. WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL
MISAPPREHENDED THE MAXIMUM PUNISHMENT AND, IF SO,
WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE
COUNSEL’S ADVICE WAS BASED UPON AN ERRONEOUS
CALCULATION OF THE MAXIMUM PUNISHMENT.
United States v. Leonard, 64 M.J. 184 (C.A.A.F. 2006).
B. Discussion
1.
“Article 134 makes punishable acts in three categories of
offenses not specifically covered in any other article of the
code.” MCM pt. IV, para. 60.c.(1). Those categories are
separated into three clauses. Clause 1 prohibits conduct “to
the prejudice of good order and discipline in the armed forces.”
Id. Clause 2 prohibits “conduct of a nature to bring discredit
upon the armed forces.” Id. Clause 3 covers “noncapital crimes
or offenses which violate Federal law.” Id. 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.” Id. at para. 60.b. But when the offense
is charged under clauses 1 or 2, the specification need only
allege “[t]hat the accused did or failed to do certain acts[,]”
id. at para. 60.b.(1), and “[t]hat, 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. Id. at para.
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60.b.(2). The MCM states no preference as to which clause of
Article 134, UCMJ, must be used in a particular case. In this
case, the Government elected to charge the wrongful and knowing
receipt of visual depictions of minors engaged in sexually
explicit activity as violations of clauses 1 or 2.
On appeal, Appellant argues that the military judge erred
in referencing the term of imprisonment authorized for a
violation of 18 U.S.C. § 2252(a)(2).1 Appellant correctly notes
that an element of the offense set forth in 18 U.S.C. §
2252(a)(2) is that the visual depictions of children engaged in
sexually explicit activity were received through a medium of
interstate or foreign commerce. See United States v. Corp, 236
F.3d 325, 333 (6th Cir. 2001) (reversing the appellant’s
conviction under 18 U.S.C. § 2252 due to an insufficient nexus
with interstate commerce). Appellant asserts that, because this
interstate or foreign commerce element was missing from the
specification in this case, it was improper for the military
judge to look to 18 U.S.C. § 2252(a)(2) to establish the maximum
punishment for Appellant’s offense.
1
Appellant also argues that the military judge should have
advised him that the maximum punishment for his offense was that
established under federal law for a violation of 18 U.S.C. §
2252(a)(4), which was five years at the time of his offense. 18
U.S.C. § 2252(b)(2) (amended Apr. 30, 2003). But that
subsection of the statute, which criminalizes the knowing
possession of child pornography, requires the same
jurisdictional element as a violation of 18 U.S.C. § 2252(a)(2).
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While this federal jurisdictional element was not charged
in the specification, neither clause 1 nor clause 2 requires
that a specification exactly match the elements of conduct
proscribed by federal law. United States v. Jones, 20 M.J. 38,
40 (C.M.A. 1985) (“‘[f]ederal [crimes] may be properly tried as
offenses under clause (3) of Article 134, but . . . if the facts
do not prove every element of the crime set out in the criminal
statutes, yet meet the requirements of clause (1) or (2), they
may be alleged, prosecuted and established under one of those
[clauses]’” (quoting United States v. Long, 2 C.M.A. 60, 65, 6
C.M.R. 60, 65 (1952))).
Exercising his Article 56, UCMJ, 10 U.S.C. § 856 (2000)
responsibilities, the President has published the maximum
punishment for some offenses punishable under Article 134, UCMJ.
The question remains what the maximum permissible punishment is
for the offense of knowing receipt of visual depictions of
minors engaged in sexually explicit activity, which conduct is
prejudicial to good order and discipline or of a nature to bring
discredit on the armed forces. While the President has
published the maximum punishment for some offenses punishable
under Article 134, UCMJ, see MCM pt. IV, paras. 61-113, the MCM
itself does not list Appellant’s offense, nor is it included in
or closely related to any offense therein. See Rule for Courts-
Martial (R.C.M.) 1003(c)(1)(B)(ii).
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We observe that the “closely related” language in R.C.M.
1003(c)(1)(B)(ii) refers to offenses that are closely related to
offenses listed in the MCM. And, while R.C.M. 1003(c)(1)(B)(ii)
provides that an offense “is punishable as authorized by the
United States Code, or as authorized by the custom of the
service,” there is at least a question whether the United States
Code could authorize punishment absent the jurisdictional
element, which provides the clear textual nexus to interstate
commerce. See, e.g., United States v. Morrison, 529 U.S. 598,
613 (2000); United States v. Lopez, 514 U.S. 549, 567 (1995).
Similarly, how Appellant’s offense would be punished “as
authorized by the custom of the service,” R.C.M.
1003(c)(1)(B)(ii), is at best an open question: the
proliferation of the receipt of visual depictions of minors
engaged in sexually explicit conduct by military members is a
relatively recent, albeit pernicious, development.
But we need not grapple with these points in order to
decide the question in this case, because clear direction is
provided by the UCMJ. Article 134, UCMJ, which applies only to
conduct “not specifically mentioned” under the UCMJ,
specifically provides that an accused “shall be punished at the
discretion of [the] court.” While a court’s discretion is
bounded both where specific direction is given under R.C.M.
