United States v. Conliffe

UNITED STATES, Appellee

v.

Mark R. CONLIFFE, Cadet
U.S. Army, Appellant

No. 08-0158

Crim. App. No. 20040721

United States Court of Appeals for the Armed Forces

Argued September 22, 2008

Decided January 7, 2009

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and STUCKY, J., joined. ERDMANN, J., filed a separate
opinion concurring in part and dissenting in part, in which
RYAN, J., joined. RYAN, J., also filed a separate opinion
concurring in part and dissenting in part.

Counsel

For Appellant: Captain Melissa Goforth Koenig (argued); Colonel
Christopher J. O’Brien, Lieutenant Colonel Steven C. Henricks,
and Major Teresa L. Raymond (on brief); Lieutenant Colonel Mark
Tellitocci, Captain Patrick B. Grant, and Captain Sean F.
Mangan.

For Appellee: Captain Adam S. Kazin (argued); Major Elizabeth
G. Marotta (on brief); Colonel Denise R. Lind, Major Dana E.
Leavitt, and Captain W. Todd Kuchenthal.

Military Judge: David L. Conn

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Conliffe, No. 08-0158/AR

Judge BAKER delivered the opinion of the Court.

Appellant entered guilty pleas before a military judge

sitting as a general court-martial at West Point, New York.

Following the providence inquiry, the military judge accepted

Appellant’s pleas and found Appellant guilty of three

specifications of housebreaking, five specifications of conduct

unbecoming an officer and a gentleman, and “intentionally

us[ing] an image recording device for the purpose of videotaping

the sexual conduct of [another] without her consent,” in

violation of Articles 130, 133, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 930, 933, and 934 (2000),

respectively.1 The adjudged and approved sentence consisted of

confinement for eighteen months, forfeiture of all pay and

allowances for eighteen months, and dismissal from the Army.

The United States Army Court of Criminal Appeals affirmed.

United States v. Conliffe, 65 M.J. 819, 823 (A. Ct. Crim. App.

2007). We granted review of the following issue:

WHETHER APPELLANT’S PLEAS OF GUILTY TO THE THREE
SPECIFICATIONS OF CHARGE II, HOUSEBREAKING, ARE
IMPROVIDENT WHERE THE INTENDED CRIMINAL OFFENSE UPON
ENTRY, CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN, IS
A PURELY MILITARY OFFENSE.

We hold that “conduct unbecoming an officer and gentleman”

is a purely military offense for the purposes of an Article 130,

1
The Article 134, UCMJ, specification charged a violation of Ky.
Rev. Stat. Ann. § 531.090 (LexisNexis 2002), assimilated under
Clause 3 of Article 134, UCMJ.

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UCMJ, housebreaking charge. We therefore reverse the lower

court’s decision with respect to Appellant’s guilty pleas to

Charge II. However, for the reasons stated below, we affirm the

lesser included offense of unlawful entry for each of the

offenses under Charge II.

BACKGROUND

The lower court’s opinion provides the facts at issue in

this case:

Appellant was a first class cadet (a senior) at the
United States Military Academy (the Academy),
scheduled for graduation and commissioning as a second
lieutenant in May, 2003. . . .

[In 2003], appellant twice unlawfully entered the
locker room of an Academy women’s varsity sports team,
concealed his video camera, and secretly filmed
undressed women entering and exiting the shower.
Similarly, he unlawfully entered the barracks room of
one of the female cadets he previously filmed in the
locker room, hid the video camera in her barracks
room, and secretly filmed her changing clothes.
Finally, while on leave at his parents’ home in
Kentucky, appellant had consensual sexual activity
with a civilian woman in his bedroom, but filmed her
performing oral sex on him without her knowledge or
consent.

. . . .

During the providence inquiry concerning the
housebreaking offenses, appellant told the military
judge that he accomplished his intended goal in each
instance by successfully and secretly filming the
women undressed or undressing. Each of the three
housebreaking specifications [to Charge II] alleged
the underlying offense was “utiliz[ing] an imaging
device to surreptitiously record the image[s] of [the
various victims in the various locations] by hiding a
digital video camera in the room, such acts

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constituting conduct unbecoming an officer and
gentleman, therein.”

Conliffe, 65 M.J. at 820-21 (alterations in original).

During the plea inquiry, the military judge provided

Appellant with the elements of both housebreaking and of conduct

unbecoming an officer and a gentleman:

In order to plead guilty to these offenses, you
must admit and agree, without reservation, that
your conduct constituted the following elements:

One, that on 3 May 2003, at or near West Point,
New York, you unlawfully entered the barracks
room of Cadet [LB]; and on two separate
occasions, on 29 and 31 July 2003, you unlawfully
entered the U.S. Military Academy women’s’ [sic]
basketball team dressing room, the property of
the United States Army; and

Two, that the unlawful entry was made with the
intent to commit therein the criminal offense of
using a digital imaging device to surreptitiously
record images of Cadet [LB] in her barracks room
in the first instance, and the members of the
U.S. Military Academy [women’s] basketball team
in their locker room, a crime constituting
conduct unbecoming an officer and gentleman under
Article 133, UCMJ.

