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CHAPTER 20

Crimes

 
 

GENERAL PROVISIONS

  1. Principals, Art. 77

  2. Accessory After The Fact, Art. 78

  3. Conviction of Offense Charged, Lesser Included Offenses, and Attempts, Art. 79

INCHOATE OFFENSES

  1. Attempts, Art. 80

  2. Conspiracy, Art. 81

  3. Soliciting Commission of Offenses, Art. 82

PLACE OF DUTY OFFENSES

  1. Malingering, Art. 83

  2. Breach of Medical Quarantine, Art. 84

  3. Desertion, Art. 85

  4. Absence Without Leave, Art. 86

  5. Defenses to Unauthorized Absence

  6. Missing Movement; Jumping from Vessel, Art. 87

  7. Resistance, Flight, Breach of Arrest, and Escape, Art. 87a

  8. Offenses Against Correctional Custody and Restriction, Art. 87b

AUTHORITY OFFENSES

  1. Contempt Toward Officials, Art. 88

  2. Disrespect Toward Superior Commissioned Officer, Art. 89

  3. Willfully Disobeying Superior Commissioned Officer, Art. 90

  4. Insubordinate Conduct Toward WO, NCO, or Petty Officer, Art. 91

  5. Protected Status of Certain Military Victims

  6. Violation of a Lawful General Regulation/Order, Art. 92(1)

  7. Failure to Obey Other Lawful Order, Art. 92(2)

  8. The Lawfulness of Orders

  9. Dereliction in the Performance of Duties, Art. 92(3)

  10. Cruelty and Maltreatment, Art. 93

  11. Prohibited Activities with Military Recruit or Trainee by Person in Position of Special Trust, Art. 93a

  1. Mutiny or Sedition, Art. 94

ENEMY/POST OFFENSES

  1. Offenses by Sentinel or Lookout, Art. 95

  2. Disrespect Toward Sentinel or Lookout, Art. 95a

  3. Release of Prisoner Without Authority; Drinking with Prisoner, Art. 96

  4. Unlawful Detention, Art. 97

  5. Misconduct as Prisoner, Art. 98

  6. Misbehavior Before the Enemy, Art. 99

  7. Subordinate Compelling Surrender, Art. 100

  8. Improper Use of Countersign, Art. 101

  9. Forcing a Safeguard, Art. 102

  10. Spies, Art. 103

  11. Espionage, Art. 103a

  12. Aiding the Enemy, Art. 103b

FALSITY OFFENSES

  1. Public Records Offenses, Art. 104

  2. Fraudulent Enlist/Appointment/Separation, Art. 104a

  3. Unlawful Enlist/Appointment/Separation, Art. 104b

  4. Forgery, Art. 105

  5. False or Unauthorized Pass Offenses, Art. 105a

  6. Impersonation of an Officer, NCO, Petty Officer, Agent, or Official, Art. 106

  7. Wearing Unauthorized Insignia, Decoration, Badge, Ribbon, Device, or Lapel Button, Art. 106a

  8. False Official Statements; False Swearing, Art. 107

  9. Parole Violation, Art. 107a

PROPERTY OFFENSES

  1. Military Property: Loss/Damage/Destroy/   Dispose, Art. 108

  2. Captured or Abandoned Property, Art. 108a

  1. Property Other Than Military Property: Waste/Spoilage/Destruction, Art. 109

  2. Mail Matter: Wrongful Taking, Opening, Etc., Art. 109a

VESSEL/VEHICLE OFFENSES

  1. Improper Hazarding of Vessel/Aircraft, Art. 110

  2. Leaving Scene of Vehicle Accident, Art. 111

INTOXICATION/DRUG OFFENSES

  1. Drunkenness and Other Incapacitation Offenses, Art. 112

  2. Wrongful Use/Possession/Etc. of Controlled Substances, Art. 112a

  3. Drunken or Reckless Operation of a Vehicle, Aircraft, or Vessel, Art. 113

ENDANGERMENT/THREATENING OFFENSES

  1. Endangerment Offenses, Art. 114

  2. Communicating Threats, Art. 115

  3. Riot or Breach of Peace, Art. 116

  4. Provoking Speeches or Gestures, Art. 117

  5. Wrongful Broadcast/Distribution of Intimate Visual Images, Art. 117a

MURDER/MANSLAUGHTER/CHILD ENDANGERMENT

  1. Murder, Art. 118

  2. Manslaughter, Art. 119

  3. Death or Injury of an Unborn Child, Art. 119a

  4. Child Endangerment, Art. 119b

LARCENY/FRAUD OFFENSES

  1. Larceny and Wrongful Appropriation, Art. 121

  2. Fraudulent Use of Credit Cards, Debit Cards, and other Access Devices, Art. 121a

  3. False Pretenses to Obtain Services, Art. 121b

  4. Robbery, Art. 122

  5. Receiving Stolen Property, Art. 122a

  6. Offenses Concerning Government Computers, Art. 123

  7. Making, Drawing, or Uttering Check, Draft, or Order Without Sufficient Funds, Art. 123a

  8. Frauds Against the United States, Art. 124

  9. Bribery, Art. 124a

  10. Graft, Art. 124b

OFFENSES AGAINST PERSONS

  1. Kidnapping, Art. 125

  2. Arson; Burning Property with Intent to Defraud, Art. 126

  3. Extortion, Art. 127

  4. Assault, Art. 128

  5. Maiming, Art. 128a

  6. Domestic Violence, Art. 128b

  7. Burglary; Unlawful Entry, Art. 129

  8. Stalking, Art. 130

OBSTRUCTION OFFENSES

  1. Perjury, Art. 131

  2. Subornation of Perjury, Art. 131a

  3. Obstructing Justice, Art. 131b

  4. Misprision of Serious Offense, Art. 131c

  5. Wrongful Refusal to Testify, Art. 131d

  6. Prevention of Authorized Seizure of Property, Art. 131e

  7. Noncompliance with Procedural Rules, Art. 131f

  8. Wrongful Interference with Adverse Administrative Proceeding, Art. 131g

  9. Retaliation, Art. 132

OFFENSES OF GENERAL APPLICATION

  1. Conduct Unbecoming An Officer, Art. 133

  2. General Article, Art. 134

  3. Offenses Under Art. 134

     

OTHER OFFENSES

  1. Wartime Related Offenses

 

 
 
 
 

GENERAL PROVISIONS

I. PRINCIPALS,  ART. 77

A. Principal Liability Defined.

1. Text.  “Any person punishable under this chapter who: (1) commits an offense punishable by this chapter or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal.”  Article 77.

2. Purpose. Article 77 directs that a person need not personally perform the acts necessary to constitute an offense to be guilty of it.  “It eliminates the common law distinctions between principals in the first degree, principals in the second degree, and accessories before the fact.  All of these parties are now ‘principals.’” MCM, pt. IV, ¶ 1.b.(1) (parentheticals omitted).

3. Article 77, which applies the doctrine of principals to all offenses under the UCMJ, does not establish a separate offense.  Article 77 not only covers perpetrators, it extends to others who assist, encourage, advise, instigate, counsel, command, or procure another person to commit an offense; or who assist, encourage, or advise another in the commission of the offense.

B. Who are “Principals?”  The MCM creates two categories of individuals that can be guilty of an offense as a principal: 1) Perpetrators & 2) Other;Parties.

1. Perpetrators. “A perpetrator is one who actually commits the offense, either by the perpetrator’s own hand, or by knowingly or intentionally; inducing or setting in motion causing an offense to be committed by knowingly or intentionally inducing or setting in motion” acts by an agent or instrument which results in the commission of the offense.  MCM, pt. IV, ¶ 1.b. (2)(a).

a) United States v. Perry, 27 M.J. 796 (A.F.C.M.R. 1988) (holding accused liable as a perpetrator where, although accused never touched the stolen property, he directed another airman to grab a paper bag that had been left temporarily unguarded at a local bar).

b) Suppose Person A intentionally causes an innocent Person B to commit an offense’s act against Person B’s will.  The offense’s mens rea requirement may be satisfied by Person A’s criminal intent.  In such a case, only Person A is guilty of a crime.  United States v. Minor, 11 M.J. 608 (A.C.M.R. 1981) (holding accused liable as a principal to sodomy, where accused makes himself a party to the co-accused’s threat compelling a victim’s boyfriend to commit sodomy on victim).

c) Authority of government “agent” or “decoy,” however, may prevent liability as a perpetrator.  United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968).  Accused proposed theft of military property to two other soldiers.  Soldiers informed military authorities and were told to go along with the proposal.  Accused subsequently directed one Soldier to load military property on a truck and directed the other Soldier to drive away with the military property.  Because the Soldiers were government “agents or decoys,” the government never lost control or possession of the military property and their acts did not constitute a wrongful taking.  Under the circumstances, the accused never acquired possession, dominion, or control; conviction for larceny reversed, and lesser included offense of attempted larceny affirmed.  See also United States v. Klink, 14 M.J. 743 (A.F.C.M.R. 1982) (larceny upheld where accused, along with assistance of two government operatives, actually took goods from a government warehouse, carried them to a dock, loaded them into getaway vehicle, and helped drive them away).

2. Other Parties.  “If one is not a perpetrator, to be guilty of an offense committed by the perpetrator, the person must” meet the two requirements listed at MCM, pt. IV, ¶ 1b(2)(b).

a) Aider and Abettor.  Case law still predominantly describes the MCM’s “Other Party” liability as “aider and abettor liability.”  Aiding and abetting requires the following proof:  “(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense.”  United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990).

b) Co-conspirators.

(1) Article 77 is broad enough to encompass vicarious liability of co-conspirators. United States v. Jefferson, 22 M.J. 315 (C.M.A 1986).  Conspiracy does not have to be charged to prove vicarious liability.   United States v. Browning, 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could prove larceny and fraudulent claim charges on theory that accused was perpetrator, aider and abettor, or co-conspirator, even though conspiracy was not on the charge sheet).

(2) A conspirator may be convicted of substantive offenses committed by a co-conspirator, provided such offenses were committed in furtherance of the agreement while the agreement continued to exist and the conspirator remains a party to it.  MCM, pt. IV, ¶ 5c(5); Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta, 14 M.J. 383 (C.M.A. 1983) (members were properly instructed on liability for co-conspirator’s drug distribution; citing Nye and Nissen v. United States, 336 U.S. 613 (1949)); United States v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug distribution by one co-conspirator to another co-conspirator was provident even though accused did not physically participate in the distribution).

c) Basis for Liability: Actus Reus (Assist, encourage, advise, instigate, counsel, command, procure).  Article 77 requires an affirmative step on the part of the accused to be liable as an aider and abettor. 

(1) United State v. Vela, 71 M.J. 283 (C.A.A.F 2012). Accused completed his part of staging a scene to cover-up the murder of an innocent Iraqi national, by shooting the victim in the head. Though his team leader placed a weapon on the body of the dead Iraqi, the accused had already participated by ensuring the victim was dead and later continued to participate in the cover-up of the incident.

(2) United States v. Mitchell, 66 M.J. 176 (C.A.A.F. 2008). The accused was guilty of indecent assault for encouraging perpetrator to have sex with the victim when the perpetrator initially hesitated to carry out the crime.

(3) United States v. Thompson, 50 M.J. 257 (1999). The evidence was legally sufficient for a conviction of rape as a principal where the accused participated in getting the victim helplessly intoxicated, knew a friend was going to have intercourse with the victim, did nothing to dissuade the friend when he looked to the accused for approval, and provided the friend with a condom.

(4) United States v. Speer, 40 M.J. 230 (C.M.A. 1994). An accused aids and abets the offense of drug distribution when he verifies purchase price and accepts the cash payment from the buyer, even though the delivery of the drugs has been completed, he facilitates the “financial climax of the deal.” The court adopts the “criminal venture” approach to aiding and abetting.

(5) United States v. Bolden, 28 M.J. 127 (C.M.A. 1989). Accused was guilty of larceny as an aider and abettor where he suggested and assisted a “sham” marriage to obtain quarters allowance and a false rental agreement that overstated the monthly rent.

(6) United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956). An accused who blocked a door with the intent of preventing the escape of the victim from his assailant aided and abetted the assailant.

(7) United States v. Jacobs, 2 C.M.R. 115 (C.M.A. 1952). Accused and three others broke into a private home and assaulted the occupant. Although the accused did not personally take property from victim, he aided and abetted the others in committing a robbery and was liable as a principal. The “assault provides the necessary act of assistance, and accordingly we have before us much more than mere presence at the scene of the crime.”

(8) United States v. Thomas, No. ARMY 20150205, 2016 WL 4729442, at *1 (A. Ct. Crim. App. Sept. 9, 2016) (ACCA notes Article 77 would be the preferred way to charge soliciting a child to produce and distribute child pornography, rather than Article 134).

(9) But see United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013).  Accused was not guilty of involuntary manslaughter for a death caused by overdose after he prepared the drug for the victim.

d) Basis for Liability: Mens Rea (Shared Criminal Intent with Perpetrator)

(1) In the case of an accomplice, the intent element may be satisfied with “proof that the accomplice shared in the perpetrator’s criminal purpose and intended to facilitate the intent of the perpetrator with respect to the commission of the offense.”  United States v. Mitchell, 66 M.J. 176 (C.A.A.F. 2008) (in a guilty plea for aiding and abetting an indecent assault, the accused admitted to acting with the specific intent to gratify the principal’s lust and sexual desires and the court concluded that there was no need to demonstrate that the aider and abettor intended to gratify his own lust and sexual desires).

(2) The requisite mens rea for aiding and abetting is sharing the criminal intent or purpose of the active perpetrator of the crime.  United States v. Jacobs, 2 C.M.R. 115, 117 (C.M.A. 1952) (“[t]he proof must show that the aider or abettor . . . participated in it as in something he wished to bring about, that he sought by his action to make it successful”) (prosecution under Articles of War, because offense pre-dated effective date of the UCMJ); United States v. Bolden, 28 M.J. 127 (C.M.A. 1989); United States v. Gosselin, 62 M.J. 349 (2006) (record did not reflect a shared “criminal purpose” of introducing drugs onto the base).

(3) United States v. Fullen, 1 M.J. 853 (A.F.C.M.R. 1976).  Accused agreed with two others to lure the victim to a dark area where they would grab and rob the victim.  According to the accused, he was unaware that one of his companions was going to strike the victim with a pipe.  After the victim fell to the ground, the accused took the victim’s wallet, which contained $9.  Accused was guilty of robbery, because the intended grabbing would have been an assault sufficient for the compound offense of robbery.

(4) United States v. Patterson, 21 C.M.R. 135 (C.M.A. 1956).  Accused pulled victim to the floor, and co-accused hit victim with chair.  Later the same day, the co-accused struck victim several times in the face with a large belt buckle.  Victim tried to flee, but accused blocked access to the door and co-accused bit victim’s ear. Notwithstanding accused’s claim that he did not intend that an aggravated assault be committed, the facts belie his claim and support conviction of aggravated assault.  Principals are chargeable with results that flow as natural and probable consequences of the offense subjectively intended.  MCM, pt. IV, ¶ 1b(5). 

(5) An aider or abettor may be guilty of an offense of greater or lesser seriousness than the perpetrator, depending on his level of intent.  MCM, pt. IV, ¶ 1b(4).  United States v. Jackson, 19 C.M.R. 319 (C.M.A. 1955).  Accused and co-accused assaulted the victim. Co-accused stabbed the victim, who subsequently died.  Both accused were convicted of premeditated murder at a joint trial.  Court affirmed co-accused’s conviction but reversed accused’s conviction, because of failure to instruct on lesser included offense of involuntary manslaughter.  The aider and abettor may be guilty in a different degree from the principal, and the law holds each accountable according to the turpitude of his own motive.  Compare United States v. Richards, 56 M.J. 282 (C.A.A.F. 2002) (intent to kill or inflict great bodily harm by kicking the victim sufficient to establish guilt as an aider and abettor of voluntary manslaughter even though death caused by co-accused stabbing the victim).

e) Presence at the Scene of the Crime.  Appellate courts have considered the extent to which presence at the scene of the crime constitutes a sufficient act or evinces sufficient intent to establish Article 77 liability.

(1) Presence may be a factor in establishing liability.  United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990). 

(2) Presence is not necessary.  Presence at the scene of a crime is not necessary to make one a party to the crime and liable as a principal.  MCM, pt. IV, ¶ 1b(3)(a).  See United States v. Carter, 23 C.M.R. 872 (A.F.B.R. 1957) Accused who loaned his car to a friend with the knowledge that it was going to be used in the commission of a larceny was guilty of larceny on aiding and abetting theory, even though he did not know all the details of how the crime was to be committed and was not present at the commission of the crime.

(3) Presence is not sufficient.  Mere presence at the scene of crime does not make one a principal.  MCM, pt. IV, ¶ 1b(3)(b).  See United States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (holding that mere presence in a misappropriated vehicle did not make the accused liable as a principal); United States v. Waluski, 21 C.M.R. 46 (C.M.A. 1956) (holding that mere presence was insufficient to support finding that accused aided and abetted the driver in the culpably negligent operation of a vehicle); United States v. Johnson, 19 C.M.R. 146 (C.M.A. 1955) (holding that mere presence with group of pedestrians who robbed a passerby was insufficient to support conviction as aider and abettor); United States v. Guest, 11 C.M.R. 147 (C.M.A. 1953) (holding that evidence was insufficient to support conviction as aider and abettor of murder and larceny, even though the accused was present at the scene of the murder, robbery, and subsequent discussion of the sale of the stolen property, because he did nothing to encourage or aid the murder or the larceny); United States v. Gosselin, 62 M.J. 349 (2006) (mere presence in the car with drugs not enough to establish guilt, citing United States v. Burroughs, 12 M.J. 380

(4) United States v. Cobb, 45 M.J. 82 (C.A.A.F. 1996).  Evidence was legally sufficient to support accused’s conviction as an aider and abettor to robbery when he was present at crime, fully aware of his companion’s impending crime, expected and in fact was offered a share of the proceeds, and may have held perpetrator’s feet as he leaned out of vehicle to effect robbery.

(5) United States v. Pritchett, 31 M.J. 213 (C.M.A. 1990).  The fact that the wife shared an apartment with the accused, the fact that 166 grams of marijuana were stored in a coffee can in a dresser in the only bathroom in the apartment, the fact that the accused knowingly permitted his residence to be used as a repository for the drugs, the fact that the accused was found after the sale in possession of a purse that contained marked bills from the drug sale, and the fact that the appellant’s fingerprints were found on several foil wrapped pieces in the can were sufficient to show that the accused aided and abetted his wife’s possession with intent to distribute marijuana.  Additionally, his immediate presence during the drug sale, “his preliminary drug talk, and his maintenance of a drug-sale safe house” were sufficient to constitute active encouragement and assistance to support a conviction for aiding and abetting his wife’s drug distribution.  Finally, the accused’s facilitation of his wife’s drug distribution, the fact that the sale took place in a common area of the home while the accused was at home, and the fact that the money from the controlled buy was found in the accused’s possession were sufficient to show that the accused aided and abetted his wife’s distribution of marijuana. 

(6) When presence is sufficient.  Presence is sufficient if presence equals encouragement, support, and protection.  United States v. Void, 17 M.J. 740 (C.M.A. 1982) (if one knows that his presence will be regarded as encouragement, support and protection, and yet stands idle while his cohort commits crime, then his presence alone renders him criminally liable).  See United States v. Dunn, 27 M.J. 624 (A.F.C.M.R. 1988) (accused’s presence at the scene of a shoplifting, perpetrated as part of the accused’s criminal training, sufficient to establish his guilt for larceny as an aider and abettor); United States v. Hatchett, 46 C.M.R. 1239 (N.C.M.R. 1973) (Hitchhiker sat in back seat of vehicle between accused and active perpetrator.  As car moved along, active perpetrator robbed victim.  Accused was guilty of robbery.  He was aware the victim was given ride in order to be robbed and his presence in the rear seat of the vehicle “ensured the victim could not escape.). 

f) Failure to Stop Crime.  Failure to stop a crime does not constitute aiding and abetting unless there is an affirmative duty to interfere (e.g., a security guard).  If a person has a duty to interfere, but fails to do so, that person is a party to the crime if such noninterference is intended to and does operate as an aid or encouragement to the perpetrator.  MCM, pt. IV, ¶ 1b(2)(b).  See United States v. Thompson, 22 M.J. 40 (C.M.A. 1986) (holding no general duty of NCOs to prevent crime absent “identifiable regulation, directive, or custom of the service.”); United States v. Simmons, 63 M.J. 89 (2006) (duty of NCO to prevent crime within unit may arise, but failure to act must be accompanied by shared criminal purpose). 

(1) Liability found.  See United States v. Shearer, 44 M.J. 330 (C.A.A.F 1996) (affirming conviction after of guilty plea to aiding and abetting flight from the scene of an accident where accused admitted that he had a duty to report the identity of the driver to Japanese authorities at the scene of the accident); United States v. Crouch, 11 M.J. 128 (C.M.A. 1981) (motor pool guard allowed friends to steal tools); United States v. Ford, 30 C.M.R. 31 (C.M.A. 1960) (evidence showed that security guard told perpetrators about unsecured building and his failure to interfere was intended to encourage fellow guards to steal unsecured property).

(2) No liability found.  See United States v. Simmons, 63 M.J. 89 (C.A.A.F. 2006) (accused was not guilty of a physical assault when he failed to intervene and stop the fight because he did not share assailant’s criminal intent); United States v. Epps, 25 M.J. 319 (C.M.A. 1987) (under the facts, failure to stop barracks larceny did not make accused an aider and abettor); United States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (government failed to prove the existence of duty of senior vehicle occupant to ensure the safe operation of the vehicle); United States v. McCarthy, 29 C.M.R. 574 (C.M.A. 1960) (after advising subordinates not to steal hubcaps, lieutenant’s failure to take active measures to prevent crime committed in his presence did not establish his guilt as a principal); United States v. Lyons, 28 C.M.R. 292 (C.M.A. 1959) (holding that a truck guard who accepted money to “see nothing” not liable as an aider or abettor where he was not told why he was offered the money and there was no evidence that he participated in the venture as something he desired to bring about); United States v. Fuller, 25 M.J. 514 (A.C.M.R. 1987) (soldier, whose job was fuel handler, had no duty to prevent burning of barracks room).

g) Duty to Report Crime.  As a general rule, mere failure to report a crime does not by itself make one an aider and abettor.  However, statutory exceptions to this rule may exist in certain circumstances.  See, e.g., 18 U.S.C. §793(f) (defining criminal offense to fail to report illegal disposition of national defense information).  Also, the services can require that personnel report offenses that they observe.  Thus, failure to report a crime may be a dereliction under some circumstances.  See United States v. Heyward, 22 M.J. 35 (C.M.A. 1985) (Air Force regulation imposing special duty to report drug abuse did not violate the Fifth Amendment, because it did not compel members to report their own illegal acts but only those of other members) cert. denied, 479 U.S. 1011  (1986); United States v. Bland, 39 M.J. 921 (N.M.C.M.R. 1994) (upholding Navy regulation imposing a general duty to report crime which has been observed).

C. Principals Are Independently Liable.

1. One may be convicted as a principal, even if the perpetrator is not identified or prosecuted, or is acquitted.  MCM, pt. IV, ¶ 1b(6).

2. Standefer v. United States, 447 U.S. 10 (1980).  A defendant can be convicted of aiding and abetting the commission of a federal offense, despite the prior acquittal of the alleged actual perpetrator of the offense.

3. United States v. Minor, 11 M.J. 608 (A.C.M.R. 1981).  Co-accused forced victim’s boyfriend to commit sodomy on victim by threatening him and accused aided and abetted threat by encouraging victim’s boyfriend to comply.  The accused was properly convicted of sodomy as a principal, because the amenability of the actual perpetrator to prosecution is not a requirement for criminal liability as an aider and abettor. The actor need not be subject to the UCMJ.

4. United States v. Crocker, 35 C.M.R. 725, 739-40 (A.F.B.R. 1964).  Accused and Holloway engaged in assault with a knife upon the victim.  The evidence established that Holloway fatally stabbed the victim.  Holloway was acquitted of murder, and but found guilty of aggravated assault.  The accused was convicted of unpremeditated murder, and the court affirmed the conviction.  The acquittal of the active perpetrator has no effect on the accused’s case.

5. United States v. Duffy, 47 C.M.R. 658 (A.C.M.R. 1973) (officer who ordered NCO to kill prisoner guilty as principal despite acquittal of NCO based on lack of mental capacity).

D. Liability for Other Offenses.  “A principal may be convicted of crimes committed by another principal if such crimes are likely to result as a natural and probable consequence of the criminal venture or design.”MCM, pt. IV, ¶ 1.b.(5).

1. United States v. Knudson, 14 M.J. 13 (C.M.A. 1982).  Accused loaned money to Shaw to buy LSD to be resold at a profit, drove Shaw to off-post residence to buy LSD, and informed prospective buyer that Shaw still had LSD.  Evidence was sufficient for conviction of wrongful introduction and wrongful distribution of LSD.  If there is a concert of purpose to do a criminal act, all probable results that could be expected are chargeable to all parties concerned.  “The fact that the accused did not know in advance of the particular transfers or the parties to whom the transfers would be made does not relieve him of criminal responsibility.”

2. United States v. Waluski, 21 C.M.R. 46 (C.M.A. 1956).  Accused and Hart stole a jeep.  Hart drove away from scene at high rate of speed and ran over a pedestrian, killing him.  Because there was no evidence that accused actively aided and abetted the operation of the vehicle, accused could not be convicted of involuntary manslaughter.

3. United States v. Wooten, 3 C.M.R. 92, 97 (C.M.A. 1952).  Aider and abettor of larceny of 250 pairs of Army issue trousers also liable for wrongful disposition of military property, because it was a natural and probable consequence of the theft.

4. United States v. Self, 13 C.M.R. 227, 243 (A.B.R. 1953).  Accused and two co-accused wrongfully appropriated jeep and drove away.  When stopped at a checkpoint, co-accused shot and killed a sentinel.  Accused was in the back seat and did nothing during the events at the checkpoint.  Where an accused has combined with others in the perpetration of an unlawful act under such circumstances as will, when tested by experience, probably result in the taking of human life, he is equally responsible for a homicide flowing as a natural consequence of such unlawful combination.  The court reversed the conviction for murder, because the larceny of the vehicle, however, was not “so desperate a design that its execution might naturally or probably result in the taking of human life.”

E. Withdrawal as a Principal.  A person may withdraw from a common venture or design and avoid liability for any offenses committed after the withdrawal.  To be effective the withdrawal must:

1. Occur before the offense is committed;

2. Effectively countermand or negate the assistance, encouragement, advice, instigation, counsel, command, or procurement; and

3. Be clearly communicated to the would-be perpetrators or to appropriate law enforcement authorities in time for the perpetrators to abandon the plan or for law enforcement authorities to prevent the offense.  MCM, pt. IV, ¶ 1b(7).

F. Pleading.

1. All principals are charged as if each was the perpetrator.  R.C.M. 307(c)(3) discussion, ¶ H(i).

2. United States v. Vidal, 23 M.J. 319 (C.M.A. 1987).  Accused and PFC Hunt kidnapped German woman.  Accused drove car to secluded area.  PFC Hunt and the accused had sexual intercourse with her in the back seat.  Accused charged with a single specification of rape, but the specification did not indicate whether he was the perpetrator or an aider and abettor.  The court affirmed the conviction, because the standard rape specification is sufficient to charge accused as perpetrator or aider and abettor, and the prosecution is not required to elect between those two theories.  See also United States v. Westmoreland, 31 M.J. 160 (C.M.A. 1990) (judge can instruct, and accused can be convicted, under an aiding and abetting theory, even though case has not been presented on that theory); United States v. Dayton, 29 M.J. 6 (C.M.A. 1989) (government is entitled to prosecute the accused for distribution of LSD on the alternate theories that he is guilty as a perpetrator or as an aider and abettor).

G. Relationship to Inchoate Crimes.

1. Attempts.  For an accused to be guilty as an aider and abettor to an attempt, the actual perpetrator must have actually attempted the commission of the underlying offense.  United States v. Jones, 37 M.J. 459 (C.M.A. 1993).  Accused aided and abetted perpetrator who took “substantial step” with intent to distribute cocaine to an undercover officer.  Perpetrator’s failure to go through with the transaction did nothing to alter her or accused’s liability.

2. Solicitation.

a) The crime of solicitation is complete when the solicitation or advice is communicated.  Conviction as a principal for aiding and abetting, however, requires that the completion or attempt of a crime.

b) Solicitation pertains to inducing an action in the future; aiding and abetting pertains to involvement in ongoing activity.  United States v. Dean, 44 M.J. 683 (A. Ct. Crim. App. 1996) (holding that accused’s call to her co-conspirator “don’t let him get into the door” made during ongoing beating was aiding and abetting rather than solicitation).

c) Solicitation may exist even when the object is predisposed to the crime. United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005)  (holding that appellant’s request for photographs of a sexual encounter between “JD” and a nine-year old girl immediately after the appellant’s inquiry into whether JD had engaged in sexual intercourse with the nine-year-old girl was a serious request to commit carnal knowledge).  The court further stated that neither the MCM nor the UCMJ precludes a conviction for solicitation because the object is predisposed towards the crime (rejecting the requirement set forth in Dean, 44 M.J. 683 (A. Ct. Crim. App. 1996)).

II. ACCESSORY AFTER THE FACT,  ART. 78

A. Introduction.

1. Text.  “Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment shall be punished as a court-martial may direct.”  Article 78.

2. Not a Lesser Included Offense of the Underlying Offense.  MCM, pt. IV, ¶ 2(c)(6).  United States v. Price, 34 C.M.R. 516 (A.B.R. 1963) (holding that neither accessory after the fact nor receiving stolen property were lesser included offenses of larceny); United States v. Greener, 1 M.J. 1111 (N.C.M.R. 1977).  But see United States v. Michaels, 3 M.J. 846 (A.C.M.R. 1977) (permitting accused to enter a substitute plea of accessory after the fact to larceny, even though not a lesser included offense of the referred larceny charge).

3. Acquittal of the Principal Actor Is No Defense.  MCM, pt. IV, ¶ 2(c)(5).  United States v. Marsh, 32 C.M.R. 252 (C.M.A. 1962) (holding that an accused can be convicted of a violation of Article 78 without regard to the separate conviction or acquittal of the principal actor).

4. Principal Offender Need Not Be Subject to the UCMJ.  MCM, pt. IV, ¶ 2(c)(4).  United States v. Michaels, 3 M.J. 846 (A.C.M.R. 1977); United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964) (holding that military accused can be convicted of a violation of Article 78 without regard for the amenability of the principal offender to military jurisdiction).

5. Failure to Report Offense.  MCM, pt. IV, ¶ 2(c)(2).  The mere failure to report an offense will not make one an accessory after the fact.  However, such failure may violate a lawful order or regulation and thus constitute an offense under Article 92.  See infra ¶ XX, this chapter.  Also, a positive act of concealment and failure to report a serious offense can constitute the offense of misprision of a serious offense under Article 131c. See infra ¶ LXXXVII, this chapter.

B. Acts Sufficient for Accessory After the Fact.

1. United States v. Davis, 42 M.J. 453 (C.A.A.F. 1995).  Accused who falsely informed investigators that he did not know who committed larceny but hinted that someone other than the actual thief was responsible gave “assistance” to the actual offender, thereby making accused an accessory after the fact to larceny.

2. United States v. Foushee, 13 M.J. 833 (A.C.M.R. 1982).  Providing Q-tips and alcohol to clean blood off the knife used in an assault and to treat offender’s injured ankle constituted receipt, comfort, and assistance for the purposes of hindering or preventing the apprehension or trial of the offender.  However, where evidence showed only that the accused knew the principal perpetrator had stabbed the victim with the knife but did not know the perpetrator intended to kill or inflict grievous bodily harm, accused could be convicted of being accessory after the fact to assault with a dangerous weapon but not assault with intent to murder.  See also United States v. Marsh, 32 C.M.R. 252 (C.M.A. 1962) (advising perpetrator of theft to get rid of stolen goods and thereafter consuming liquor bought with proceeds); United States v. Tamas, 20 C.M.R. 218 (C.M.A. 1955) (concealing proceeds of a theft for purpose of assisting thief); United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964) (concealing and transporting proceeds of theft).

3. United States v. Michaels, 3 M.J. 846 (A.C.M.R. 1977).  Where accused has responsibility to protect particular property, accused is an accessory after the fact when he accepts money not to disclose completed larcenies.

C. Liability as a Principal Distinguished.

1. The co-perpetrator of the offense of possession of heroin cannot be an accessory after the fact to the same offense.  United States v. McCrea, 50 C.M.R. 194 (A.C.M.R. 1975).

2. Act of principal must occur before or during the crime.  If the act is after the crime, then it must have been part of an agreement or plan before commission of the offense, for the accused to be guilty as a principal rather than an accessory after the fact.  See United States v. Greener, 1 M.J. 1111 (N.C.M.R. 1977) (one who is not a party to the original larceny scheme but who after the theft removes purloined goods from a cache is an accessory after the fact).

3. One is not an accessory after the fact if the offense is still in progress when the assistance is rendered.  Even though the perpetrator of a larceny has consummated the larceny as soon as any taking occurs, others may become aiders and abettors by participating in the continuing asportation of the stolen property.  United States v. Bryant, 9 M.J. 918  (C.M.R. 1980).  But see United States v. Manuel, 8 M.J. 822 (A.F.C.M.R. 1979).  Notwithstanding that larceny is a continuing offense, accused may be convicted of accessory after the fact when, with the intent to assist the active perpetrator avoid detention and prosecution, he advises the active perpetrator to destroy the stolen property.  The purpose of the assistance is critical.  If it is to secure the fruits of the crime, he is a principal, but if it is to assist the perpetrator in avoiding detection and punishment, he is an accessory after the fact.

4. Principal of one crime may be liable as an accessory after the fact for a related crime arising from the same actions.  United States v. McCormick, 74 M.J. 534 (A. Ct. Crim. App. 2014), rev. denied by 2015 CAAF LEXIS 680 (C.A.A.F. July 27, 2015) .  The accused was a driver in a drive-by shooting in which the shooter fired thirteen shots into an occupied vehicle.  While the accused was liable as a principal for aggravated assault for the drive-by shooting, he could have become aware of the shooter’s intent to kill the occupants of the vehicle prior to his efforts to conceal the shooting after the crime, making him liable for attempted murder as an accessory after the fact.

D. Liability for Misprision of a Serious Offense Distinguished.  

1. One can be an accessory to any offense; however, misprision requires an offense punishable by confinement for more than one year.  MCM, pt. IV. ¶ 84c(2).

2. An accessory must “receive,” “comfort” or “assist” a principal “in order to hinder or prevent his apprehension, trial or punishment.”  MCM, pt. IV, ¶ 2.  Misprision requires a positive act to conceal a felony, but it does not require intent to benefit the principal.  MCM, pt. IV, ¶ 84c(1).

3. Act Sufficient for Misprision.  United States v. Sanchez, 51 M.J. 165 (C.A.A.F. 1999).  Disposal of knife used in aggravated assault and formulation of plan to avoid detection amounted to affirmative assistance supportive of a misprision conviction.

4. Acts Insufficient for Misprision.  United States v. Maclin, 27 C.M.R. 590 (A.B.R. 1958) (reversing conviction for misprision because accused who was burying stolen property did not know the prior theft was a felony); United States v. Assey, 9 C.M.R. 732 (A.F.B.R. 1953) (lending money to larceny perpetrator to replace stolen goods was not a “positive act of concealment”).

 

III. CONVICTION OF OFFENSE CHARGED, LESSER INCLUDED OFFENSES, AND ATTEMPTS,  ART. 79

A. Introduction.

1. Text.  “An accused may be found guilty of any of the following:  (1) The offense charged; (2) A lesser included offense; (3) An attempt to commit the offense charged; (4) An attempt to commit a lesser included offense, if the attempt is an offense in its own right.”  Article 79.

2. The term “Lesser Included Offense” means: “(1) an offense that is necessarily included in the offense charged; and (2) any lesser offense so designated by regulation prescribed by the President.” Id.

a) “Necessarily included” offenses.  Under Article 79(b)(1), an offense is “necessarily included” in a charged offense when the elements of the lesser offense are a subset of the elements of the charged offense, thereby putting the accused on notice to be prepared to defend against the lesser offense in addition to the offense specifically charged.

(1) A lesser offense is “necessarily included” when all of the elements of the lesser offense are included in the greater offense, and (a) the common elements are identical;  (b) at least one element is a subset by being legally less serious; or (c) the mental element is a subset by being legally less serious. Article 79(b)(2). 

b) Offenses designated by the President.  Under Article 79(b)(2), Congress has authorized the President to designate lesser included offenses by regulation, subject to the requirement that any offenses so designated “shall be reasonably included in the greater offense.” Article 79(c).

(1) Appendix 12A sets forth the list of Presidentially-designated lesser included offenses.  The President may include a “necessarily included offense” in Appendix 12A, but is not required to.

3. Application.  Each of the above provisions sets forth an independent basis for providing notice of a lesser included offense.  Article 79(b)(1).

a) Thus, a court may identify an offense as a “necessarily included” offense under Article 79(b)(1) regardless of whether the offense is designated in Appendix 12A. 