1003(c) and by the limitations established by the President
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United States v. Leonard Jr., No. 06-0615/AF
pursuant to Article 56, UCMJ, R.C.M. 1003(c) does not give
specific direction here, and no maximum punishment has been set
by the President for the offense set forth in the specification.
2.
We have looked before at the maximum sentence for offenses
charged under clauses 1 or 2 of Article 134, UCMJ, that include
the conduct and mens rea proscribed by directly analogous
federal criminal statutes. In doing so, we focused on whether
the offense as charged is “essentially the same,” as that
proscribed by the federal statute. United States v. Jackson, 17
C.M.A. 580, 583, 38 C.M.R. 378, 381 (1968); see also United
States v. Williams, 17 M.J. 207, 216-17 (C.M.A. 1984) (upholding
sentence for kidnapping under clauses 1 or 2 by referencing the
maximum sentence for a violation of the federal kidnapping
statute). The military judge did not err by referencing a
directly analogous federal statute to identify the maximum
punishment in this case, when every element of the federal
crime, except the jurisdictional element, was included in the
specification.
3.
At argument, Appellant suggested that allowing reference to
federal statutory maximums to determine the sentence for
analogous conduct charged under clauses 1 or 2 would permit too
much latitude, allowing the government to avoid charging and
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proving critical elements necessary for conviction under clause
3. We do not hold that the government may avoid charging and
proving elements setting forth the gravamen of the offense under
federal law, yet still avail itself of the federal statutory
maximum. And that is not this case. The criminal conduct and
mens rea set forth in the specification satisfy the requirements
of clauses 1 and 2 of Article 134, UCMJ, and describe the
gravamen of the offense proscribed by 18 U.S.C. 2252(a)(2), for
which the maximum sentence is fifteen years.
C. Conclusion
We hold that the military judge did not err in advising the
Appellant that the maximum sentence for the offense charged was
fifteen years. Therefore, we answer the specified Issue I in
the negative, making Issue II moot. The decision of the United
States Air Force Court of Criminal Appeals is affirmed.
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BAKER, Judge (concurring in part and in the result):
The question presented is whether the military judge
referenced the appropriate offense “punishable as authorized by
the United States Code” under Rule for Courts-Martial (R.C.M.)
1003(c)(1)(B)(ii) to set Appellant’s maximum sentence.
Appellant asserts that the military judge used the wrong federal
statute, because his conduct was better described as possession
under 18 U.S.C. § 2252(a)(4) rather than receipt under 18 U.S.C.
§ 2252(a)(2). Appellant also argues that § 2252(a)(2) is not an
analogous statute under the United States Code because the
statute includes an “interstate or foreign commerce” element.
This argument is made in the alternative, because § 2252(a)(4),
which Appellant argues the military judge should have applied,
also contains this same jurisdictional requirement.
The predicate statutory language is found in Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000):
“Though not specifically mentioned in this chapter, all
disorders and neglects to the prejudice of good order and
discipline in the armed forces, all conduct of a nature to bring
discredit upon the armed forces . . . shall be punished at the
discretion of [the] court.” However, this language must be read
in light of the President’s adoption of R.C.M. 1003(c)(1)(B).
This procedural rule is intended to delimit the exercise of
discretion by courts-martial in adjudicating punishment for
United States v. Leonard Jr., No. 06-0615/AF
offenses “not listed in Part IV” of the Manual for Courts-
Martial, United States (MCM) “and not included in or closely
related to any offense listed therein.”1 R.C.M.
1003(c)(i)(B)(ii).
Thus, the applicable principle is not just “the discretion
of [the] court,” which is open-ended, but also R.C.M.
1003(c)(1)(B). In this case, the offense of which Appellant
stands convicted is neither listed in the MCM nor is it included
in or closely related to an offense listed. Thus, Appellant’s
offense “is punishable as authorized by the United States Code.”
This is consistent with military practice and this Court’s
precedent as well. United States v. Williams, 17 M.J. 207, 216-
17 (C.M.A. 1984); United States v. Jackson, 17 C.M.A. 580, 583
38 C.M.R. 378, 381 (1968).
As a result, where R.C.M. 1003(c)(1)(B) applies, military
judges are constrained to look for an analogous offense in the
United States Code, if any, in setting the maximum punishment.
The military judge did so in this case. Appellant’s offense is
indeed analogous to the United States Code section used by the
military judge; the offenses in question are essentially the
same. Appellant was convicted of “wrongfully and knowingly
1
The majority relies alone on the “discretion of [the] court”
language of Article 134, UCMJ, in holding that the military
judge did not abuse his discretion in applying an analogous
federal statute. But it is not clear where this discretion
ultimately ends.
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receiv[ing] visual depictions of minors engaging in sexually
explicit conduct.” In downloading these images Appellant both
received and possessed child pornography. See United States v.
Kuchinski, 469 F.3d 853, 861 (9th Cir. 2006); United States v.
MacEwan, 445 F.3d 237, 241 (3d Cir. 2006). Thus, it was
appropriate for the military judge to look to 18 U.S.C. §
2522(a)(2) to determine the maximum penalty. Further, the
requirement in § 2522(a)(2) that the activity occur in
“interstate or foreign commerce” is a jurisdictional rather than
a substantive requirement intended to reflect Congress’s
authority to legislate. Therefore, it is inherently not an
applicable element of the analogous offense in the military
context.
3