. . . .

These elements of conduct unbecoming an officer
and gentleman are:

That you did certain acts; that is, you used an
imaging device to surreptitiously record the
image of Cadet [LB], or members of the United
States Military Academy basketball team in their
locker room, by hiding a digital video camera in
the rooms; and

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Two, that under the circumstances, these acts
constituted conducted [sic] unbecoming an officer
and gentleman.

“Conduct unbecoming an officer and gentleman”
means behavior in an official capacity which is
dishonoring or disgracing an individual as a
cadet, which seriously detracts from your
character as a gentleman, or behavior in an
unofficial or private capacity which dishonors or
disgraces you personally, or seriously detracts
from your standing as a cadet.

“Unbecoming conduct” means behavior more serious
than slight, and of a material and pronounced
character. It means conduct morally unfitting
and unworthy, rather than inappropriate or
unsuitable. It is misbehavior which is more than
opposed to good taste or propriety.

The military judge also advised Appellant that he should

plead guilty only to the lesser included offense of unlawful

entry if he did not enter with the intent to commit a crime

within:

If you admit that you unlawfully entered the
barracks room, or the locker rooms, on these
occasions, but did not do so with the specific
intent of hiding a digital video camera to
surreptitiously record the images of these
females, but perhaps later developed the intent
once inside, you would not be guilty of
housebreaking, but instead, only of the lesser-
included offense of unlawful entry, which is a
much less serious offense, amounting to a
criminal trespass. In contrast to housebreaking,
which has a maximum punishment including 5 years’
confinement, unlawful entry permits only a
maximum punishment of 6 months’ confinement. So
if you do not freely and readily admit that you
had the intent to commit the crime alleged when
you entered these rooms, you should not plead
guilty to housebreaking, but instead, plead
guilty to unlawful entry.

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The military judge then engaged in a colloquy with

Appellant regarding the three specifications of Charge II. When

discussing Specification 1, the military judge’s dialogue with

Appellant consisted of the following:

MJ: Do you believe that under the circumstances, that your
actions that you intended inside this room would be
conduct unbecoming an officer and gentleman?

ACC: Yes, sir.

MJ: Why do you believe that?

ACC: Well, actions such as this completely destroys [sic]
the trust between two people; it is morally
reprehensible, to say the least. It’s not the type of
behavior that an officer would do.

MJ: So you agree that this would detract from your status
as a cadet, an officer candidate, essentially?

ACC: Yes, sir.

MJ: And as a gentleman, as it is traditionally defined -–
a person of character?

ACC: Yes, sir.

When discussing Specification 2, the military judge asked

Appellant:

MJ: Again, do you believe your intended conduct in this
instance would be conduct unbecoming to an officer and
gentleman?

ACC: Yes, sir, I do.

MJ: Why is that?

ACC: Again, it breaks the trust, and it brings discredit
upon myself as a cadet, as well as the Army that I
represent.

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Finally, the military judge questioned Appellant about

Specification 3:

MJ: [D]o you believe that under the circumstances here, on
the 31st of July 2003, your conduct was unbecoming an
officer and gentleman?

ACC: Yes, sir. Again, this conduct brings discredit upon
myself as a cadet.

MJ: And it detracts from your status as a future officer,
is that right?

ACC: Yes, sir.

DISCUSSION

A military judge’s decision to accept a guilty plea is

reviewed for an abuse of discretion. United States v.

Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). It is an abuse of

discretion if the military judge fails to obtain from the

accused an adequate factual basis to support the plea. Id. at

321-22. In addition, it is an abuse of discretion if the

military judge’s ruling is based on an erroneous view of the

law. Id. at 322. While an appellate court reviews questions of

law de novo, military judges are afforded broad discretion in

whether or not to accept a plea. Id. This discretion is

reflected in appellate application of the substantial basis

test: “Does the record as a whole show ‘a substantial basis in

law or fact for questioning the guilty plea.’” Id. (quoting

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)

(quotation marks omitted)).

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I. Housebreaking

An accused “who unlawfully enters the building or structure

of another with intent to commit a criminal offense therein is

guilty of housebreaking.” Article 130, UCMJ. It follows that

the second element of housebreaking, the element at issue here,

“requires a specific intent to enter with the intent to commit

[a criminal] offense.” United States v. Peterson, 47 M.J. 231,

235 (C.A.A.F. 1997). The Manual for Courts-Martial defines a

“criminal offense” as “[a]ny act or omission which is punishable

by courts-martial, except an act or omission constituting a

purely military offense.” Manual for Courts-Martial, United

States pt. IV, para. 56.c(3) (2002 ed.) (MCM). As such, an act

or omission identified as a purely military offense cannot form

the basis for the underlying criminal offense required in a

housebreaking charge. We must therefore decide whether

Appellant pleaded guilty to an act or omission constituting a

purely military offense.

The three specifications of Charge II describe specific

acts Appellant engaged in to surreptitiously capture images of

women without their knowledge. However, in addition to this

descriptive conduct, the specifications link each act directly

to Appellant’s compromising his status as an officer and a

gentleman. The charge sheet describes the surreptitious

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videotaping as “acts constituting conduct unbecoming an officer

and gentleman.”