4. Background:  Evolution of LIO Doctrine.

a) The Court of Military Appeals formerly construed Article 79 and its “necessarily included” language to mean offenses that are “fairly embraced” in the pleadings and proof of the greater offense. United States v. Baker, 14 M.J. 361 (C.M.A. 1983).

b) In 1989, the Supreme Court held that Fed.R.Crim.P. 31(c) should be construed to include only lesser included offenses as established by the statutory elements.  Schmuck v. United States, 489 U.S. 705 (1989).

c) In United States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993), the Court of Military Appeals stated, “In view of the identity of language of Article 79 and Fed.R.Crim.P. 31(c), we will apply the Supreme Court’s more recent holding and abandon the ‘fairly embraced’ test for determining lesser included offenses as a matter of law.”

d) United States v. Foster, 40 M.J. 140 (C.M.A. 1994).  Citing Schmuck, the court held: “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 omitted).  This formulation of the test for multiplicity and lesser included offenses created a significant issue for offenses charged under Art. 134, which requires proof of an element not required for proof of offenses under Arts. 80–132: that the conduct was prejudicial to good order and discipline or service-discrediting.  The court held that the phrase “necessarily included” in Art. 79 “encompasses derivative offenses under Article 134.”  An offense under Art. 134 may, “depending on the facts of the case, stand either as a greater or lesser offense of an offense arising under an enumerated article.”  This is because “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.”

e) United States v. Weymouth, 43 M.J. 329 (C.A.A.F. 1995).  The CAAF refined its holdings in Teters and Foster, adopting the “pleadings-elements” approach: “In the military, the specification, in combination with the statute, provides notice of the essential elements of the offense” (emphasis omitted).  The court cautions that it did not retreat to the “fairly embraced” test rejected in Teters:  “Either the elements alleging the greater offense (by the statute and pleadings) fairly include all of the elements of the lesser offense or they do not.  As alleged, proof of the greater offense must invariably prove the lesser offense; otherwise the lesser offense is not included.”

f) United States v. Jones¸ 68 M.J. 465 (C.A.A.F. 2010).  The CAAF definitively abandoned principles announced in Foster and Weymouth and returned to the “elements test” announced in Teters. In Jones, the CAAF held that in order to determine if one offense is “necessarily included” in another, apply the elements test.  “Under the elements test, one compares the elements of each offense.  If all of the elements of offense X are also elements of offense Y, then X is an LIO of Y.  Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements.”  United States v. Jones¸ 68 M.J. 465, 470 (C.A.A.F. 2010)

g) Whereas previous listings of LIOs in the MCM have not been binding on the Courts, the 2016 MJA revisions to Article 79 statutorily incorporate the Jones elements test, while also providing a statutory and regulatory basis for the President to designate additional lesser included offenses.   

B. Fair Notice:  A Fundamental Principle.

1. The Constitution requires that an accused be on notice as to the offense that must be defended against.  Jackson v. Virginia, 443 U.S. 307 (1979); Schmuck v. United States, 489 U.S. 705 (1989).  When one offense is an LIO of another, the accused is on notice that he may be convicted of either offense; thus satisfying the Due Process notice requirement.  Language describing the elements need not match verbatim.  Courts apply normal rules of statutory interpretation and construction to “determine whether the elements of the [lesser included offense] would necessarily be proven by proving the elements of the greater offense.” 

2. The previously-employed “closely related offense” doctrine fails to provide the requisite fair notice, and is “no longer viable.”  United States v. Morton, 69 M.J. 12 (C.A.A.F. 2010) (invalidating CCA’s affirmance of two specifications of false official statements as a remedy for an improvident guilty plea to two specifications of forgery.)

C. Pleading Issues.

1. Lesser included offenses to the charged offense need not be separately pled.  See R.C.M. 307(c)(4) discussion (MCM 2016 ed.)

2. However, where it is unclear whether an offense is a lesser included offense, it is prudent to allege both the greater and the purported lesser offenses.

3. If a lesser included offense is separately pled in addition to the greater offense, an accused may not be convicted of both the lesser and greater offense.   See United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004).

4. If the MCM suggests that an enumerated article (Articles 82 through 132) has a lesser included offense in Art. 134, counsel should plead both the enumerated offense and the Article 134 offense.  See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009); United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).

5. Application to Article 134.

a) In comparing elements of offenses to determine whether an Article 134 offense stands as a lesser included offense to an offense under Articles 82 through 132, the CAAF has held that the terminal element of Article 134—contained in clauses 1 and 2—causes it to fail the elements test.  United States v. Jones¸ 68 M.J. 465, 470 (C.A.A.F. 2010)See also United States v. McMurrin, 69 M.J. 591 (N.M.Ct.Crim.App. 2010) (applying Jones to hold that Negligent Homicide is not a lesser-included offense of Involuntary Manslaughter).

b) Articles 82 through 132 are not per se prejudicial to good order and discipline or service discrediting.  Accordingly, clauses 1 and 2 of Article 134 are not per se included in every enumerated offense.  United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009), overruling in part, United States v. Foster, 40 M.J. 140 (C.M.A. 1994).

c) Clauses 1 and 2 are not considered LIOs of Clause 3 of Article 134.  In order to provide the requisite notice that the Government intends to pursue Clauses 1 and 2 in addition to Clause 3, the charge sheet should allege a violation of all three clauses.  This is usually done by adding Clause 1 and/or Clause 2 language (i.e., the terminal element) to a Clause 3 specification.  See United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).

6. Application to Article 120.

a) 2007 – 2012 Article 120.  In determining LIOs for charges under the 2007-2012 Article 120, courts will often have to apply the common and ordinary understanding of the words in the statute. 

(1) “Without consent” is not an “implicit element” of aggravated sexual assault.  United States v. Neal, 68 M.J. 289, 303 (C.A.A.F. 2010).

(2) Aggravated Sexual Assault by bodily harm is a proper LIO of Rape by force. The force required for a charged rape necessarily included the element of “bodily harm” required for a lesser included offense of aggravated sexual assault. United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010).

(3) Wrongful sexual contact is an LIO of aggravated sexual contact, because “applying the common and ordinary understanding of these words, an allegation that a victim is compelled to submit to sexual acts by force clearly includes as a subset that the victim is not consenting.” United States v. Pitman, No. ACM 37453, 2011 CCA LEXIS 93 at *11, 2011 WL 6010897, at *4 (A.F. Ct. Crim. App. May 19, 2011) (unpublished). 

(4) Assault Consummated by Battery is a proper LIO of Wrongful Sexual Contact.  United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011)

(5) Wrongful Sexual Contact is not an LIO of abusive sexual contact.  United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017)

b) Post-2012 Article 120. 

(1) Assault consummated by a battery is not a LIO of sexual assault or abusive sexual contact when the sexual act or contact was accomplished by placing the other person in fear that the accused would negatively affect the person’s military careerUnited States v. Riggins, 75 M.J. 78 (C.A.A.F. 2016).

(2) Assault consummated by a battery is not a LIO of sexual assault for knowing or should have known the alleged victim was asleep, when the sexual act is not disputed by the defense and there was no evidence that the accused otherwise “touched” the alleged victim’s vagina.  United States v. Hackler, 75 M.J. 648 (N-M. Ct. Crim. App. 2016). 

(3) Abusive sexual contact, a specific intent crime, is not a LIO of sexual assault when plead as a general intent crime.  United States v. Marbury, No. ARMY 20140023, 2016 WL 7011479, at *2 (A. Ct. Crim. App. 2016)

(4) Abusive sexual contact for touching alleged victim’s breast is not an LIO of penetrative sexual assault.  United States v. Marbury, No. ARMY 20140023, 2016 WL 7011479, at *2 (A. Ct. Crim. App. 2016)

c) See 2018 Criminal Law Deskbook for detailed analysis of LIO case law for offenses occurring prior to 2016 MJA.  

D. Instructions.

1. A military judge must instruct panel members on lesser included offenses reasonably raised by the evidence.  Article 79(b)(4).  See also United States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008); United States v. Rodwell, 20 M.J. 264, 265 (C.M.A.1985); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000) (reversing involuntary manslaughter conviction for failing to instruct on lesser included offense of negligent homicide); United States v. Wells, 52 M.J. 126 (C.A.A.F. 1999) (reversing premeditated murder conviction for failing to instruct on lesser included offense of voluntary manslaughter).

2. If the military judge fails to give an instruction, defense failure to object constitutes waiver, absent plain error.  R.C.M. 920(f); United States v. Pasha, 24 M.J. 87 , 91 (C.M.A. 1987); United States v. Mundy, 9 C.M.R. 130 (C.M.A. 1953).  The defense may waive an LIO instruction in order to pursue an “all or nothing” trial strategy and there is no rule that prevents the Government from acquiescing in such a strategy.  See United States v. Upham, 66 M.J. 83, 87 (C.A.A.F. 2008).  The military judge need not oblige, however.  As one court observed, “Such a litigation tactic remains viable in military jurisprudence, but it is far from being an absolute right or the unilateral prerogative of the defense.”  United States v. Swemley, 2010 WL 1715921 (N-M. Ct. Crim. App. Apr. 29, 2010) (unpub.).

3. A military judge can only instruct on an LIO where the “greater offense requires the [members] to find a disputed factual element which is not required for conviction of the lesser-included offense.”  Sansone v. United States, 380 U.S. 343, 350 (1965); United States v. Tunstall,  72 M.J. 191, 195 (C.A.A.F. 2013); United States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008); United States v. Griffin, 50 M.J. 480 (C.A.A.F. 1999) (holding that factual issue as to whether accused intended to stab victim with a knife, which he knowingly held in his hand, did not require an instruction on the lesser included offense of simple battery, because proof of intent to use the dangerous weapon is not required for the greater offense).

 

 

 

INCHOATE  OFFENSES

IV. ATTEMPTS,  ART. 80

A. Introduction.

1. Text.  “An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.”  Article 80(a).

2. Elements.  MCM, pt. IV, ¶ 4b.

a) The accused did a certain overt act;

b) The act was done with the specific intent to commit a certain offense under the code;

c) The act amounted to more than mere preparation; and

d) The act apparently tended to effect the commission of the intended offense.

3. Advisement of Elements During Guilty Plea.  Military judge must adequately advise and explain each of the four elements of attempt to an accused.  The record must objectively reflect the Appellant understood that his conduct, in order to be criminal, needed to go beyond preparatory steps and be a direct movement toward the commission of the intended offense.  United States v. Redlinski, 58 M.J. 117 (C.A.A.F. 2003)

B. Overt Act.

1. Generally.

a) The overt act need not be alleged in the specification.  United States v. Mobley, 31 M.J. 273 (C.M.A. 1990); United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969).

b) The overt act need not be illegal.  United States v. Johnson, 22 C.M.R. 278 (C.M.A. 1957) (accused guilty of attempted desertion where all acts occurred within limits of legitimate pass).

2. Specific Intent.

a) The overt act must be done with the specific intent to commit an offense under the UCMJ.

b) Applications.

(1) Attempted murder requires specific intent to kill, even though murder may require a lesser intent. See United States v. Roa, 12 M.J. 210 (C.M.A. 1982) (explaining that, because an attempt requires a specific intent, there can be no “attempt” to commit involuntary manslaughter “by culpable negligence”); United States v. Allen, 21 M.J. 72 (C.M.A. 1985) (finding circumstantial evidence sufficient to prove intent to kill required for attempted murder).

(2) Attempted rape requires specific intent to have sexual intercourse by force and without consent, even though rape is general intent crime.  United States v. Sampson, 7 M.J. 513 (A.C.M.R. 1979); cf. United States v. Adams, 13 M.J. 818 (A.C.M.R. 1982) (assault with intent to commit rape).

(3) In a prosecution for attempted violation of a lawful general regulation, under Article 92(1), the accused must have had the specific intent to commit the proscribed act, and it is immaterial whether the accused knew the act violated any particular provision of any particular regulation.  United States v. Foster, 14 M.J. 246 (C.M.A. 1982).

(4) No attempted sale of heroin where accused intentionally sold brown sugar.  United States v. Collier, 3 M.J. 932 (A.C.M.R. 1977).

(5) Transferred or concurrent intent doctrine may be applied to attempted murder.  United States v. Willis, 43 M.J. 889 (A.F.C.C.A. 1996), aff’d, 46 M.J. 258  (C.A.A.F. 1997).

3. More Than Mere Preparation.

a) Preparation consists of devising or arranging the means or measures necessary for the commission of the offense.  The required overt act must go beyond preparatory steps and be a direct movement towards the commission of the offense.  MCM, pt. IV, ¶ 4c(2); United States v. Jackson, 5 M.J. 765 (A.C.M.R. 1978) (holding that approaching and asking other soldiers if they want to buy a “bag” or “reefer” was not an attempt, but affirming it as a solicitation).

b) For the accused to be guilty of an attempt, the overt acts tending toward commission of the consummated offense must amount to more than mere preparation and constitute at least the beginning of its effectuation.  However, “[t]here is no requirement under the law of attempts that the trip to the doorstep of the intended crime be completed in order for the attempt to have been committed.”  United States v. Anzalone, 41 M.J. 142  (C.M.A. 1994) (affirming assault by attempt, where accused retrieved his rifle, locked and loaded a round in the chamber, and started toward the victim’s tent, even though he was stopped before he reached a point where he could have actually inflicted harm); United States v. Owen, 47 M.J. 501  (A.C.C.A. 1997) (holding that giving middle-man a map, automobile license number, and guidance on method for “hit man,” where accused believed “hit man” had already arrived in town for the job, was sufficient overt act for attempted murder).

c) The line of demarcation between preparation and a direct movement towards the offense is not always clear.  Primarily the difference is one of fact, not law.  United States v. Choat, 21 C.M.R. 313 (C.M.A. 1956) (attempted unlawful entry).

d) After a guilty plea where the accused admits that her acts went beyond mere preparation and points to a particular action that satisfies herself on this point, appellate courts will not find actions that fall within the “twilight zone” between mere preparation and attempt to be substantially inconsistent with the guilty plea.  United States v. Smith, 50 M.J. 380 (C.A.A.F. 1999) (citing United States v. Schoof, 37 M.J. 96 (C.M.A. 1993)).

e) Words alone may be sufficient to constitute an overt act.  United States v. Brantner, 28 M.J. 941 (N.M.C.M.R. 1989) (a recruiter’s request to conduct a “hernia examination” was an act deemed more than mere preparation for a charge of attempted indecent assault).

4. “Substantial Step.”

a) The overt act must be a “substantial step” toward the commission of the crime.  Whether the act is only preparatory or a substantial step toward commission of the crime must be determined on a case-by-case basis.  United States v. Jones, 32 M.J. 430  (C.M.A. 1991) (holding that soliciting another to destroy car, making plans to destroy it, and finally delivering the car and its keys to that person on the agreed day of the auto’s destruction constituted substantial step toward larceny from insurance company); United States v. Williamson, 42 M.J. 613 (N.M.C.C.A. 1995) (accused’s acts of putting knife in his pocket and “going after” intended victim, without some indication of how close he came to completing the crime or why he failed to complete it, were not factually sufficient to constitute a substantial step toward the commission of the intended crime); United States v. Church, 29 M.J. 679 (A.F.C.M.R. 1989), aff’d, 32 M.J. 70 (C.M.A. 1991) (planning wife’s murder, hiring undercover agent to kill wife, making payments for killing, and telling agent how to shoot wife constituted substantial step toward murder).

b) The “Test.”  United States v. Byrd, 24 M.J. 286 (C.M.A. 1987).

(1) The overt act must be a substantial step and direct movement toward commission of the crime.

(2) A substantial step is one strongly corroborative of the accused’s criminal intent and is indicative of resolve to commit the offense.

c) The accused must have engaged in conduct that is strongly corroborative of the firmness of the accused’s criminal intent.  United States v. Byrd, 24 M.J. 286 (C.M.A. 1987) (accepting money from undercover agent and riding to an off-post location to purchase marijuana was not strongly corroborative of the firmness of the accused’s intent to distribute marijuana); United States v. Presto, 24 M.J. 350 (C.M.A. 1987) (after agreeing to try to get marijuana for undercover agent, placing phone calls to drug supplier was not a substantial step toward distribution of marijuana); United States v. LeProwse, 26 M.J. 652 (A.C.M.R. 1988) (offering to pay two boys to remove their trousers was strongly corroborative of the firmness of the accused’s intent to commit indecent liberties); see also United States v. Jones, 32 M.J. 430, 432 (C.M.A. 1991) (“It is not the acts alone which determine the intent of the person committing them. The circumstances in which those acts were done are also indicative of a person's intent.”).

5. Tending to Effect the Commission of the Offense. 

a) United States v. McGinty, 38 M.J. 131 (C.M.A. 1993) (the accused’s running his fingers through the victim’s hair and hugging him was an affirmative step toward committing indecent acts).

b) The overt act need not be the ultimate step in the consummation of the crime.  It is sufficient if it is one that in the ordinary and likely course of events, would, if not interrupted by extraneous causes, result in the commission of the offense itself.  United States v. Johnson, 22 C.M.R. 278 (C.M.A. 1957) (although within the 50 mile limit of his pass, the accused’s walking to within the prohibited distance from the East German border, after unsuccessful attempts to get taxi drivers to cross the border, was sufficient overt act for attempted desertion); United States v. Gugliotta, 23 M.J. 905 (N.M.C.M.R. 1987) (overt act sufficient to constitute direct movement to commission of robbery where accused and accomplices made plans, procured implements, and went to the site of the crime with the tools for purpose of robbing exchange).

C. Defenses.

1. Factual Impossibility.  Factual impossibility is not a defense to attempt.  If the accused’s act would constitute a crime if the facts and circumstances were as the accused believed them to be, then he may be found guilty of an attempt to commit the intended crime, even though it was impossible to commit the intended crime under the actual circumstances.  MCM, pt. IV, ¶ 4c(3).

a) The defense of factual impossibility does not preclude conviction of attempted conspiracy where the other purported conspirator is an undercover government agent.  United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995) (attempted conspiracy to commit espionage); see also United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000); United States v. Baker, 43 M.J. 736 (A.F.C.C.A. 1995) (conspiracy would have been completed, but for the fact that informant did not share accused’s criminal intent); United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (factual impossibility not a defense to attempted conspiracy where accused agreed to murder the fictitious in-laws of a fellow member of his platoon; because the impossibility of the fictitious victims being murdered was not a defense to either attempt or conspiracy, it was not a defense to the offense of attempted conspiracy).

b) United States v. Thomas, 32 C.M.R. 278 (C.M.A. 1962).  The accused and two companions committed sexual intercourse with a female, whom they believed to be unconscious, under circumstances amounting to rape.  The female, however, was dead at the time of the sexual intercourse.  Conviction for attempted rape affirmed.

c) United States v. Dominguez, 22 C.M.R. 275  (C.M.A. 1957).  The accused injected himself with a substance he believed to be a narcotic drug.  Regardless of the true nature of the white powdery substance, accused was guilty of attempted use of a narcotic drug.

d) United States v. Riddle, 44 M.J. 282  (C.A.A.F. 1996).  The accused could be convicted of attempted conspiracy to steal military pay entitlements to which he was entitled by law or regulation, where he did not believe he was married at the time, even if he was married at the time.

e) United States v. Church, 29 M.J. 679  (A.F.C.M.R. 1989) aff’d 32 M.J. 70 (C.M.A. 1991).  Evidence supported the accused’s conviction for attempted premeditated murder of his wife, although the person he hired to kill his wife was an undercover agent.

f) United States v. Wilson, 7 M.J. 997 (A.C.M.R. 1979).  The accused came upon another person who was unconscious.  Beside the person was a hypodermic needle and syringe used by him to inject heroin.  The accused destroyed the needle and syringe to hinder or prevent the person’s apprehension for use and possession of narcotics.  Because this person was probably dead at the time the items were destroyed, the accused cannot be found guilty of accessory after the fact in violation of Article 78.  Because the accused believed the person was alive at the time he destroyed the needle and syringe, however, he may be found guilty of attempted accessory after the fact.

g) United States v. Longtin, 7 M.J. 784  (A.C.M.R. 1979).  The accused sold a substance, which he believed to be opium, as opium.  The laboratory test was inconclusive, and the Government could not prove it was opium.  The court affirmed the conviction for attempted sale of opium.  Had the facts and circumstances been as he believed them to be, he could have been convicted of sale of opium.

h) United States v. Powell, 24 M.J. 603 (A.F.C.M.R. 1987) (attempted larceny even though bank denied loan application).

2. Voluntary Abandonment.

a) A person who, with the specific intent to commit a crime, has performed an act that is beyond mere preparation and a substantial step toward commission of the offense may nevertheless avoid liability for the attempt by voluntarily abandoning the criminal effort.  United States v. Byrd, 24 M.J. 286 (C.M.A. 1987) (recognizing voluntary abandonment as an affirmative defense in military justice).

b) It is a defense to a completed attempt that the person voluntarily and completely abandoned the intended crime, solely because of the person’s own sense that it was wrong, prior to the completion of the crime.  MCM, pt. IV, ¶ 4c(4) (added to the MCM in 1995).

c) When the actions of the accused have progressed into their last stages and the victim has already suffered substantial harm, voluntary abandonment is not a defense to attempt.  United States v. Smauley, 42 M.J. 449 (C.A.A.F. 1995) (upholding guilty plea to attempted carnal knowledge).

d) The defense of voluntary abandonment is “unavailable if the criminal venture is frustrated by any circumstance that was not present or apparent when the actor began his criminal course of conduct that makes the accomplishment of the criminal purpose more difficult.” United States v. Haney, 39 M.J. 917 (N.M.C.M.R. 1994)  (citing United States v. Rios, 33 M.J. 436 (C.M.A 1991)).

e) Applications. 

(1) United States v. Schoof, 37 M.J. 96 (C.M.A. 1993) (fact that accused, later the same day, solicited someone to assist him in continuing to pursue the same crime of delivering classified microfiche to the Soviet Embassy undermined his claim that he had completely renounced his criminal purpose).

(2) United States v. Rios, 33 M.J. 436 (C.M.A 1991) (accused did not voluntarily abandon attempted robbery where he merely postponed the criminal conduct to a more advantageous time and transferred the criminal effort to a different but similar victim); see also United States v. Haney, 39 M.J. 917 (N.M.C.M.R. 1994) (defense of voluntary abandonment not available to an accused where he and another sailor tried to rob a vending machine by drilling a hole in the glass and the glass shattered, “prompt[ing] their conclusion that continuing in the endeavor would be a ‘bad idea’”).

(3) United States v. Collier, 36 M.J. 501 (A.F.C.M.R. 1992) (holding that when an attempted murder has proceeded so far that injury results, abandonment is not available as a defense).

(4) United States v. Wilmouth 34 M.J. 739 (N.M.C.M.R. 1991) (accused’s failure to deliver classified information because of inability to locate agent could not be attributed to a change of heart).

(5) United States v. Miller, 30 M.J. 999 (N.M.C.M.R. 1990) (abandoning a course of action is not voluntary when it is motivated by circumstances that increase the probability of detection and apprehension).

(6) United States v. Walthers, 30 M.J. 829 (N.M.C.M.R. 1990) (where the record indicated that the accused abandoned attempt to steal a car stereo, after breaking into the car, because of his own sense that it was wrong, the guilty plea to attempted larceny was improvident).

D. Pleading.

1. Only the elements of the inchoate offense (attempt) need to be alleged – the elements of the attempted offense (also called the “predicate” or “target” offense) need not be plead.  “However, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense.”  United States v. Norwood, 71 M.J. 204 (C.A.A.F. 2012).

2. Overt act need not be alleged.  United States v. Marshall, 40 C.M.R. 138 (C.M.A. 1969).

3. Attempted drug offenses.

a) United States v. Showers, 45 C.M.R. 647 (A.C.M.R. 1972).  Specification alleging that the accused “did . . . on or about 31 August 1971 attempt to sell some quantity of a habit forming drug, to wit: Heroin” was fatally defective, because it fails to allege that the attempt was wrongful.  Accord United States v. Brice, 38 C.M.R. 134 (C.M.A. 1967); but see United States v. Simpson, 25 M.J. 865 (A.C.M.R. 1988) (omission of the word “wrongful” from one of four drug distribution specifications not a fatal defect where defendant pled guilty), aff’d, 27 M.J. 483 (C.M.A. 1988).

b) United States v. Guevara, 26 M.J. 779 (A.F.C.M.R. 1988).  Conviction for attempted use of a controlled substance, alleged in the generic, affirmed.  Accused intended to use some type of controlled substance.

4. Attempted Robbery. 

a) All the essential elements of robbery must be alleged in an attempted robbery specification.  United States v. Rios, 15 C.M.R. 203 (C.M.A. 1954) (specification failing to allege the attempted taking was from the person or the presence of the victim was fatally defective).

b) United States v. Hunt, 7 M.J. 985 (A.C.M.R. 1979) (specification failing to allege the attempted taking was from the person or the presence of the victims was fatally defective; conviction of attempted larceny affirmed), aff’d 10 M.J. 222 (C.M.A. 1981).

c) United States v. Ferguson, 2 M.J. 1225 (N.C.M.R. 1976) (specification alleging, in part, that the accused did “attempt to rob a wallet, the property of PFC Hoge,” was fatally defective).

d) United States v. Wright, 35 C.M.R. 546 (A.B.R. 1964) (specification alleging that accused “attempted to commit the offense of robbery by entering the Wolfgang Roth Insurance and Loan Agency, wearing a mask and armed with a pistol,” was fatally defective).

E. Attempt as a Lesser Included Offense.

1. Text.  “An accused may be found guilty of any of the following:  1) the offense charged; 2) a lesser included offense; 3) an attempt to commit the offense charged; 4) an attempt to commit a lesser included offense, if the attempt is an offense in its own right.”  Article 79.

2. United States v. Banks, 7 M.J. 501 (A.F.C.M.R. 1979).  Attempted destruction of military property was a lesser included offense of sabotage, prosecuted under Article 134(3) and 18 U.S.C. § 2155.

3. The specification alleging the greater offense and the facts of the case put the defense on notice of the existence of the lesser offense of attempt.  See United States v. LaFontant, 16 M.J. 236 (C.M.A. 1983) (affirming lesser included offense of attempted possession of LSD, even though members had not been instructed thereon, because the accused was convicted of actual possession and there was evidence that accused consciously and intentionally possessed a substance he believed to be LSD); United States v. Guillory, 36 M.J. 952 (A.C.M.R. 1993) (plea of guilty to attempted possession provident where inquiry establishes guilt to greater offense of possession with intent to distribute, even though military judge did not advise accused of elements of attempt).

4. Specific intent requirement.  United States v. Roa, 12 M.J. 210 (C.M.A. 1982) (attempt requires specific intent even where greater offense does not).

F. Attempts Expressly Enumerated in Substantive Offenses.

1. While most attempts should be charged under Article 80, the attempts listed below are specifically addressed under the article defining the primary offense and should be charged accordingly. MCM, pt. IV, 4c(6).

a) Article 85 (desertion).

b) Article 94 (mutiny and sedition).

c) Article 100 (subordinate compelling surrender).

d) Article 103b (aiding the enemy).

e) Article 103a (espionage).

f) Article 119a (attempting to kill an unborn child).

g) Article 128 (assault).

2. Attempted Conspiracy.  Attempted conspiracy is a viable offense under the UCMJ.  United States v. Riddle, 44 M.J. 282 (C.A.A.F. 1996) (affirming conviction for attempted conspiracy to steal military pay entitlements).  Attempted conspiracy is applicable where an accused agrees with an undercover.  United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995) (holding that attempt and conspiracy statutes did not prohibit charge of attempted conspiracy to commit espionage, when other alleged conspirator is an undercover government agent); United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (affirming conviction for attempted conspiracy to murder fictitious in-laws of fellow soldier).

3. Solicitation.  “Soliciting another to commit an offense does not constitute an attempt.”  MCM, pt. IV, ¶ 4c(5).

4. Attempted drug offenses.

a) If the accused believed the substance was an illegal drug, but the prosecution cannot prove it or the substance was actually not an illegal drug, then the accused can be convicted of attempting to commit the drug offense.  United States v. Dominguez, 22 C.M.R. 275 (C.M.A. 1957) (attempted use of narcotic drug); United States v. Longtin, 7 M.J. 784 (A.C.M.R. 1979) (attempted sale of opium, where laboratory test inconclusive); United States v. Gray, 41 C.M.R. 756 (N.C.M.R. 1969) (attempted possession of marijuana and mescaline, where substances were not seized).

b) If the accused did not believe the substance was an illegal drug, however, the accused did not attempt to commit a drug offense. United States v. Collier, 3 M.J. 932 (A.C.M.R. 1977) (where accused was putting one over on the heroin buyer by selling him brown sugar, guilty plea to attempted transfer of heroin was improvident); United States v. Giles, 42 C.M.R. 960 (A.F.C.M.R. 1970) (accused who knows he has been deceived by seller, but nevertheless smokes substance hoping to achieve a “high,” was not guilty of attempted use).

c) If the accused sold fake drugs, he can be charged and convicted of larceny by false pretenses, under Article 121.  See United States v. Williams, 3 M.J. 555 (A.C.M.R. 1977) (sale of fake LSD) rev’d on other grounds 4 M.J. 336 (C.M.A. 1978).

5. Attempted Adultery.  United States v. St. Fort, 26 M.J. 764 (A.C.M.R. 1988) (man returned home unexpectedly and found his wife clad only in bathrobe and the accused naked in a closet).

V. CONSPIRACY, ART. 81

A. Introduction.

1. “Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.”  Article 81.

2. Public Policy Rationale. The concerted activity of a conspiracy is much more dangerous to society than the acts of individuals.  The criminal enterprise is more difficult to detect because of its secrecy, is more likely to succeed because of the combination of strengths and resources of its members, and may continue to exist even after the initial object of the conspiracy has been achieved.  See United States v. Feola, 420 U.S. 671, 693-94 (1975); United States v. Rabinowich, 238 U.S. 78, 88 (1915).

3. Elements.  MCM, pt. IV, ¶ 5b.

a) The accused entered into an agreement with one or more persons to commit an offense under the code; and

b) While the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.

4. Pleading.  Only the elements of the inchoate offense (conspiracy) need to be alleged – the elements of the conspired offense (also called the “predicate” or “target” offense) need not be plead.  “However, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense.” United States v. Norwood, 71 M.J. 204 (C.A.A.F. 2012).

B. Parties to a Conspiracy.

1. Two or more persons are required in order to have a conspiracy.  MCM, pt. IV, ¶ 5c(1).

a) Co-conspirators need not be subject to the UCMJ. United States v. Rhodes, 29 C.M.R. 551 (C.M.A. 1960) (co-conspirator was a foreign national).

b) At least two parties must be culpably involved.  There must be a “meeting of minds” regarding the criminal object of the conspiracy. United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000) (adhering to the traditional “bilateral theory” and rejecting the modern “unilateral theory”; no conspiracy where only co-conspirator was an undercover agent; affirming conviction for attempted conspiracy);  United States v. LaBossiere, 32 C.M.R. 337 (C.M.A. 1962). (“it is well settled that there can be no conspiracy when a supposed participant merely feigns acquiescence with another’s criminal proposal in order to secure his detection and apprehension by proper authorities.”).

2. Acquittal of accused’s co-conspirators in a separate trial does not preclude conspiracy conviction of the accused.  United States v. Garcia, 16 M.J. 52 (C.M.A. 1983) (overruling the former “rule of consistency”).

C. “Bilateral Theory” of liability.

1. Conspiracy, under Article 81, requires a “meeting of the minds” to achieve the purported criminal goal.  United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000); United States v. LaBossiere, 32 C.M.R. 337 (C.M.A. 1962) (if only two persons involved, one cannot be a government agent); United States v. Duffy, 47 C.M.R. 658 (A.C.M.R. 1973) (mentally incapacitated co­-accused not culpably involved).

2. The law does not require ‘consistency of verdicts.’  If one of two co-conspirators is acquitted of conspiracy in a previous trial, the other co-conspirator may still be tried and convicted of conspiracy.  United States v. Garcia, 16 M.J. 52, 57 (C.M.A. 1983).

3. An accused may be convicted of attempted conspiracy with an undercover law enforcement agent.  United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995); United States v. Valigura, 54 M.J. 187 (C.A.A.F. 2000).

4. Attempted conspiracy does not require an agreement or shared intent among the expected conspirators with respect to the object of the conspiracy.  United States v. Roeseler, 55 M.J. 286 (C.A.A.F. 2001) (accused agreed to murder fictitious parents-in-law of fellow member of platoon).

D. The Agreement.

1. No particular words or form of agreement are required, only a common understanding to accomplish the object of the conspiracy.  This may be shown by the conduct of the parties.  The agreement need not state the means by which the conspiracy is to be accomplished or what part each conspirator is to play.  United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002) (agreement formed by circling back to take a duffel bag after spotting it outside a vehicle while driving through housing area); MCM, pt. IV, ¶ 5c(2).

a)  “Object of the conspiracy.” 

(1) United States v. Shelton, 62 M.J. 1 (C.A.A.F. 2005).  The MJ instructed on lesser included offenses of unpremeditated murder and conspiracy to commit unpremeditated murder.  MJ told the members that they would have to find “that at the time of the killing, the accused had the intent to kill or inflict great bodily harm on PFC Chafin.” MJ erred. If the intent of the parties to the agreement was limited to the infliction of great bodily harm, their agreement was to commit aggravated assault, not unpremeditated murder.

(2) United States v. Denaro, 62 M.J. 663 (C.G. Ct. Crim. App. 2006).  Object must be a UCMJ offense.  Interfering with a urinalysis constitutes the Article 134 offense of wrongfully interfering with an adverse administrative proceeding, thereby establishing the unlawful object of the conspiracy.

b) United States v. Billings, 58 M.J. 861 (A. Ct. Crim. App. 2003) (evidence established an agreement by the accused to commit robbery where accused was leader of the gang and she silently concurred when a subordinate outlined the robbery plan as a way to make money for the gang and evidence suggested that the accused shared in the proceeds) aff’d, 61 M.J. 163  (C.A.A.F. 2005).

c) United States v. Cobb, 45 M.J. 82 (C.A.A.F. 1996) (evidence established agreement to commit robbery, where accused brought co-conspirators together, knew of their criminal venture, and expected to share in the proceeds).

d) United States v. Garner, 43 M.J. 435 (C.A.A.F. 1996) (affirming conviction for conspiracy to steal insurance funds where accused hired a fellow soldier to kill accused’s wife with promise to share her life insurance proceeds).

e) United States v. Barnes, 38 M.J. 72 (C.M.A. 1993) (“existence of a conspiracy is generally established by circumstantial evidence and is usually manifested by the conduct of the parties themselves”) (citing United States v. Matias, 25 M.J. 356 (C.M.A 1987)).

f) United States v. Matias, 25 M.J. 356 (C.M.A. 1987) (conduct of accused and roommate was sufficient evidence of an agreement between them to sell marijuana), cert. denied, 485 U.S. 968 (1988).

g) United States v. Jackson, 20 M.J. 68 (C.M.A. 1985) (without saying a word, the co-conspirator joined the accused in a conspiracy to commit larceny).

h) United States v. Brown, 41 M.J. 504 (A. Ct. Crim. App. 1994) (conspiracy to organize a strike manifested by circumstantial evidence) aff’d, 45 M.J. 389 (C.A.A.F. 1996).

i) United States v. Dickey, 41 M.J. 637 (N-M. Ct. Crim. App. 1994), vacated and remanded, 43 M.J. 170 (C.A.A.F. 1995), aff’d, 46 M.J. 123 (C.A.A.F. 1996) (agreement to commit rape need not be expressed but only need be implied).

j) United States v. Pete, 39 M.J. 521 (A.C.M.R. 1994) (mere involvement in “gripe sessions” at which soldiers discussed leaving post without authority to protest conditions did not amount to a conspiracy).

k) United States v. Walker, 39 M.J. 731 (N-M.C.M.R. 1994) (affirming conviction for conspiracy to distribute marijuana where accused acted as a lookout and knew his associates were selling marijuana), aff’d, 41 M.J. 79 (C.M.A. 1994).

l) United States v. Graalum, 19 C.M.R. 667, 697-98 (A.F.B.R. 1955) (“conduct of the alleged co-conspirators, their declarations to or in the presence of each other, and other circumstantial evidence” clearly manifested agreement to commit bribery).

m) United States v. Triplett, 56 M.J. 875 (A. Ct. Crim. App. 2002) (accused’s acts of straddling victim’s chest and placing hands on her throat to facilitate rape by co-conspirator established that accused and co-conspirator formed an agreement to rape victim).

n) United States v. Brown, 9 M.J. 599 (A.F.C.M.R. 1980) (accused’s involvement in first two of four thefts was insufficient to establish that the scope and object of the conspiracy, of which the accused was a member, included the last two thefts).

o) United States v. Broaden, No. ARMY 20150414, 2016 WL 4145746, at *3 (A. Ct. Crim. App. Aug. 3, 2016): (accused entered an agreement to steal the target’s wallet, and the fact that the target had $527 was not enough to convict accused of conspiracy to steal “over $500,” as the agreement was not specific as to that amount).

2. Mere presence is insufficient basis for inference of agreement.  United States v. Wright, 42 M.J. 163 (C.A.A.F. 1995) (evidence that accused agreed to be present to assist if necessary and to assist in disposal of the victim’s body was sufficient proof of agreement to commit premeditated murder); United States v. Mukes, 18 M.J. 358 (C.M.A. 1984) (conspiracy requires “deliberate, knowing, and specific intent to join the conspiracy, not . . . that [the accused] was merely present when the crime was committed”).