The military judge made the same link during his plea

inquiry. First, the military judge described the elements of

housebreaking to Appellant, indicating that Appellant must admit

and agree that he unlawfully entered with the intent to

surreptitiously record images, “a crime constituting conduct

unbecoming an officer and gentleman under Article 133, UCMJ.”

Second, the military judge explained the two elements necessary

to prove conduct unbecoming an officer and a gentleman.

Finally, in concluding his inquiry on this charge, the military

judge asked Appellant if he believed that his conduct

constituted conduct unbecoming an officer and a gentleman. The

military judge’s focus on Article 133, UCMJ, demonstrates his

understanding that Appellant’s compromise of his status as an

officer and a gentleman, rather than Appellant’s act of

surreptitious videotaping, formed the underlying offense in the

housebreaking charge.

In United States v. Webb, this Court held that to satisfy

the underlying criminal offense element of housebreaking an

accused must possess the “intent to commit the crime stated in

the specification.” 38 M.J. 62, 68-69 (C.M.A. 1993). In this

case, the plain language of the specifications, as well as the

military judge’s colloquy with Appellant, demonstrates that the

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underlying offense in Appellant’s case was the offense of

engaging in conduct unbecoming an officer and a gentleman, an

Article 133, UCMJ, violation. As a result, the essential

inquiry is not whether surreptitious videotaping has a civilian

counterpart, and thus is not a “purely military offense,” but

whether conduct unbecoming an officer and a gentleman is a

purely military offense.

II. Purely Military Offense

In light of the military judge’s acceptance of Appellant’s

guilty plea to housebreaking based on the underlying offense of

conduct unbecoming an officer and a gentleman, the question

becomes whether a violation of Article 133, UCMJ, constitutes a

purely military offense for the purposes of Article 130, UCMJ.

“Any commissioned officer, cadet, or midshipman who is

convicted of conduct unbecoming an officer and a gentleman shall

be punished as a court-martial may direct.” Article 133, UCMJ.

The elements of Article 133 are:

(1) That the accused did or omitted to do certain
acts; and
(2) That, under the circumstances, these acts or
omissions constituted conduct unbecoming an
officer and gentleman.

United States v. Boyett, 42 M.J. 150, 152 n.2 (C.A.A.F. 1995)

(quoting MCM pt. IV, para. 59.b.). The focus of Article 133,

UCMJ, is the effect of the accused’s conduct on his status as an

officer, cadet, or midshipman:

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[T]he essence of an Article 133 offense is not whether
an accused officer’s conduct otherwise amounts to an
offense . . . but simply whether the acts meet the
standard of conduct unbecoming an officer. . . . [T]he
appropriate standard for assessing criminality under
Article 133 is whether the conduct or act charged is
dishonorable and compromising . . . this
notwithstanding whether or not the act otherwise
amounts to a crime.

United States v. Giordano, 15 C.M.A. 163, 168, 35 C.M.R. 135,

140 (1964). A violation of Article 133, UCMJ, necessarily

requires proof that the accused is a “commissioned officer,

cadet, or midshipman” because the conduct must have disgraced or

dishonored the accused in his or her official capacity. See

Article 133, UCMJ; see also MCM pt. IV, para. 59.c(2); United

States v. Taylor, 23 M.J. 314, 318 (C.M.A. 1987) (“The test [for

Article 133, UCMJ] is whether the conduct has fallen below the

standards established for officers.”); United States v. Marsh,

15 M.J. 252, 253-54 (C.M.A. 1983) (finding that unauthorized

absence is a “peculiarly military” offense, or an offense “to

which disputed factual issues about the accused’s status as a

servicemember must be decided by the trier of fact as part of

the determination of guilt or innocence and as to which the

Government bears the burden of proof beyond reasonable doubt”

and which “by its express terms, the statutory prohibition

applies only to a member of the armed forces”) (quotation marks

omitted). It ineluctably follows that Article 133, UCMJ, is a

purely military offense when it constitutes the underlying

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criminal offense for housebreaking. Only a commissioned

military officer, cadet, or midshipman can commit the offense

and it is only a court-martial that has jurisdiction to

prosecute such an offense. Giordano, 15 C.M.A. at 168, 35

C.M.R. at 140 (“Conduct unbecoming an officer has long been

recognized as a military offense . . . .”). Article 133, UCMJ,

therefore cannot serve as the underlying criminal offense in a

housebreaking charge.2

2
The Government argues that an Article 133, UCMJ, violation
cannot be a purely military offense because while both Articles
133 and 134, UCMJ, require proof of unique military concepts,
i.e., conduct unbecoming an officer and a gentleman and either
service discrediting conduct or conduct prejudicial to good
order and discipline, the underlying conduct proscribed in these
articles could have a civilian analog. There are two problems
with this argument. First, in this case, Appellant was
expressly charged with conduct unbecoming an officer and a
gentleman as the underlying offense and not just voyeurism. It
was on that basis that his plea was taken. Second, whereas the
military “preemption doctrine” bars the government from charging
an accused under Article 134(1), UCMJ, and Article 134(2), UCMJ,
for conduct that is appropriately charged under an enumerated
article, this same doctrine does not apply to Article 133, UCMJ.
See United States v. Erickson, 61 M.J. 230, 233 (C.A.A.F. 2005)
(“For an offense to be excluded from Article 134 based on
preemption it must be shown that Congress intended the other
punitive article to cover a class of offenses in a complete
way.”). While we decline to decide today whether an Article
134, UCMJ, offense can serve as the underlying criminal offense
in a housebreaking charge, we note that Articles 133 and 134,
UCMJ, contain at least one significant difference. An accused
can be charged with either an Article 133, UCMJ, offense or the
enumerated punitive article based on the same underlying
conduct, provided the conduct is, in fact, unbecoming an officer
and a gentleman. United States v. Palagar, 56 M.J. 294, 296
(C.A.A.F. 2002). In short, Article 133, UCMJ, addresses the
purely military nature of the conduct in question.

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III. Lesser Included Offense of Unlawful Entry

The question now presented is whether we may nonetheless

affirm the lesser included offense of unlawful entry in this

case. “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.”

Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2000); United States v.

Medina, 66 M.J. 21, 24 (C.A.A.F. 2008). “An accused may be

found guilty of an offense necessarily included in the offense

charged . . . .” Article 79, UCMJ, 10 U.S.C. § 879 (2000).

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.

Medina, 66 M.J. at 27. However, “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.” Id. at 26. “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.” Id.

The elements of an unlawful entry offense are:

(1) That the accused entered the real property of
another or certain personal property of another

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which amounts to a structure usually used for
habitation or storage;

(2) That such entry was unlawful; and

(3) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature
to bring discredit upon the armed forces.

United States v. Davis, 56 M.J. 299, 302 n.4 (C.A.A.F. 2002)

(quoting MCM pt. IV, para. 111.b.). The MCM expressly states

that an unlawful entry violation under Article 134, UCMJ, is a

lesser included offense to a housebreaking charge under Article

130, UCMJ. MCM pt. IV, para. 56.d(1). The first two elements

of unlawful entry are subsumed within the first element of

housebreaking, which expressly requires that the accused

“unlawfully entered” a certain location. MCM pt. IV, para.

56.b(1). The third element required for unlawful entry is

inherently included within the second element of housebreaking.

As mentioned above, housebreaking requires that the accused

entered with the intent to commit a “criminal offense” therein.

MCM pt. IV, para. 56.b(2). Article 134, UCMJ, punishes, inter

alia, conduct “which is or generally has been recognized as

illegal under the common law or under most statutory criminal

codes.” United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988).

“[S]uch activity, by its unlawful nature, tends to prejudice

good order or to discredit the service.” Id. Therefore, by

entering without authority and possessing the intent to commit

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an offense punishable under the UCMJ, the accused has engaged in

service discrediting or prejudicial conduct. See Davis, 56 M.J.

at 301; MCM pt. IV, para. 56.d(1).

The question we have to answer is whether Appellant

understood that, in pleading guilty to the housebreaking

offenses, he was also voluntarily and knowingly pleading guilty

to the lesser included offense of unlawful entry, and in so

doing, relinquishing his constitutional right to contest that

offense. Medina, 66 M.J. at 26-27 (“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.”). In this case, Appellant was “by definition on notice”

that unlawful entry is a lesser included offense of

housebreaking “because it is a subset of the greater offense

alleged.” Id. at 27. Further, the military judge advised

Appellant that he had the option of only pleading guilty to

unlawful entry if Appellant did not possess the criminal intent

required for housebreaking. While the military judge did not

provide the specific elements of unlawful entry to Appellant,

the military judge defined unlawful entry and put Appellant on

notice of this alternative theory of guilt.

The closer question is whether Appellant knowingly provided

sufficient factual admissions to affirm the lesser included

offense. Appellant’s admissions clearly satisfy the first and

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second elements of unlawful entry. He admitted to entering the

personal barracks room of a fellow cadet and the public women’s

locker room without permission or authorization.

The third element of service discrediting conduct presents

a marginally closer call. On the one hand, Appellant admitted

during the providence inquiry that his intended conduct brought

“discredit on [himself] as a cadet, as well as the Army that

[he] represent[s].” On the other hand, Appellant was not

apprised at this point that his use of the word “discredit” to

describe his conduct as an officer and a gentleman was also an

admission to service discrediting conduct for the purposes of

Article 134(2), UCMJ.

In our view, in the context of this case, Appellant was on

fair notice that his admission to discredit in the context of

pleading guilty to conduct unbecoming an officer and a gentleman

amounted to an admission to discrediting conduct for the

purposes of unlawful entry. First, the military judge placed

him on explicit notice that unlawful entry was a lesser included

offense to housebreaking. Second, as a matter of law and logic,

discredit is encompassed within the concept of conduct

unbecoming an officer and a gentleman, to which Appellant

readily pleaded. “‘As a matter of law, it is well-established

that, when the underlying conduct is the same, a service

discredit or disorder under Article 134 is a lesser-included

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offense of conduct unbecoming an officer under Article 133.’”