3. A conditional agreement is sufficient for conspiracy if the accused believes that the condition is likely to be fulfilled.  United States v. Wright, 42 M.J. 163, 166-67 (C.A.A.F. 1995) (citing federal case law).

4. Single Agreement to Commit Multiple Crimes.  A single agreement to commit multiple offenses is a single conspiracy.

a) United States v. Mack, 58 M.J. 413 (C.A.A.F. 2003).  Accused was convicted separately of conspiracy to commit check forgery and conspiracy to commit larceny of the check proceeds.  On appeal, the government acknowledged there was only one agreement and thus, only one conspiracy.  The court consolidated the two conspiracy specifications.  “[O]ne agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.”

b) United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000).  Accused pled guilty to and was convicted of separate specifications of conspiracy to commit murder, conspiracy to commit robbery, and conspiracy to commit kidnapping.  The record established that the accused and his co-conspirators formed only one agreement to commit all the underlying offenses.  As a matter of law, there was only one conspiracy, and the court consolidated the three specifications into one specification.

c) United States v. Inman, No. ARMY 20150042, 2016 WL 2726276, at *2 (A. Ct. Crim. App. May 4, 2016), adhered to on reconsideration, No. ARMY 20150042, 2016 WL 3545504 (A. Ct. Crim. App. June 23, 2016):  The court found one conspiracy with diverse means to effectuate the object of the conspiracy—namely, to fraudulently allow Mrs. K.I. to continue to obtain medical care through TRICARE by falsely claiming she and appellant were still married, and using the dependent ID card to obtain medical benefits.  The factors used to determine the number of conspiracies include: “(1) the objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of the charge and (4) the overt acts alleged in each; (5) the time and (6) location of each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8) the degree of interdependence between the alleged conspiracies.”

5. Complex Conspiracies.  The scope and structure of conspiracies will vary considerably.  The simplest form is a single bilateral agreement to commit a single crime.  From that simple model, conspiracies may evolve into highly complex networks involving agreements between multiple parties to commit multiple crimes.  In some cases, separate conspiracies are linked together by one or more common members.  The scope and structure of the conspiracy has critical implications for determining liability of co-conspirators for crimes committed in furtherance of the conspiracy, resolving of evidentiary issues, and presenting a coherent theory to the panel.  Two common metaphors used to describe complex conspiracies are the “wheel with spokes” conspiracy and the “chain” conspiracy.

a) A “totality of the circumstances” analysis is the correct approach when determining the number of conspiracies in a given case.  Federal court decisions have identified a variety of factors that may be relevant to determining whether a single or multiple conspiracies exist.  Among such factors are the following: (1) the objectives of each alleged conspiracy; (2) the nature of the scheme in each alleged conspiracy; (3) the nature of the charge; (4) the overt acts alleged in each; (5) the time each of the alleged conspiracies took place; (6) the location of each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8) the degree of interdependence between the alleged conspiracies.  United States v. Finlayson, 58 M.J. 824 (A. Ct. Crim. App. 2003) (applying the eight factors to find one conspiracy where the accused used two suppliers, one of whom also supplied the other, and later had his wife join him in his drug distributing venture).

b) Under the “wheel” metaphor, establishing a single conspiracy requires that the prosecution prove that the spokes are bound by a “rim,” which is the concerted action of all the parties working together with a single design for the accomplishment of a common purpose.  The circumstances must lead to an inference that some form of overall agreement existed.  This agreement may be inferred from the parties’ acts or other circumstantial evidence.  United States v. Kenny, 645 F.2d 1323, 1334-35 (9th Cir. 1981) (finding a single conspiracy in the form of a “wheel” with the defendant as a central “hub” dealing in individual transactions with the other defendants as “spokes”), cert. denied, 452 U.S. 920 (1981).

c) The government need not show direct contact or explicit agreement between the defendants.  It is sufficient to show that each defendant knew or had reason to know of the scope of the conspiracy and that each defendant had reason to believe that their own benefits were dependent upon the success of the entire venture.  United States v. Kostoff, 585 F.2d 378, 380 (9th Cir. 1978).

d) Once the existence of a conspiracy has been established, evidence of only a slight connection is necessary to convict a defendant of knowing participation in it.  United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977).

E. Overt Act.

1. The overt act must be independent of the agreement, and it must take place during or after the agreement.  MCM, pt. IV, ¶ 5c(4)(a).  United States v. Kauffman, 34 C.M.R. 63 (C.M.A. 1963) (the act of receiving the name and address of his contact, which was not separate from the agreement, was not a sufficient overt act for conspiracy to wrongfully communicate with agents of East Germany); United States v. Schwab, 27 M.J. 559 (A.C.M.R. 1988) (accused’s conversations with his alleged co-conspirator, his statement that he put money aside, and co‑conspirator’s notes and sketches did not satisfy the overt act requirement for conspiracy to commit larceny and wrongful sale of firearms); United States v. Farkas, 21 M.J. 458 (C.M.A. 1986), cert. denied, 479 U.S. 857 (1986) (act done prior to agreement is not a sufficient overt act).

2. The overt act must be done by one or more of the co-conspirators, but not necessarily the accused.  MCM, pt. IV, ¶ 5c(4)(a); see United States v. Yarborough, 5 C.M.R. 106 (C.M.A. 1962) (in conspiracy to intentionally inflict self‑injury, the government could have alleged overt acts proven to be committed by the co-conspirator, but the government alleged overt acts by the accused that it did not prove).

3. An overt act by one conspirator is the act of all; the overt act may be performed by any member of the conspiracy.  Each conspirator is equally guilty even though each does not participate in, or have knowledge of, all of the details.  MCM, pt. IV, ¶ 5c(4)(c); see United States v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989).

4. The overt act need not be criminal.  Although committing the intended offense may constitute the overt act, it is not essential.  Mere preparation may be enough, as long as it manifests that the agreement is being executed.  MCM, pt. IV, ¶ 5c(4)(b); United States v. Choat, 21 C.M.R. 313 (C.M.A. 1956) (obtaining crowbar with which to break and enter a store was sufficient overt act for conspiracy to commit larceny); see United States v. Brown, 41 M.J. 504 (A.C.C.A. 1994) (agreement may be contemporaneous with the offense itself in a conspiracy to organize a strike), aff’d, 45 M.J. 389  (C.A.A.F. 1996).

5. At least one overt act must be alleged and proved; United States v. McGlothlin, 44 C.M.R. 533 (A.C.M.R. 1971) (holding that specification alleging conspiracy to commit pandering but not alleging any overt act in furtherance of the conspiracy was fatally defective).  Government may allege several overt acts, but need prove only one; United States v. Reid, 31 C.M.R. 83 (C.M.A. 1961).  ) (citing Fredericks v. United States, 292 Fed 856 (CA 9th Cir. 1923)).

6. Substitution of proof of an unalleged overt act does not necessarily constitute a fatal variance, as long as there is “substantial similarity” between the alleged overt act and the overt act proven at trial. United States v. Collier, 14 M.J. 377 (C.M.A. 1983); see United States v. Moreno, 46 M.J. 216 (C.A.A.F. 1997) (where basic facts remain unchanged, amendment of alleged overt act the day before trial was permissible minor change).

F. Wharton’s Rule.

1. Some offenses require two or more culpable actors acting in concert.  There can be no conspiracy where the agreement exists only between the persons necessary to commit such an offense.  Examples include dueling, bigamy, incest, adultery, and bribery. MCM, pt. IV, ¶ 5c(3).

2. Iannelli v. United States, 420 U.S. 770, 782-86 (1975).  Defendant and seven others were convicted of conspiracy to violate and violating 18 U.S.C. § 1955, a federal statute making it a crime for five or more persons to operate a prohibited gambling business.  Convictions for both offenses were affirmed.  Wharton’s Rule “has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary.  The classic Wharton’s Rule offenses—adultery, incest, bigamy, dueling—are crimes that are characterized by the general congruence of the agreement and the completed substantive offense.  The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than society at large.”

3. Rule does not apply where the substantive offense does not demand concerted criminal activity, such as drug use or distribution.  United States v. Crocker, 18 M.J. 33, 38‑39 (C.M.A. 1984) (drug distribution); United States v. Johnson, 58 M.J. 509 (N-M. Ct. Crim. App. 2003) (drug use); United States v. Osthoff, 8 M.J. 629 (A.C.M.R. 1979).

4. Rule does not apply when the conspiracy involves the cooperation of a greater number of persons than is required for commission of the substantive offense. See United States v. Crocker, 18 M.J. 33, 38 (C.M.A. 1984) (affirming conspiracy conviction where accused accepted money and agreed to buy drugs for another airman on a trip to Amsterdam; Wharton’s Rule did not apply because only one party to a drug distribution need have a criminal intent); United States v. Jiles, 51 M.J. 583 (N.M. Ct. Crim. App. 1999) (holding Wharton’s Rule did not apply to conspiracy to distribute marijuana). 

5. But see United States v. Parada, 54 M.J. 730 (C.G. Ct. Crim. App. 2001) (Application of Wharton’s Rule to drug offenses is a highly fact-dependent determination in which the extent of the enterprise in time and reach are prime considerations. Conspiracy to distribute marijuana where the only parties involved were the accused, who mailed the drugs, and his friend, who received them, was unnecessary “piling-on” of charges); United States v. Viser, 27 M.J. 562 (A.C.M.R. 1988) (holding Wharton’s Rule does not apply to drug offenses).

6. Wharton’s Rule does not apply to conspiracy to violate an anti‑black marketing regulation. United States v. Wood, 7 M.J. 885 (A.F.C.M.R. 1979) (reasoning that the regulation could be violated by one person).

G. Duration.

1. Termination.  A conspiracy terminates when the object of the conspiracy is accomplished, the members withdraw, or the members abandon the conspiracy. United States v. Beverly, 14 U.S.C.M.A. 468, 471 (C.M.A. 1964).

a) United States v. Jimenez Recio, 537 U.S. 270 (2003).  Conspiracy does not automatically terminate simply because the Government has defeated its object.  Thus, defendants may be convicted of conspiracy, even absent proof they joined the conspiracy before its defeat.

b) United States v. Ratliff, 42 M.J. 797 (N‑M.C.C.A. 1995). Accused and four other Marines conspired to rob enough other Marines to finance a trip to Raleigh, North Carolina.  After successfully getting money from one robbery victim but then failing to get money from two other victims that ran away, it was obvious that the co-conspirators did not think that they had attained the object of their conspiracy.  Therefore, a statement made by a co-conspirator, at that time, was not hearsay, under M.R.E. 801(d)(2)(E).

c) United States v. Hooper, 4 M.J. 830 (A.F.C.M.R. 1978).  Accused charged with conspiring to violate and violating an Air Force regulation proscribing demonstrations in foreign countries by burning a cross.  Later, an alleged co-conspirator stated that the accused lit the fire.  The statement was admissible only if it was made during and in furtherance of the conspiracy.  “It is well settled that a conspiracy ends when the objectives thereof are accomplished, if not earlier by abandonment of the aims or when any of the members of the joint enterprise withdraw therefrom.”  The object of the conspiracy was the erection and burning of the cross.  When that was accomplished, the conspiracy terminated.

2. Withdrawal. 

a) An individual is not guilty of conspiracy if he effectively withdraws before the alleged overt act is committed. An effective withdrawal must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from the conspiracy after the performance of the alleged overt act remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal, but he is not liable for offenses committed by the remaining conspirators after his withdrawal. MCM, pt. IV, ¶ 5c(6).

b) United States v. Miasel, 24 C.M.R. 184 (C.M.A. 1957). Accused and six others agreed to commit sodomy upon a fellow soldier in the stockade.  The group forced the victim to lie down while the accused climbed on top of the victim.  The accused declined to try to commit sodomy.  The group took the victim out of the room and committed forcible sodomy upon him, but the accused did not leave the room with the group and had no further participation in the venture. “The failure of the accused to accompany the group when they left the barracks is indicative of an affirmative act on his part to effect a withdrawal and constitutes conduct wholly inconsistent with the theory of continuing adherence.”

c) Mere inactivity does not constitute withdrawal. United States v. Rhodes, 28 C.M.R. 427 (A.B.R. 1959), aff’d 29 C.M.R. 551 (C.M.A. 1960). From 1951 to 1953, the accused, while stationed at the United States embassy in Moscow, agreed to supply information to Soviet agents. In 1953, he returned to the United States and did not again actively participate in the conspiracy. In 1957, a co‑conspirator committed an overt act. Accused was guilty of conspiracy. “[I]t is no defense to the charge of conspiracy that appellant was inactive [in the conspiracy] subsequent to June 1953. 

3. A conspiracy is presumed to continue until the contrary is shown. United States v. Graalum, 19 C.M.R. 667 (A.F.B.R. 1955) (affirming conviction for conspiracy to commit bribery, where accused did not effectively withdraw prior to the performance of the overt act by the co‑conspirator).

H. Vicarious Liability.

1. A co‑conspirator may be convicted for substantive offenses committed by another co‑conspirator, provided such offenses were committed while the agreement continued to exist and were in furtherance of the agreement.  MCM, pt. IV, ¶ 5c(5); Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Browning, 54 M.J. 1 (C.A.A.F. 2000); United States v. Gaeta, 14 M.J. 383 (C.M.A. 1983) (members were properly instructed on liability for co-conspirator’s drug distribution); United States v. Figueroa, 28 M.J. 570 (N.M.C.M.R. 1989) (guilty plea to drug distribution by co‑conspirator was provident).

2. United States v. Billings, 58 M.J. 861 (A.C.C.A. 2003) (accused’s silent consent as approval authority for all gang activity supported conviction for robbery even though other gang members carried out the crime) aff’d, 61 M.J. 163  (C.A.A.F. 2005).

3. United States v. Finlayson, 58 M.J. 824 (A.C.C.A. 2003) (dicta) (accused could be criminally liable for the actions of other conspirators before he joined the conspiracy).

4. Article 77 is broad enough to encompass vicarious liability of co-conspirators. United States v. Browning, 54 M.J. 1, 7 (C.A.A.F. 2000) (holding that prosecution could prove larceny and fraudulent claim charges on theory that accused was perpetrator, aider and abettor, or co-conspirator, even though conspiracy was not on the charge sheet).

5. A co‑conspirator’s statement may be admissible under M.R.E. 801(d)(2)(E) even though conspiracy is not a charged offense.  United States v. Knudson, 14 M.J. 13 (C.M.A. 1982).

I. Punishment.

1. Conspiracy to commit an offense is distinct and separate from the offense that is the object of the conspiracy.  The accused can be convicted and punished separately for both the conspiracy and the underlying offense.   Also, commission of the intended offense may constitute the overt act required for conspiracy.  MCM, pt. IV, ¶ 5c(8); Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Dunbar, 12 M.J. 218 (C.M.A. 1982); United States v. Washington, 1 M.J. 473 (C.M.A. 1976); United States v. Nagle, 30 M.J. 1229 (A.C.M.R. 1990).

2. Conspiracy to commit a crime and solicitation to commit the same crime are separate offenses. See United States v. Ramsey, 52 M.J. 322 (C.A.A.F. 2000); United States v. Carroll, 43 M.J. 487 (C.A.A.F. 1996).

3. Conspiracy to commit a crime and attempted commission of the same crime are separate offenses, because each offense requires proof of a separate element. United States v. Stottlemire, 28 M.J. 477 (C.M.A. 1989).

4. Where the theft of two separate items was contemplated by the conspiracy, the value of the items can be aggregated to calculate the maximum punishment available for the conspiracy.  United States v. Crawford, 31 M.J. 736 (A.F.C.M.R. 1990).

VI. SOLICITING COMMISSION OF OFFENSES, ART. 82 

A. Introduction. 

1. Article 82(a) covers solicitation to commit offenses under the UCMJ (incorporating the offense of “soliciting another to commit an offense” under Article 134), other than an offense specified in subsection (b) of Article 82.

2. Article 82(b) covers solicitation to commit the offenses of desertion (Article 85), mutiny or sedition (Article 94), or misbehavior before the enemy (Article 99).

B. Discussion.

1. Instantaneous offense.  The offense is complete when a solicitation is made or advice given with the specific wrongful intent to influence another or others to commit an offense.  It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or advice.  MCM, pt. IV, ¶ 6c(1).

2. Form of solicitation.  Solicitation may be by means other than word of mouth or writing. Any act or conduct that reasonably may be construed as a serious request or advice to commit an offense can be considered solicitation. It is not necessary that the accused act alone; the accused may act through other persons in committing this offense.  MCM, pt. IV, 6c(2).

3. The prosecution must prove the accused had the specific intent that the offense actually be committed.  United States v. Taylor, 23 M.J. 314 (C.M.A. 1987); United States v. Benton, 7 M.J. 606 (N.C.M.R. 1979).

4. An express or implicit invitation to join in a criminal plan is a solicitation.  The context in which an alleged statement was made can be considered to determine its criminal nature as a solicitation.  United States v. Williams, 52 M.J. 218 (C.A.A.F. 2000) (where accused and other person had used drugs together and the other person was informed of the accused’s international drug smuggling operation, including the employment of a third party for drug buying trips to Turkey, the accused’s statement, “Are you ready to go; you got your passport?” to which the other person promptly answered, “I’m not going to go,” could reasonably be construed as an invitation to join the criminal enterprise).

5. The person solicited must know that an offense is contemplated. United States v. Higgins, 40 M.J. 67 (C.M.A. 1994) (guilty plea to solicitation improvident where accused asked soldier to withdraw money from ATM machine but did not tell him that the ATM card did not belong to the accused); United States v. Davis, 39 M.J. 1110 (A.F.C.M.R. 1994) (plea to solicitation improvident where accused asked person to cash “girlfriend’s check,” and solicitee believed the act was properly authorized and thus legal).

6. The person solicited cannot be the victim of the offense.  United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010).  Overrules United States v. Conway, 40 M.J. 859 (A.F.C.M.R. 1994) (accused who requested to see his 15‑year‑old stepdaughter naked, when child was aware of improper purpose, was guilty of solicitation) and United States v. Harris, 2003 C.C.A. Lexis 269 (N-M.C.C.A. 2003).

7. The person solicited may be predisposed toward the crime. United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005) (holding neither the MCM nor the UCMJ precludes a conviction for solicitation because the object is predisposed towards the crime).  Rejects the requirement set forth in Dean, 44 M.J. 683 (Army Ct. Crim. App. 1996)).

C. Miscellaneous Issues.

1. Accomplice liability distinguished.  If the solicitee commits the intended offense, the solicitor may be liable for the commission of the crime as a principal under Article 77.  MCM, pt. IV, ¶ 1.b.(2)(b).

2. “Solicitation” of a minor to engage in indecent conduct is not solicitation within the inchoate offense meaning of the term.  One cannot solicit another individual to commit an offense and simultaneously be the victim of that offense.  Such “solicitation” is merely indecent conduct, and if charged as Article 134 solicitation, fails to state an offense.  United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010) (accused responded to a personal advertisement in Craigslist’s “women for men” section, and thereafter, communicated via text message with an undercover NCIS agent purporting to be a 14–year-old girl and solicited the production and distribution of child pornography; NMCCA held the accused’s mistaken notion regarding the identity of the party he solicited afforded him no defense).

 

PLACE OF DUTY OFFENSES

VII. MALINGERING, ART. 83

A. General.  The essence of this offense is the design to avoid performance of any work, duty, or service which may properly or normally be expected of one in the military service.  Whether to avoid all duty, or only a particular job, it is the purpose to shirk which characterizes the offense.  Hence, the nature or permanency of a self-inflicted injury is not material on the question of guilt, nor is the seriousness of a physical or mental disability which is a sham.  Evidence of the extent of the self-inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose.  MCM, pt. IV, ¶ 40c(1).

B. Elements.

1. The accused was assigned to, or was aware of prospective assignment to, or availability for, the performance of work, duty, or service.

a) All soldiers are inferred to be aware of their general, routine military duties.  United States v. Mamaluy, 27 C.M.R. 176 (C.M.A. 1959).

b) With regard to special duties or prospective assignments (e.g., emergency deployment to hostile regions), the government must establish that accused had actual knowledge of such duties.

2. The accused feigned illness, physical disablement, mental lapse or derangement, or intentionally inflicted injury upon himself or herself.

a) United States v. Pedersen, 8 C.M.R. 63 (C.M.A. 1953).  Accused was charged with intentionally shooting himself in order to be discharged from the Army but testified at trial that the injury was accidentally inflicted.  No one witnessed the shooting, and the government had no admissible evidence with which to impeach the accused.  As a result, the court held that the prosecution had failed in its proof and dismissed the charges.

b) United States v. Kisner, 35 C.M.R. 125 (C.M.A. 1964).  Accused was charged with deliberately shooting himself in the foot in order to avoid transfer to Korea.  After initially declaring that the injury was accidentally incurred, he confessed to intentionally inflicting the wound in order to avoid deployment to Korea.  Because the record was devoid of any independent evidence to corroborate the confession, the Court of Military Appeals reversed the conviction and dismissed the charge.

c) United States v. Belton, 36 C.M.R. 602 (A.B.R. 1966).  Accused on orders to Vietnam, who refused to eat food over a period of time, resulting in his debility, intentionally inflicted self-injury for purposes of Article 115 (now 83).

d) United States v. Bowman, 2012 CCA LEXIS 753 (N-M. Ct. Crim. App. 2012).  Accused was charged with having another person shoot him in the leg to avoid deployment.  The charge stated an offense under Article 115 (now 83), UCMJ because having the other person shoot him at the accused’s request was no different that the accused shooting himself and because the injury was orchestrated by the accused.

3. The accused’s purpose or intent in doing so was to avoid the work, duty or service. 

a) The words “work,” “duty,” and “service” are not restricted to one context or sense.  The breadth of these terms would seem to cover all aspects of a serviceperson’s official existence.  Unquestionably, what the law intended to proscribe was a self-inflicted injury, which would prevent the injured party from being available for the performance of all military tasks.  See United States v. Mamaluy, 27 C.M.R. 176 (C.M.A. 1959) (Cutting his wrist to escape confinement was sufficient to allege a purpose to avoid either work, duty, or service.); United States v. Guy, 38 C.M.R. 694 (N.B.R. 1967) (Intentional self-injury for the purpose of avoiding disciplinary action was sufficient to avoid either work, duty, or service); United States v. Johnson, 28 C.M.R. 629 (N.B.R. 1959) (a sailor who persuaded a friend to cut off his thumb was convicted of conspiracy to maim himself and malingering when the act was done as a means of avoiding further military duty).

b) Intent or purpose may be established by circumstantial evidence, and it may be inferred that a person intended the natural and probable consequences of an act intentionally performed by him.  United States v. Houghton, 32 C.M.R. 3 (C.M.A. 1962); but see United States v. Lawrence, 10 M.J. 752 (A.C.M.R. 1981) (court held that evidence which established only that the accused injured himself in order to halt an investigation into a false report he had filed was insufficient to support a conviction for malingering).

c) Unsuccessfully attempting to commit suicide to avoid prosecution constitutes malingering.  United States v. Johnson, 26 M.J. 415 (C.M.A. 1988).

d) Evidence of prior misconduct may be admissible against the accused for the limited purpose of establishing his wrongful intent.  See United States v. Brown, 38 C.M.R. 445 (A.B.R. 1967) (where the accused was charged with malingering by intentionally shooting himself in the foot while on a combat mission in Vietnam, evidence that he had quit as a point man for a patrol the day before the shooting and had skulked in bringing up the rear and wanted to be evacuated and complained of headaches was relevant on the issue of intent).

C. Defense of Accident.  United States v. Harrison, 41 C.M.R. 179 (C.M.A. 1970).  Where an accused charged with malingering by intentionally shooting himself in the foot for the purpose of avoiding duty in the field testified he had a faulty weapon which discharged accidentally while he was dozing, the instructions on the elements of the offense and the defense of accident were prejudicially inconsistent where the court was advised it must find the accused intentionally inflicted injury upon himself by shooting himself in the foot, but the instructions on accident included the statement that even though the act is unintentional, it is not excusable where it was a result of or incidental to an unlawful act.

D. To Avoid Assigned Duty.  See United States v. Yarborough, 5 C.M.R. 106 (C.M.A. 1952) (malingering to avoid assigned duty while before the enemy constitutes misbehavior punishable under UCMJ art. 99).  See also, United States v. Glover, 33 M.J. 640 (N.M.C.M.R. 1991) (testimony required from people who knew what restrictions had been placed on accused’s activity to show he was attempting to avoid assigned duties.)

E. Without Intent to Avoid Military Duty. 

1. See United States v. Taylor, 38 C.M.R. 393 (C.M.A. 1968).  In Taylor, the evidence pertaining to a charge of malingering in violation of UCMJ art. 115 (now 83) showed that the accused superficially slashed his arms with a razor blade in the presence of two cell mates in the brig, representing at the time that he wanted to outdo the performance of another inmate who had done the same thing earlier.  The law officer instructed that intentional injury without a purpose to avoid service but under circumstances to the prejudice of good order and discipline was a lesser included offense, and the court could validly find the accused not guilty of the portion of the specification alleging the purpose of the injury to have been avoiding service and the accused guilty of being disorderly to the prejudice of good order and discipline in the armed forces in violation of Article 134, UCMJ.  Held:  Article 115 (now 83) does not pre­-empt the spectrum of self-inflicted injuries.  See also United States v. Ramsey, 40 M.J. 71 (C.M.A. 1994).

2. But see MCM, pt. IV, ¶ 7.c(2) discussion.  “Bona fide suicide attempts should not be charged as criminal offenses. When making a determination whether the injury by the service member was a bona fide suicide attempt, the convening authority should consider factors including, but not limited to, health conditions, personal stressors, and DoD policy related to suicide prevention.”  See also United States v. Caldwell, 72 M.J 137 (C.A.A.F. 2013) (discussing bona fide suicide attempts in the context of self-injury without intent to avoid service under Article 134, UCMJ).

F. Unreasonable Multiplication of Charges.  False Official Statement and Malingering can both be charged, as each offense is aimed at a separate act.  False Official Statement involves intentional deception whereas Malingering involves feigning to receive favor.  Additionally, multiple malingering charges may be sustained where events are separated by time and location.  United States v. Tankersley, No. ARMY 20140074, 2016 WL 4434330, at *2 (A. Ct. Crim. App. Aug. 15, 2016). 

G. Pleading.  There are two distinct theories of criminal liability for malingering:  1) feigning illness, physical disablement, mental lapse or derangement; and 2) intentionally inflicting self-injury.  The alleged theory must be proven and evidence of the non-alleged theory will not sustain a conviction.  United States v. Mandy, 73 M.J. 619 (A.F. Ct. Crim. App. 2014), as corrected (Apr. 24, 2015), review granted, decision aff'd, (C.A.A.F. Dec. 17, 2014)  (Accused’s conviction of malingering by feigning injury was overturned because it was different than the specification which alleged malingering by intentionally inflicting self-injury.)

VIII. BREACH OF MEDICAL QUARANTINE, ART. 84

A. General.

1. 2016 MJA migrated this offense from Article 134 (Quarantine: medical, breaking).  

2. Elements.  MCM, pt. IV, ¶ 8b.

a) That a certain person ordered the accused into medical quarantine;

b) That the person was authorized to order the accused into medical quarantine;

c) That the accused knew of this medical quarantine and the limits thereof;

d) That the accused went beyond the limits of the medical quarantine before being released therefrom by proper authority.

3. Explanation.

a) Each service empowers its installation commanders to declare medical quarantines in the event of a public health emergency.  See U.S. DEP’T OF DEF. INSTR. 6200.03, PUBLIC HEALTH EMERGENCY MANAGEMENT WITH THE DEPARTMENT OF DEFENSE enclosure 3, ¶2(a) (dated 5 March 2010) (authorizing quarantine and isolation of individuals within the scope of the installation commander’s authority in consultation with the Center for Disease Control designated “Quarantine Officer”).

b) Distinguishing “quarantine” from “quarters” orders.  Putting a person “on quarters” or otherwise excusing a person from duty because of illness does not of itself constitute a medical quarantine.  MCM, pt. IV, ¶ 8c.

IX.    DESERTION, ART. 85

A. Types of Desertion.  Desertion exists when any member of the armed forces:

1. Without authority, goes or remains absent from his or her unit, organization, or place of duty, with intent to remain away permanently.  United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991); or

2. Quits his or her unit, organization or place of duty with intent to avoid hazardous duty or to shirk important service.  United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991); or

3. Without being separated from one of the armed forces, enlists or accepts an appointment in the same or another of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States.

4. Additionally, a commissioned officer is guilty of desertion if, after tender of a resignation and before notice of its acceptance, he quits his post or proper duties without leave and with intent to remain away permanently.

B. Elements of Desertion with Intent to Remain Away Permanently. (The most common form of desertion).  MCM, pt. IV, ¶ 9.b.(1).

1. The accused absented himself from his unit, organization, or place of duty;

2. That the absence was without authority;

3. That the accused, at the time the absence began or at some time during the absence, intended to remain away from his unit, organization, or place of duty permanently; and

4. The accused remained absent until the date alleged.

5. If the absence was terminated by apprehension, that element is added.

C. Less Common Forms of Desertion.

1. Desertion with intent to avoid hazardous duty or to shirk important service.  MCM, pt. IV, ¶ 9b(2).

a) Prospective duty as a medic at Fort Sam Houston during Persian Gulf War qualified as important service.  United States v. Swanholm, 36 M.J. 743 (A.C.M.R. 1992).

b) Thirty-day sentence to brig did not qualify as important service for purposes of desertion.  United States v. Wolff, 25 M.J. 752 (N.M.C.M.R. 1987).

c) Being an accused at a special court-martial is not important service.  United States v. Walker, 26 M.J. 886 (A.F.C.M.R. 1988) (accused still found guilty, however, because he had an intent to remain away permanently).  See TJAGSA Practice Note, Being an Accused:  “Service,” But Not “Important Service,” Army Law., Apr. 1989, at 55 (discussing Walker).

2. Desertion before notice of acceptance of resignation.  MCM, pt. IV, ¶ 9.b.(3).

D. Desertion Terminated by Apprehension.

1. In addition to the four elements of desertion listed above, if the accused’s absence was terminated by apprehension, the Government may allege termination by apprehension as an aggravating factor.

2. If alleged in the specification and proved beyond a reasonable doubt, termination by apprehension increases the maximum confinement from two years to three years.  MCM, pt. IV, ¶ 9.e.(2)(a) and (b).

3. Termination by apprehension may apply to all forms of desertion except absence with intent to avoid hazardous duty or to shirk important service, as the maximum punishment for this latter most serious form of desertion is already a DD and five years.  MCM, pt. IV, ¶ 9.e.(1).

4. An accused may be convicted of desertion terminated by apprehension even though he was apprehended by civilian authorities for a civilian offense and thereafter notified the civilian authorities of his AWOL status.  United States v. Fields, 32 C.M.R. 193 (C.M.A. 1962); United States v. Babb, 19 C.M.R. 317 (C.M.A. 1955); United States v. Northern, 42 M.J. 638 (N-M. Ct. Crim. App. 1995).  Apprehension by civilian authorities and the subsequent return to military authorities for an offense unrelated to one’s military status does not in and of itself prove that the return was involuntary.  United States v. Washington, 24 M.J. 527 (A.F.C.M.R. 1987).

E. Termination Generally.  Desertion did not terminate when military authorities requested civilian authorities deny a deserter bail until resolution of civilian charges.  United States v. Asbury, 28 M.J. 595 (N.M.C.M.R. 1989).

F. Attempted Desertion.  Attempted desertion should be charged under Article 85 rather than under Article 80.  MCM, pt. IV, ¶ 4c(6)(a).

G. Mens Rea for Desertion.  The offenses of desertion and absence without leave are similar in most respects, except for the intent element involved in desertion.  See United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991). 

1. Desertion is a specific intent crime.  United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956). 

2. Evidence of intent may be based upon all the facts and circumstances of the case.  Length of absence, actions and statements of the accused, and the method of termination of the absence (apprehension or voluntary surrender) are some factors to be considered.  MCM, pt. IV, ¶ 9c(1)(c)(iii).  Many of the circumstantial factors listed in the MCM can cut both ways, and may be argued by either side; therefore, in order to sustain a desertion conviction, the Government ought to provide additional context favoring conviction rather than simply raising the circumstances at trial.  Ultimately, a conviction for desertion is legally sufficient where, given the circumstances of the particular case, a reasonable factfinder could draw an inference of intent beyond a reasonable doubt.  United States v. Oliver, 70 M.J. 64 (C.A.A.F. 2011).

3. The determination of whether an accused intended to avoid hazardous duty or shirk important service is subjective, and whether the service is “important” is an objective question dependent upon the totality of circumstances.  United States v. Gonzalez, 42 M.J. 469 (1995).

4. The length of the absence alone is insufficient to establish an intent to desert; however, in combination with other circumstantial evidence, it may be sufficient.  United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).

5. The totality of circumstances surrounding the offense can negate specific intent to absent oneself permanently.  United States v. Logan, 18 M.J. 606 (A.F.C.M.R. 1984).

6. Having an understandable or laudable motive to desert is not a defense if the evidence sufficiently establishes the elements.  United States v. Gonzalez, 39 M.J. 742 (N.M.C.M.R. 1994), aff’d. 42 M.J. 469 (1995).

7. Evidence of an accused’s motive to quit her unit as gesture of protest because of moral or ethical reservations that the unit might commit war crimes is irrelevant to a charge of desertion with intent to avoid hazardous duty or shirk important service.  United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995). 

8. Evidence of a 26-month absence while accused was on orders for a war zone and where he was apprehended a long distance from his unit was sufficient to establish intent to desert.  United States v. Mackey, 46 C.M.R. 754 (N.C.M.R. 1972).

9. Evidence of a two-year absence in vicinity of assigned unit, termination by apprehension, and a previous absence, despite retention of an identification card, was sufficient to show an intent to desert.  United States v. Balagtas, 48 C.M.R. 339 (N.C.M.R. 1972).

10. The intent to remain away permanently need not coincide with the accused’s departure.  A person must have had, either at the inception of the absence or at some time during the absence, the intent to remain away permanently.  MCM, pt. IV, ¶ 9.c.(1)(c)(i).

11. In a case where desertion with intent to shirk important service was charged, infantry service in Vietnam was held to be “important service.”  United States v. Moss, 44 C.M.R. 298 (A.C.M.R. 1971).  See also United States v. Hocker, 32 M.J. 594 (A.C.M.R. 1991) (accused’s plea provident to desertion with intent to avoid hazardous duty where service was duty in Persian Gulf).

H. Pleading.

1. In view of the three types of intent encompassed in Article 85 (i.e., intent to remain away permanently, intent to avoid hazardous duty, intent to shirk important service), the crime of desertion is not alleged unless the specific form of intent is stated in the specification.  United States v. Morgan, 44 C.M.R. 898 (A.C.M.R. 1971) (the court found the accused guilty of the lesser included offense of AWOL).

2. “Desert” and “desertion” are terms of art which necessarily and implicitly include the requirement that the absence was without authority.  United States v. Lee, 19 M.J. 587 (N.M.C.M.R. 1984) (specification that alleges that the service member “did desert” is the equivalent of alleging that the service member did without authority and with the intent to remain away permanently absent himself from his unit).

3. AWOL under Article 86 is a lesser included offense of most forms of desertion.  MCM, pt. IV, ¶ 9.d.

X. ABSENCE WITHOUT LEAVE, ART. 86

A. Failure to Go to Appointed Place of Duty (Failure to Repair/Report).  Article 86(1).

1. Elements.  MCM, pt. IV, ¶ 10b(1).

a) A certain authority appointed a certain time and place of duty for the accused;

b) The accused knew of that time and place; and

c) The accused, without authority, failed to go to the appointed place of duty at the time prescribed. 

2. Pleadings.  The “appointed place of duty” addressed in Article 86(1) refers to a specifically appointed place of duty rather than a general place of duty.  A specification listing only the accused’s unit does not list a specific place of duty and is fatally defective.  United States v. Sturkey, 50 C.M.R. 110 (A.C.M.R. 1975).  See also United States v. Watts, No. ACM S32146, 2014 WL 3032484 (A.F.Ct.Crim.App. 2014) (noting that the specifically-appointed place of duty need not be a different location than the accused’s general place of duty).  The appointed place need not be alleged with as much specificity in nonjudicial proceedings.  United States v. Atchison, 13 M.J. 798 (A.C.M.R. 1982).

a) The offense requires that the accused actually knew the appointed time and place.  MCM, pt. IV, ¶ 10c(2).  But see United States v. Adams, 63 M.J. 223 (2006) (holding the Art. 112a theory of “deliberate avoidance” satisfies the knowledge requirement for ALL Art. 86 offenses). 

b) The accused need not know the identity of the person appointing the place of duty.  United States v. Fanning, 69 M.J. 546, (A.F.Ct.Crim.App. 2010).

c) “Appointed place of duty” includes the place(s) where a restricted soldier is required to sign-in.  United States v. High, 39 M.J. 82 (C.M.A. 1994).

d) Ordinarily, violation of an order to report to a particular place, though charged under Article 92, constitutes no more than a failure to report.  The maximum punishment is therefore limited to that for failure to report.  United States v. Hargrove, 51 M.J. 408 (C.A.A.F. 1999) (accused guilty of failure to go to appointed place of duty, rather than disobeying a lawful order, when order was to sign-in hourly when not working); United States v. Henderson, 44 M.J. 232 (C.A.A.F. 1996) (accused’s failure to comply with staff sergeant’s order to get dressed and be at morning formation 45 minutes later constituted offense of failure to report rather than willfully disobeying an NCO); United States v. Baldwin, 49 C.M.R. 814 (A.C.M.R. 1975); MCM, pt. IV, paragraphs 14c(2)(b) and 16e(2). 

e) On the other hand, if the order to return to duty was issued in performance of a proper military function and not for the purpose of increasing the punishment, the accused may be convicted and punished for both offenses.  United States v. Pettersen, 17 M.J. 69 (C.M.A. 1983); see generally MCM, pt. IV, paragraph 14c(2)(a)(iv) (stating that an order must have a proper military purpose and not be designed to increase punishment).