United States v. Cherukuri, 53 M.J. 68, 71 (C.A.A.F. 2000)

(quoting United States v. Harwood, 46 M.J. 26, 28 (C.A.A.F.

1997)); see also United States v. Rodriquez, 18 M.J. 363, 368-69

n.4 (C.M.A. 1984) (citing William Winthrop, Military Law and

Precedents 383-85, 719 (2d ed., Government Printing Office 1920

(1895))). “We have repeatedly held that conduct unbecoming an

officer rationally entails a higher level of dishonor or

discredit than simple prejudice to good order and discipline.”

Cherukuri, 53 M.J. at 71. Thus, when a servicemember engages in

conduct unbecoming an officer and a gentleman, he or she also

necessarily engages in service discrediting conduct or conduct

prejudicial to good order and discipline. Rodriquez, 18 M.J. at

369 (“[T]he disorder or discredit element of [Article 134, UCMJ]

is necessarily included within the element of disgrace required

by [Article 133, UCMJ].”). For this reason, our decision today

is not inconsistent with the admonition in Medina: “an accused

has a right to know to what offense and under what legal theory

he or she is pleading guilty.” Medina, 66 M.J. at 26.

Moreover, while Medina addressed the interplay, if any, between

the separate clauses of Article 134, UCMJ, generally, our

analysis today is narrowly focused on one question: The

relation between the second element of housebreaking and the

third element of the lesser included offense of unlawful entry

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presented in Appellant’s case. While Appellant pleaded guilty

to housebreaking, he was also on fair constructive notice that

he was pleading guilty to the lesser included offense of

unlawful entry. Id. at 27. Further, in military law conduct

unbecoming an officer and a gentleman necessarily encompasses

service discrediting conduct. We therefore affirm the lesser

included offense of unlawful entry for the three specifications

under Charge II.

DECISION

The decision of the United States Army Court of Criminal

Appeals is reversed with respect to Charge II and the

specifications thereunder and the sentence. We affirm only so

much of Charge II and its specifications that extend to findings

of guilty to the lesser included offense of unlawful entry in

violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000). The

remaining findings are affirmed. However, the record is

returned to the Judge Advocate General of the Army for remand to

the Court of Criminal Appeals for reassessment of the sentence

in light of our action on the findings.

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ERDMANN, Judge, with whom RYAN, Judge, joins (concurring in

part and dissenting in part):

I agree with the majority that the offense of conduct

unbecoming an officer and a gentleman under Article 133, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 933 (2000), is a

purely military offense and cannot serve as the underlying

criminal offense for a housebreaking charge under Article 130,

UCMJ, 10 U.S.C. § 930 (2000). See Manual for Courts-Martial,

United States pt. IV, para. 56.c(3) (2002 ed.) (MCM). I do not

agree that unlawful entry under Article 134(1) or (2), UCMJ, 10

U.S.C. § 934(1), (2) (2000), may be affirmed as a lesser

included offense under the circumstances of this case. To do so

is to retreat from our recent decision in United States v.

Medina, 66 M.J. 21 (C.A.A.F. 2008). I read Medina differently

than does the majority and believe that case represents a

departure from this court’s prior practice of assuming that

clauses 1 and/or 2 of Article 134, UCMJ, are inherently,

necessarily, implicitly or constructively lesser included

concepts of other offenses, including the enumerated offenses.

The effect of the majority opinion is to revive those concepts

as a basis for finding lesser included offenses.

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), empowers a

military appellate court “to approve or affirm . . . so much of

the finding as includes a lesser included offense.” The test
United States v. Conliffe, No. 08-0158/AR

for determining whether one offense is a lesser included offense

of another is the “elements test” which is “‘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.’” Id. at 24-25 (emphasis omitted in original)

(quoting United States v. Schmuck, 489 U.S. 705, 716-17 (1989)).

A comparison of the textual elements of housebreaking under

Article 130, UCMJ, and those of unlawful entry under Article

134, UCMJ, reveals that conduct “to the prejudice of good order

and discipline in the armed forces” and “conduct of a nature to

bring discredit upon the armed forces” are not subsets of the

textual elements of Article 130, UCMJ, housebreaking.

Since the unique elements of clauses 1 and 2 of Article

134, UCMJ, are not a subset of the elements of housebreaking,

under our pre-Medina precedent the inquiry would turn to whether

those clause 1 and 2 elements are “implicit” in the offense of

housebreaking. See United States v. Foster, 40 M.J. 140, 143

(C.M.A. 1994). I question whether, after Medina, the concept of

“implicit” elements has continuing validity in this court’s

jurisprudence. If it does have continuing validity, I disagree

with the majority’s conclusion that “[t]he third element

required for unlawful entry is inherently included within the

second element of housebreaking.” United States v. Conliffe, __

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M.J. __ (14) (C.A.A.F. 2008). I do not find “prejudicial to

good order and discipline” or “of a nature to bring discredit

upon the armed forces” inherent within housebreaking’s

requirement that “the unlawful entry was made with the intent to

commit a criminal offense therein.” MCM pt. IV, para. 56.b(2).

The second element of housebreaking is fulfilled by “any

act or omission punishable by courts-martial, except an act or

omission constituting a purely military offense.” Id. at para.

56.c(3) (emphasis added). The scope of this element includes,

inter alia, offenses punishable under clause 3 of Article 134,

UCMJ. As we concluded in Medina, “[C]lauses 1 and 2 are not

necessarily lesser included offenses of offenses alleged under

clause 3.” 66 M.J. at 26. This conclusion from Medina makes

clear that not all offenses punishable by court-martial

inherently contain clause 1 or 2 lesser included offenses.

Therefore, while the second element of housebreaking may, under

appropriate circumstances, allege an offense encompassing

clauses 1 and 2 of Article 134, UCMJ, those clauses are not

inherently included in housebreaking itself.

The majority also finds that Conliffe “was also on fair

constructive notice that he was pleading guilty to the lesser

included offense of unlawful entry” and therefore the dictates

of Medina that “an accused has a right to know to what offense

and under what legal theory he or she is pleading guilty” were

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satisfied. Conliffe, __ M.J. at ___ (17-18) (citing Medina, 66

M.J. at 26, 27) (quotation marks omitted). I disagree that the

nature of the specification in this case gave Conliffe fair

notice that in pleading guilty to the enumerated offense of

housebreaking he was also pleading guilty to conduct encompassed

by either clause 1 or clause 2 of Article 134, UCMJ. The

specification on the charge sheet provided no such notice.

“Constructive notice” that Conliffe was pleading guilty to a

separate offense is a significant retreat from our position in

Medina.

The only reference to unlawful entry in this case was when

the military judge stated that absent a contemporaneous specific

intent to commit a criminal offense when Conliffe unlawfully

entered the barracks and locker room, he would be guilty of only

the lesser included offense of unlawful entry. However, the

military judge did not further discuss or explain the elements

of unlawful entry, nor did he create a record upon which this

court could base a conclusion that Conliffe knew and understood

that his plea encompassed the unique clause 1 or 2 elements of

unlawful entry.

Finally, I would not find that Conliffe was given fair

notice of the clause 1 or 2 elements by virtue of the “conduct

unbecoming an officer and gentleman” language in the

specification. Article 133, UCMJ, and clause 2 of Article 134,

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United States v. Conliffe, No. 08-0158/AR

UCMJ, each encompasses a form of injury that is substantively

different. “Conduct unbecoming” as used in Article 133, UCMJ,

is personal to the accused -- the conduct “dishonors or

disgraces the person as an officer”; it “compromises the

officer’s character as a gentleman”; it “dishonor[s] or

disgrace[es] the officer personally”; or it “seriously

compromises the person’s standing as an officer.” MCM pt. IV,

para. 59.c(2) (emphasis added).

In contrast, “discredit” as used in Article 134(2), UCMJ,

has a much different meaning: “‘Discredit’ means to injure the

reputation of. This clause of Article 134 makes punishable

conduct which has a tendency to bring the service into disrepute

or which tends to lower it in public esteem.” Id. at para.

60.c(3) (emphasis added). I find nothing in the specification

itself or in the record to indicate that Conliffe was on notice

of this distinction and therefore “[knew] to what offense and

under what legal theory he . . . [was] was pleading guilty” in

order to permit this court to affirm the offense of unlawful

entry as a lesser included offense. Medina, 66 M.J. at 27.1

1
The majority notes a number of this court’s earlier cases have
concluded that “service discredit or disorder under Article 134
is a lesser-included offense of conduct unbecoming an officer
under Article 133.” Conliffe, __ M.J. at __ (16-17) (quoting
United States v. Cherukuri, 53 M.J. 68, 71 (C.A.A.F. 2000)
(quotation marks omitted). However, in addition to the distinct
nature of the discredit involved in the two offenses, Medina
undermines if not eliminates the premise of these cases that

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I do not find unlawful entry to be a “subset” offense of

housebreaking or inherently included in housebreaking. Conliffe

was not given fair notice by either the specification or

providence inquiry that his plea to housebreaking would also

constitute a guilty plea to all the elements of unlawful entry.

I therefore dissent from that portion of the majority opinion

that affirms unlawful entry as a lesser included offense. I

would set aside the findings of housebreaking and the sentence,

affirm the remaining findings, and authorize a rehearing on the

sentence.

discredit and disorder under Article 134, UCMJ, are
“necessarily” included within the individual discredit or
disgrace required under Article 133, UCMJ. Medina makes clear
that Article 134, UCMJ, is not a, per se, general disorder
lesser included offense in all instances. I therefore disagree
that Conliffe “was also on fair constructive notice that he was
pleading guilty to the lesser included offense of unlawful
entry.” Id. at ___ (18).