3. “Without Proper Authority.” United States v. Duncan, 60 M.J. 973 (Army Ct. Crim. App. 2005).  Appellant told his squad leader that he had to take his son to the hospital, and based on that false information his squad leader gave him permission to miss the formation.  Appellant claimed that this evidence was a matter inconsistent with his plea.  An absence from a unit, organization, or place of duty is without authority if it is preceded by false statements, false documents, or false information provided by an accused.

B. Leaving Place of Duty.  Article 86(2).

1. Elements.  MCM, pt. IV, ¶ 10b(2).

a) A certain authority appointed a certain time and place of duty for the accused;

b) The accused knew of that time and place; and

c) The accused, without authority, went from the appointed place of duty after having reported to that place.

2. Pleadings.  See supra ¶ A.2., this section.

C. Absence Without Leave.  Article 86(3). 

1. Elements.  MCM, pt. IV, ¶ 10.a.(3).

a) The accused absented himself from his unit, organization or place of duty at which he was required to be;

b) The absence was without proper authority from anyone competent to give him leave; and

c) The absence was for a certain period of time. 

2. Several aggravated forms of AWOL permit increased punishment.  MCM, pt. IV, ¶ 10.d.(2)-(5).  Note that two of these aggravated offenses contain an intent element. Unless otherwise indicated, the discussion of AWOL in this section refers to the standard, non-aggravated form of AWOL.

3. Definition of Terms.

a) “Unit” refers to a military element such as a company or battery.

b) “Organization” refers to a larger command consisting of two or more units.  One can be AWOL from an armed force as a whole.  United States v. Vidal, 45 C.M.R. 540 (A.C.M.R. 1972); see United States v. Brown, 24 C.M.R. 585 (A.F.B.R. 1957) (holding the United States Air Force was both an organization and a place of duty).

c) “Place of duty at which the accused was required to be” is a generic term designed to broadly cover places such as a command, quarters, station, base, camp or post.  United States v. Brown, 24 C.M.R. 585 (A.F.B.R. 1957).  Note that this definition is different from “a place of duty” under Article 86(1) and 86(2), which refers to a specific “appointed place of duty.”

d) An individual may be absent from more than one unit.  United States v. Mitchell, 22 C.M.R. 28 (C.M.A. 1956); United States v. Green, 14 M.J. 766 (A.C.M.R. 1982).

4. A specification alleging the wrong unit requires dismissal.  United States v. Walls, 1 M.J. 734 (A.F.C.M.R. 1975); United States v. Riley, 1 M.J. 639 (C.G.C.M.R. 1975); United States v. Holmes, 43 C.M.R. 446 (A.C.M.R. 1970) (holding that dismissal for fatal variance does not preclude retrial for unauthorized absence from correct unit).

5. An Article 86(3) specification must allege the accused was absent from his unit, organization, or other place of duty at which he was required to be.  Failure to allege that the accused was required to be there is fatal.  United States v. Kohlman, 21 C.M.R. 793 (A.F.C.M.R. 1956).  Absence from a unit cannot be supported when the member is in fact present in the unit, albeit casually.  United States v. Wargo, 11 M.J. 501 (N.C.M.R. 1981).  But see United States v. Phillips, 28 M.J. 599 (N.M.C.M.R 1989) (affirming conviction of accused who remained on the installation but in another unit’s barracks and did not go to the training center to which he was assigned).  See also United States v. Cary, 57 M.J. 655 (N-M. Ct. Crim. App. 2002) (accused was allowed to leave local area and live with cousin, conditioned upon the requirement he call his unit daily to report status; accused’s failure was not an unauthorized absence but rather a failure to perform a particular task).

6. The specification must allege that the absence was “without authority.”  Failure to do so may be a fatal defect.  United States v. Fout, 13 C.M.R. 121 (C.M.A. 1953), overruled in part by United States v. Watkins, 21 M.J. 208 (C.M.A. 1986) (omission not fatal when first challenged on appeal, accused pled guilty, another AWOL specification to which the accused pled guilty contained the phrase “without authority,” and no prejudice evident).

7. Mere failure to follow unit checkout procedure by accused who was granted leave does not constitute AWOL.  United States v. Dukes, 30 M.J. 793 (N.M.C.M.R. 1990).

8. A definitive inception date is indispensable to a successful prosecution for unauthorized absence.  United States v. Hardeman, 59 M.J. 389 (C.A.A.F. 2004).

9. Computing the Duration of the Absence. MCM, pt. IV, ¶ 10c(9).

a) An unauthorized absence is complete the moment the accused leaves the unit without authority.  It is not a continuing offense.  See United States v. Jackson, 20 M.J. 83 (C.M.A. 1985); United States v. Lynch, 47 C.M.R. 498 (C.M.A. 1973); United States v. Newton, 11 M.J. 580 (N.C.M.R. 1980) (accused’s plea improvident when he admitted his absence actually began before the date alleged in the specification which constituted an admission to an uncharged offense).  But see United States v. Brock, 13 M.J. 766 (A.F.C.M.R. 1982) (plea to “13 October” absence not improvident as it was embraced by “on or about” 14 October specification).  Leave is considered an absence from duty, and one in an AWOL status cannot take leave.  United States v. Kimbrell, 28 M.J. 542 (A.F.C.M.R. 1989); United States v. Ringer, 14 M.J. 979 (N.M.C.M.R. 1982).

b) The duration of an absence must be proved in order to determine the legal punishment for the offense.  United States v. Lynch, 47 C.M.R. 498 (C.M.A. 1973); see also United States v. Simmons, 3 M.J. 398 (C.M.A. 1977).

c) The duration of an absence alleged in a specification may be decreased but not enlarged by the court.  United States v. Turner, 23 C.M.R. 674 (C.G.B.R. 1957), rev’d on other grounds, 25 C.M.R. 386 (C.M.A. 1958).  An accused may be found guilty of two or more separate unauthorized absences under one specification provided that each absence is included within the period alleged in the specification and provided that the accused was not misled, but the maximum punishment may not increase.  MCM, pt. IV, ¶ 10c(11).  See United States v. Scott, 59 M.J. 718 (Army Ct. Crim. App. 2004).

d) If a member is released by the civilian authorities without trial, and was on authorized leave at the time of arrest or detention, the member may be found guilty of unauthorized absence only if it is proved that the member actually committed the offense for which detained, thus establishing that the absence was the result of the member’s own misconduct.  MCM, pt. IV, ¶ 10.c.(5).  But see United States v. Sprague, 25 M.J. 743 (A.C.M.R. 1987) (holding guilty plea provident where accused admitted his arrest on a warrant for contempt of court was his own fault, despite the fact that he was released without trial).

e) If a service member is given authorization to attend civilian court proceedings, pursuant to UCMJ Article 14, and is put in civilian jail as a result, the ensuing absence is not unauthorized.  United States v. Urban, 45 M.J. 528 (N-M. Ct. Crim. App. 1996).

10. Termination of the Absence:  Return to Military Control.

a) Surrender to military authority.  If an accused presents himself to military authorities and notifies them of his AWOL status, the surrender terminates the absence.  MCM, pt. IV, ¶ 10c(10)(a). 

(1) United States v. Coglin, 10 M.J. 670, 672 (A.C.M.R. 1981) lists three elements required for an effective voluntary termination:

(a) “[T]he absentee must present himself to competent military authority with the intention of returning to military duty;”

(b) “[T]he absentee must identify himself properly and must disclose his status as an absentee;” and

(c) “[T]he military authority, with full knowledge of the individual’s status as an absentee, exercises control over him.”

(2) Casual presence.  Something more than casual presence on a military installation is necessary to terminate an unauthorized absence.  United States v. Coleman, 34 M.J. 1020 (A.C.M.R. 1992) (holding that the accused’s presence in assigned barracks after staying at friend’s house off post and missing work on Friday was more than casual and terminated his absence, even though he did not report to someone in authority, where the evidence indicated accused’s belief that unidentified sergeant had relieved him of guard duty so he could prepare for deployment and accused’s superiors knew he was in his barracks that were located across the street from the accused’s normal place of duty). United States v. Rogers, 59 M.J. 584 (Army Ct. Crim. App. 2003) (affirming conviction when accused pled guilty and said she was “sometimes” on post during the charged periods but admitted she had no intent to return to military duty and did not turn herself in to her unit; casual presence on post for personal reasons did not voluntarily terminate her absence).  The opinion contains a pattern instruction for voluntary termination issues.

(3) Intent to return to duty.  The soldier must voluntarily submit or offer to submit to military authorities with a bona fide intention to return to duty.  United States v. Self, 35 C.M.R. 557 (A.B.R. 1965). 

b) Military Control. 

(1) Where an accused thwarted an attempt to exercise control by refusing to submit to lawful orders, military control was not established.  United States v. Pettersen, 14 M.J. 608 (A.F.C.M.R. 1982), aff’d 17 M.J. 69 (C.M.A. 1983).

(2) Telephone contact alone will not effect a return to military control.  United States v. Anderson, 1 M.J. 688 (N.C.M.R. 1975); see also United States v. Sandell, 9 M.J. 798 (N.C.M.R. 1980) (rejecting claim of constructive termination where accused informed recruiter by telephone he wished to surrender, but before surrendering to a captain at the reserve center, accused became frightened and departed the center); United States v. Murat Acemoglu, 45 C.M.R. 335 (C.M.A. 1972) (going to American embassy and calling attaché to find out information on how to surrender was not enough to terminate AWOL).

(3) Civilian bail/bond.  United States v. Dubry, 12 M.J. 36 (C.M.A. 1981) (accused’s surrender to military authority was not complete because the terms of his civilian bail made him unavailable to return to unrestricted military control).

(4) Where the record reflects the accused 1) may have submitted himself to military authorities, and 2) military authorities failed to exercise control over the accused, a substantial basis in law and fact exists to question the providence of the accused’s plea of guilty to unauthorized absence (relative to the calculation of the termination date of the accused’s absence).  United States v. Phillipe, 63 M.J. 307 (C.A.A.F. 2006); see also United States v. Pinero, 60 M.J. 31 (C.A.A.F. 2004) (AWOL soldier who returned to his unit to submit to a urinalysis that lasted five hours, and then went AWOL again, terminated his initial AWOL when he returned to submit to the urinalysis).

c) Knowledge of absentee’s status.

(1) “[K]nown presence at a military installation will not constitute termination where the absentee, by design and misrepresentation, conceals his identity or duty status.”  United States v. Self, 35 C.M.R. 557 (A.B.R. 1965).

(2) Casual presence at a military installation, unknown to proper authority and primarily for the absentee’s own purposes, does not end the unauthorized absence.  United States v. Williams, 29 M.J. 504 (A.C.M.R. 1989) (if an absentee temporarily submits himself to military control but does not disclose his status as an absentee, the AWOL is not terminated); United States v. Self, 35 C.M.R. 557 (A.B.R. 1965); United States v. Baughman, 8 M.J. 545 (C.G.C.M.R. 1979). 

(3) Constructive knowledge of absentee’s status.  An unauthorized absence may be terminated by the exercise of control over the absentee by military authorities having a duty to inquire into the absentee’s status, if they could have determined such status by reasonable diligence.  United States v. Gudatis, 18 M.J. 816 (A.F.C.M.R. 1984).  But see United States v. Jackson, 2 C.M.R. 96 (C.M.A. 1952) (After the accused went AWOL, he was tried by summary court-martial for other offenses in a different area of Korea.  During World War II and the Korean Conflict, summary courts-martial were convened in areas where large troop concentrations existed, and courts often did not know the accused soldiers’ status.  Thus, the AWOL did not terminate in this case, because the accused did not inform the summary court-martial of his status and went AWOL after the court-martial.)

d) Apprehension of a known absentee by military authorities terminates an unauthorized absence. 

(1) The authorities need not be of the same armed force as the accused.  United States v. Coates, 10 C.M.R. 123 (C.M.A. 1953). 

(2) Record of trial must evince military authority’s knowledge of status and intent to exercise control.  United States v. Gaston, 62 M.J. 404 (2006) (action by “dorm manager” informing the accused that his squadron was looking for him not enough to constitute termination by apprehension; dorm manager did not indicate why unit was looking for accused and once notified, accused voluntarily surrendered by going to the front of the dorm).

e) Apprehension of a known absentee by civil authorities, acting at the request and on behalf of military authorities, terminates an unauthorized absence.  United States v. Garner, 23 C.M.R. 42 (C.M.A. 1957); see also United States v. Hart, 47 C.M.R. 686 (A.C.M.R. 1973) (holding that the accused’s checking into a Veterans Administration hospital and informing civilian personnel therein of his status as an unauthorized absentee was insufficient to terminate his unauthorized absence since a Veterans Administration hospital is not a military authority and there was no evidence the hospital detained the accused pursuant to military orders, or even that military authorities knew of the accused's location).

(1) Where a service member is apprehended by civilian authorities for a civilian offense, and the authorities indicate a willingness to turn the member over to military control, the failure or refusal of military officials to take control of the member constructively terminates the absence.  United States v. Lanphear, 49 C.M.R. 742 (C.M.A. 1975).  But see United States v. Bowman, 49 C.M.R. 406 (A.C.M.R. 1974) (holding that the Army has no affirmative duty to seek the release of a service member it knows is in civilian jail pending civilian charges).

(2) Defense counsel must determine all relevant facts concerning an accused’s apprehension by civilian authorities and return to military control to competently advise an accused before entering a guilty plea to an unauthorized absence terminated by apprehension.  United States v. Evans, 35 M.J. 754, 757 n.1 (N.M.C.M.R. 1992).

f) Delivery to military authority.  If a known absentee is delivered by anyone to military authority, this terminates the absence.  MCM, pt. IV, ¶ 10.c.(10)(c).

11. For a discussion of trial defense counsel’s obligations concerning disclosure of documents, see United States v. Province, 45 M.J. 359 (C.A.A.F. 1997) (in which defense counsel, during pretrial negotiations, gave prosecutors a written pass given to the accused, thus allowing the government to sever one long AWOL charge into two AWOL charges; the court held defense counsel was not unethical or ineffective because counsel used the document to secure a favorable deal for his client and because the government could have obtained the document elsewhere). 

D. Mens Rea Under Article 86, UCMJ.

1. Specific intent is not an element of the Article 86 offenses, but it is necessary to plead and prove specific intent for certain aggravating factors (e.g., intent to avoid field maneuvers or field exercises).  MCM, pt. IV, ¶¶ 10c(3) and (4).

2. Unauthorized absence is a general intent crime, whereas desertion under Article 85 requires specific intent.  United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956).

E. Attempts.  Attempted AWOL may be a lesser included offense of desertion and attempted desertion.  United States v. Evans, 28 M.J. 753 (A.F.C.M.R. 1989), aff’d, 29 M.J. 331 (C.M.A. 1989).

F. Multiplicity/Unreasonable Multiplication of Charges.

1. Multiplicity: AWOL & breaking restriction covering same time period.  United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004), overruled on other grounds by United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).

2. Unreasonable multiplication of charges: multiple failures to repair & dereliction of duty. United States v. Taylor, 26 M.J. 7 (C.M.A. 1988).

G. Lesser Included Offenses.

1. Article 86(1) is not a lesser included offense of Article 86(3).  United States v. Reese, 7 C.M.R. 292 (A.B.R. 1953).

2. Article 86(3) is not a lesser included offense of Article 86(1) or (2).  United States v. Sturkey, 50 C.M.R. 110 (A.C.M.R. 1975).

XI. DEFENSES TO UNAUTHORIZED ABSENCE.

A. Introduction.  This section treats defenses as they relate to unauthorized absence only.  For a complete treatment of defenses to court-martial charges, see Chapter 22 (Defenses) in this deskbook.

B. Statute of Limitations.

1. In time of war, there is no statute of limitations for AWOL and desertion.  Article 43(a).  For example: 

a) After the armistice on 27 July 1953, hostilities in Korea were no longer “in time of war.”  United States v. Shell, 23 C.M.R. 110 (C.M.A. 1957) (holding that unauthorized absence that began on 4 August 1953 was subject to statute of limitations).

b) After 10 August 1964, hostilities in Vietnam constituted “in time of war” for suspension of the statute of limitations.  United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968).  “Time of war” ended 27 January 1973.  United States v. Reyes, 48 C.M.R. 832 (A.C.M.R. 1974); see United States v. Robertson, 1 M.J. 934 (N.C.M.R. 1976).

2. If the unauthorized absence begins in time of peace, the statute of limitations, if raised, will bar prosecution if the offense was committed more than 5 years before receipt of sworn charges by the summary court-martial convening authority.  UCMJ art. 43(b).  The statute of limitations is tolled while the accused is AWOL, beyond the authority of the United States to apprehend him, in custody of civil authorities, or in the hands of the enemy.  UCMJ art. 43(c) and (d).  However, AWOL is not a continuing offense, so the statute of limitations begins to run as soon as the service member is reported as AWOL.  United States v. Miller, 38 M.J. 121 (C.M.A. 1993).  [Note:  Prior to 14 November 1986, the statute of limitations was two years for AWOL and three years for desertion.  See Miller, 38 M.J. at 122.]

3. Swearing of charges and receipt of the charges by the officer exercising summary court-martial jurisdiction over the unit tolls the statute of limitations for the offenses charged.  UCMJ art. 43(b)(1).  The critical question is whether the “sworn charges and specifications” are timely received, not whether the same charge sheet received by the summary court-martial convening authority is used at the court-martial.  United States v. Miller, 38 M.J. 121, 124 (C.M.A. 1993); United States v. Johnson, 3 M.J. 623 (N.C.M.R. 1977).

4. Where charges have been preferred and received by the summary court­-martial convening authority and the statute of limitations has thus been tolled, minor amendments to the specifications do not void the tolling of the statute.  United States v. Arbic, 36 C.M.R. 448 (C.M.A. 1966).

5. It is permissible to prefer charges against an accused with an open-ended termination date and forward them to the summary court-martial convening authority (to stop the running of the statute of limitations), and then add a termination date when it is known.  United States v. Reeves, 49 C.M.R. 841 (A.C.M.R. 1975).

6. Dismissal of charges that are barred by the statute of limitations does not preclude a later trial on a charge sheet that was properly received by the summary court-martial convening authority within the period provided by the statute of limitations.  United States v. Jackson, 20 M.J. 83 (C.M.A. 1985).

7. Even if the charged offense is not barred by the statute of limitations, the accused cannot be convicted of a lesser included offense that is barred by the statute of limitations, unless there is an affirmative waiver.  United States v. Busbin, 23 C.M.R. 125 (C.M.A. 1957).

8. If a lesser included offense is barred by the statute of limitations, the military judge must inform the accused and allow the accused to choose between protection under the statute of limitations or the instruction on the lesser included offense.  R.C.M. 907(b)(2)(B); United States v. Cooper, 37 C.M.R. 10 (C.M.A. 1966); United States v. Wiedemann, 36 C.M.R. 521 (C.M.A. 1966) (waiver must be consciously and knowingly made).

9. The military judge has a duty to advise the accused of his right to assert the statute of limitations when it appears that the period of time has elapsed.  United States v. Rodgers, 24 C.M.R. 36 (C.M.A. 1957); overruled on other grounds by United States v. Miller, 38 M.J. 121  (C.M.A. 1993); United States v. Brown, 1 M.J. 1151 (N.C.M.R. 1977) (no duty to advise the accused where referred charges mirrored the original charges that were timely received by the summary court-martial convening authority within the period provided by the statute of limitations and the original charge sheet was attached to the referred charge sheet).

10. The rights accorded an accused under the statute of limitations may be waived when the accused, with full knowledge of the privilege, fails to plead the statute in bar of the prosecution or sentence.  United States v. Troxell, 30 C.M.R. 6 (C.M.A. 1960) (permitting an accused, charged with desertion, to plead guilty to AWOL and not assert the statute of limitations, IAW pretrial agreement).

11. When the statutory period has apparently elapsed, the burden of proof of showing timely charges is on the government.  United States v. Morris, 28 C.M.R. 240 (C.M.A. 1959) (statute of limitations did not toll because accused was not in territory in which the US had authority to apprehend him).

12. Computation of time.  A year is 365 days during regular years and 366 days in leap year.  The date of the offense counts as the first day of the running of the statute and the count proceeds forward to the day before receipt by the summary court-martial convening authority.  United States v. Tunnel, 19 M.J. 819 (N.M.C.M.R. 1984), aff’d.  23 M.J. 110 (C.M.A. 1986).  Contra United States v. Reed, 19 M.J. 702 (N.M.C.M.R. 1984) (begins day after offense and concludes on day necessary action is accomplished to toll statute).

C. Former Jeopardy (Article 44, UCMJ).

1. No person may, without his consent, be tried a second time for the same offense.  Article 44(a).

2. When jeopardy attaches.

a) A court-martial with a military judge alone is a trial if, without fault of the accused- after introduction of evidence, and before announcement of findings, the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.  A court-martial with a military judge and members is a trial if, without fault of the accused- after the members, having taken an oath as members and after completion of challenges, are impaneled; and before announcement of findings, the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.  Article 44(c).

b) Withdrawal of charges after arraignment but before presentation of evidence does not constitute former jeopardy, and denial of a motion to dismiss charges at a subsequent trial is proper.  United States v. Wells, 26 C.M.R. 289 (C.M.A. 1958).

c) Once tried for a lesser offense, accused cannot be tried for a major offense that differs from the lesser offense in degree only.  Trial for AWOL bars subsequent trial for desertion.  United States v. Hayes, 14 C.M.R. 445 (N.B.R. 1953).

d) “The protection against double jeopardy does not rest upon a surface comparison of the allegations of the charges; it also involves consideration of whether there is a substantial relationship between the wrongdoing asserted in the one charge and the misconduct alleged in the other.”  United States v. Lynch, 47 C.M.R. 498, 500 (C.M.A. 1973) (doctrine of former jeopardy precluded another trial for unauthorized absence from different unit and shorter time period).  But see United States v. Robinson, 21 C.M.R. 380 (A.B.R. 1956) (permitting, after conviction for an AWOL and after disapproval of findings and sentence by the convening authority, trial for AWOL for the same period but from a different unit than was previously charged); United States v. Hutzler, 5 C.M.R. 661, 664 n.3 (A.B.R. 1951).

e) Double jeopardy does not attach when charges are dismissed for violating the statute of limitations.  Thus, the government is not barred from prosecuting the accused on a charge sheet that had properly been received by the summary court-martial convening authority within the period of the statute, following dismissal of charges for the same offense (but on a different charge sheet) that was not received within the period of the statute.  However, if evidence was introduced in the first proceeding, the first is considered a trial and jeopardy attaches.  United States v. Jackson, 20 M.J. 83 (C.M.A. 1985).

f) Nonjudicial punishment previously imposed under Article 15 for a minor offense and punishment imposed under Article 13 for a minor disciplinary infraction may be interposed as a bar to trial for the same minor offense or infraction.  R.C.M. 907(b)(2)(D)(iii).

(1) “Minor” normally does not include offenses for which the maximum punishment at a general court-martial could be dishonorable discharge or confinement for more than one year.  MCM, pt. V, ¶ 1.e.

(2) If an accused has previously received punishment under Article 15 for other than a minor offense, the service member may be tried subsequently by court-martial; however, the prior punishment under Article 15 must be considered in determining the amount of punishment to be adjudged at trial if the accused is found guilty at the court-martial.  See UCMJ art. 15(f); R.C.M. 1001(d)(1)(B); United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (accused must be given complete credit for any and all nonjudicial punishment suffered—day-for-day, dollar-for-dollar, and stripe-for-stripe).

(3) An AWOL of 5 days, which was accused’s first offense, was a “minor offense” that should have been dismissed upon motion, after accused had previously been punished for the same offense under Article 15.  United States v. Yray, 10 C.M.R. 618 (A.B.R. 1953).

D. Jurisdiction.

1. The mere fact of expiration of enlistment during a status of unauthorized absence did not terminate jurisdiction or the AWOL.  United States v. Klunk, 11 C.M.R. 92 (C.M.A. 1953).

2. When unauthorized absence has been alleged, an accused’s status as a member of the armed forces must be proved beyond a reasonable doubt.  United States v. Marsh, 15 M.J. 252 (C.M.A. 1983).

E. Impossibility:  The Inability to Return to Military Control.

1. When a service member is, due to unforeseen circumstances, unable to return at the end of authorized leave through no fault of his own, he has not committed the offense of AWOL as the absence is excused.  MCM, pt. IV, ¶ 10c(6); see also United States v. Lee, 16 M.J. 278 (C.M.A. 1983) (mechanical problems with automobile); United States v. Calpito, 40 C.M.R. 162 (C.M.A. 1969) (transportation denied from overseas back to the United States due to no passport).

2. When a service member, already in an AWOL status, is unable to return because of sickness, lack of transportation or other disability, he remains in an AWOL status; however, the disability for part of the AWOL should be considered as an extenuating circumstance.  MCM, pt. IV, ¶ 10c(6).

3. Types of impossibility in AWOL situations.

a) Impossibility due to physical disability.

(1) Where accused was ill at the end of his authorized leave and where, on medical advice, he remained in bed for several days before turning himself in to military authorities, the military judge should have given instructions on the defense of physical incapacity.  United States v. Amie, 22 C.M.R. 304 (C.M.A. 1957); see also United States v. Irving, 2 M.J. 967 (A.C.M.R. 1976) (“[s]ickness which amounts to physical incapacity to report or otherwise comply with orders, and which is not self-induced, is a legal excuse”); United States v. Edwards, 18 C.M.R. 830 (A.F.B.R. 1955) (exceeding territorial limits of pass is not per se unauthorized absence).

(2) Defense of impossibility can be defeated by showing that the accused exerted insufficient effort to overcome the disability.  United States v. Mandy, 73 M.J. 619 (A.F.Ct.Crim.App. 2014), aff'd, 74 M.J. 179 (C.A.A.F. 2014).

(3) Evidence of accused’s dental problems which went untreated because of a difference of professional opinion did not raise the defense of physical incapacity after the accused went AWOL to receive civilian dental treatment.  United States v. Watson, 50 C.M.R. 814 (N.C.M.R. 1975).

(4) Evidence raised defense of physical inability where accused, returning to his ship, was robbed and knocked unconscious and, upon regaining consciousness the next day, immediately attempted to return to his ship.  United States v. Mills, 17 C.M.R. 480 (N.C.M.R. 1954).

(5) The accused was robbed the night before he was due to return to his unit and made no effort to return other than to attempt to borrow money (refusing one offer), although he was aware of his duty to return and was physically able to do so.  No defense of impossibility was found.  In a footnote, the court wrote that the accused was derelict in his responsibilities because he did not contact military authorities or seek the aid of any responsible civilian agency.  United States v. Bermudez, 47 C.M.R. 68 (A.C.M.R. 1973).

b) Impossibility due to transportation misfortune.

(1) Where second lieutenant’s car broke down while he was returning from a weekend pass and he elected to remain with his car until it was repaired, the Manual provision concerning “through no fault of his own” does not apply as his decision was for his own convenience.  United States v. Kessinger, 9 C.M.R. 261 (A.B.R. 1952).

(2) Where a second lieutenant postponed his return from leave to assist a friend in filing an accident report, the absence was not excusable as involuntary as no inability to return existed.  United States v. Scott, 9 C.M.R. 241 (A.B.R. 1952).

(3) Where a second lieutenant mistakenly took a “hop” to Washington, D.C. rather than to Atlanta, and thereafter had difficulty obtaining transportation back to his unit, no valid defense was found.  Rather, the evidence could be considered in extenuation and mitigation.  United States v. Mann, 12 C.M.R. 367 (A.B.R. 1953).

c) Impossibility due to acts of God (sudden and unexpected floods; snow; storms; hurricanes; earthquakes; or any unexpected, sudden, violent, natural occurrence) can be a defense.  If the particular act of nature may be expected to occur, it is not a defense because it is foreseeable (e.g., a snowstorm after repeated snowstorm warnings in Minnesota in January).

d) Impossibility due to wrongful acts of third parties includes train wrecks, plane crashes, and explosions that are not caused by the accused.  These situations present a legitimate defense of impossibility.

e) Impossibility due to civilian confinement.

(1) The inability to return to military control depends on the accused’s status at time of confinement and on the results of the civilian trial.  The table below summarizes the rule.  See generally MCM, pt. IV, ¶ 10c(5).

Status of Service Member at Time of Confinement

Result of Civilian Trial

Prosecution for AWOL?

Acquittal

Conviction

(a)  Delivery of soldier to civilian authorities under Article 14

X

X

No

(b)  AWOL

X

X

Yes

(c)  Absent with leave

X

 

No

(d)  Absent with leave

 

X

Yes*

*AWOL begins at expiration of leave

(2) Adjudication as a youthful offender is tantamount to a conviction within the meaning of MCM, pt. IV, ¶ 10.c.(5).  United States v. Myhre, 25 C.M.R. 294 (C.M.A. 1958).

(3) A soldier who voluntarily commits an offense while on authorized leave and is apprehended and detained by civilian authorities may be charged with AWOL for the period after his leave expired until his return to military control.  United States v. Myhre, 25 C.M.R. 294 (C.M.A. 1958).

(4) Where a service member, while AWOL, is apprehended, detained and acquitted by civilian authorities, absent evidence of an attempt to return to military control, the entire period of time is chargeable as AWOL.  United States v. Grover, 27 C.M.R. 165 (C.M.A. 1958); United States v. Bowman, 49 C.M.R. 406 (A.C.M.R. 1974) (while AWOL, accused was arrested and convicted for a civilian offense; civilian authorities did not make the accused available to return to military control; the AWOL continued through the entire time period he was in civilian control).

(5) Where accused was granted “special leave” to answer civilian charges, he could not later be convicted of AWOL for the time spent in civilian jail if convicted by civilian authorities.  United States v. Northrup, 31 C.M.R. 73 (C.M.A. 1961); see also United States v. Williams, 49 C.M.R. 12 (C.M.A. 1974).

(6) Absent an arrest on behalf of the military, an offer to turn the service member over to military authorities, or a notification that the civilian authorities are not going to prosecute, the Army does not have an affirmative duty to seek the release to military authorities of an absent soldier held in a civilian jail on civilian charges.  United States v. Bowman, 49 C.M.R. 406 (A.C.M.R. 1974) (distinguishing United States v. Keaton, 40 C.M.R. 212 (C.M.A. 1969)).

F. Mistake of Fact.

1. General intent crime: mistake of fact must be both honest and reasonable to constitute a defense.  United States v. Holder, 22 C.M.R. 3 (C.M.A. 1956); United States v. Scheunemann, 34 C.M.R. 259 (C.M.A. 1964).

2. In specific intent crimes, such as desertion, the mistake of fact need only be honest.  United States v. Guest, 46 M.J. 778 (Army Ct. Crim. App. 1997); R.C.M. 916(j).

3. When the evidence raises the defense of mistake, the government must disprove the defense beyond a reasonable doubt.  United States v. Thompson, 39 C.M.R. 537 (A.B.R. 1968) (reversing conviction for desertion because the military judge failed to instruct on burden of proof for mistake of fact).

4. Mere speculation by the factfinder as to when an honest and reasonable mistake of fact ended and the unauthorized absence commenced is neither sufficient to sustain a conviction for AWOL nor the basis for a criminal conviction.  United States v. Morsfield, 3 M.J. 691 (N.C.M.R. 1977).

5. A service member who was ordered to go home to await orders for Vietnam and who waited for 2-1/2 years for the orders that never arrived was not guilty of AWOL.  United States v. Davis, 46 C.M.R. 241 (C.M.A. 1973); see also United States v. Hale, 42 C.M.R. 342 (C.M.A. 1970).

G. Duress.

1. Duress or coercion is a reasonably grounded fear on the part of an actor that he or another innocent person would be immediately killed or would immediately suffer serious bodily injury if he did not commit the act.  Duress is a defense to all offenses except where the accused kills an innocent person.  R.C.M. 916(h).  United States v. Hullum, 15 M.J. 261 (C.M.A. 1983) (accused’s absence may be excused, if he left because his life was endangered).

2. The defense of duress is not limited to those circumstances where the accused feels that he personally is going to immediately be killed or suffer serious bodily injury.  United States v. Jemmings, 1 M.J. 414 (C.M.A. 1976) (accused pled guilty to housebreaking and, in the providence inquiry, he testified that he committed the act because he was scared that something would happen to his family if he did not); see also United States v. Palus, 13 M.J. 179 (C.M.A. 1982) (reversing conviction where accused wrote bad checks to cover debts because he feared for his wife’s safety when evidence raised the duress defense).

3. The need of a service member to absent himself from a perilous situation at his duty station in order to find a safer place from threatened injury is not normally a good defense to AWOL.  See United States v. Wilson, 30 C.M.R. 630 (N.B.R. 1960) (accused went AWOL because another service member threatened his life, but Board of Review affirmed the conviction because he did not eliminate the threat by going AWOL).  But see United States v. Hullum, 15 M.J. 261 (C.M.A. 1983) (accused’s absence may be excused if he left because his life was endangered); United States v. Roberts, 15 M.J. 106 (C.M.A. 1983) (summary disposition) (finding that sexual harassment and immediate threat to the physical safety of the accused’s wife raised the defense of duress to an unauthorized absence).

4. Although sexual harassment may, in certain circumstances, be a defense to an unauthorized absence, it did not constitute duress when the second lieutenant conceded during the providence inquiry that she did not reasonably fear imminent death or serious bodily injury of her children when she went AWOL.  United States v. Biscoe, 47 M.J. 398 (C.A.A.F. 1998).

5. An accused’s fear that work to which he was assigned in the mess hall would aggravate his eye injury and commander’s causing accused to be forcibly evicted from his off-post residence did not constitute the affirmative defense of duress in an AWOL case because accused could not reasonably fear death or serious bodily injury.  United States v. Guzman, 3 M.J. 740 (N.C.M.R. 1977), rev’d on other grounds, 4 M.J. 115 (C.M.A. 1977).

6. The accused must reasonably apprehend immediate threat of death or serious bodily harm, and there must not be alternatives. United States v. Olinger, 50 M.J. 365 (C.A.A.F. 1999) (finding no “substantial basis” in law to reject the guilty plea, where accused went AWOL and missed a movement because he felt his wife’s depression might kill her; during the providence inquiry, the accused failed to provide enough details of immediate threat of death or serious bodily harm and that there were no alternative sources of assistance for his wife other than going AWOL and missing movement).

7. Accused was not entitled to duress defense because he had a reasonable opportunity to avoid going AWOL.  United States v. Riofredo, 30 M.J. 1251 (N.M.C.M.R. 1990) (finding that accused should have sought the assistance of the command to stop assaults by noncommissioned officer); R.C.M. 916(h); see generally TJAGSA Practice Note, Duress and Absence Without Authority, Army Law., Dec. 1990, at 34 (discussing Riofredo).

8. United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) aff’d, 58 M.J. 129  (C.A.A.F. 2003).  Accused who was ordered and who refused to receive his sixth and final anthrax vaccination could not raise defense of duress.  The defense requires an unlawful threat from a human being.  Defense of duress is not raised by a reasonable belief that compliance with a lawful order will result in death or serious bodily injury.

XII. MISSING MOVEMENT; JUMPING FROM VESSEL, ART. 87

A. Missing Movement - Background.  The offense of missing movement is a relative newcomer to military criminal law, arising from problems encountered in World War II when members of units or crews failed to show up when their units or ships departed.  Article 87 was designed to cover offenses more serious than simple AWOL but less severe than desertion.  United States v. Smith, 2 M.J. 566 (A.C.M.R. 1976), aff’d, 4 M.J. 210 (C.M.A. 1978) (not discussing the missing movement offense).

B. Elements.  MCM, pt. IV, ¶ 11.b.

1. That the accused was required in the course of duty to move with a ship, aircraft or unit;

2. That the accused knew of the prospective movement of the ship, aircraft, or unit; and

3. That the accused missed the movement through design or neglect.

C. Two Forms of Missing Movement.

1. Through design.

a) “Design” refers to doing an act intentionally, on purpose, or according to plan.  It requires specific intent to miss the movement.  MCM, pt. IV, ¶ 11.c.(3).

b) Missing movement through design, the more serious offense, has a maximum punishment of dishonorable discharge, total forfeitures, and confinement for two years. MCM, pt. IV, ¶ 11.e.(1).

2. Through neglect.

a) “Neglect” means the omission to take such measures as are appropriate under the circumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled movement, or doing some act without giving attention to its probable consequences in connection with the prospective movement, such as a departure from the vicinity of the prospective movement to such a distance as would make it likely that one could not return in time for the movement.  MCM, pt. IV, ¶ 11.c.(4).

b) The maximum punishment for missing movement through neglect is a bad conduct discharge, total forfeitures, and confinement for one year.  MCM, pt. IV, ¶ 11.e.(2).

D. General Requirements.

1. “Movement” includes neither practice marches of short duration with a return to the point of departure nor minor changes in location of a unit such as from one side of a post to another.  MCM, pt. IV, ¶ 11c(1).  Movement missed must be substantial in terms of duration, distance and mission.  Thus, missing a port call for MAC flight constituted missing movement of an aircraft within meaning of Article 87.  United States v. Graham, 16 M.J. 460 (C.M.A. 1983); United States v. Blair, 24 M.J. 879 (A.C.M.R. 1987) aff’d, 27 M.J. 438 (C.M.A. 1988).   But see United States v. Gibson, 17 M.J. 143 (C.M.A. 1984) (failure to report for an ordinary commercial flight does not constitute missing movement as it is not the type of movement contemplated by Article 87).

2. In a missing movement case involving a civilian aircraft, the government must show that the accused was required to travel on that aircraft.  United States v. Kapple, 40 M.J. 472 (C.M.A. 1994). 

3. The accused must have actual knowledge of the prospective movement.  Knowledge of the exact hour or even of the exact date of the movement is not required.  MCM, pt. IV, ¶ 11c(1)(e).

4. The accused’s knowledge may be shown by circumstantial evidence.  United States v. Chandler, 48 C.M.R. 945 (C.M.A. 1974) (reversing conviction because the evidence was legally insufficient to prove actual knowledge).

5. Some authority supports the proposition that UCMJ Article 87 does not reach every instance in which a service member misses a movement but is applicable only when the accused has an essential mission related to the movement, e.g., is an integral member of the unit or crew whose absence would potentially disrupt the mission.  Compare United States v. Gillchrest, 50 C.M.R. 832 (A.F.C.M.R. 1975) (finding that service member missing a commercial aircraft to Turkey as part of PCS did not meet Congressional intent behind the missing movement offense) and United States v. Smith, 2 M.J. 566 (A.C.M.R. 1976) aff’d, 4 M.J. 210 (C.M.A. 1978) (holding that missing movement to site of two-day bivouac area 12 miles downrange did not constitute missing movement; “[h]ard and fast rules relating to the duration, distance and mission of the ‘movement’ are not appropriate, but rather those factors plus other concomitant circumstances must be considered collectively, in order to evaluate the potential disruption of the unit caused by a soldier’s absence”), with United States v. Lemley, 2 M.J. 1196 (N.C.M.R. 1976) (holding that accused, who was being escorted from the brig and missed specific civilian flight listed on orders, did miss “movement”) and United States v. St. Ann, 6 M.J. 563 (N.C.M.R. 1978)(holding that missing a commercial flight while on orders constitutes missing movement even when the accused is not a member of the crew or traveling with his unit).

6. Going AWOL and proceeding to a place more than 1200 miles away was a failure to exercise due care contemplated in missing movement through neglect.  United States v. Mitchell, 3 M.J. 641 (A.C.M.R. 1977).

7. Missing a two-week winter exercise that took place on the same installation as the unit’s location in Alaska supported missing a movement by design.  United States v. Jones, 37 M.J. 571 (A.C.M.R. 1993).

8. An eight-hour “dependent’s cruise” by aircraft carrier is not a “minor” change in the location of the ship.  The focus of the statutory prohibition is upon the movement itself, and not its purpose.  United States v. Quezada, 40 M.J. 109 (C.M.A. 1994).

9. An essential element of missing movement is that the movement actually occurred.  This element may be inferred if the accused holds a ticket for a regularly scheduled commercial flight.  United States v. Kapple, 36 M.J. 1119 (A.F.C.M. R. 1993), rev’d on other grounds, 40 M.J. 472 (C.M.A. 1994).

10. Missing the move, rather than a particular mode of travel, is the gravamen of missing movement.  United States v. Smith, 26 M.J. 276 (C.M.A. 1988).  The description of the movement is important; where the movement was charged as missing a specific flight number, the government failed to present evidence of the flight number that the accused missed.  The military judge found the accused guilty by exceptions and substitutions of missing his unit’s flight, creating a material variance.  The variance was nonprejudicial, and therefore nonfatal, because it did not affect the defense’s presentation of their case.  United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014).

11. Military judge erred by using the accused’s plea of guilty to AWOL as evidence to establish an essential element of a separate charge of missing movement to which a plea of not guilty had been entered.  United States v. Wahnon, 1 M.J. 144 (C.M.A. 1975).

E. Multiplicity and Lesser included Offenses.

1. An accused cannot be punished for both AWOL of minimal duration and missing movement through neglect or through design when the same absence forms the basis for both charges.  United States v. Baba, 21 M.J. 76 (C.M.A. 1985); United States v. Posnick, 24 C.M.R. 11 (C.M.A. 1957); United States v. Bridges, 25 C.M.R. 383 (C.M.A. 1958).  See also United States v. Traxler, 39 M.J. 476 (C.M.A. 1994) (finding that missing movement of aircraft and disobedience of an officer’s order to board the aircraft were not multiplicious for findings).

2. An AWOL of extended duration is not multiplicious with missing movement.  United States v. Olinger, 47 M.J. 545 (N-M. Ct. Crim. App. 1997), aff’d, 50 M.J. 365 (C.A.A.F. 1999).

3. Unauthorized absence is a lesser included offense of missing movement.  United States v. Smith, 2 M.J. 566 (A.C.M.R. 1976), aff’d, 4 M.J. 210 (C.M.A. 1978).

XIII. RESISTANCE, FLIGHT, BREACH OF ARREST, AND ESCAPE, ART. 87a

XIV. OFFENSES AGAINST CORRECTIONAL CUSTODY AND RESTRICTION, ART. 87b

 

AUTHORITY OFFENSES

XV. CONTEMPT TOWARD OFFICIALS,  ART. 88

XVI. DISRESPECT TOWARD SUPERIOR COMMISSIONED OFFICER; ASSAULT OF SUPERIOR COMMISSIONED OFFICER, ART. 89

A. Disrespect Defined.  UCMJ arts. 89 & 91(3).

1. Actions.  United States v. Ferenczi, 27 C.M.R. 77 (C.M.A. 1958) (subordinate contemptuously turns and walks away from a superior who is talking to him); United States v. Van Beek, 47 C.M.R. 98 (A.C.M.R. 1973) (exploding gas grenade in absent officer’s quarters – “gravamen of an Article 89 offense is not merely insult, but the undermining of lawful authority.”).

2. Words.  United States v. Najera, 52 M.J. 247 (C.A.A.F. 2000) (“You can't make me, you can give me any type of discharge you want, you can give me a DD, I would rather have a dishonorable discharge than return to training, I refuse”);  United States v. Barber, 8 M.J. 153 (C.M.A. 1979) (“If you have something to say about me, say it to my face.”);  United States v. Montgomery, 11 C.M.R. 308 (A.B.R. 1953) (“Keep your Goddamn mouth shut, you field grade son-of-a-bitch or I’ll tear you apart; I’ll beat you to death you. . . . I’ll bite your. . . off, you punk, you”);  United States v. Dornick, 16 M.J. 642 (A.F.C.M.R. 1983) (“Hi, sweetheart”).

3. Actions & words are not distinct bases—all circumstances of a case may be considered when determining whether disrespectful behavior in violation of Article 89 has occurred.  United States v. Najera, 52 M.J. 247 (C.A.A.F. 2000).

B. Knowledge.  The accused must be aware of the victim’s status.  United States v. Payne, 29 M.J. 899 (A.C.M.R. 1989); MCM, pt. IV, ¶ 15c(2).

C. Disrespect must be directed toward the victim.  United States v. Sorrells, 49 C.M.R. 44 (A.C.M.R. 1974) (no disrespect when loud profanity was spoken in the presence of the superior but directed toward others present in the room); see also United States v. Alexander, 11 M.J. 726 (A.C.M.R. 1981) (accused’s plea of guilty to disrespect to his first sergeant was not improvident on ground that his outburst was not directed toward that individual, where facts showed that accused became angry at having to open his locker for the first sergeant to check for contraband and he took his clothes out of his locker and threw them on floor at feet of first sergeant).

D. Pleading.

1. Disrespectful behavior must be alleged.  If the words or acts that constitute the disrespectful conduct are innocuous, the pleadings will be fatally defective unless circumstances surrounding the behavior are alleged to detail the nature of insubordination.  United States v. Barber, 8 M.J. 153 (C.M.A. 1979) (words, “If you have something to say about me, say it to my face,” as spoken by a subordinate to a superior noncommissioned officer in the execution of his office, found to be disrespectful on their face; court read the language to constitute a demand by the subordinate that the superior conform his official conduct to a standard imposed by the subordinate); United States v. Bartee, 50 C.M.R. 51 (N.M.C.M.R. 1974) (statement to superior commissioned officer, “Man, I ain’t getting no haircut,” constituted disrespect); United States v. Sutton, 48 C.M.R. 609 (A.C.M.R. 1974) (specification alleging accused said, “You had better get out of the man’s room” held insufficient); United States v. Smith, 43 C.M.R. 796 (A.C.M.R. 1971) (specification alleging that accused referred to a male victim as “man” held insufficient); United States v. Klein, 42 C.M.R. 671 (A.C.M.R. 1970) (mere utterance of words, “People get hurt like that,” did not constitute, per se, disrespectful language).

2. The alleged victim’s status as the Accused’s superior commissioned officer must be indicated in some manner.  United States v. Showers, 48 C.M.R. 837 (A.C.M.R. 1974).  Alleging that the victim is “a superior commissioned officer” is inadequate.  United States v. Carter, 42 C.M.R. 898 (A.C.M.R. 1970).  However, the failure to allege “his superior commissioned officer” was not fatal where the specification alleged the officer victim’s rank and service, and both the enlisted accused and the officer victim were in the same service.  United States v. Ashby, 50 C.M.R. 37 (N.C.M.R. 1974).

3. Disrespect, under Article 91, and provoking speech and gestures, under Article 117, are separate offenses and not multiplicious.  United States v. McHerrin, 42 M.J. 672 (Army Ct. Crim. App. 1995).

E. Additional Requirements for Disrespect to a Noncommissioned, Warrant, or Petty Officer.

1. The offensive words or conduct must be within the hearing or sight of the noncommissioned, warrant, or petty officer victim.  This is not required in the case of a commissioned officer victim.  MCM, pt. IV, ¶ 17c(5); United States v. Van Beek, 47 C.M.R. 98, 99 (A.C.M.R. 1973).

2. The noncommissioned, warrant, or petty officer victim, at the time of the offense, must be “in the execution of his office,” to include any act or service required or authorized to be done by him because of statute, regulation, order of a superior or military usage.  MCM, pt. IV, ¶ 15f; United States v. Brooks, 44 C.M.R. 873 (A.C.M.R. 1971) (holding off-duty NCO working at EM Club as sergeant-at-arms in execution of his office); United States v. Fetherson, 8 M.J. 607, 610 (N.M.C.M.R. 1977) (holding off-duty NCO quelling disorderly conduct or maintaining order among subordinates in execution of his office).

3. An NCO of one branch of the armed forces is the “superior NCO” of an enlisted accused of another armed force only when the NCO is in a position of authority over the accused.  United States v. White, 39 M.J. 796 (N.M.C.M.R. 1994).

4. Commissioned officer is protected even if acting in a private capacity and off duty.  United States v. Van Beek, 47 C.M.R. 98 (A.C.M.R. 1973); United States v. Montgomery, 11 C.M.R. 308 (A.B.R. 1953) (officer victim involved in poker game).

XVII. WILLFULLY DISOBEYING SUPERIOR COMMISSIONED OFFICER, ART. 90

A. Elements.

B. Disobedience to orders.  UCMJ ART.  90 & 91(2)

1. The Order.

a) The order must be directed to the accused specifically.  It does not include violations of regulations, standing orders, or routine duties.  MCM, pt. IV, ¶ 16c(2)(b) & 17c(4); United States v. Byers, 40 M.J. 321 (C.M.A. 1994) (order revoking driving privileges signed by JAG was a routine administrative sanction for traffic offenses and was not a personal order by the post commander); United States v. Ranney, 67 M.J. 297 (C.A.A.F. 2009) (revocation of driving privileges issued automatically upon drunk driving arrest was not sufficient for purposes of Art. 90, but did support a conviction under Art. 92), overruled on other grounds by United States v. Phillips, 74 M.J. 20 (C.A.A.F. 2015); United States v. Gussen, 33 M.J. 736 (A.C.M.R. 1991) (evidence that accused disobeyed an order issued by brigade commander to entire brigade, but relayed to the accused through NCOs, only supports finding of violation of orders in violation of Article 92 and not violation of a superior’s personal order); United States v. Selman, 28 M.J. 627 (A.F.C.M.R. 1989) (letter to all minimum security prisoners setting forth restrictions was not a personal order to the accused).

b) Form of Order.  As long as understandable, the form of the order and the method of transmittal are immaterial. MCM, pt. IV, ¶ 16c(2)(c) & 17c(4); United States v. McLaughlin, 14 M.J. 908 (N.M.C.M.R. 1982) (use of the word “please” does not negate the order).

c) Scope of Order.  In order to sustain the presumption of lawfulness of an order, the order must have a valid military purpose and must be a clear, narrowly drawn mandate.  United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003) (holding that a “sufficiently clear, specific, and narrowly drawn” order with a valid military purpose was not unconstitutionally overbroad or vague).

(1) The order must be a specific mandate to do or not to do a specific act. MCM, pt. IV, ¶ 16c(2)(b) & 17c(4); United States v. Womack, 29 M.J. 88 (C.M.A. 1989) (“safe sex” order for HIV positive airman was “specific, definite, and certain.”); United States v. Mantilla, 36 M.J. 621 (A.C.M.R. 1992) (order to “double-time” to barracks to retrieve gear was positive command rather than advice); United States v. Claytor, 34 M.J. 1030 (N.M.C.M.R. 1992) (order to “shut up” on the heels of disrespectful language about a superior commissioned officer was a specific mandate to cease speaking and say nothing further); but see United States v. Warren, 13 M.J. 160 (C.M.A. 1982) (statement “settle down and be quiet” was ambiguous and lacked specificity of meaning to determine if it was an order or mere counseling); United States v. Beattie, 17 M.J. 537 (A.C.M.R. 1983) (where superiors of intoxicated accused did not want him at his assigned place of duty, which was the motor pool, his lieutenant's order for defendant to report to his place of duty, without further clarification as to where that was, did not provide a clear enough mandate to establish a violation under art. 90).

(2) If the language of a communication lacks specificity of meaning, extrinsic evidence is admissible for the purpose of clarification.  United States v. Warren, 13 M.J. 160 (C.M.A. 1982); United States v. Mitchell, 20 C.M.R. 295 (C.M.A. 1955).

d) An order requiring the performance of a military duty or act may be inferred to be lawful.  Lawfulness of the order is a question of law that must be decided by the military judge.  MCM, pt. IV, ¶ 16c(2)(a) & 17c(4); United States v. Diesher, 61 M.J. 313 (C.A.A.F. 2005) (holding the legality of an order is an issue of law that must be decided by the military judge (citing United States v. New, 55 M.J. 95 (C.A.A.F. 2001)).

2. Knowledge.

a) The prosecution must prove, as an element of the offense, that the accused had actual knowledge of the order. MCM, pt. IV, ¶ 16c(2)(e) & 17c(2); United States v. Shelly, 19 M.J. 325 (C.M.A. 1985); United States v. Pettigrew, 41 C.M.R. 191 (C.M.A. 1970) (although knowledge may be proven by circumstantial evidence, the knowledge must be actual and not constructive).

b) The prosecution must prove that the accused had actual knowledge of the status of the victim. MCM, pt. IV, ¶ 16c(2)(e); United States v. Young, 40 C.M.R. 36 (C.M.A. 1060) (voluntary intoxication raised issue of whether accused knew he was dealing with his superior officer); United States v. Oisten, 33 C.M.R. 188 (C.M.A. 1963); United States v. Payne, 29 M.J. 899 (A.C.M.R. 1989).

3. Willfulness of Disobedience.

a) Disobedience must be intentional defiance of authority.  Failure to comply through heedlessness or forgetfulness is not “willful” (but it may violate Article 92). MCM, pt. IV, ¶ 16c(2)(f).  See also •United States v. Gumataotao, No. ARMY 20150765, 2016 WL 3545492 (A. Ct. Crim. App. June 22, 2016.

b) Intentional noncompliance, not “flaunting of authority,” is required.  United States v. Ferenczi, 27 C.M.R. 77 (C.M.A. 1958).

c) Voluntary intoxication might prevent the accused from having the willful state of mind required by Article 91.  United States v. Cameron, 37 M.J. 1042 (A.C.M.R. 1993) (where accused was intoxicated and did not complete the assigned task of cleaning room by proscribed deadline, members should have been instructed on lesser included offense of failing to obey lawful order, under Article 92, which does not require willfulness).

4. Origin of the Order. 

a) The alleged victim must be personally involved in the issuance of the order.  United States v. Ranney, 67 M.J. 297 (C.A.A.F. 2009) (revocation of driving privileges issued without the knowledge or involvement of the Base Traffic Officer was not sufficient for purposes of Art. 90, but did support a conviction under Art. 92).

b) The order must originate from the alleged victim, and not be the order of a superior for whom the alleged victim is a mere conduit.  United States v. Marsh, 11 C.M.R. 48 (C.M.A. 1953) (specification improperly alleged victim as a captain who was merely transmitting order from the Commanding General); United States v. Sellers, 30 C.M.R. 262 (C.M.A. 1961) (major was not a mere conduit, where he passed on order of colonel, threw the weight of his rank and position into the balance, and added additional requirement); United States v. Wartsbaugh, 45 C.M.R. 309 (C.M.A. 1972) (setting aside Article 90 violation where the court characterized the company commander’s order as “predicated upon…a battalion directive”).

5. Time for Compliance.  MCM, pt. IV, ¶ 16c(2)(g) &17c(4).

a) When an order requires immediate compliance, accused’s statement that he will not obey and failure to make any move to comply constitutes disobedience.  United States v. Stout, 5 C.M.R. 67 (C.M.A. 1952) (order to join combat patrol).  Time in which compliance is required is a question of fact.  United States v. Cooper, 14 M.J. 758 (A.C.M.R. 1982) (order to go upstairs and change clothes not countermanded by subsequent order to accompany victim to orderly room, because disobedience to first order already complete); United States v. McLaughlin, 14 M.J. 908 (N.M.C.M.R. 1982) (order to produce ID card required immediate compliance).

b) Immediate compliance is required by any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed.  MCM, pt. IV, ¶ 16c(2)(g) &17c(4), United States v. Schwabauer, 34 M.J. 709 (A.C.M.R. 1992) (direct order to “stop and come back here” clearly and unambiguously required immediate obedience without delay), aff’d, 37 M.J. 338  (C.M.A. 1993).  However, when time for compliance is not stated explicitly or implicitly, then reasonable delay in compliance does not constitute disobedience.  MCM, pt. IV, ¶ 16c(2)(g) and 17c(4).  United States v. Clowser, 16 C.M.R. 543 (A.F.B.R. 1954) (delay resulting from a sincere and reasonable choice of means to comply with order to “go up to the barracks and go to bed” was not a completed disobedience).

c) When immediate compliance is required, disobedience is completed when the one to whom the order is directed first refuses and evinces an intentional defiance of authority.  United States v. Vansant, 11 C.M.R. 30 (C.M.A. 1953) (order to return to his platoon and be there in one and a half hours necessitated immediate compliance, and refusal to comply constituted disobedience).

d) For orders that require preliminary steps before they can be executed, the recipient must begin the preliminary steps immediately or the disobedience is complete.  United States v. Wilson, 17 M.J. 1032 (A.C.M.R. 1984) pet. denied, 19 M.J. 79 (C.M.A. 1984) (lieutenant’s order to “shotgun” a truck, which entailed preparation prior to travel, was disobeyed when accused verbally refused three times and walked out of lieutenant’s office).

e) Apprehension of an accused before compliance is due is a legitimate defense to the alleged disobedience.  See United States v. Williams, 39 C.M.R. 78 (C.M.A. 1968).

f) If an order is to be performed in the future, the accused’s present statement of intent to disobey does not constitute disobedience.  United States v. Squire, 47 C.M.R. 214 (N.C.M.R. 1973).

6. Matters in Defense.

a) The order cannot lack content and must be a specific mandate.  United States v. Bratcher, 39 C.M.R. 125 (C.M.A. 1969) (finding disobedience to a nonspecific mandate was not punishable under art. 90; Soldier disobeyed an order that did not contemplate performance or nonperformance of any special function, but rather was an order to do what he was already required to do as a soldier under a superior's command – not an enforceable order.); United States v. Oldaker, 41 C.M.R. 497 (A.C.M.R. 1969) (order “to train” given to basic trainee lacked content); United States v. Beattie, 17 M.J. 537 (A.C.M.R. 1983) (order to “follow the instructions of his NCO’s” lacked content); but see United States v. Couser, 3 M.J. 561 (A.C.M.R. 1977) (order to resume training with company that contemplated specific activities had content and was proper).

b) “Ultimate offense” doctrine.

(1) The order requires acts already required by law, regulation, standing orders, or routine (pre-existing) duty. United States v. Bratcher, 39 C.M.R. 125 (C.M.A. 1969) (order to “perform duties as a duty soldier, the duties to be performed and to be assigned to him by the First Sergeant” was not a specific mandate but rather an exhortation to do his duty as already required by law; order to obey the law can have no validity beyond the limit of the ultimate offense committed); United States v. Sidney, 48 C.M.R. 801 (A.C.M.R. 1974) (officer’s order to comply with local regulations on registration and safekeeping of personal weapons should have been charged under Article 92(2)); United States v. Wartsbaugh, 45 C.M.R. 309 (C.M.A. 1972) (order to comply with battalion uniform directive should have been charged under Article 92(2)); but cf. United States v. Traxler, 39 M.J. 476 (C.M.A. 1994) (commander can lift otherwise routine duty “above the common ruck” to ensure compliance but not to merely enhance punishment); but see United States v. Phillips, 74 M.J. 20 (C.A.A.F. 2015) (commander ordered accused who repeatedly absented himself without leave to avoid disciplinary proceedings to remain on post; absent evidence that commander issued the order to escalate the accused’s criminal liability, the government was free to choose between charging a violation of the order or breaking restriction).

(2) Minor offenses may not be escalated in severity by charging them as violation of orders or willful disobedience of superiors.  United States v. Hargrove, 51 M.J. 408 (C.A.A.F. 1999) (failure to report for restriction improperly charged as disobeying order; should have been charged as failure to go to appointed place of duty); United States v. Quarles, 1 M.J. 231 (C.M.A. 1975) (holding maximum punishment cannot be increased by charging disobedience rather than failure to repair).

(3) Violation of a personal order is punishable as a separate offense if it is given for the purpose of having the full authority of the superior’s position and rank to ensure compliance.  United States v. Traxler, 39 M.J. 476 (C.M.A. 1994) (willful disobedience of superior commissioned officer and missing movement); United States v. Landwehr, 18 M.J. 355 (C.M.A. 1984) (willful disobedience of superior commissioned officer and failure to repair); United States v. Pettersen, 17 M.J. 69 (C.M.A. 1983) (willful disobedience of superior noncommissioned officer and AWOL); United States v. Greene, 8 M.J. 796 (N.C.M.R. 1980) (willful disobedience of superior of lawful orders from superior petty officer and superior commissioned officer); United States v. Bivins, 34 C.M.R. 527 (A.B.R. 1964).

c) Repeated orders.

(1) If the sole purpose of repeated personal orders is to increase the punishment for an offense, disobedience of the repeated order is not a crime. United States v. Tiggs, 40 C.M.R. 352 (A.B.R. 1968).

(2) Repeated orders may constitute an unreasonable multiplication of charges. United States v. Graves, 12 M.J. 583 (A.F.C.M.R. 1981) (dismissing conviction for willful disobedience of lieutenant’s order that immediately followed and was identical to order from sergeant, which was the basis of a separate conviction); United States v. Greene, 8 M.J. 796 (N.C.M.R. 1980) (subsequent orders of superior commissioned officers merely reiterating original order of petty officer could not form basis for additional convictions for willful disobedience of superior commissioned officers); but see United States v. Bivins, 34 C.M.R. 527 (A.B.R. 1964) (absent a showing of a deliberate design on the part of the Government to exaggerate the accused’s alleged wrongs or a lack of legitimate purpose in setting forth the charges, no basis exists to set aside the specifications).

d) Violation of an order that is part of an apprehension constitutes resisting apprehension rather than disobedience of an order.  United States v. Nixon, 45 C.M.R. 254 (C.M.A. 1974) (officer’s order “to leave the . . . room and get into a jeep” was the initial step of an apprehension, and disobedience should have been prosecuted under Article 95 rather than Article 90); United States v. Burroughs, 49 C.M.R. 404 (A.C.M.R. 1974).  But see United States v. Jessie, 2 M.J. 573 (A.C.M.R. 1977) (when already in custody, order to remain in building to reinforce status was independent lawful command).

e) The order is inconsistent with a service regulation. United States v. Roach, 29 M.J. 33 (C.M.A. 1989) (Coast Guard regulation on drug and alcohol policy).

f) The defense of conflicting orders.  United States v. Clausen, 43 C.M.R. 128 (C.M.A. 1971); United States v. Patton, 41 C.M.R. 572 (A.C.M.R. 1969) (“criminal prosecution for disobedience of an order cannot be based upon a subordinate’s election to obey one of two conflicting orders when simultaneous compliance with both orders is impossible”); but cf. United States v. Hill, 26 M.J. 876 (N.M.C.M.R. 1988) (no defense where accused obeyed neither of the conflicting orders but rather remained in his “rack”).

g) Orders must not conflict with, or detract from, the scope or effectiveness of orders issued by higher headquarters.  United States v. Clausen, 43 C.M.R. 128 (C.M.A. 1971); United States v. Green, 22 M.J. 711 (A.C.M.R. 1986).

h) Conscientious objection is not a defense to disobedience of lawful orders.  United States v. Johnson, 45 M.J. 88 (C.A.A.F. 1996); United States v. Walker, 41 M.J. 462 (1995); United States v. Austin, 27 M.J. 227 (C.A.A.F. 1988).

i)State of mind defenses may apply.  United States v. Young, 40 C.M.R. 36 (C.M.A. 1969).

XVIII. INSUBORDINATE CONDUCT TOWARD WARRANT OFFICER, NONCOMMISSIONED OFFICER, oR PETTY OFFICER, ART. 91

A. For discussion, see Section XVII .

XIX. PROTECTED STATUS OF CERTAIN MILITARY VICTIMS.

A. General.  Articles 89, 90, and 91 cover offenses against superior commissioned officers and noncommissioned and warrant officers in the execution of office.  Two conditions—superior status and the performance of the duties of office—provide increased protection to victims and increased punishment to violators of these Articles

B. “Superior Commissioned Officer” Defined.  The victim’s status as the superior commissioned officer of the accused is an element of crimes involving disrespect (Article 89), assault (Article 128b(3)(a)), and disobedience (Article 90(2)) in which the victim’s status as a superior officer enhances the penalty.  The following rules are applicable to each of the above offenses.

1. Accused & Victim in Same Armed Service. 

a) The victim is the accused’s “superior commissioned officer” if the victim is a commissioned officer superior in rank to the accused (not date of rank in the same grade).

b) The victim is the accused’s “superior commissioned officer” if the victim is superior in command to the accused, even if the victim is inferior in grade to the accused.

c) The victim is not the accused’s “superior commissioned officer” if the victim is superior in grade but inferior in command.

2. Accused & Victim in Different Armed Services. 

a) The victim is the accused’s “superior commissioned officer” if the victim is a commissioned officer and superior in the chain of command over the accused.

b) The victim is the accused’s “superior commissioned officer” if the victim, not a medical officer nor a chaplain, is senior in grade to the accused and both are detained by a hostile entity so that recourse to the normal chain of command is prevented.

c) The victim is not the accused’s “superior commissioned officer” merely because the victim is superior in grade to the accused. 

d) In United States v. Merriweather, 13 M.J. 605 (A.F.C.M.R. 1982), the court disapproved the conviction of an airman of disrespect to two Navy medical officers under Article 89.  There was no command relationship where the accused merely spent two hours in a Navy emergency room.  The court affirmed a conviction for the lesser included offense of disorderly conduct.

3. Commissioned Warrant Officers.

a) Both trial and defense counsel should be alert as to whether a warrant officer in a particular case is commissioned.  Warrant officers are commissioned upon promotion to CW2.  10 U.S.C. § 571.  Warrant Officer One (WO1) is not a commissioned officer. 

b) “Commissioned officer” includes a commissioned warrant officer.  10 U.S.C. § 101(b)(2).  See also R.C.M. 103(21) discussion (MCM 2016 ed.).

c) In the Navy, a Chief Warrant Officer is a commissioned officer, the disobedience of whose order constitutes a violation of Article 90.  United States v. Kanewske, 37 C.M.R. 298, 299 (C.M.A. 1967).

C. “Warrant Officer” or “Noncommissioned Officer” Defined.  A victim’s status as a WO or NCO is an element of those crimes involving insubordinate conduct toward such individuals, to include:  assault (Article 91(1)), disobedience (Article 91(2)), and disrespect (Article 91(3)).  Warrant or noncommissioned officer victims must be acting in execution of office.

1. Warrant Officers.  Those individuals appointed as warrant officers to meet Army requirements for officers possessing particular skills and specialized knowledge.  Although warrant officers usually perform specialized duties within the Army, they may under appropriate circumstances serve in command positions.  See ¶ VI.B.3 above regarding “commissioned warrant officers.”

2. Noncommissioned Officers.

a) Those in the rank of corporal (E-4) and above. 

b) Not including a specialist (E-4).

c) Not including a victim of the rank of specialist (E-4) or below who is an “acting” NCO.  United States v. Lumbus & Sutton, 49 C.M.R. 248 (C.M.A. 1974); United States v. Evans, 50 C.M.R. 198 (A.C.M.R. 1975).  See also MCM, pt. IV, ¶ 15.c.(1).

D. “Superior” WO/NCO. 

1. Article 91 protects warrant officers and noncommissioned officers from disrespect, assault, and disobedience when they are in execution of their office.  The statute does not require a superior-subordinate relationship within the same service.  See United States v. Diggs, 52 M.J. 251 (C.A.A.F. 2000) (staff sergeant (E-6) that pushed sergeant (E-5) guilty of assaulting an NCO under Article 91).

2. If pleaded and proven, the fact the victim was superior to the accused and that the accused had knowledge of the victim’s superior status is an aggravating factor that exposes the accused a greater maximum punishment.  See MCM (2016 ed.), pt. IV, ¶ 15c analysis.  See also United States v. White, 39 M.J. 796 (N.M.C.M.R. 1994) (holding that for Article 91 purposes an NCO is not the superior NCO of an enlisted accused of another armed force merely because the NCO is superior in rank to the accused, however, an NCO may be the superior NCO of an enlisted accused of another armed force when the NCO is in a position of authority over the accused).

E. Divestiture.  Misconduct on the part of a superior in dealing with a subordinate may divest the former of his authority and thus destroy his protected status if it was substantial departure from the required standards of conduct.  See MCM, pt IV, ¶ 15c(2)(d); see United States v. Collier, 27 M.J. 806, 810 (A.C.M.R. 1988).

1. Conduct amounting to divestiture.  United States v. Diggs, 52 M.J. 251 (C.A.A.F. 2000) (striking accused); United States v. Richardson, 7 M.J. 320 (C.M.A. 1979) (racial slurs; calling accused “boy”); United States v. Rozier, 1 M.J. 469 (C.M.A. 1976) (unlawful apprehension coupled with unwarranted physical assault); United States v. Hendrix, 45 C.M.R. 186 (C.M.A. 1972) (exceeded scope of authorized search); United States v. Struckman, 43 C.M.R. 333 (C.M.A. 1971) (inviting accused to fight); United States v. Noriega, 21 C.M.R. 322 (C.M.A. 1956) (officer victim serving as bartender at enlisted men’s party); United States v. Cheeks, 43 C.M.R. 1013 (A.F.C.M.R. 1971) (sustained verbal abuse of prisoner); United States v. Revels, 41 C.M.R. 475 (A.C.M.R. 1969) (use of brute force on accused by confinement officer).

2. Conduct not amounting to divestiture.  United States v. Pratcher, 17 M.J. 388 (C.M.A. 1984) (involvement in collecting debts contrary to regulation); United States v. Lewis, 12 M.J. 205 (C.M.A. 1982) (failure to give proper Article 31(b) warnings); United States v. Lewis, 7 M.J. 348 (C.M.A. 1979) (search that was subsequently determined to not be based on probable cause); United States v. Middleton, 36 M.J. 835 (A.C.M.R. 1993) (close personal friendship with subordinate); United States v. King, 29 M.J. 885 (A.C.M.R. 1989) (striking a prisoner who lunged at a guard); United States v. Collier, 27 M.J. 806 (A.C.M.R. 1988) (use of profane language) rev’d in part on other grounds by, 29 M.J. 365  (C.M.A. 1990); United States v. Leach, 22 M.J. 738 (N.M.C.M.R. 1986) (general allegations of “horseplay”); United States v. Allen, 10 M.J. 576 (A.C.M.R. 1980) (addressing accused as “boy” where accused did not regard use of term as racial slur and both the victim and accused were the same race); United States v. Fetherson, 8 M.J. 607 (N.M.C.M.R. 1979) (illegal apprehension without any inappropriate conduct); United States v. McDaniel, 7 M.J. 522 (A.C.M.R. 1979) (sergeant who placed drunken and protesting soldier in cold shower); United States v. Vallenthine, 2 M.J. 1170 (N.C.M.R. 1974) (escorting with one hand on shirt collar and other on seat of trousers); United States v. Cheeks, 43 C.M.R. 1013 (A.F.C.M.R. 1971) (verbal abuse alone does not serve to vitiate a legitimate order); United States v. Montgomery, 11 C.M.R. 308 (A.B.R. 1953) (playing poker with subordinate officers).

3. If an NCO commits misconduct that divests him of his authority as an NCO, he may regain his protected status by desisting in the illegal conduct and attempting to resolve the matter within appropriate channels.  United States v. Diggs, 52 M.J. 251 (C.A.A.F. 2000).

4. Divestiture is limited to offenses where the protected status of the victim is an element, but it does not necessarily extend to lesser included offenses.  Although the accused may not be convicted of an assault upon a superior under Article 91 when the victim’s conduct divests himself of his status, the accused may be found guilty of the lesser included offense of assault under Article 128.  United States v. Richardson, 7 M.J. 320 (C.M.A. 1979); United States v. Johnson,  43 C.M.R. 604 (A.C.M.R. 1970).

5. Members may find “partial” divestiture.  United States v. Sanders, 41 M.J. 485 (C.A.A.F. 1995) (members found victim was no longer in the execution of his duties based on his language and conduct, but he had not divested himself of his status as a noncommissioned officer).

XX. VIOLATION OF A LAWFUL GENERAL REGULATION/ORDER, ART. 92(1)

A. Authority to Issue a General Order.  MCM, pt. IV, ¶ 18c(1)(a).

1. President; Secretary of Defense; Secretary of Homeland Security; and Secretaries of the Army, Navy, and Air Force. 

2. A GCM convening authority.

3. A flag or general officer in command.

4. Superior commanders to (2) and (3) above.

5. To be a lawful general order, the order must be issued as the result of the personal decision of the person authorized to issue general orders.  United States v. Ayers, 54 M.J. 85 (C.A.A.F. 2000) (as long as the decision remains with the commander, the delegated signature authority is ministerial in nature).  United States v. Townsend, 49 M.J. 175 (C.A.A.F. 1998) (order signed by Acting Chief, Office of Personnel and Training was issued by the Commandant of the Coast Guard); United States v. Bartell, 32 M.J. 295 (C.M.A. 1991) (general order signed “By Direction”); United States v. Breault, 30 M.J. 833 (N.M.C.M.R. 1990) (general order signed by chief of staff).

B. Regulation Defects.

1. The regulation must prohibit conduct of the nature of that attributed to the accused in the specification.  United States v. Baker, 40 C.M.R. 216 (C.M.A. 1969) (charged conduct was beyond the scope of the conduct prohibited in the regulation); United States v. Sweitzer, 33 C.M.R. 251 (C.M.A. 1963).

2. The regulation must apply to a group of persons that includes the accused.  United States v. Jackson, 46 C.M.R. 1128 (A.C.M.R. 1973) (finding that regulation was intended to guide military police rather than the individual soldier).

3. The regulation must set the conduct of individual members of a command or  delineate a code of conduct rather than provide general guidance.  United States v. Green, Army 20010446, 2003 Lexis 137 (Army Ct. Crim. App. June 6, 2003) (DoD Directive intended to update policies and responsibilities on drug abuse and prevention held to be general guidance and not punitive in nature); United States v. Blanchard, 19 M.J. 196 (C.M.A. 1985) (USAFE customs regulation was directory in nature); United States v. Scott, 46 C.M.R. 25 (C.M.A. 1972) (regulation establishing drug suppression policy was not punitive order); United States v. Nardell, 45 C.M.R. 101 (C.M.A. 1972) (SOP for club system was predominantly instructional guidance); United States v. Hode, 44 M.J. 816 (A.F. Ct. Crim. App. 1996) (AFI 34-119 on the Alcoholic Beverage Program was not punitive); United States v. Goodwin, 37 M.J. 606 (A.C.M.R. 1993) (punitive regulation can refer to provisions in nonpunitive regulation); United States v. Finsel, 33 M.J. 739 (A.C.M.R. 1991) (task force commander’s “Weapons Safety” letter was punitive in nature), aff’d, 36 M.J. 441  (C.M.A. 1993); United States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990) (AR 600-21, including sexual harassment policy provisions, was not a punitive regulation).