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RYAN, Judge (concurring in part and dissenting in part):

I concur with the majority’s conclusion that conduct

unbecoming an officer and a gentleman in violation of Article

133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933

(2000), is a purely military offense and, as such, cannot serve

as the intended criminal offense underlying a charge of

housebreaking under Article 130, UCMJ, 10 U.S.C. § 930 (2000).

United States v. Conliffe, M.J. (12) (C.A.A.F. 2008). I

join Judge Erdmann’s opinion because I agree that Appellant’s

conviction may not be affirmed to a lesser included offense of

unlawful entry under Article 134, UCMJ, 10 U.S.C. § 934 (2000),

where the elements of the lesser included offense were neither

charged in the specification nor explained and admitted to

during the providence inquiry, without running afoul of this

Court’s decision last term in United States v. Medina, 66 M.J.

21 (C.A.A.F. 2008). Conliffe, M.J. at __ (3-4) (Erdmann, J.,

concurring in part and dissenting in part). I write separately

to express my dismay at the majority’s apparent resuscitation

of the concept of “implicit elements,” recast as “inherently

included” elements.

The majority states that its analysis is limited to the

“relation between the second element of housebreaking and the

third element of . . . unlawful entry,” Conliffe, __ M.J. at __

(17) (majority opinion). But I see no difference between the
United States v. Conliffe, No. 08-0158/AR

majority’s conclusion that “[t]he third element required for

unlawful entry is inherently included within the second element

of housebreaking,” id. at __ (14), and an application of the

“implicit elements” concept to any comparison between a greater

enumerated offense and a lesser offense under Article 134, UCMJ,

clause 1 or 2.

The concept of implicit elements, often attributed to

United States v. Foster, 40 M.J. 140, 143 (C.M.A. 1994), permits

an appellate military court to affirm a conviction to a lesser

included offense under Article 134, UCMJ, if the conviction of

the greater enumerated offense is disapproved –- and relieves

the government of the need to plead or prove elements of the

Article 134, UCMJ, offense on the theory that they are

“implicitly” there. If ever it was correct, this concept now

appears wholly unsupportable. See, e.g., Jones v. United

States, 526 U.S. 227, 251-52 (1999) (holding that the Fifth

Amendment’s Due Process Clause and the Sixth Amendment’s notice

and jury trial guarantees require that all elements must be

charged in an indictment, submitted to a jury, and proved beyond

a reasonable doubt); Schmuck v. United States, 489 U.S. 705, 718

(1989) (allowing lesser included offense instructions “only in

those cases where the indictment contains the elements of both

offenses and thereby gives notice to the defendant that he may

be convicted on either charge”). While Medina did not

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explicitly overrule Foster, prior to this case I believed Medina

had cast serious doubt on Foster’s continuing viability. See

Medina, 66 M.J. at 26 (emphasizing an accused’s “right to know

to what offense and under what legal theory he or she is

pleading guilty”).

In Foster, 40 M.J. at 142-43, this Court considered whether

to adopt the elements test that was established by the Supreme

Court to determine whether one offense is “necessarily included”

as a lesser offense of another under Fed. R. Crim. P. 31(c).

See Schmuck, 489 U.S. at 716 (holding that “one offense is not

‘necessarily included’ in another unless the elements of the

lesser offense are a subset of the elements of the charged

offense”) (emphasis added). Under the Schmuck test, a simple

side-by-side comparison of elements reveals whether one offense

is included in another. See id. at 716, 720 (requiring a

“textual comparison of criminal statutes,” which “is

appropriately conducted by reference to the statutory elements

of the offenses in question”). Because the military lesser

included offense statute, Article 79, UCMJ, 10 U.S.C. § 879, is

virtually identical to the federal rule, the Foster Court

claimed to explicitly adopt the Schmuck elements test. 40 M.J.

at 142-43.

So far so good. But despite the apparent simplicity of

applying the elements test, the Foster Court was confronted with

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the fact that all offenses charged under clauses 1 or 2 of

Article 134, UCMJ, include one element that the enumerated

offenses do not -- that the conduct of the accused was either

“to the prejudice of good order and discipline in the armed

forces” or “of a nature to bring discredit upon the armed

forces.” Rather than conclude, in conformity with Schmuck, that

Article 134, UCMJ, is therefore not a lesser included offense of

every enumerated offense, the Court “[held] simply that, in

military jurisprudence, the term ‘necessarily included’ in

Article 79 encompasses derivative offenses under Article 134.”

Foster, 40 M.J. at 143.

The Foster Court explained its holding as follows:

Our rationale is simple. The enumerated articles are
rooted in the principle that such conduct per se is
either prejudicial to good order and discipline or
brings discredit to the armed forces; these elements
are implicit in the enumerated articles. Although the
Government is not required to prove these elements in
an enumerated-article prosecution, they are certainly
present.

Id.1 This explanation contradicts the basic Due Process

principle that all elements of an offense must be proven by the

1
The Court was concerned that if those elements were not
implicit in the enumerated offenses, then every lesser Article
134, UCMJ, offense would have an element the greater enumerated
offense did not, and vice versa. Foster, 40 M.J. at 143. This
would allow servicemembers to be charged with both offenses and
would also deny them the chance to request a lesser included
offense instruction. Id. Although I appreciate this concern,
it does not justify creating a legal fiction that conflicts with
the very law the Court was purporting to adopt.