4. It is not a defense that the regulation was superseded before the accused’s conduct, if a successor regulation contained the same criminal prohibition and it was in force at the time of the accused’s conduct, unless it misled the accused.  United States v. Grublak, 47 C.M.R. 371 (A.C.M.R. 1973).

5. A regulation that is facially overbroad may be salvaged by including a scienter or mens rea requirement.  United States v. Bradley, 15 M.J. 843 (A.F.C.M.R. 1983) (regulation prohibiting drug paraphernalia was not vague or overbroad because it required that the product was intended to be used with a controlled substance); United States v. Cannon, 13 M.J. 777 (A.C.M.R. 1982).

6. Local regulations must not conflict with or detract from the scope of effectiveness of a regulation issued by higher headquarters.  United States v. Green, 22 M.J. 711 (A.C.M.R. 1986) (Fort Stewart regulation prohibiting soldiers from “[h]aving any alcohol in their system . . . during duty hours” was not enforceable because it detracted from the effectiveness of Army Regulation 600-85).  But see United States v. Garcia, 21 M.J. 127 (C.M.A. 1985) (conviction of violating local regulation capping chargeable interest below the cap in a Navy regulation was upheld because the local regulation effectively capped at the rate in the Navy regulation once the Navy regulation was amended).

C. Knowledge.

1. Actual knowledge of the regulation or order is not an element of the crime.  United States v. Tinker, 27 C.M.R. 366 (C.M.A. 1959); United States v. Leverette, 9 M.J. 627 (A.C.M.R. 1980) (knowledge imputed even if the accused soldier is merely visiting the installation and not assigned there), aff’d, 9 M.J. 421 (C.M.A. 1980).

2. For knowledge to be presumed, a regulation must be properly published.  United States v. Tolkach, 14 M.J. 239 (C.M.A. 1982) (Eighth Air Force general regulation not properly published because it was never received at base master publications library); but see United States v Moore, 55 M.J. 772, (N-M. Ct. Crim. App. 2001) (holding that providing the “potential for knowledge is all that is required to satisfy due process” and publication.  “We do not believe our superior court fashioned some inflexible rule regarding the channels to disseminate, or location of the order to achieve proper publication.”).

3. To be enforceable against service members, local regulations need not be published in the Federal Register. United States v. Tolkach, 14 M.J. 239 (C.M.A. 1982); United States v. Academia, 14 M.J. 582 (N.M.C.M.R. 1982).

D. Mens Rea.  Knowledge of the order’s existence is a different concept than the government’s requirement to prove mens rea.  General order prohibiting the giving of alcohol to service members under age 21 did not explicitly establish a mens rea requirement; as such, the proper standard of mens rea was recklessness.   Such a general order is not analogous to a public welfare offense and therefore required the accused to at least be reckless as to his knowledge of the age of the recipients of the alcohol.  United States v. Gifford, 75 M.J. 140 (C.A.A.F. 2016)See also Elonis v. United States, 135 S. Ct. 2001 (2015).

E. Pleading.

1. A specification is defective if it fails to allege that the order or regulation is “general.”  United States v. Koepke, 39 C.M.R. 100 (C.M.A. 1969); United States v. Baker, 38 C.M.R. 144 (C.M.A. 1967) (specification alleging violation of a specific division regulation fails to state offense under Article 92(1)); see United States v. Watkins, 21 M.J. 208 (C.M.A. 1986); but see United States v. Watson, 40 C.M.R. 571 (A.B.R. 1969) (specification alleging violation of a specific “Army” regulation was sufficient; distinguishing Koepke).

2. The specification need not allege that an accused “wrongfully” violated a lawful general regulation, because the allegation of the violation itself implies the unlawful nature of the conduct.  United States v. Torrey, 10 M.J. 508 (A.F.C.M.R. 1980).

3. Accused, a recruiter, was charged with violation of a sub-paragraph “6(d)” of lawful general order by providing alcohol to a person enrolled in the Delayed Entry Program (DEP).  The panel found him guilty of violating the superior paragraph “6” of the same general order by wrongfully engaging in a non-professional, personal relationship with the same DEP member.  Court held this was a fatal variance because the substituted offense was materially different from the one originally charged in the specification, and accused was prejudiced by depriving him the opportunity to defend against the substituted paragraph of the order.  United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003).  Additionally, the manner in which the accused violated the regulation must be alleged.  United States v. Sweitzer, 33 C.M.R. 251 (C.M.A. 1963).

F. Proof.  At trial, the existence and content of the regulation will not be presumed; it must be proven with evidence or established by judicial notice.  United States v. Williams, 3 M.J. 155 (C.M.A. 1977).  In judge alone trials, failure to prove existence of regulation can be cured by proceeding in revision or by an appellate court taking judicial notice.  United States v. Mead, 16 M.J. 270 (C.M.A. 1983).

G. Exceptions.  The prosecution must prove beyond a reasonable doubt that the accused’s conduct did not come within any exceptions to the regulation, once the evidence raises the issue . United States v. Lavine, 13 M.J. 150 (C.M.A. 1982); United States v. Cuffee, 10 M.J. 381 (C.M.A. 1981).

H. Application.  Service member need not be assigned to command of officer issuing general regulation in order to be subject to its proscriptions.  United States v. Leverette, 9 M.J. 627 (A.C.M.R. 1980) (soldier on leave visiting Fort Campbell convicted of violating local general regulation), aff’d, 9 M.J. 421 (C.M.A. 1980).

I. Misconduct Otherwise Proscribed by Punitive Articles.  Neither a general regulation nor an order may be used to enhance punishment for misconduct already prohibited by the punitive articles.  United States v. Curry, 28 M.J. 419 (C.M.A. 1989) (Article 93 preempted conviction under Article 92 for disobedience of an order not to maltreat subordinates).  Cf. MCM (2016 ed.), pt. IV, ¶ 16e(1), (2) Note. 

J. Attempts.  Attempt to violate a regulation under Article 80 does not require knowledge of the regulation; the accused need only intend to commit the proscribed act.  United States v. Davis, 16 M.J. 225 (C.M.A. 1983); United States v. Foster, 14 M.J. 246 (C.M.A. 1982).

K. Constitutional Rights.  Where a regulation is attacked as unconstitutional or violative of a statute, “a narrowing construction” is mandated, if possible, to avoid the problem.  United States v. Williams, 29 M.J. 112 (C.M.A. 1989) (“show and tell” regulation, narrowly construed to require service member to show physical possession or documentation of lawful disposition of controlled items, did not violate 5th amendment or Article 31).

 

XXI. FAILURE TO OBEY OTHER LAWFUL ORDER, ART. 92(2)

A. The Order.  Includes all other lawful orders issued by a member of the armed forces that the accused had a duty to obey.  MCM, pt. IV, ¶ 18c(2)(a).

B. Limitation on Maximum Punishment.  The maximum punishments set out in MCM, pt. IV, ¶ 18.e. include a dishonorable discharge and confinement for two years for violation of general regulations and a bad-conduct discharge and confinement for six months for disobedience of other lawful orders.  A note, however, sets out certain limitations in this regard.

1. A note located after MCM (2016 ed.), pt. IV, ¶ 16e(1) and (2) provides that these maximum punishments do not apply in the following cases:

a) If in the absence of the order or regulation which was violated or not obeyed the accused would on the same facts be subject to conviction for another specific offense for which a lesser punishment is prescribed; or

b) If the violation or failure to obey is a breach of restraint imposed as a result of an order. 

c) In these instances, the maximum punishment is that prescribed elsewhere for that particular offense.

2. This limitation was commonly known as the “Footnote 5” limitation, because it was Footnote 5 to the Table of Maximum Punishments in older versions of the MCM.

3. This limitation is only operative, however, where the lesser offense is the “gravamen of the offense.”  United States v. Timmons, 13 M.J. 431 (C.M.A. 1982) (gravamen of the offense was not being in the authorized uniform in violation of Article 134 rather than failing to obey order of petty officer); United States v. Showalter, 35 C.M.R. 382 (C.M.A. 1965) (gravamen of offense was not being in the authorized uniform in violation of Article 134 rather than failing to obey a general regulation); United States v. Yunque-Burgos, 13 C.M.R. 54 (C.M.A. 1953); United States v. Buckmiller, 4 C.M.R. 96 (C.M.A. 1952) (seminal case establishing gravamen test and rejecting a “technical and entirely literal interpretation of the footnote”).

4. The note’s rationale has been applied to offenses other than Articles 92(1) and 92(2).  See United States v. Burroughs, 49 C.M.R. 404 (A.C.M.R. 1974) (using the maximum punishment provided for resisting apprehension under Article 95 rather than that for willful disobedience of a superior commissioned officer under Article 90, of which the accused was convicted).

C. Source of Order.  The order may be given by a person not superior to the accused, but the person giving the order must have a special status that imposes upon the accused the duty to obey.  MCM, pt. IV, ¶ 18c(2)(c)(ii); United States v. Stovall, 44 C.M.R. 576 (A.F.C.M.R. 1971) (security policeman).

D. Actual Knowledge.  The accused must have actual knowledge of the order.  MCM, pt. IV, ¶ 18c(2)(b); United States v. Shelly, 19 M.J. 325 (C.M.A. 1985) (directive by battery commander); United States v. Curtin, 26 C.M.R. 207 (C.M.A. 1958) (instruction on constructive knowledge was erroneous); United States v. Henderson, 32 M.J. 941 (N.M.C.M.R. 1991) (district order governing use of government vehicles by Marine recruiters), aff’d, 34 M.J. 174  (C.M.A. 1992); United States v. Jack, 10 M.J. 572 (A.F.C.M.R. 1980) (conviction set aside where accused violated local regulation concerning visiting hours in female barracks where sign posted at building’s entrance did not designate issuing authority).

E. Negligent Disobedience Sufficient for Guilt.  Failure to comply through heedlessness or forgetfulness can be sufficient for a conviction under Article 92.  MCM, pt. IV, ¶ 16c(2)(f); United States v. Jordan, 21 C.M.R. 627 (A.F.B.R. 1955).

XXII. THE LAWFULNESS OF ORDERS

A. Presumption of Lawfulness.  Orders from superiors requiring the performance of military duties are presumed to be lawful. MCM, pt. IV, ¶ 18c(2)(a)(i), 15c(4), 16c(1)(c); United States v. New, 55 M.J. 95 (C.A.A.F. 2001) (order requiring soldier to wear United Nations blue beret and insignia lawful); United States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999) (order to not drive personal vehicle after diagnosis of narcolepsy); United States v. Nieves, 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses).

B. Disobedience.  A superior’s order is presumed to be lawful and is disobeyed at the subordinate’s peril.  To sustain the presumption, the order must relate to military duty, it must not conflict with the statutory or constitutional rights of the person receiving the order, and it must be a specific mandate to do or not to do a specific act.  In sum, an order is presumed lawful if it has a valid military purpose and is a clear, specific, narrowly drawn mandate.  United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003).  The dictates of a person’s conscience, religion, or personal philosophy cannot excuse disobedience.  United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995) (accused’s philosophical, moral, and religious objections to the Operation Desert Shield/Storm not a defense to desertion with intent to avoid hazardous duty and shirk important service). United States v. Stockman, 17 M.J. 530 (A.C.M.R. 1973).

C. Valid Military Purpose.  The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a unit and directly with the maintenance of good order in the armed forces.  MCM, pt. IV, ¶ 18c(2)(a)(iv).  The order can affect otherwise private activity. United States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999) (order to not drive personal vehicle after diagnosis of narcolepsy); United States v. Hill, 49 M.J. 242 (C.A.A.F. 1998) (no-contact order issued by military police had valid military purpose of maintaining good order and discipline in the military community and to protect the alleged victim during the investigation); United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998) (order requiring 25-year-old service member to terminate his romantic relationship with 14-year-old girl had valid military purpose); United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958) (order to report financial conditions unrelated to the military while on leave, did not have valid military purpose).

1. An order that has for its sole object a private end is unlawful, but an order that benefits the command as well as serving individuals is lawful.  United States v. Robinson, 20 C.M.R. 63 (C.M.A. 1955) (use of enlisted personnel in Officers’ Open Mess at Fort McNair).

2. Punishment.

a) Orders extending punishments beyond those lawfully imposed are illegal.  United States v. McCoy, 30 C.M.R. 68 (C.M.A. 1960) (order to continue extra duty after punishment imposed under Article 15 already completed).

b) “Extra training” must be oriented to improving the soldier’s performance of military duties.  Such corrective measures assume the nature of training or instruction, not punishment.  MCM (2016 ed.), pt. V, ¶ 1g; AR 600-20, ¶ 4-6b (6 Nov 2014); see United States v. Hoover, 24 M.J. 874 (A.C.M.R. 1987) (requiring accused to live in pup tent for 3 weeks between the hours of 2200 and 0400 was unlawful punishment).

D. Overly Broad Limitation on Personal Right.  An order that is “arbitrary and capricious, overly broad in scope, or to impose an unjust limitation on a personal right” is not lawful.  United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958) (order to report financial conditions unrelated to the military while on leave, was not lawful); United States v. Spencer, 29 M.J. 740 (A.F.C.M.R. 1989) (order to turn over all civilian medical records to military clinic by specific date was unlawful, because it was broader and more restrictive of private rights and personal affairs than required by military needs and provided for by service regulation); but see United States v. Jeffers, 57 M.J. 13 (C.A.A.F. 2002) (no social contact order with female in unit with whom accused had adulterous relationship not overbroad).

1. Marriage.  Regulations reasonably restricting marriages of foreign-based service personnel to local nationals are legal.  United States v. Wheeler, 30 C.M.R. 387 (C.M.A. 1961) (“a military commander may, at least in foreign areas, impose reasonable restrictions on the right of military personnel of his command to marry”); but see United States v. Nation, 26 C.M.R. 504 (C.M.A. 1958) (six-month waiting period was unreasonable and arbitrary restraint on the personal right to marry).

2. “Safe sex” order to Servicemember infected with HIV is lawful.  United States v. Dumford, 30 M.J. 137 (C.M.A. 1990); United States v. Womack, 29 M.J. 88 (C.M.A. 1989).

3. A service member who violates the terms of a no-contact order is subject to punishment under either Article 90 or Article 92, without the necessity of proof that the contact was undertaken for an improper purpose.  Public policy supports a strict reading of a no-contact order.  A military commander who has a legitimate interest in deterring contact between a service member and another person is not required to sort through every contact to determine, after the fact, whether there was a nefarious purpose.  United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).

4. Personal relationships and contacts.  United States v. Hill, 49 M.J. 242 (C.A.A.F. 1998) (order to have no contact with alleged victim lawful); United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998) (order requiring 25-year-old service member to terminate his romantic relationship with 14-year-old girl lawful); United States v. Nieves, 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses, during an investigation, was lawful); United States v. Aycock, 35 C.M.R. 130 (C.M.A. 1964) (order prohibiting accused from contacting witnesses concerning the charges was unlawful because it interfered with right to prepare a defense); United States v. Wysong, 26 C.M.R. 29 (C.M.A. 1958) (order “not to talk to or speak with any of the men in the company concerned with this investigation except in line of duty” was so broad in nature and all-inclusive in scope that it was illegal); United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999) (order to “cease and refrain from any and all contact of any nature” with enlisted member with whom the accused allegedly fraternized, which indicated that accused’s counsel had unrestricted access, was lawful); United States v. Button, 31 M.J. 897 (A.F.C.M.R. 1990) (order not to go to family quarters, where alleged sexual abuse victim lived, was lawful), aff’d, 34 M.J. 139  (C.M.A. 1992); United States v. Hawkins, 30 M.J. 682 (A.F.C.M.R. 1990) (order to have no contact with alleged victims and witness, unless by the area defense counsel, was lawful); United States v. Wine, 28 M.J. 688 (A.F.C.M.R. 1989) (order to disassociate from neighbor’s estranged wife lawful); United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003) (order “not to converse with the civilian workers” in the galley was lawful and not over broad when given after the accused violated a policy limiting interaction between civilian employees and Servicemembers).

5. Alcohol.

a) Regulations establishing a minimum drinking age for service personnel in a command abroad are legal.  United States v. Manos, 37 C.M.R. 274 (C.M.A. 1967).

b) A military member may also be lawfully ordered not to consume alcoholic beverages as a condition of pretrial restriction, if reasonably necessary to protect the morale, welfare, and safety of the unit or the accused; to protect victims or potential witnesses; or to ensure the accused’s presence at the court-martial or pretrial hearings in a sober condition.  United States v. Blye, 37 M.J. 92 (C.M.A. 1993).

c) Order not to consume alcohol must have a reasonable connection to military needs; United States v. Stewart, 33 M.J. 519 (A.F.C.M.R. 1991) (order not to consume alcoholic beverages to see if the accused was an alcoholic was invalid); United States v. Kochan, 27 M.J. 574 (N.M.C.M.R. 1988) (order not to drink alcohol until 21-years old was illegal).

6. Loans.  Orders restricting loans between service members may be lawful, if there is a sufficient connection between the military’s duty to protect the morale, discipline, and usefulness of its members. United States v. McClain, 10 M.J. 271 (C.M.A. 1981) (upholding conviction for violation of a regulation prohibiting loans between permanent party personnel and trainees at Fort Jackson); United States v. Giordano, 35 C.M.R. 135 (C.M.A. 1964) (order fixing a maximum legal rate of interest on loans among military members was lawful); but see United States v. Smith, 1 M.J. 156 (C.M.A. 1975) (regulation prohibiting all loans for profit or any benefit without consent of commander, without a corresponding military need, was invalid as too restrictive).

7. Writing checks. United States v. James, 52 M.J. 709 (Army Ct. Crim. App. 2000) (order “not to write any more checks” was lawful).  contra United States v. Alexander, 26 M.J. 796 (A.F.C.M.R. 1988) (order “not to write any checks” was much too broad to be considered valid).

8. Regulations may proscribe the use of customs-free privileges in Korea for personal gain or profit.  United States v. Lehman, 5 M.J. 740 (A.F.C.M.R. 1978).

9. As long as not unreasonable and not unduly humiliating or degrading, an order to produce a urine specimen under direct observation is lawful.  Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989).

10. Order to cooks to shower before reporting to work in the galley was lawful.  United States v. Horner, 32 M.J. 576 (C.G.C.M.R. 1991).

11. Regulations requiring members of the service to obtain approval from their commanders before circulating petitions on military installations are lawful.  Brown v. Glines, 444 U.S. 348 (1979) (Air Force had substantial governmental interest in limiting the general circulation of petitions on military installations that are unrelated to the suppression of free expression); Secretary of the Navy v. Huff, 444 U.S. 453 (1979) (similar Navy regulation).

E. Litigating the Issue of Lawfulness of the Order.  Lawfulness of an order, although an important issue, is not a discrete element of a disobedience offense.  Therefore, it is a question of law to be determined by the military judge.  MCM pt. IV, ¶ 16c(2)(a)(ii).  United States v. Jeffers, 57 M.J. 13 (C.A.A.F. 2002); United States v. New, 55 M.J. 95 (C.A.A.F. 2001); But see United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007) (while the lawfulness of an order is a question of law to be determined by the military judge, submitting the question of lawfulness to a panel is harmless error when the accused fails to rebut the presumption of lawfulness).

XXIII. DERELICTION IN THE PERFORMANCE OF DUTIES, ART. 92(3)

A. Duty.

1. The duty may be imposed by treaty, statute, regulation, lawful order, SOP, or custom of the service.  MCM, pt. IV, ¶ 18c(3)(a); United States v. Dallamn, 34 M.J. 274 (C.M.A. 1992) (no duty to perform medical examination prior to prescribing drugs to persons not entitled to military medical services), aff’d, 37 M.J. 213  (C.M.A. 1993); United States v. Dupree, 24 M.J. 319 (C.M.A. 1987) (Air Force regulation imposed duty to report drug abuse, but dereliction could not be sustained where prisoner’s marijuana use was inextricably intertwined with accused guard’s misconduct in taking prisoners off-base); United States v. Heyward, 22 M.J. 35 (C.M.A. 1986) (although Air Force regulation imposed duty to report drug abuse, the privilege against self-incrimination excuses non-compliance where, at the time the duty to report arose, the accused was already an accessory or principal to the illegal activity); United States v. Grow, 11 C.M.R. 77 (C.M.A. 1953) (failure of major general to secure classified information, as required by non-punitive Army regulation, constituted dereliction of duty); United States v. Cross, 2004 CCA LEXIS 291 (A.F. Ct. Crim. App. 2004) (Failure to observe installation gate access restrictions, established by unit SOP, constituted dereliction of duty);  United States v. Risner, 2006 CCA LEXIS 226  (N-M. Ct. Crim. App. 2006) (USMC duty to prevent underage consumption of alcohol by subordinate NCO’s pursuant to a base order established in part by custom of the service); United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010) (USN duty to report DUI arrest unenforceable where superior regulation—Navy Articles—prohibits requirement for self-reporting imposed by lesser regulation).

2. “Duty” does not include non-military tasks voluntarily performed after regular duty hours for additional pay.  United States v. Garrison, 14 C.M.R. 359 (A.B.R. 1954) (secretary/treasurer of NCO club).

3. The evidence must prove the existence of the duty beyond a reasonable doubt.  United States v. Hayes, 71 M.J. 112 (C.A.A.F. 2012) (conviction of dereliction of duty was improvident because the record did not contain specific evidence of a military duty to obey state underage drinking laws).

B. Knowledge.

1. The accused must have known or should have known of the duty.  MCM, pt. IV, ¶ 18b(3)(b), 16c(3)(b) (MCM added knowledge as element for negligent dereliction in 1986); United States v. Pacheco, 56 M.J. 1, (C.A.A.F. 2001) (accused’s knowledge of his duty to safeguard a weapons cache and his willful dereliction of this duty was established by the taking of weapons as trophies); United States v. Pratt, 34 C.M.R. 731 (C.G.B.R. 1963) (evidence insufficient to establish that accused reasonably aware of facts necessitating initiation of rescue procedures).

2. Willful dereliction, which has a greater maximum punishment, requires actual knowledge of the duty.  United States v. Ferguson, 40 M.J. 823, 833-34 (N.M.C.M.R. 1994).

3. There is no requirement that the accused know the source of the duty. United States v. Markley, 40 M.J. 581 (A.F.C.M.R. 1993).

C. Standards for Dereliction.

1. Willful nonperformance of duty.  “Willful” means intentional.  It requires doing an act knowingly and purposely, specifically intending the natural and probable consequences of the act.  MCM, pt. IV, ¶ 18c(3)(c).

2. Negligent nonperformance of duty.  “Negligence” is the lack of that degree of care that a reasonably prudent person would have exercised under the same or similar circumstances, i.e. simple negligence.  MCM, pt. IV, ¶ 18c(3)(c); United States v. Lawson, 36 M.J. 415 (C.M.A. 1993) (improper posting of road guides in pairs and obtaining a roster of individuals to be posted); United States v. Rust, 38 M.J. 726 (A.F.C.M.R. 1993) (medical malpractice by a uniformed service provider can be dereliction of duty to provide medical care); United States v. Dellarosa, 30 M.J. 255 (C.M.A. 1990) (weather reporting); United States v. Kelchner, 36 C.M.R. 183 (C.M.A. 1966) (evidence insufficient to prove Navy commander negligently failed to supervise and assist subordinate’s work); United States v. Grow, 11 C.M.R. 77 (C.M.A. 1953) (failure of major general to safeguard classified information); United States v. Ferguson, 12 C.M.R. 570 (A.B.R. 1953) (evidence insufficient to prove company commander was derelict in his instructions on safety measures; “in testing for negligence the law does not substitute hindsight for foresight”).

3. Culpable inefficiency.  “Culpable inefficiency” is inefficiency in the performance of a duty for which there is no reasonable or just excuse.  MCM, pt. IV, ¶ 18c(3)(c); United States v. Nickels, 20 M.J. 225 (C.M.A. 1985) (not maintaining proper fiscal control over postal account); see United States v. Dellarosa, 30 M.J. 255, 259 (C.M.A. 1990) (finding the distinction between nonperformance and faulty performance no longer significant).

D. Ineptitude as a Defense.  A person who fails to perform a duty because of ineptitude rather than by willfulness, negligence, or culpable inefficiency is not guilty of an offense.  MCM, pt. IV, ¶ 18c(3)(c); United States v. Powell, 32 M.J. 117 (C.M.A. 1991) (“ineptitude as a defense is largely fact-specific, requiring consideration of the duty imposed, the abilities and training of the soldier upon whom the duty is imposed, and the circumstances in which he is called upon to perform his duty”).

E. Dereliction of Duty as a Lesser Offense to Other Crimes.

1. Dereliction of duty, where the duty is premised upon a regulation or custom of the service, is not a lesser included offense of willful disobedience of a superior officer’s order.  United States v. Haracivet, 45 C.M.R. 674 (A.C.M.R. 1972).

2. Dereliction of duty is not a lesser included offense of failure to obey a general order or regulation or a lawful order, under Article 92.  United States v. Kiriou, 2010 CCA LEXIS 41 (A. Ct. Crim. App. 2010) (citing United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008)); but see United States v. Green, Army 20010446, 2003 Lexis 137 (Army Ct. Crim. App. June 6, 2003) (DoD Directive on possession of drug paraphernalia not punitive, but accused could be guilty of dereliction of duty); United States v. Shavrnoch, 49 M.J. 334 (1998) (Air Force regulation on underage drinking not punitive); United States v. Bivins, 49 M.J. 328 (1998) (Air Force regulation on underage drinking not punitive); United States v. Green, 47 C.M.R. 727 (A.F.C.M.R. 1973) (finding that dereliction of duty was lesser included offense of failure to obey a lawful order of NCO concerning submitting daily urine specimens at treatment center).

F. Pleading.

1. The specification must spell out the nature of the inadequate performance alleged.  United States v. Kelchner, 36 C.M.R. 183 (C.M.A. 1966); United States v. Long, 46 M.J. 783 (C.M.A. 1997) (misuse of credit card for official government travel).

2. The specification need not set forth the particular source of the duty violated. United States v. Moore, 21 C.M.R. 544 (N.B.R. 1956).

3. The specification must allege nonperformance or faulty performance of a specified duty, and a bare allegation that an act was “not authorized” is insufficient.  United States v. Sojfer, 44 M.J. 603 (N-M. Ct. Crim. App. 1996) (specification alleging that accused corpsman committed acts beyond the scope of his duties, i.e. breast and pelvic examinations, failed to state the offense of dereliction), aff’d, 47 M.J. 425 (C.A.A.F. 1998).

4. Variance between the nature of the inadequate performance alleged and the nature of the inadequate performance proven at trial may be fatal.  United States v. Smith, 40 C.M.R. 316 (C.M.A. 1969) (accused charged with dereliction by failure to walk his post by sitting down upon his post, but evidence showed he left his post before being properly relieved, in violation of Article 113, and was found asleep in a building off his post); United States v. Swanson, 20 C.M.R. 416 (A.B.R. 1950) (accused charged with dereliction by failure to forward funds, but finding was failure to properly handle funds).

5. For the enhanced maximum punishment for willful dereliction, the specification must allege willfulness, including actual knowledge of the duty.  United States v. Ferguson, 40 M.J. 823 (N.M.C.M.R. 1994).

G. Examples of Misconduct Constituting Dereliction of Duty.

1. Poor judgment in performance of duties can constitute dereliction.  United States v. Rust, 41 M.J. 472 (C.A.A.F. 1995) (failure of on-call obstetrician to come to hospital to examine and admit patient showing signs of premature labor); United States v. Sievert, 29 C.M.R. 657 (N.B.R. 1959) (navigator, transiting narrow passage at night, failed to use all radars available to him and failed to react when faced with substantial discrepancies in position of ship).

2. Affirmative criminal acts can support a dereliction of duty offense where those acts fall within the scope of the duty.  United States v. Casey, 45 M.J. 623, 629 (N-M. Ct. Crim. App. 1996) (theft of monies collected for phone charges); United States v. Bankston, 22 M.J. 896 (N.M.C.M.R. 1986) (stealing cash collected from video games); United States v. Taylor, 13 C.M.R. 201 (A.B.R. 1953) (lieutenant stole from mess fund, of which he was the custodian); United States v. Voelker, 7 C.M.R. 102 (A.B.R. 1953) (lieutenant spent money from special services fund provided to cover costs of transportation, food, and lodging for enlisted men on athletic team).

3. Loss to the Government or some other victim is not required for dereliction.  United States v. Nichels, 20 M.J. 225 (C.M.A. 1985) (dereliction even though accused repaid or arranged to repay the $3,000 lost due to the accused’s failure to maintain proper fiscal control over postal account).

4. Failure to maintain alert and responsible watch supports conviction for dereliction of duty.  United States v. Stuart, 17 C.M.R. 486 (A.B.R. 1954).

5. Willfully failing to properly use official time and government funds during TDY can constitute dereliction.  United States v. Mann, 50 M.J. 689 (A.F. Ct. Crim. App. 1999) (during 5 duty days of TDY, the only legitimate business the accused Air Force major accomplished was a 45 minute conversation that could have taken place over the telephone; the accused was derelict in his duty to expend official time and funds only for legitimate governmental purposes by remaining TDY for personal reasons).

6. Failure to report changes in marital status affecting pay and allowances constitutes dereliction of duty.  United States v. Markley, 40 M.J. 581 (A.F.C.M.R. 1994).

7. Even though civilians may have a First Amendment right to blow their nose on the American flag, the accused doing so while on flag-raising detail constituted dereliction of duty.  United States v. Wilson, 33 M.J. 797 (A.C.M.R. 1991).

8.Failure to report or prevent crime.  See generally United States v. Thompson, 22 M.J. 40 (C.M.A. 1986); United States v. Heyward, 22 M.J. 35 (C.M.A. 1986).

9. Failure to provide financial support to spouse constitutes negligent dereliction of duty. United States v. Shank, 2015 CCA LEXIS 526 (A.F. Ct. Crim. App. 2015); United States v. Blanks, 77 M.J. 239 (C.A.A.F. 2018) (conviction for negligent dereliction of duty upheld for failure to provide adequate financial support; long-standing recognition negligence is appropriate mens rea for certain dereliction offenses).

10. Inspector of parachute packers was willfully derelict in the performance of his duties for signing off on packed parachutes without even a cursory inspection in order to go home early.  United States v. Herrmann, 75 M.J. 672 (A. Ct. Crim. App. 2016).

XXIV. CRUELTY AND MALTREATMENT,  ART. 93

A. Introduction.

1. Text.  “Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.” Article  93.

2. Elements.

a) That a certain person was subject to the orders of the accused; and

b) That the accused was cruel toward, or oppressed, or maltreated that person. 

B. Nature of the Victim.  The victim must be subject to the orders of the accused.  This includes not only those under the direct or immediate supervision or command of the accused, but also any person (soldier or civilian) who is required by law to obey the lawful orders of the accused.  United States v. Sojfer, 44 M.J. 603 (N-M. Ct. Crim. App. 1996) (E-3 seeking care at military medical facility could be “subject to the orders of” an E-6 corpsman since there was an important difference in rank which required the victim to obey the accused’s orders), aff’d, 47 M.J. 425  (C.A.A.F. 1998); but cf. United States v. Curry, 28 M.J. 419 (C.M.A. 1989) (requiring more than seniority in rank to implicate Art. 93).

C. Nature of the Act.  The cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard.  Assault, improper punishment, and sexual harassment may constitute this offense.  MCM, pt. IV, ¶ 19c(2).

1. Nature of superior’s official position could place them in a “unique situation of dominance and control” and therefore bring ostensibly voluntary sexual relationship with a trainee within the definition of oppression and maltreatment, but not all personal relationships between superiors and subordinates, or between drill sergeants and their trainees, necessarily result in physical or mental pain or suffering.  The government has the burden of proving that accused’s conduct resulted in such physical or mental pain and suffering by an objective standard, and that the appellant’s conduct was abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose. United States v. Johnson, 45 M.J. 543 (Army Ct. Crim. App. 1997); but see United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000) (comment of sexual nature was not maltreatment by sexual harassment because prosecution failed to prove that it offended the alleged victim; inherently coercive nature of training environment was absent where PFC victim stated she did not feel intimidated by accused platoon sergeant and the accused did not influence or threaten to influence her career in exchange for sexual favors); U.S. v Goddard, 54 M.J. 763 (N-.M Ct. Crim. App. 2000). 

2. In a prosecution for maltreatment, it is not necessary to prove physical or mental harm or suffering on the part of the victim.  It is only necessary to show, as measured from an objective viewpoint in light of the totality of the circumstances, that the accused’s actions reasonably could have caused physical or mental harm or suffering.  United States v. Carson, 57 M.J. 410 (C.A.A.F. 2002) (MP desk sergeant’s indecent exposure of his penis to a subordinate female MP constituted maltreatment under Article 93).

D. Select Cases.

1. Silence on mens rea does not violate United States v. Elonis, 135 S. Ct. 2001 (2015) (statutes must include minimum mens rea to distinguish between innocent and criminal conduct). General intent is sufficient to separate wrongful from innocent conduct.  Therefore: (1) the accused’s knowledge that the victim was his subordinate; (2) his knowledge that his conduct/words were committed toward that subordinate, and (3) such conduct/words were abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose, and caused or could have caused physical or mental harm or suffering.  United States v. Caldwell, 75 M.J. 276 (C.A.A.F. 2016)See also United States v. Chance, No. ARMY 20140072, 2016 WL 1587194, at *1 (A. Ct. Crim. App. Apr. 18, 2016), review granted, decision aff'd, (C.A.A.F. June 9, 2016) (Article 93 limits itself to punishing cruel or oppressive conduct or conduct that rises to the level of maltreatment by a leader who has been entrusted with the care of a subordinate.).  

2. A consensual sexual relationship between a superior and a subordinate, without more, is not maltreatment.  United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000) (even though relationship may have constituted fraternization, evidence did not evince “dominance and control” by the superior). 

3. United States v Goddard, 54 M.J. 763 (N.M. Ct. Crim. App. 2000).  A one-time consensual sexual encounter with a female subordinate on the floor of the detachment’s administrative office will not support a conviction for cruelty and maltreatment.  

4. Cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard.  The imposition of necessary or proper duties and the exaction of their performance does not constitute this offense even though the duties are arduous or hazardous or both.  However, the accused’s intrusive body searches of female trainees, objectively viewed, reasonably could have caused mental harm or suffering based on testimony that a person subject to an EPW search could feel “violated,” and testimony by a victim that she felt humiliated by the search.  United States v. Springer, 58 M.J. 164 (C.A.A.F. 2003).  ).  See, e.g., United States v. Harris, ARMY 20130310, 2015 CCA LEXIS 70 (A. Ct. C. App. 2015) (finding that the appellant committed the offense of cruelty and maltreatment against a junior enlisted member by pulling his pocket inside-out and telling her to “hold my hands pocket” or word to that effect, then saying “let’s go.”); United States v. Sanchez, ARMY 20140735, 2017 CCA LEXIS 470 (A. Ct. C. App. 2017) (holding that a drill sergeant’s sexually explicit comments, such as “show me your tits” to a victim, such that one victim felt that if she failed to cooperate he would jeopardize her military status, constituted cruelty and maltreatment).

5. A superior’s mistake of fact as to a victim’s consent where the abusive conduct was consciously directed at the subordinate is not a complete or partial defense to maltreatment.  United States v. Patton, ARMY 20150675, CCA LEXIS 237 (A. Ct. Crim. App. Apr. 7, 2017).

XXV. PROHIBITED ACTIVITIES WITH A MILITARY RECRUIT OR TRAINEE BY PERSON IN POSITION OF SPECIAL TRUST, ART. 93a

A. Two offenses.

1. Abuse of training leadership position.

a) Elements

(1) That the accused was a commissioned, warrant, noncommissioned, or petty officer;

(2) That the accused was in a training leadership position with respect to a specially protected member of the armed forces;

(3) That the accused engaged in prohibited sexual activity with a person the accused knew, or reasonably should have known, was a specially protected junior member of the armed forces. 

2. Abuse of position of military recruiter. 

a) Elements

(1) That the accused was a commissioned, warrant, noncommissioned, or petty officer;

(2) That the accused was performing duties as a military recruiter; and,

(3) That the accused engaged in prohibited sexual activity with a person the accused knew, or reasonably should have known, was an applicant for military service or;

(4) That the accused engaged in prohibited sexual activity with a person the accused knew, or reasonably should have known, was a specially protected junior member of the armed forces who is enlisted under a delayed entry program. 

3. Explanation.

a) The prevention of inappropriate sexual activity by trainers, recruiters, and drill instructors with recruits, trainees, students attending service academies, and other potentially vulnerable persons in the initial training environment is crucial to the maintenance of good order and military discipline. Military law, regulation, and custom invest officers, non-commissioned officers, drill instructors, recruiters, cadre, and others with the right and obligation to exercise control over those they supervise. In this context, inappropriate sexual activity between recruits/trainees and their respective recruiters/trainers are inherently destructive to good order and discipline. The responsibility for identifying by regulation relationships subject to this offense and those outside the scope of this offense (e.g., a “training and leadership position” Servicemember and a “specially protected junior member of the armed forces” who were married prior to assuming those roles as defined by this offense) is entrusted to the individual Services to determine and specify by appropriate regulations.

b) Knowledge.  The accused must have actual or constructive knowledge that a person was a “specially protected junior member of the armed forces” or an “applicant for military service” (as those terms are defined in this offense). Knowledge may be proved by circumstantial evidence. Actual knowledge need not be shown if the accused reasonably should have known under the circumstances the status of the person as a “specially protected junior member of the armed forces” or an “applicant for military service.” This maybe demonstrated by regulations, training or operating manuals, customs of the Service, or similar evidence.

c) Consent is not a defense to this offense. 

XXVI. MUTINY OR SEDITION, ART. 94

 

ENEMY/POST OFFENSES

XXVII. OFFENSES BY SENTINEL OR LOOKOUT, ART. 95

XXVIII. DISRESPECT TOWARD SENTINEL OR LOOKOUT, ART. 95a

XXIX. RELEASE OF PRISONER WITHOUT AUTHORITY; DRINKING WITH PRISONER, ART. 96

XXX. UNLAWFUL DETENTION, ART. 97

XXXI. MISCONDUCT AS PRISONER, ART. 98

XXXII. MISBEHAVIOR BEFORE THE ENEMY, ART. 99

A. Enemy Defined.  Organized forces in time of war or any hostile body, including civilians, that may oppose U.S. forces.  United States v. Monday, 36 C.M.R. 711 (A.B.R. 1966), pet. denied, 37 C.M.R. 471 (C.M.A. 1969).

B. Before The Enemy. 

1. A question of tactical relation not of distance.  A reasonable possibility of being called into action is sufficient.  United States v. Sperland, 5 C.M.R. 89 (C.M.A. 1952).

2. Subsequent enemy contact may not be used to establish misconduct before the enemy.  United States v. Terry, 36 C.M.R. 756 (N.B.R. 1965), aff’d, 36 C.M.R. 348 (C.M.A. 1966).

C. Nine Forms of the Offense.

1. Running away.

2. Shamefully abandoning, surrendering, or delivering up command, unit, place, or military property which it is his duty to defend.

3. Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property.

4. Casting away arms or ammunition.

5. Cowardly conduct.

6. Quitting place of duty to plunder or pillage.

7. Causing false alarms.

8. Willfully failing to do utmost to encounter the enemy.

9. Failure to afford relief and assistance.

D. Elements. Each form has its own set of elements.  An example, Article 99(5), is below:

1. That the accused committed an act of cowardice;

2. That this conduct occurred while the accused was before or in the presence of the enemy; and

3. That this conduct was the result of fear.

E. Applications.

1. Cowardice is misbehavior motivated by fear.  Fear is the natural feeling of apprehension when going into battle.  United States v. Smith, 7 C.M.R. 73 (C.M.A. 1953).

2. The mere display of apprehension does not constitute the offense.  United States v. Barnett, 3 C.M.R. 248 (A.B.R. 1951).

3. An intent to avoid combat does not in itself justify an inference of fear.  United States v. Yarborough, 5 C.M.R. 106 (C.M.A. 1952).

4. Refusal to proceed against the enemy because of illness is not cowardice unless motivated by fear.  United States v. Presley, 40 C.M.R. 186 (C.M.A. 1969).

5. Article 99 covers the area of misbehavior before the enemy offenses.  Art. 134 is not a catch-all.  United States v. Hamilton, 15 C.M.R. 383 (C.M.A. 1954).

6. Misbehavior before the enemy which endangers safety may include use of illegal drugs.  United States v. Morchinek, 2016 WL 3193043 (A.F. Ct. Crim. App. 2016) (accused’s use of drugs in Bagram Airfield, Afghanistan, constituted misbehavior before the enemy where airfield was coming under indirect fire during the time period of the drug use and drug use interfered with accused’s ability to perform mission and defend airfield).

 

XXXIII. SUBORDINATE COMPELLING SURRENDER, ART. 100

XXXIV. IMPROPER USE OF COUNTERSIGN, ART. 101

XXXV. FORCING A SAFEGUARD, ART. 102

XXXVI. SPIES, ART. 103

XXXVII. ESPIONAGE, ART. 103a

A. Nature of the Offense.  Article 103a establishes a peacetime espionage offense which is different from spying, another wartime offense, under Article 103, UCMJ.

B. Three Theories for Espionage Cases.

1. Violation of general regulations;

2. Assimilation of federal statutes under Article 134, clause 3;

3. Violation of Article 103 or 103a.  See United States v. Baba, 21 M.J. 76 (C.M.A. 1985).

C. Elements of Art 103a.

1. The accused communicated, delivered, or transmitted information relating to the national defense;

2. Information was communicated, delivered or transmitted to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject or citizen thereof, either directly or indirectly; and

3. That the accused did so with the intent or reason to believe that such matter would be used to the injury of the United States or to the advantage of a foreign nation.  MCM, pt. IV, ¶ 32a.b(1).

D. Attempted Espionage.  Unlike most UCMJ offenses, Article 103a covers both espionage and any attempted espionage.

1. Accused’s actions in enlisting aid of fellow sailor en route to delivering material to foreign embassy, removing classified documents from ship’s storage facility and converting them to his own personal possession, and traveling halfway to embassy to deliver went beyond “mere preparation” and guilty plea to charge of attempted espionage was provident.  United States v. Schoof, 37 M.J. 96 (C.M.A. 1993).

2. Where accused took several classified radio messages to Tokyo in order to deliver them to a Soviet agent named “Alex,” his conduct was more than mere preparation and constituted attempted espionage in violation of article 106a (now 103a), UCMJ.  United States v. Wilmouth, 34 M.J. 739 (N.M.C.M.R. 1991).

E. Espionage as a Capital Offense.

1. Accused must commit offense of espionage or attempted espionage; and

2. The offense must concern:

a) Nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large scale attack;

b) War plans;

c) Communications intelligence or cryptographic information; or

d) Major weapons system or major elements of defense strategy.  MCM, pt. IV, ¶ 32a.b(3).

F. Applications.

1. United States v. Richardson, 33 M.J. 127 (C.M.A. 1991) (case reversed because MJ erred in instructing panel that intent requirement for offense of attempted espionage would be satisfied if accused acted in bad faith “or otherwise without authority” in disseminating information).

2. United States v. Peri, 33 M.J. 927 (A.C.M.R. 1993) (accused’s conscious, voluntary act of conveying defense information across the East German border and then intentionally delivering himself and the information into custody and control of East German authorities constituted “delivery,” as required to prove espionage).

3. United States v. Sombolay, 37 M.J. 647 (A.C.M.R. 1993) (to be convicted of espionage, information or documents passed by accused need not be of the type requiring a security classification, but gravamen of offense is the mens rea with which accused has acted, not impact or effect of act itself, i.e., did accused intend to harm the United States or have reason to believe that his conduct would harm the United States). 

XXXVIII. AIDING THE ENEMY, ART. 103b

 

FALSITY OFFENSES

XXXIX. PUBLIC RECORDS OFFENSES, ART. 104

A. Public Record Offenses. MCM, pt. IV, ¶ 34; UCMJ art. 104. 

1. Three requirements must be met before a document qualifies as a “public record.”  First, it must actually be a record or its equivalent.  Second, such record must be one of a public office or agency. for an Army school and presentment of that document to Army officials was not “wrongful alteration of public record,” absent additional evidence of intent or attempt to use the document to alter the integrity of official Army record.  United States v. McCoy, 47 M.J. 653  (Army Ct. Crim. App. 1997).

XL. FRAUDULENT ENLISTMENT, APPOINTMENT, OR SEPARATION, ART. 104a

A. Nature of The Offense.  A fraudulent enlistment, appointment, or separation is one procured by either a knowingly false representation as to any of the qualifications or disqualifications prescribed by law, regulation, or orders for the specific enlistment, appointment, or separation, or a deliberate concealment as to any of those disqualifications.  Matters that may be material to an enlistment, appointment, or separation include any information used by the recruiting, appointing, or separating officer in reaching a decision as to enlistment, appointment, or separation in any particular case, and any information that normally would have been so considered had it been provided to that officer.  MCM, pt. IV, ¶ 35c(1).

B. Fraudulent Enlistment or Appointment.

1. False Representation or Concealment. 

a) Testimony of the accused’s recruiters and documentary evidence of his traffic violations proved that the accused willfully concealed offenses, the cumulative number of which would have disqualified him from enlistment, and supported a conviction for fraudulent enlistment.  United States v. Hawkins, 37 M.J. 718 (A.F.C.M.R. 1993).

b) The accused perpetrated a fraudulent enlistment by enlisting in the Marine Corps using his brother’s name.  United States v. Victorian, 31 M.J. 830 (N.M.C.M.R. 1990) (holding, however, that the statute of limitations barred prosecution for fraudulent enlistment).

c) Falsely misrepresenting educational qualifications and willfully concealing arrest record constituted fraudulent extension of enlistment, which was not preempted by Article 83.  United States v. Weigand, 23 M.J. 644 (A.C.M.R. 1986).

d) Accused fraudulently entered the Army on several occasions using, at varying times, eleven different names.  United States v. Brown, 22 M.J. 597 (A.C.M.R. 1986). 

e) The accused need not know that the fact he misrepresented was material to his  enlistment at the time it was made, only that the fact was untrue.  United States v. Holbrook, 66 M.J. 31 (C.A.A.F. 2008).

2. Receipt of Pay or Allowances.  An essential element of the offense of fraudulent enlistment or appointment is that the accused shall have received pay or allowances thereunder.  Accordingly, a member of the armed forces who enlists or accepts an appointment without being regularly separated from a prior enlistment or appointment should be charged under Article 83 only if that member has received pay or allowances under the fraudulent enlistment or appointment.  Also, acceptance of food, clothing, shelter, or transportation from the government constitutes receipt of allowances.  Whatever is furnished the accused while in custody, confinement, or other restraint pending trial for fraudulent enlistment or appointment, however, is not considered an allowance.  MCM, pt. IV, ¶ 35c(2).

XLI. UNLAWFUL ENLISTMENT, APPOINTMENT, OR SEPARATION, ART. 104b

A. Text.  “Any person subject to this chapter who effects an enlistment or appointment in or separation from the armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.”  Article 104b, UCMJ.

B. Explanation.  The enlistment, appointment, or separation must have been prohibited by law, regulation, or order, and the accused must have then known that the person enlisted, appointed, or separated was ineligible for the enlistment, appointment, or separation.  MCM, pt. IV, 36c.

C. Examples of Effecting an Unlawful Enlistment.

1. Accused recruiter, who had applicants that failed entrance examinations improperly retake the examinations in other jurisdictions, was guilty of effecting unlawful enlistment, under Article 104 (formerly 84).  United States v. Hightower, 5 M.J. 717 (A.C.M.R. 1978).

2. Accused effected unlawful enlistments and conspired to do so by involvement in a scam that provided ineligible applicants with bogus high school diplomas.  United States v. White, 36 M.J. 284 (C.M.A. 1993).

XLII. FORGERY, ART. 105

A. Forgery.  MCM, pt. IV, ¶ 37; UCMJ art. 105.  Two distinct types:  making or altering, and uttering.   

1. Elements.

a) Forgery:  making or altering.

(1) That the accused falsely made or altered a certain signature or writing.

(2) That the signature or writing was of a nature which would, if genuine, apparently impose a legal liability on another or change another’s legal rights or liabilities to that person’s prejudice; and

(3) That the false making or altering was with the intent to defraud.

b) Forgery:  uttering.

(1) That a certain signature or writing was falsely made or altered;

(2) That the signature or writing was of a nature which would, if genuine, apparently impose a legal liability on another or change another’s legal rights or liabilities to that person’s prejudice;

(3) That the accused uttered, offered, issued, or transferred the signature or writing;

(4) That at such time the accused knew that the signature or writing had been falsely made or altered; and

(5) That the uttering, offering, issuing or transferring was with the intent to defraud.

2. Falsely making checks is a separate offense from uttering them; these actions are not alternative methods of committing the forgery, but distinct types of forgery.  United States v. Albrecht, 43 M.J. 65 (C.A.A.F. 1995).

3. Forgery and larceny distinguished:  The difference between forgery and larceny is that forgery requires falsity in the making.  The act is false because it purports to be the act of someone other than the actual signer (the accused).  “[T]he crux of forgery is the false making of the writing.  The distinction between forgery and ‘the genuine making of a false instrument’ largely depends on whether the accused impersonates another person.  Generally, signing one’s own name to an instrument – even with the intent to defraud – is not a forgery.  It is larceny.”  United States v. Weeks, 71 M.J. 44 (C.A.A.F. 2012).

4. For either type, the document must have legal efficacy: it must appear either on its face or from extrinsic facts to impose a legal liability on another, or to change a legal right or liability to the prejudice of another.  MCM, pt. IV, ¶ 37c(4);  United States v. Hopwood, 30 M.J. 146  (C.M.A. 1990); United States v. Thomas, 25 M.J. 396 (C.M.A. 1988);  see United States v. James, 42 M.J. 270 (1995) (leave form has “legal efficacy”); United States v. Ivey, 32 M.J. 590  (A.C.M.R. 1991) (checking account application has legal efficacy), aff’d, 35 M.J. 62 (C.M.A. 1992); United States v. Victorian, 31 M.J. 830  (N.M.C.M.R. 1990); United States v. Johnson, 33 M.J. 1030  (N.M.C.M.R. 1991) (urinalysis report message from drug lab was not a “document of legal efficacy” and as such could not be subject of forgery).

5. See generally TJAGSA Practice Note, Court Strictly Interprets Legal Efficacy, Army Law., Aug. 1990, at 35; TJAGSA Practice Note, Legal Efficacy as a Relative Concept, Army  Law., Jan. 1990, at 34; TJAGSA Practice Note, Forgery and Legal Efficacy, Army  Law., Jun. 1989, at 40.

6. The instrument “tells a lie about itself.”  United States v. Blackmon, 39 M.J. 705 (N.M.C.M.R. 1993) (signing another’s name to “starter” checks from the accused’s closed checking account appeared to impose liability upon the third party whose name was being signed) aff’d, 41 M.J. 67 (C.M.A. 1994).

7. Significant injury need not result. United States v. Sherman, 52 M.J. 856 (Army Ct. Crim. App. 2000) (where the accused and co-conspirator opened savings accounts by falsely and fraudulently signing signature cards, the general bookkeeping, security, and insurance functions inherent in agreeing to maintain a bank account imposed sufficient legal liability on the banks to warrant forgery convictions, even where there was no initial deposit).

8. Maximum Punishment.  In cases where multiple, discrete instances of check forgery are joined in one specification the maximum punishment is calculated as if they had been charged separately, extending analysis of United States v. Mincey, 42 M.J. 376  (C.A.A.F. 1995) (maximum punishment of a bad-check “mega-specification” is calculated by the number and amount of the checks as if they had been charged separately) to check forgery.  United States v. Dawkins, 51 M.J. 601 (C.A.A.F. 1999).

9. A credit application itself is not susceptible of forgery under Article 123, because it, if genuine, would not create any legal right or liability on the part of the purported maker. United States v. Woodson, 52 M.J. 688  (C.G. Ct. Crim. App. 2000). 

10. “Double forgery.”  Forgery of an endorsement is factually and legally distinct from forgery of the check itself, because the acts impose apparent legal liability on two separate victims; thus, the government may charge the “double forgery” in two separate specifications.  United States v. Pauling, 60 M.J. 91 (C.A.A.F. 2004) (charging signing front of check and endorsing back of check as two separate specifications not duplicative or unreasonable multiplication of charges).

XLIII. FALSE OR UNAUTHORIZED PASS OFFENSES, ART. 105a

XLIV. IMPERSONATION OF AN OFFICER, NCO, PETTY OFFICER, AGENT, OR OFFICIAL, ARt. 106

A. General.  The offense does not depend upon the accused deriving a benefit from the deception or upon some third party being misled, but rather upon whether the acts and conduct would adversely influence the good order and discipline of the armed forces.  United States v. Messenger, 6 C.M.R. 21 (C.M.A. 1952); United States v. Frisbie, 29 M.J. 974 (A.F.C.M.R. 1990); Winthrop, Military Law and Precedents 726 (2d ed., 1920 Reprint); MCM, pt. IV, ¶ 86c(1); TJAGSA Practice Note, Impersonating an Officer and the Overt Act Requirement, Army Law., Jul. 1990, at 42 (discussing Frisbie).

B. Intent.  Intent to defraud may be plead and proven as an aggravating factor.  MCM,  pt. IV, ¶ 86b.

C. Factual Sufficiency.  Most impersonation cases involve the wearing of a commissioned, warrant, or noncommissioned officer’s uniform or insignia, but it is not required.  However, the accused’s actions must rise to the level of “assuming the role of a commissioned officer, masquerading as a person of high rank, falsely holding himself out as an officer, or pretending to have the authority of an officer.”  U.S. v. Sanford, No. 200500993, 2006 WL 4571896, at *7 (N-M. Ct. Crim. App. 2006) (creating fictitious orders to recall a reserve Servicemember to active duty and signing as a commissioned officer was not sufficient for impersonation, but accused found guilty of a general disorder under Article 134, UCMJ.)

D. Related Offenses.  Impersonation of officer,  noncommissioned or petty officer, or agent or official differs from the offense of impersonating a CID agent or other agent of the federal government, in that the accused is not required to act out the part of the officer.  Instead, merely posing as an officer is sufficient.  United States v. Felton, 31 M.J. 526 (A.C.M.R. 1990); United States v. Wesley, 12 M.J. 886 (A.C.M.R. 1981); United States v. Reece, 12 M.J. 770 (A.C.M.R. 1981); United States v. Adams, 14 M.J. 647 (A.C.M.R. 1982); see also TJAGSA Practice Note, Impersonating a CID Agent and the Overt Act Requirement, Army Law., Mar. 1991, at 21 (discusses Felton); Cooper, Persona Est Homo Cum Statu Quodam Consideratus, Army Law., April 1981, at 17.

XLV. WEARING UNAUTHORIZED INSIGNIA, DECORATION, BADGE, RIBBON, DEVICE, OR LAPEL BUTTON, ART. 106a

XLVI. FALSE OFFICIAL STATEMENTS; FALSE SWEARING, ART. 107

A. False Official Statement.

1. Elements of False Official Statement.

a) That the accused signed a certain official document or made a certain official statement;

b) That the document or statement was false in certain particulars;

c) That the accused knew it to be false at the time of signing it or making it; and

d) That the false document or statement was made with the intent to deceive. 

2. Relation to Federal Statute.  Congress intended Article 107 to be construed in pari materia with 18 U.S.C. § 1001. United States v. Jackson, 26 M.J. 377 (C.M.A. 1988); United States v. Aronson, 25 C.M.R. 29 (C.M.A. 1957).  The purpose of Article 107 is to protect governmental departments and agencies from the perversion of its official functions which might result from deceptive practices.  United States v. Jackson, supra; United States v. Hutchins, 18 C.M.R. 46, 51 (C.M.A. 1955); see generally, TJAGSA Practice Note, The Court of Military Appeals Expands False Official Statement Under Article 107, UCMJ, Army Law., Nov. 1988, at 37.  However, Article 107 is more expansive than 8 U.S.C. § 1001 “because the primary purpose of military criminal law—to maintain morale, good order, and discipline—has no parallel in civilian criminal law.”  See United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003) United States v. Day, 66 M.J. 172 (C.A.A.F. 2008)

3. Relation to Perjury.  The offense of false official statement differs from perjury in that a false official statement may be made outside a judicial proceeding and materiality is not an essential element.  MCM, pt. IV, ¶ 41c.  Materiality may, however, be relevant to the intent of the party making the statement.  Id.; see also United States v. Hutchins, 18 C.M.R. 46 (C.M.A. 1955) (accused made a false official statement in connection with a line of duty investigation).  Making a false official statement is not a lesser included offense of perjury.  United States v. Warble, 30 C.M.R. 839 (A.F.C.M.R. 1960).

4. Meaning of “False.”  United States v. Wright, 65 M.J. 373 (C.A.A.F. 2007).  While loading equipment for a deployment, the accused and another soldier stole four government computers.  An officer investigating the theft of the computers interviewed the accused, who stated: “While loading up the connex’s [sic], I noticed that four of the computers weren’t on top of the box anymore.”  During the providence inquiry, the accused admitted that his statement was false because it meant that he did not know where the computers went.  In fact, the accused knew exactly where the computers were located.   The court found that the statement was false for purposes of Article 107 even though it was misleading, but true.  The statement falsely implied that he had no explanation for the absence of the computers. The statement also falsely implied that the computers went missing while he was loading up the connex boxes. 

a) If a statement is charged as “totally false,” must show that all entries are false.  United States v. Brown, ARMY 20140346 (Army Ct. Crim. App. June 28, 2016)

5. Meaning of Official Statement.  A statement for purposes of Article 107 could be considered official when it fell into one of three categories:  (1) where the speaker makes a false official statement in the line of duty or the statement bears a clear and direct relationship to the speaker’s official duties; (2) where the listener is a military member carrying out a military duty at the time the statement is made; or (3) where the listener is a civilian who is performing a military function at the time the speaker makes the statement.  United States v. Capel, 71 M.J. 485 (C.A.A.F. 2013)

a) Formerly, a false statement to an investigator, made by a suspect who had no independent duty to account or answer questions, was not official within the purview of Article 107.  United States v. Osborne, 26 C.M.R. 235 (C.M.A. 1958); United States v. Aronson, 25 C.M.R. 29 (C.M.A. 1957); see also United States v. Davenport, 9 M.J. 364, 367-68 (C.M.A. 1980).

b) Later, the Court of Military Appeals determined that no independent duty to account was required if the accused falsely reported a crime.  United States v. Collier, 48 C.M.R. 789 (C.M.A. 1974).

c) In determining whether a statement is “official,” courts focus on whether an official governmental function was perverted by a false or misleading statement.

(1) United States v. Harrison, 26 M.J. 474 (C.M.A. 1988) (accused’s false statement to battalion finance clerk in order to obtain an appointment for payment violates Article 107).

(2) United States v. Jackson, 26 M.J. 377 (C.M.A. 1988) (misleading information provided by accused about a murder suspect’s whereabouts, voluntarily given to law enforcement agents, constitutes a false official statement).

(3) United States v. Goldsmith, 29 M.J. 979 (A.F.C.M.R. 1990) (untrue responses to a civilian cashier constituted a false official statement).

(4) United States v. Ellis, 31 M.J. 26 (C.M.A. 1990) (anonymous note can constitute a false official statement); see generally TJAGSA Practice Note, An Anonymous Note Can Constitute a False Official Statement, Army  Law., Mar. 1991, at 24 (discusses Ellis).

(5) United States v. Hagee, 37 M.J. 484 (C.M.A. 1993) (making and signing false official duty orders in order to deceive a private party who was entitled to rely on their integrity was a violation of Article 107).

(6) United States v. Dorsey, 38 M.J. 244 (C.M.A. 1993) (lying to investigator about reason for refusing a polygraph held to be an “official” statement).

(7) United States v. Smith, 44 M.J.369 (C.A.A.F. 1996) (falsifying an LES and ID card in order to obtain car loan was violation of Article 107; the official character of a false statement can be based upon its apparent issuing authority rather than the identity of the person receiving it or the purpose for which it is made).

(8) United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App 1999) (when AFOSI agents asked the accused, whom they suspected of threatening victims with guns and whose apartment they intended to search, whether his firearms were in his apartment, there was a clear governmental function underway), aff’d, 55 M.J. 38  (C.A.A.F. 2001)

(9) United States v. Czeschin, 56 M.J. 346 (C.A.A.F. 2002).  Paragraph 31c(6)(a) of the Manual for Courts-Martial, which provides that a statement by an accused or suspect during an interrogation is not an official statement within the meaning of Article 107 if that person did not have an independent duty or obligation to speak, does not establish a right that may be asserted by an accused who is charged with violating Article 107.   Statements to investigators can be prosecuted as false official statements.

(10) United States v. Melbourne, 58 M.J. 682 (N-M. Ct. Crim. App. 2003) (ruling that the language in the pre-2002 editions of the MCM, pt. IV, ¶ 31c(6)) is no longer an accurate statement of law, at least insofar as it would apply to statements made to law enforcement agents conducting official investigations).

(11) United States v. McMahon, 58 M.J. 362 (C.A.A.F. 2003) (accused convicted of false official statement for falsifying a certificate awarding himself a Bronze Star).

(12) United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).  False statements made to on-base emergency medical personnel were official for purposes of Art. 107, but false statements made to an off-base, civilian 911 operator were not.

6. Statement to Civilian Law Enforcement Authorities.  Official statements include those made “in the line of duty”.  MCM, Part IV, ¶ 41c(1).  An intentionally deceptive statement made by a service member to civilian authorities may be nonetheless “official” and within the scope of Article 107. 

a) Analysis for Statements to Civilian Authorities. 

(1) Duty status at the time of the statement is not determinative.  False official statements are not limited to those made in the line of duty.  Statements made outside of a Servicemember’s duties may still implicate official military functions.  United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).

(2) The critical distinction is whether the statements relate to the official duties of the speaker or hearer, and whether those official duties fall within the UCMJ’s reach.  United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).

(3) A statement made to a civilian law enforcement official acting in a civilian capacity cannot be said to purport to be a military function until the law enforcement officer invokes, involves, or transfers the matter to military authorities.  United States v. Spicer, 71 M.J. 470 , 475 (C.A.A.F. 2013).

(4) The courts have used the following language to link the official duties and the reach of the UCMJ:

(a) Statements are official for purposes of Article 107 where there is a “clear and direct relationship to the official duties” at issue and where the circumstances surrounding the statement “reflect a substantial military interest in the investigation.”  United States v. Teffeau, 58 M.J. 62  (C.A.A.F. 2003).

(b) Statements  may be official where there is “a predictable and necessary nexus to on-base persons performing official military functions on behalf of the command.”  United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).

b) Applications of Article 107 to False Statements to Civilian Authorities.

(1) United States v. Day, 66 M.J. 172 (C.A.A.F. 2008).  False statements made to on-base emergency medical personnel were official for purposes of Art. 107, but false statements made to an off-base, civilian 911 operator were not.

(2) United States v. Teffeau, 58 M.J. 62  (C.A.A.F. 2003) (accused made false statements to local civilian police concerning an automobile accident in which a delayed-entry recruit was killed; the entire incident and investigation bore a direct relationship to the accused’s duties and status as a recruiter; further, the subject matter of the police investigation was of interest to the military and within the jurisdiction of the courts-martial system). 

(3) United States v. Morgan, 65 M.J. 616 (N-M. Ct. Crim. App. 2007) (holding statements to civilian authorities were not “official” for Article 107 purposes).

(4) United States v. Holmes, 65 M.J. 684 (N-M. Ct. Crim. App. 2007) (holding statements to civilian authorities were not “official” for Article 107 purposes).

(5) United States v. Caballero, 65 M.J. 674 (C.G. Ct. Crim. App. 2007) (holding that false statements to civilian police detectives investigating a shooting that had occurred off-post were not official for Article 107 purposes).

(6) Unites States v. Cofer, 67 M.J. 555 (C.A.A.F. 2008) (Accused’s statement to civilian detective related to official duties and fell within scope of UCMJ’s reach, where accused lied about setting his car on fire in an attempt to commit insurance fraud.  Accused was placed on convalescent leave for a month after he sustained second degree burns, involved unsuspecting airmen, and the civilian turned over the case to AFOSI agents immediately after the interview.)

(7) United States v. Spicer, 71 M.J. 470, 475 (C.A.A.F. 2013) (accused’s false statements to civilian law enforcement officials about a purported kidnapping of his infant son were not official in light of the purposes of Article 107, UCMJ; accused did not make the statements in the line of duty; he did not disobey a specific order to provide for his family, and the statements did not bear a clear and direct relationship to his official duties; furthermore, while accused’s statements ultimately affected on-base persons performing official military functions, accused made the statements to civilian law enforcement officials who were not conducting any military function at the time the statements were made; and when accused made the statements, the civilian law enforcement officials were not operating a joint investigation with military officials or performing any other military functions).

(8) United States v. Capel, 71 M.J. 485 (C.A.A.F. 2013) (accused’s statements to a civilian police detective denying that he had used another Servicemember’s debit card  were not official statements to support a conviction for making false official statements under Article 107, UCMJ, where accused’s appearance at the civilian police station and his subsequent statements to the detective were not pursuant to any specific military duties on accused’s part and where there was nothing in the record to indicate that at the time accused made the statements, the detective was acting on behalf of military authorities or that he was in any other way performing a military function; while theft among military personnel can certainly impact unit morale and good order and discipline, it is the relationship of the statement to a military function at the time it is made – not the offense of larceny itself – that determines whether the statement falls within the scope of Article 107, UCMJ).

(9) United States v. Passut, 73 M.J. 27 (C.A.A.F. 2014) (holding statements to Army Air Force Exchange Service employees were “official” for Article 107 purposes).

7. “Exculpatory No” Doctrine.  A number of federal circuit courts apply this doctrine, which stands for the proposition that a person who merely gives a negative response to a law enforcement agent cannot be prosecuted for making a false statement.  See generally United States v. Solis, 46 M.J. 31 (C.A.A.F. 1997).

a) Statutory and constitutional concerns do not support continued application of the doctrine under the UCMJ.  United States v. Solis, 46 M.J. 31  (1997); United States v Black, 47 M.J. 146  (1997); United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000)

b) The doctrine was traditionally given limited scope under military law, but recent cases placed severe limits on its scope.  See United States v. Prater, 32 M.J. 433  (C.M.A. 1991);  United States v. Frazier, 34 M.J. 135  (C.M.A 1992);  United States v. Sanchez, 39 M.J. 518  (A.C.M.R. 1993). 

c) The doctrine does not apply to false swearing offenses under Article 107 (formerly 134), UCMJ.  United States v. Gay, 24 M.J. 304 (C.M.A. 1987).

d) The doctrine has no legitimate statutory or constitutional basis and is not a defense to 18 U.S.C. § 1001.  Brogan v. United States, 118 S.Ct. 805  (1998).

8. Multiplicity.  See United States v. McCoy, 32 M.J. 906  (A.F.C.M.R. 1991) (finding an accused guilty of violating Articles 107 and 131 when he lied to a trial counsel and the next day told the same lie in court is multiplicious for sentencing). 

9. Unreasonable Multiplication of Charges (UMC).  United States v. Esposito, 57 M.J. 608 (C.G. Ct. Crim. App. 2002) (finding charging accused with false official statement and obstructing justice by making the same false statement was UMC.  Also, charging accused with soliciting a false official statement and obstructing justice by that same solicitation was UMC).

10. Statute of Limitations.  Prosecuting an accused for making a false official statement about instances of deviant sexual behavior that occurred outside the five-year statute of limitations for such offenses did not violate his due process rights.  United States v. Sills, 56 M.J. 556 (A.F. Ct. Crim. App. 2001), sentence set aside, rehearing granted by, 58 M.J. 23 (C.A.A.F. 2002).

11. Statement.  A physical act or nonverbal conduct intended by a soldier as an assertion is a “statement” that may form the basis for a charge of making “any other” false official statement under Article 107. United States v. Newson, 54 M.J. 823 (A. Ct. Crim App. 2001).

B. False Swearing. 

1. Elements.  False swearing is the making, under a lawful oath, of any false statement which the declarant does not believe to be true.  United States v. Davenport, 9 M.J. 364  (C.M.A. 1980).  The offense of false swearing has seven elements: (1) that the accused took an oath or its equivalent; (2) that the oath or its equivalent was administered to the accused in a matter in which such oath or equivalent was required or authorized by law; (3) that the oath or equivalent was administered by a person having authority to do so, United States v. Hill, 31 M.J. 543  (N.M.C.M.R. 1990); (4) that upon this oath or equivalent the accused made or subscribed a certain statement; (5)  that the statement was false; and (6) that the accused did not then believe the statement to be true. MCM, pt. IV, ¶ 41b. 

2. Relation to Perjury.  Although often used interchangeably, perjury and false swearing are different offenses.  Perjury requires that the false statement be made in a judicial proceeding and be material to the issue.  These requirements are not elements of false swearing, which is not a lesser included offense of perjury.  See United States v. Smith, 26 C.M.R. 16  (C.M.A. 1958); United States v. Byard, 29 M.J. 803  (A.C.M.R. 1989); United States v. Claypool, 27 C.M.R. 533, 536  (A.B.R. 1958); United States v. Kennedy, 12 M.J. 620  (N.M.C.M.R. 1981); United States v. Galchick, 52 M.J. 815  (A.F. Ct. Crim. App. 2000)(Article 32 investigation is judicial); MCM, pt. IV, ¶ 41c(1); but see MCM, pt. IV, ¶ 81c(1).  The drafters make no attempt to reconcile this provision with the authorities cited above.  See MCM, pt. IV, ¶ 57 analysis at A23-16 (2002 Ed.).  This provision, however, may be reconciled with those authorities if read in light of United States v. Warble, 30 C.M.R. 839, 841 n*  (A.F.B.R. 1967) (“We are not called upon to decide whether the Smith case (dealing with Article 131[1] perjury and false swearing, as contrasted with statutory perjury and false swearing) would be held to be in any wise controlling in a statutory perjury charge”)(emphasis in original), aff’d, 30 C.M.R. 386  (C.M.A. 1961); UCMJ art. 131(2).  False swearing and perjury should thus be pled in alternative specifications when appropriate.

3. A civilian police officer authorized by state statute to administer an oath may satisfy the element of false swearing that requires that the “oath or equivalent was administered by a person having authority to do so.”  The element does not require that the person administering the oath be authorized to do so under Article 136, UCMJ.  United States v. Daniels, 57 M.J. 560 (N-M. Ct. Crim. App. 2002).

4. Requirement for Falsity. 

a) The primary requirement for false swearing is that the statement actually be false.  MCM, pt. IV, ¶ 41c(2)(a).  A statement need not be false in its entirety to constitute the offense of false swearing.  Id., Part IV, ¶ 41b. See United States v. Fisher, 58 M.J. 300 (C.A.A.F. 2003).

b) A statement that is technically, literally, or legally true cannot form the basis of a conviction even if the statement succeeds in misleading the questioner.  Literally true but unresponsive answers are properly to be remedied through precise questioning.  United States v. Arondel De Hayes, 22 M.J. 54 (C.M.A. 1986) (accused lied when he said that the listed items were “missing” as he had an explanation for their absence); United States v. McCarthy, 29 C.M.R. 574  (C.M.A. 1960) (accused’s friends stole some hubcaps which accused allegedly denied during a subsequent investigation).

c) Doubts as to the meaning of an alleged false statement should be resolved in favor of truthfulness.  United States v. Kennedy, 12 M.J. 620  (N.M.C.M.R. 1981) (only certain portions of accused’s statements to a NIS agent were false).

d) The truthfulness of the statement is to be judged from the facts at the time of the utterance.  United States v. Purgess, 33 C.M.R. 97 (C.M.A. 1963) (evidence was insufficient in law to establish that accused made a false statement when accused stated that the seat covers in his car came from a German concern where the evidence showed that they did in fact come from a German concern, albeit by way of government purchase and theft from government stock); see United States v. Arondel De Hayes, 22 M.J. 54 (C.M.A. 1986).

5. Two Witness Rule.  The rule is applicable to false swearing.  United States v. Yates, 29 M.J. 888  (A.C.M.R. 1989), aff’d, 31 M.J. 380  (C.M.A. 1990); see TJAGSA Practice Note, Judge’s Incorrect Ruling Correctly Affirmed, Army Law., Apr. 1990, at 70 (discussing Yates). 

6. Use of Circumstantial Evidence.  United States v. Veal, 29 M.J. 600  (A.C.M.R. 1989); see generally TJAGSA Practice Note, Using Circumstantial Evidence to Prove False Swearing, Army Law., Jan. 1990, at 36 (discusses Veal); United States v. Hogue, 42 M.J. 533  (A.F. Ct. Crim. App. 1995) (urinalysis result plus expert testimony satisfies direct evidence requirement), aff’d, 45 M.J. 300  (C.A.A.F. 1996).

7. “Exculpatory No” Doctrine.  The doctrine is not applicable to false swearing, as the primary concern is the sanctity of the oath.  United States v. Gay, 24 M.J. 304  (C.M.A. 1987); see United States v. Tunstall, 24 M.J. 235  (C.M.A. 1987); United States v. Purgess, 33 C.M.R. 97  (C.M.A. 1963); United States v. Kennedy, 12 M.J. 620  (N.M.C.M.R. 1981).

XLVII. PAROLE VIOLATION, ART. 107a

 

PROPERTY OFFENSES

XLVIII. MILITARY PROPERTY: LOSS/DAMAGE/DESTROY/DISPOSE, ART. 108

A. “Military Property” Defined.

1. “Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States.  Military property is a term of art, and should not be confused with Government property.  The terms are not interchangeable.  While all military property is Government property, not all Government property is military property.  An item of Government property is not military property unless the item in question meets the definition provided in this paragraph.  It is immaterial whether the property sold, disposed, destroyed, lost, or damaged had been issued to the accused, to someone else, or even issued at all.  If it is proved by either direct or circumstantial evidence that items of individual issue were issued to the accused, it may be inferred, depending on all the evidence, that the damage, destruction, or loss proved was due to the neglect of the accused.  Retail merchandise of service exchange stores is not military property under this article.”  MCM, ¶ 43c(1).

2. For purposes of both Article 108 and Article 121, all appropriated funds belonging to the United States are within the meaning of the term “military property of the United States.”  United States v. Hemingway, 36 M.J. 349 (C.M.A. 1993).  See generally TJAGSA Practice Note, Defining Military Property, Army Law., Oct. 1990, at 44. 