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government beyond a reasonable doubt. See In re Winship, 397

U.S. 358, 364 (1970) (holding that “the Due Process Clause

protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the

crime with which he is charged”); see also Jones, 526 U.S. at

232 (“Much turns on the determination that a fact is an element

of an offense . . . given that elements must be charged in the

indictment, submitted to a jury, and proven by the Government

beyond a reasonable doubt.”); Apprendi v. New Jersey, 530 U.S.

466, 510 (2000) (Thomas, J., concurring) (“‘[T]he indictment

must allege whatever is in law essential to the punishment

sought to be inflicted.’” (quoting 1 J. Bishop, Law of Criminal

Procedure 50 (2d ed. 1872))). I am aware of no other

circumstance in which an element is “certainly present” in an

offense, but need not be proven because it is “implicit” or

“inherent.” In fact, the Supreme Court has previously rejected

a similar construct in the context of jury instructions.

Mullaney v. Wilbur, 421 U.S. 684 (1975).

In Mullaney, the Supreme Court considered instructions

providing that although malice aforethought was an element of

the crime of murder, its existence was to be “conclusively

implied” unless the defendant could show otherwise. Id. at 686.

The Court invalidated these instructions, and the state law they

were based on, because they relieved the government of its

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burden to prove the intent element beyond a reasonable doubt.

Id. at 697-704; see also Sandstrom v. Montana, 442 U.S. 510,

512, 523 (1979) (rejecting an instruction that “the law presumes

that a person intends the ordinary consequences of his voluntary

acts” because jurors “could reasonably have concluded that they

were directed to find against defendant on the element of

intent,” thereby eliminating the government’s burden of proof as

to that element). Similarly, while it may seem intuitively true

that conduct prohibited by the enumerated articles, such as

entering a structure with the intent to commit an offense

therein, is also prejudicial to good order and discipline or

service discrediting, intuition alone cannot justify the legal

conclusion that because the elements are “certainly present,”

“implicit,” or “inherent,” the government is relieved of its

duty to charge and prove them.

Finding that the prejudicial to good order and discipline

and service discrediting elements are implicit or inherent in

the enumerated offenses also intrudes upon an accused’s right to

notice of the charges brought against him. Concern for this

notice is at the heart of the elements test, for “a defendant

cannot be held to answer a charge not contained in the

indictment brought against him.” Schmuck, 489 U.S. at 717.

Indeed, if the government were “able to request an instruction

on an offense whose elements were not charged in the indictment,

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this right to notice would be placed in jeopardy.” Id. at 718.

Thus, in cases where the elements of the alleged lesser offense

are not a subset of the greater, the principle of fair notice

dictates that the accused may not be convicted of that alleged

lesser offense. See Hopkins v. Reeves, 524 U.S. 88, 99 (1998)

(finding where the state “proceeded against respondent only on a

theory of felony murder, a crime that under state law has no

lesser included homicide offenses[,] . . . [t]o allow respondent

to be convicted of homicide offenses . . . would be to allow his

jury to find beyond a reasonable doubt elements that the State

had not attempted to prove, and indeed that it had ignored

during the course of trial”). It was these very pleading and

notice rights that I thought Medina addressed and that are

present in the case before us.

The implicit elements concept as conceived by Foster and

reinvigorated by the majority today, albeit recast as elements

“inherently included,” suggests that prejudicial to good order

and discipline and service discrediting elements exist in a

penumbral cloud, not subject to pleading or proof beyond a

reasonable doubt for conviction of an enumerated offense, but

available to be summoned by the government if and when needed to

affirm a lesser included offense. I agree that there is a

necessity for commanders to retain flexibility under Article

134, UCMJ, to maintain good order and discipline, particularly

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in the area of military-specific offenses; as the Supreme Court

has recognized, the military must “regulate aspects of the

conduct of members of the military which in the civilian sphere

are left unregulated.” Parker v. Levy, 417 U.S. 733, 749

(1974). But I disagree that Article 134, UCMJ, where its

elements are not charged or proven, is or ever was intended to

serve as a fallback option for the government to uphold a

conviction to a lesser included offense whenever a conviction to

the greater charged offense is overturned on appeal. I see no

peculiar military necessity requiring such an option, which is

almost certainly not available to federal prosecutors in the

federal district court. See, e.g., United States v. Vasquez-

Chan, 978 F.2d 546, 553-55 (9th Cir. 1992) (refusing to affirm a

conviction for misprision of a felony because that offense

requires at least one element not present in the offenses for

which the appellant was originally convicted); United States v.

Cavanaugh, 948 F.2d 405, 409-12 (8th Cir. 1991) (refusing to

affirm a conviction for assault resulting in serious bodily

injury in place of a murder conviction that was set aside,

because the assault offense had an additional element that was

not proved at trial).

I respectfully dissent from the portion of the majority’s

holding affirming a conviction to a violation of Article 134,

UCMJ.

8