3. Myriad items can constitute military property, including:  Watches, United States v. Ford, 30 C.M.R. 3 (C.M.A. 1960); Examinations, United States v. Reid, 31 C.M.R. 83 (C.M.A. 1961); Electric Drill, United States v. Foust, 20 C.M.R. 907 (A.B.R. 1955); A gate, United States v. Meirthew, 11 C.M.R. 450 (A.B.R. 1953); Sheets, mattress, and mattress cover, United States v. Burrell, 12 C.M.R. 943 (A.F.B.R. 1953); Sinks, pipes, and window casements, United States v. Tomasulo, 12 C.M.R. 531 (A.B.R. 1953); Camera in ship’s store, United States v. Simonds, 20 M.J. 279 (C.M.A. 1985); Blankets, United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964); Data in the form of computer files on a laptop computer fixed disk drive, United States v. Walter, 43 M.J. 879, 880 (N-M. Ct. Crim. App. 1996).

4. Military property does not include:

a) Postal funds.  United States v. Spradlin, 33 M.J. 870 (N.M.C.M.R. 1991).

b) Nonappropriated fund organization property, which is not furnished to a military service for use by the military service.  United States v. Geisler, 37 C.M.R. 530 (A.C.M.R. 1965) (property of officer’s club); see United States v. Ford, 30 M.J. 871 (A.F.C.M.R. 1990) (en banc); United States v. Thompson, 30 M.J. 905 (A.C.M.R. 1990); see generally TJAGSA Practice Note, Appropriated Funds as Military Property, Army Law., Jan. 1991, at 44.

c) Army and Air Force Exchange Service (AAFES) property.  United States v. Underwood, 41 C.M.R. 410 (A.C.M.R. 1969); United States v. Schelin, 12 M.J. 575 (A.C.M.R. 1981), aff’d, 15 M.J. 218 (C.M.A. 1983).  Navy courts have held, however, that property of the Navy Exchange is military property.  United States v. Mullins, 34 C.M.R. 694 (N.C.M.R. 1964); United States v. Harvey, 6 M.J. 545 (N.C.M.R. 1978).

B. Property Need Not Have Been Personally Issued.  The purpose of Article 108 is to ensure that all military property, however obtained and wherever located, is protected from loss, damage, or destruction.  As such, all persons subject to the UCMJ have an affirmative duty to preserve the integrity of military property.  United States v. O’Hara, 34 C.M.R 721 (N.B.R. 1964).

C. Pleading.  The specification must as a whole or directly state that the property was military property of the United States.  United States v. Rockey, 022 C.M.R. 372 (A.B.R. 1956); United States v. Schiavo, 14 M.J. 649 (A.C.M.R. 1982).

D. Multiplicity.  Larceny and wrongful disposition of the same property are separately punishable.  United States v. West, 17 M.J. 145 (C.M.A. 1984); see also United States v. Harder, 17 M.J. 1058 (A.F.C.M.R. 1983) (larceny and wrongful sale are separately punishable).  But see United States v. Teters, 37 M.J. 370 (C.M.A. 1993) (holding that the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not (“elements test”)).

E. Unlawful Sale of Military Property. 

1. “Sale” defined.  The term “sale” means an actual or constructive delivery of possession in return for a “valuable consideration,” and the passing of such title as the seller may possess, whatever that title may be.  United States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964).

2. “Sale” distinguished from larceny. 

a) The sale of property implies the transfer of at least ostensible title to a purchaser in return for consideration.  When the evidence merely shows that the accused, according to prior arrangements, stole property and delivered it to one or more of his fellow principals in the theft, receiving payment for his services, no sale is made.  United States v. Walter, 36 C.M.R. 186 (C.M.A. 1966).

b) Under proper circumstances, one transaction can constitute both a larceny and wrongful sale of the same property.  United States v. Lucas, 33 C.M.R. 511 (A.C.M.R. 1962) (Accused, without authority and with intent to steal, took automotive parts out of a government salvage yard and later sold them at a civilian junk yard.  The larceny was complete when the automotive parts were taken from the salvage yard; and the act of selling such parts did not constitute the final element of the larceny offense.)

c) Lack of knowledge as defense.  Because the offense of wrongful sale of government property involves a general criminal intent, lack of knowledge as to ownership of the property constitutes an affirmative defense provided the accused’s actions are based on an honest and reasonable mistake.  United States v. Germak, 31 C.M.R. 708 (A.F.B.R. 1961); United States v. Pearson, 15 M.J. 888 (A.C.M.R. 1983).

d) Multiplicity.  An accused can be separately found guilty of wrongful sale under Article 108 and concealment under Article 134 of the same military property.  United States v. Wolfe, 19 M.J. 174 (C.M.A. 1985).  But see United States v. Teters, 37 M.J. 370 (C.M.A. 1993) (holding that the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not (“elements test”)).

F. Wrongful Disposition of Military Property.  Disposing of military property by any means other than sale is an offense under Article 108 if such disposition is made without proper authority.  For example, giving military property away without proper authorization constitutes an offense under this article.  It makes no difference if the surrender of the property is temporary or permanent.  United States v. Banks, 15 M.J. 723 (A.C.M.R. 1983), aff’d, 20 M.J. 166  (C.M.A. 1985); See also United States v. Reap, 43 M.J. 61 (1995) (accused who gave another marine a starlight scope and tool boxes outside of regular supply channels and without receipts was guilty of violating Article 108 when he had no color of authority to distribute the supplies).

G. Damaging, Destroying, or Losing Military Property.

1. Loss, damage, or destruction of military property under this provision may be the result of intentional misconduct or neglect.

2. Damage. 

a) Removing the screws that secure the nose landing gear inspection window of a military aircraft was legally sufficient to support the damage element required under Article 108.  The word “damage” must be reasonably construed to mean any change in the condition of the property that impairs its operational readiness.  The government was not required to prove that the accused had a motive to wrongfully damage military property in order to secure a conviction for the offense.  United States v. Daniels, 56 M.J. 365 (C.A.A.F. 2002).

b) Altering or damaging computer files by deletion or otherwise destruction meets destruction requirement under Art. 108.  Military property need not be tangible to be subject to damage or destruction. United States v. Walter, 43 M.J. 879 (N-M. Ct. Crim. App. 1996).

3. Willfulness.  Willful damage, destruction, or loss is one that is intentionally occasioned.  It refers to the doing of an act knowingly and purposely, specifically intending the natural and probable consequences thereof.  United States v. Boswell, 32 C.M.R. 726 (C.G.B.R. 1962).  Willful damage is a lesser included offense of sabotage under 18 U.S.C. § 2155.  United States v. Johnson, 15 M.J. 676 (A.F.C.M.R. 1983); see United States v. Washington, 29 M.J. 536 (A.F.C.M.R. 1989); TJAGSA Practice Note, Damaging Property and Mens Rea, Army Law., Feb. 1990, at 66.

a) United States v. George, 35 C.M.R. 801 (A.F.B.R. 1965).  Evidence that the accused removed perishable medical serums from a refrigerator in a medical warehouse in the tropics and left them at room temperature was sufficient to establish a willful destruction of government property although the purpose in removing the serums was to steal the refrigerator.  The evidence established that the removal was intentional, and showing that the accused had a fully conscious awareness of the probable ultimate consequences of his purposeful act was unnecessary.

b) United States v. Creek, 39 C.M.R. 666 (A.C.M.R. 1967).  The evidence was insufficient to sustain a conviction of willfully and wrongfully destroying an M26 fragmentation hand grenade, military property of the United States, where evidence existed that some sort of explosive device was detonated and some witnesses expressed the opinion it was a grenade because of the sound and damage done, when they all admitted it could have been anything else and another witness said it sounded like recoilless rifle fire while others declined to express an opinion.

c) United States v. Barnhardt, 45 C.M.R. 624 (C.G.C.M.R. 1971).  Where the accused placed six metal objects in the starboard reduction gear of the cutter on which he was assigned and later, at the suggestion of a petty officer in whom he had confided, removed only the four objects he could see without reporting the remaining two, which he stated he thought might have fallen into the slump, the accused’s plea of guilty to willfully damaging military property was provident; the intentional quality of the accused’s conduct had not changed to negligence by his removal of some but not all of the foreign, metal objects from the gear.

d) United States v. Hendley, 17 C.M.R. 761 (A.F.B.R. 1954).  The accused, who had been drinking, took a military police sedan without authority and was chased at high speed.  In trying to evade his pursuers, he weaved in and out of traffic; narrowly missed one oncoming vehicle; subsequently sideswiped another; and finally went out of control, left the road, and smashed into several trees.  The Board of Review only approved negligent damage to military property.

e) United States v. Peacock, 24 M.J. 410 (C.M.A. 1987).  Placing rivets and nuts in an auxiliary fuel tank, thus temporarily impairing the aircraft’s operational readiness, constitutes willful damage to military property.

f) United States v. Marsh, 2016 WL 3208910 (A. Ct. Crim. App. May 31, 2016) Accused can only be charged with military property he willfully damaged.  Where accused intentionally set fire to a table, he could not be found guilty of damage to the doors occasioned when the fire department responded to the fire, as he did not willfully cause that. 

4. Negligence.  Loss, destruction, or damage is occasioned through neglect when it is the result of a want of such attention of the foreseeable consequences of an act or omission as was appropriate under the circumstances.

a) United States v. Ryan, 14 C.M.R. 153 (C.M.A. 1954).  The doctrine of res ipsa loquitur is not applicable to a prosecution for damaging a military vehicle through neglect, and the mere happening of a collision with resulting damage is not in itself sufficient to support a conviction for violation of Article 108.  Negligence must be affirmatively established by the prosecution evidence.  Here, the accused was found guilty of damaging a government vehicle through neglect.  No evidence indicated that the accused was driving at an excessive speed or in any sort of reckless manner, or that he was under the influence of alcohol, or that at the time of the accident he was engaged in the violation of traffic or other safety regulations of any nature.  HELD: The evidence was wholly insufficient to support findings of guilt. 

b) United States v. Foster, 48 C.M.R. 414 (N.C.M.R. 1973).  Conviction based on accused’s guilty plea set aside and dismissed where providence inquiry established that accused, while on guard, operated a government forklift without permission and that while he was doing so the hydraulic brake line malfunctioned.  No evidence of accused’s actual negligence was established by the government.

c) United States v. Stuck, 31 C.M.R. 148 (C.M.A. 1961).  Although evidence was presented that a Navy vehicle turned over to the accused in good condition was damaged, and witnesses testified they saw the vehicle bump and heard a noise as the accused drove it through a gate, and evidence of paint scratches on the vehicle and the gate post indicated he must have struck the gate post, the evidence was insufficient to establish beyond a reasonable doubt that the vehicle was damaged through the accused’s negligence.  This is because the accused testified he had driven over a rock, evidence indicated that the road approaching the gate was bumpy and full of holes, and the gate was held open by a rock which could have been moved onto the road.

d) United States v. Lane, 34 C.M.R. 744 (C.G.B.R. 1963).  The evidence was legally and factually sufficient to sustain findings of guilty of damaging and suffering damage to a Coast Guard vessel through neglect where the accused voluntarily and intentionally turned two wheels controlling flood valves on a floating drydock in which the vessel was berthed, thereby consciously setting in motion a sequence of events which a reasonably prudent man would expect to end in some kind of harm; and if, as the court found, the precise form and shape of the injury to the vessel was not specifically intended, then it was the result of a lack of due solicitude on the part of the accused made punishable under Article 108.

e) United States v. Traweek, 35 C.M.R. 629 (A.B.R. 1965).  Evidence that a government helicopter in operating condition was parked, tied down, and covered and that it was subsequently found untied, uncovered and turned over on its side and wrecked and that the accused, who was on guard at the helicopter site, was lying unconscious a short distance from it was sufficient to corroborate accused’s confession that he entered the helicopter to warm himself and caused the damage when he started the motor to generate heat.

f) United States v. Miller, 12 M.J. 559 (A.F.C.M.R. 1981).  Article 108 offense made out where accused who had control of a military truck permitted an unlicensed 16-year-old military dependent to operate truck resulting in accident and damage to vehicle.

H. Suffering the Loss, Damage, Destruction, Sale or Wrongful Disposition of Military Property.

1. “To suffer’ means to allow or permit.  The willful or negligent sufferance specified by this article includes:  deliberate violation or intentional disregard of some specific law, regulation, or order; reckless or unwarranted personal use of the property; causing or allowing it to remain exposed to the weather, insecurely housed, or not guarded; permitting it to be consumed, wasted, or injured by other persons; or loaning it to a person, known to be irresponsible, by whom it is damaged.” MCM, pt. IV, ¶ 43c(2).

2. In charging an accused with the loss of military property, the word “suffer” may properly be used in alleging willful or intentional misconduct by the accused, as well as negligent dereliction on his part.  United States v. O’Hara, 34 C.M.R. 721 (N.B.R. 1964); see also MCM, pt. IV, ¶ 43c(2).

3. Where a member of the naval service intentionally loses military property by willfully pushing it over the side of his ship, he may be charged under Article 108 of willfully suffering the loss or wrongfully disposing of military property.  United States v O’Hara, 34 C.M.R. 721 (N.B.R. 1964).

4. Accused’s plea of guilty to specification of willfully suffering the sale of military property was improvident where military judge did not elicit any testimony from accused regarding any duty he may have had to safeguard the property, and accused did not articulate such a duty; moreover, accused's stipulation of fact introduced by prosecution did not recognize existence of a duty to safeguard the military property, only an understanding that failure to stop his accomplice from selling the property was wrongful.  United States v. Aleman, 62 M.J. 281 (C.A.A.F. 2006).

I. Value.

1. Under all theories of prosecution under Article 108, UCMJ, the government must establish as an element of proof the value of the property destroyed, lost, or sold, or the amount of damage to that property.  MCM, pt. IV, ¶ 43b.

2. “In the case of loss, destruction, sale, or wrongful disposition, the value of the property controls the maximum punishment which may be adjudged.  In the case of damage, the amount of damage controls.  As a general rule, the amount of damage is the estimated or actual cost of repair by the government agency normally employed in such work, or the cost of replacement, as shown by government price lists or otherwise, whichever is less.”  MCM, pt. IV, ¶ 43c(3).

3. In the case of the wrongful sale of stolen military property, it is the time of taking at which value is to be determined and the burden is on the prosecution to establish the property condition as of that time.  United States v. Steward, 20 C.M.R. 247 (C.M.A. 1955).

4. Documents such as accounts receivable are not writings representing value.  While they may record or even reflect value, they do not represent value as do negotiable instruments or other documents used to acquire goods or services.  United States v. Payne, 9 M.J. 681 (A.F.C.M.R. 1980) (Accused who destroyed telephone toll records representing money owed to the Government by telephone users could not be convicted of destroying $4,000 in government property represented by the toll tickets.  Instead, only a conviction for destruction of property of “some value” could stand).

5. Various documents have been held to have the value they represent, including checks made out to other payees, United States v. Windham, 36 C.M.R. 21 (C.M.A. 1965); money orders, United States v. Sowards, 5 M.J. 864 (A.F.C.M.R. 1978); airline tickets, United States v. Stewart, 1 M.J. 750 (A.F.C.M.R. 1975); and gasoline coupons, United States v. Cook, 15 C.M.R. 622 (A.F.B.R. 1954).

6. A government price list is competent evidence of value, and may be the best method of proving the market value of government property; however, it is an administrative determination of value, not binding on a court-martial, but entitled to its consideration.  Value also may be inferred from the nature of property.  A court may properly consider other evidence of value; for example, the property’s serviceability.  United States v. Thompson, 27 C.M.R. 119 (C.M.R. 1958); United States v. Downs, 46 C.M.R. 1227 (N.C.M.R. 1973).

7. Ammunition is an explosive for purposes of the firearm or explosives sentence aggravator.  United States v. Murphy, 74 M.J. 302 (C.A.A.F. 2015).

XLIX. CAPTURED OR ABANDONED PROPERTY, ART. 108a

A. Captured Or Abandoned Property. 

1. Servicemembers must give notice and turn over to the proper authorities without delay all captured or abandoned enemy property in their possession, custody, or control.

2. Servicemembers can be punished for:

a) Failing to carry out duties described above.

b) Buying, selling, trading or in any way dealing in or disposing of captured or abandoned public or private property whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself.

c) Engaging in looting or pillaging.

B. Unlawful Importation, Transfer, and Sale of a Dangerous Firearm.  26 U.S.C. §§ 5844, 5861.

L. PROPERTY OTHER THAN MILITARY PROPERTY: WASTE/ SPOILAGE/ DESTRUCTION, ART. 109

A. Waste, Spoil, or Destruction of Non-Military Property.  MCM, pt. IV, ¶ 45; UCMJ art. 109.

1. Elements.

a) Wasting or spoiling of non-military property.  

(1) That the accused willfully or recklessly wasted or spoiled certain real property in a certain manner;

(2) That the property was that of another person;

(3) That the property was of a certain value.

b) Destroying or damaging non-military property.

(1) That the accused willfully and wrongfully destroyed or damaged certain personal property in a certain manner;

(2) That the property was that of another person;

(3) That the property was of a certain value or the damage was of a certain amount.

2. Scope of UCMJ art. 109.  All property, both real and personal, which is not military property of the United States.

a) Avis rental car, two passenger cars, a fence owned by a German corporation, and a German road marker met the definition of personal property.  United States v. Valadez, 10 M.J. 529  (A.C.M.R. 1980).

b) Privately owned passenger car.  United States v. Bernacki, 33 C.M.R. 175 (C.M.A. 1963).

c) Privately owned boat.  United States v. Priest, 7 M.J. 791 (N.C.M.R. 1979).

d) Real and personal property belonging to officers’ club.  United States v. Geisler, 37 C.M.R. 530 (A.C.M.R. 1965).

e) Real and personal property belonging to the post exchange.  United States v. Underwood, 41 C.M.R. 410 (A.C.M.R. 1969); United States v. Schelin, 12 M.J. 575 (A.C.M.R. 1981), aff’d, 15 M.J. 210 (C.M.A. 1983); contra United States v. Mullins, 34 C.M.R. 694 (N.C.M.R. 1964) and United States v. Harvey, 6 M.J. 545 (N.C.M.R. 1978). 

3. Differing Standard for Real and Personal Property.  United States v. Bernacki, 33 C.M.R. 175 (C.M.A. 1963) (Analysis of the terms of the Article itself indicates two offenses are denounced: the waste or spoliation of real property; and destruction or damage to personal property.  As to real property, either willful or reckless waste or spoliation is proscribed.  But, as to personal property, we note that the disjunctive alternative of a reckless act is singularly missing; the Code outlaws damage or destruction done “willfully and wrongfully.” With regard to personal property, the act denounced must be willful).

4. Real Property.  This portion of Article 109 proscribes the willful or reckless waste or spoliation of the real property of another.

a) Real property is defined as land, and generally whatever is erected on or growing on or affixed to land.  Black’s Law Dictionary 1096 (5th ed. 1979).

b) The term “wastes” and “spoils”, as used in this article, refers to such wrongful acts of voluntary destruction of or permanent damage to real property as burning down buildings, burning piers, tearing down fences, or cutting down trees.  MCM, pt. IV, ¶ 45c(1).

5. Personal Property.  This portion of Article 109 proscribes the willful and wrongful injury to non-military personal property.

a) Violation of this punitive article exists when personal, non-military property is either destroyed or damaged.  To be destroyed, the property need not be completely demolished or annihilated, but need only be sufficiently injured to be useless for the purpose for which it was intended.  Damage consists of any physical injury to the property.  MCM, pt. IV, ¶ 45c(2).

b) Mere negligent or reckless conduct does not satisfy the specific intent necessary to constitute this offense.

(1) Offense of willful and wrongful damage to private property requires proof of an actual intent to damage, as distinguished from a reckless disregard of property. United States v. Bernacki, 33 C.M.R. 175 (C.M.A. 1963).  Regardless of the intentional nature of the cause precipitating damage to personal, non-military property, in the absence of evidence that the destruction or damage was the intended result of the accused, a conviction under this portion of Article 109 is not supported. United States v. Jones, 50 C.M.R. 724  (A.C.M.R. 1975). 

(2) United States v. Priest, 7 M.J. 791  (N.C.M.R. 1979) (accused’s admission that he acted in grossly negligent or reckless manner in operating a privately owned boat in shallow water was an insufficient basis for conviction of willfully damaging private personal property of another, in that such an offense must be committed “willfully”).

(3) United States v. Youkum, 8 M.J. 763  (A.C.M.R. 1980) (evidence that accused got into his vehicle in a highly angered, vengeful state of mind, revved engine causing wheels to spin, reached high rate of speed in a short distance, aimed vehicle unerringly at victim as well as at parked vehicle from which victim had dismounted, and made no effort to stop until after he had damaged all three was sufficient circumstantial evidence to sustain conviction of willfully and wrongfully damaging vehicles).

(4) United States v. Garcia, 29 M.J. 721  (C.G.C.M.R. 1989).  The accused must intend to cause the destruction or damage.  Unintentionally breaking a jewelry case to take the contents is insufficient for guilt.  See TJAGSA Practice Note, Damaging Property and Mens Rea, Army Law., Feb. 1990, at 66 (discusses Garcia).

(5) United States v. White, 61 M.J. 521 (N-M. Ct. Crim. App. 2005) (insufficient proof of mens rea in a willful damage to nonmilitary property case where accused threw himself in front of a vehicle driven by a Japanese national; he denied any intention of damaging the property, but rather claimed his purpose in jumping in front of the vehicle was to injure himself).

6. Pleading the offense.  When charged with damage or destruction of non-military personal property, the government should allege that the accused acted in a “willful” manner.  But see United States v. Valadez, 10 M.J. 529  (A.C.M.R. 1980) (inartfully drawn specification alleging the willful and wrongful damage of a private automobile by operating it in a reckless manner was not fatal).

7. Value.  As a general rule, the amount of damage is the estimated or actual cost of repair by artisans employed in this work who are available to the community wherein the owner resides, or the replacement cost, whichever is less.  See also the discussion of value pertaining to Article 108, UCMJ.

LI. MAIL MATTER: WRONGFUL TAKING, OPENING, ETC.,  ART. 109a

 

VESSEL/VEHICLE OFFENSES

LII. IMPROPER HAZARDING OF VESSEL/AIRCRAFT, ART. 110

LIII. LEAVING SCENE OF VEHICLE ACCIDENT, ART. 111

 

INTOXICATION/DRUG OFFENSES

LIV. DRUNKENNESS AND OTHER INCAPACITATION OFFENSES, ART 112

 

LV. WRONGFUL USE/POSSESSION/ETC. OF CONTROLLED SUBSTANCES, ART 112a

A. Drug offenses fall into several categories under the UCMJ.

1. UCMJ art. 112a.  Covers certain drugs listed in the statutory language of Art. 112a, substances listed under Schedules I through V of the Controlled Substances Act (21 U.S.C. § 812), and any other drugs that the President may see fit to prohibit in the military.

2. AR 600-85, the Army Substance Abuse Program (28 November 2016), para. 4-2p.  This is a punitive provision that expands the list of drugs that Soldiers are prohibited from using.  Offenses are punished under UCMJ art. 92(1).

3. There are numerous hazardous substances that are not expressly contained in any of the two categories described above.  Such substances may be prohibited by operation of other federal statutes, for example 21 U.S.C. § 813.  In the absence of such a statute applicable to a particular hazardous substance, the use, possession, distribution, or manufacture or such substances may still be prohibited by other provisions of Title 21 of the U.S. Code.  If this is the case, then such misconduct may be prosecuted under clause three of Article 134.  See, e.g., United States v. Reichenbach, 29 M.J. 128 (C.M.A. 1989)

4. Finally, the abuse of substances not included in the categories described above may also violate clauses 1 and 2 of Article 134.  See generally United States v. Reichenbach, 29 M.J. 128 (C.M.A. 1989); see, e.g., United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005) (wrongful inhalation of nitrous oxide that impaired and altered thinking and could damage the brain); United States v. Glover, 50 M.J. 476 (C.A.A.F. 1999) (wrongful inhalation of aerosol “dust-off”).  NOTE: After 2 Feb 09, the conduct in both Erickson and Glover of these cases would be covered under AR 600-85, para. 4-2m (4-2p after Rapid Action Revision on 2 Dec 09; 4-2p after revision of the regulation on 28 Nov 16).  

B. UCMJ art. 112a: The Statutory Framework.

1. Article 112a, UCMJ, provides in part:  Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.

2. Types of Controlled Substances Covered by Article 112a.  Article 112a, UCMJ, is a statute of limited scope in that it only prescribes conduct relating to three specific categories of controlled substances; it does not purport to “ban every new drug mischief.”  United States v. Tyhurst, 28 M.J. 671, 675  (A.F.C.M.R.), rev’d in part, 29 M.J. 324  (C.M.A. 1989).  Substances are “controlled” for purposes of this article if:

a) Congress listed them in the text of Article 112a.

b) The President listed them in the MCM for the purposes of Article 112a, UCMJ, or

c) They are listed in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. § 812). 

3. Types of Conduct Prescribed by Article 112a, UCMJ.  Article 112a prohibits an expansive array of conduct relating to controlled substances.  The following types of conduct are expressly prohibited:  Possession; Use; Manufacture; Distribution; Import/Export; Introduction; Possession, introduction, or manufacture with intent to distribute.

4. Time of war.  When declared by Congress or in accordance with a factual determination by the President.  R.C.M. 103(21); United States v. Avarette, 41 C.M.R. 363 (C.M.A. 1970); United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968).  If element is alleged, the maximum period of confinement authorized for the offense shall be increased by 5 years.  M.C.M., pt. IV, ¶ 50e.

5. Intent to distribute.

a) Intent to distribute may be inferred from circumstantial evidence.  Examples of evidence which may tend to support an inference of intent to distribute are:  possession of a quantity of substance in excess of that which one would be likely to have for personal use; market value of the substance; the manner in which the substance is packaged; and that the accused is not a user of the substance.  On the other hand, evidence that the accused is addicted to or is a heavy user of the substance may tend to negate an inference of intent to distribute.  MCM, pt. IV, ¶ 50c(6).

b) Possession with intent to distribute does not require ownership.  United States v. Davis, 562 F.2d 681  (D.C. Cir. 1977).  See also United States v. Wilson, 7 M.J. 290 (C.M.A. 1979).

c) To convict for possession with intent to distribute, fact finder must be willing, where no evidence is presented of actual distribution, to find beyond a reasonable doubt that the accused would not have possessed so substantial a quantity of drugs if he merely intended to use them himself.  United States v. Morgan, 581 F.2d 933  (D.C. Cir. 1978); see also United States v. Turner, 396 U.S. 398 (1970) (because accused’s possession of 14.68 grams of a cocaine and sugar mixture of which 5% was cocaine might have been exclusively for his personal use, evidence was insufficient to support conviction for distribution).

d) Evidence of resale value of drug may support inference of intent to distribute.  United States v. Ramirez-Rodriguez, 552 F.2d 883 (9th Cir. 1977).

e) Circumstantial evidence of intent to distribute may require expert testimony as to dosage units, street value, and packaging.  See, e.g., United States v. Blake, 484 F.2d 50  (7th Cir.), cert. denied, 422 U.S. 919 (1979) (expert testimony that 14.3 grams of 17.3% pure heroin would make 420 “dime bags” having a St. Louis street value of $4,200); United States v. Wilkerson, 478 F.2d 813, 815 n. 3 (8th Cir. 1973) (49 pounds of marijuana worth $58,000 when first broken up and $71,500 if broken into joints); United States v. Echols, 477 F.2d 37 (8th Cir.), cert. denied, 414 U.S. 825  (1973) (199.73 grams of cocaine worth $200,000); United States v. Hollman, 541 F.2d 196 (8th Cir. 1976) (127 foil packets of heroin worth $20 each).  See generally United States v. Gould, 13 M.J. 734 (A.C.M.R. 1982) (35 individually wrapped pieces of hashish).

f) A finding of addiction may support an inference that a large quantity of drugs were kept for personal use.  See United States v. Raminez-Rodriguez, 552 F.2d 883  (9th Cir. 1977); United States v. Kelly, 527 F.2d 961 (9th Cir. 1976).  (wherein the accused had 448 grams of hashish with a market value of $4,000-7,000 when broken into between 4,000 and 18,000 individual dosage units, but there was no evidence the appellant was addicted to hashish or marijuana).

C. Use.

1. Elements. 

a) That the accused used a controlled substance; and

b) That the use by the accused was wrongful.

2. Defined. 

a) “[T]o inject, ingest, inhale, or otherwise introduce into the human body, any controlled substance.”  MCM, pt. IV, ¶ 50c(10).

b) Administration or physical assimilation of a controlled substance into one’s body or system.  United States v. Harper, 22 M.J. 157 (C.M.A. 1986).

3. Pleadings. 

a) Because it is often impossible to prove the exact date and location of drug use and because time and location are not of the essence of this offense, courts allow some latitude in proving and pleading offenses of this sort.  United States v. Miller, 34 M.J. 598 (A.C.M.R. 1992). 

b) However, where a specification alleges wrongful acts on “divers occasions,” the members of a panel must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based by referring to a relevant date or other facts in evidence that will clearly put accused and reviewing courts on notice of what conduct served as basis for the findings.  United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003); United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004); United States v. Augspurger, 61 M.J. 189 (2005) (citing the analysis in Seider).

c) The prosecution must nonetheless prove beyond a reasonable doubt that the accused used controlled substance during the period of time alleged in the specification.  United States v. Williams, 37 M.J. 972 (A.C.M.R. 1993); United States v. Lopez, 37 M.J. 702  (A.C.M.R. 1993).

4. Inferences and Proof of Use. 

a) Placebo effect.  Expert testimony concerning herbal ecstasy and the effects described by the recipient in this case supported the factfinder’s conclusion that this was MDMA rather than herbal ecstasy.  In addition, a placebo effect was unlikely in this case because the recipient did not have any preconceived notion of what to expect.  Finally, the government produced evidence that the participants used the term “ecstasy” rather than “herbal ecstasy” in referring to the drug.  United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005)

b) Permissive inference of wrongfulness drawn from the positive result on urinalysis test is sufficient to support a finding of wrongful use of marijuana.  United States v Pabon, 42 M.J. 404 (1995); United States v. Ford, 23 M.J. 331  (C.M.A. 1987).

c) Laboratory results of urinalysis, coupled with expert testimony explaining the results, constituted sufficient evidence to establish beyond a reasonable doubt that the accused knowingly and wrongfully used marijuana. United States v Bond, 46 M.J. 86  (1997); United States v. Harper, 22 M.J. 157  (C.M.A. 1986).

d) When the sole evidence of drug use is a positive laboratory test result, knowledge of the presence of the controlled substance may be inferred if the prosecution presents expert testimony explaining the underlying scientific methodology and the significance of the test result, so as to provide a rational basis for inferring that the substance was knowingly and wrongfully used.  United States v. Campbell, 52 M.J. 386 (C.A.A.F. 2000) (clarifying, on reconsideration, its earlier holding that evidence, in this case, insufficient to permit inference of wrongfulness from concentration of LSD reported through use of GC/MS/MS test); but see United States v. Green, 55 M.J. 76  (C.A.A.F. 2001) (positive urinalysis properly admitted under standards applicable to scientific evidence, when accompanied by interpretative expert testimony, provides legally sufficient basis to draw permissive inference of knowing, wrongful use of controlled substance); but see United States v. Hunt, 33 M.J. 345 (C.M.A. 1991) (result of urinalysis alone, with no expert testimony explaining the results, is insufficient to establish guilt). 

e) Results of urinalysis alone, with no expert testimony explaining the results, are insufficient to establish guilt. United States v. Hunt, 33 M.J. 345  (C.M.A. 1991); United States v. Murphy, 23 M.J. 310  (C.M.A. 1987); United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005) (testimony from witnesses (who knew the accused throughout the charged period) that they had never seen him use drugs or observed him under the influence of drugs goes to the issue of knowing and wrongful use, and could have bolstered an innocent ingestion defense).

f) Manual provision that allows use of a permissive inference to prove wrongful use is constitutional.  United States v. Bassano, 23 M.J. 661 (A.F.C.M.R. 1986).

g) Conviction for drug use affirmed where government introduced lab report and stipulation explaining the report.  United States v. Spann, 24 M.J. 508 (A.F.C.M.R. 1987).

h) Hair analysis.  Evidence was legally and factually sufficient to sustain conviction for unlawful use of cocaine; hair analysis revealed presence of cocaine in hair shafts, there was expert testimony that presence of cocaine in hair shafts was metabolically explained by ingestion, and that it did not occur as a natural phenomenon, accused’s own witness conceded that there was cocaine in the hair sample tested, and chain of custody established that the sample was from the accused.  United States v. Bush, 44 M.J. 646 (A.F. Ct. Crim. App. 1996), aff’d, 47 M.J. 305 (C.A.A.F. 1997).

i) Admissions of accused. M.R.E. 304(c) states that an admission or confession of the accused may be considered as evidence on the question of guilt “only if independent evidence, either direct or circumstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession.”  Further, the rule states that other uncorroborated confessions or admissions of the accused cannot be used as that independent evidence.  Note, however, that not every element or fact contained in the confession or admission must be independently proven for it to be deemed trustworthy such that it is admissible.  Only the military judge can determine whether independent evidence raised is sufficient to corroborate the admission or confession.  This rule revision is largely in response to United States v. Adams, 74 M.J. 137 (C.A.A.F. 2015).

5. Knowledge. 

a) There is no express mention of a mens rea requirement in the text of Article 112a for the use, possession, or distribution of controlled substances; the article merely prohibits the “wrongful” use, possession, or distribution of various controlled substances.  See UCMJ art. 112a.  Likewise the MCM does not identify a mens rea in its description of the elements of these offenses.  See MCM, pt. IV, ¶ 50b(2).  However, the Court of Military Appeals (CMA) has long held that the absence of knowledge as to the presence of the substance in question or its contraband nature may give rise to a mistake or ignorance of fact defense to charges of use or possession of controlled substance.  E.g., United States v. Greenwood, 19 C.M.R. 335  (C.M.A. 1955).  Later, C.M.A. explicitly held that court-martial panels must be instructed that an accused must knowingly possess or use a controlled substance to be criminally liable for such an act.  United States v. Mance, 26 M.J. 244  (C.M.A. 1988).  

b) There are two discrete types of knowledge that are relevant to the offenses in question:  knowledge of the very presence of the substance, and knowledge of the physical composition of the substance.  United States v. Mance, 26 M.J. 244 (C.M.A. 1988) rev’d in part on other grounds, United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014); United States v. Williams, 37 M.J. 972  (A.C.M.R. 1993); United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007).

(1) If an accused is unaware of the presence of a controlled substance in another, lawful substance, then the accused may have a defense of ignorance of fact.  Such a circumstance may arise when a controlled substance is placed in a drink or other foodstuffs without the knowledge of the accused.  The accused would lack the knowledge required for “use” of a controlled substance.  Mance, 26 M.J. at 253-54 .  However, the accused may not ‘deliberately avoid” knowledge of the nature of the substance.  United States v. Brown, 50 M.J. 262  (C.A.A.F. 1999) (defendant must be aware of the high probability that the substance was of a contraband nature and deliberately contrive to avoid knowledge of the substance’s nature). MCM pt. IV, ¶ 50c(11).

(2) Alternatively, the accused may be aware of the presence of the substance but incorrectly believe that it is innocuous.  This absence of knowledge as to the contraband nature of a substance may give rise to a mistake of fact defense.  In this circumstance, the accused lacks the knowledge required to establish that the use was “wrongful.”  United States v. Mance, 26 M.J. 244, 254 (C.M.A. 1988), ) rev’d in part on other grounds, United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014)

(3) To be guilty of wrongful possession of a controlled substance, the accused need only know about the presence and the identity of the substance.  United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007).

c) Intersection with mistake of law.  United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007).  Accused possessed methandienone, a Schedule III controlled substance, but thought it was legal to possess the steroid.  To be guilty of wrongful possession of a controlled substance, the accused need only know about the presence and the identity of the substance.  His knowledge of the unlawfulness of the contraband item is not a defense.  “[I]f an accused knows the identity of a substance that he is possessing or using but does not know that such possession or use is illegal, his ignorance is immaterial . . . because ignorance of the law is no defense.” 

d) The presence of the controlled substance gives rise to a permissive inference that an accused possessed both types of knowledge required to establish wrongful possession or use.  Mance, 26 M.J. at 254.

e) Merely alleging in the pleading that a substance is listed on a federal schedule will not sustain a conviction for those substances not listed in Article 112a.  United States v. Bradley, 68 M.J. 556 (A. Ct.Crim.App. 2009)(setting aside conviction for possession of “3,4 methylenedioxymethamphetamine,” commonly known as “ecstacy,” where trial counsel failed to put on any evidence—such as a copy of the Controlled Substances Act—and did not request the military judge to take judicial notice of the matter); United States v. Paul, 73 M.J. 274 (C.A.A.F. 2014) (government introduced only evidence that accused used “ecstasy,” and no evidence that “ecstasy” was 3,4-methlenedioxymethampetamine; did not ask for judicial notice at trial; court of criminal appeals could not take judicial notice of an element of the offense that the government failed to prove).

6. Applications.

a) Use of leftover prescription drugs for a different ailment than that for which they were prescribed likely constitutes wrongful use as a matter of law.  United States v. Mull, 76 M.J. 741 (A. F. Ct. C. App. 2017), overruling United States v. Lancaster, 36 M.J. 1116 (A.F.C.M.R. 1993).  In Mull, appellant admitted to using leftover prescription diazepam for a reason it was not prescribed for, to help augment heroin use, and for which he lacked authorization. See also United States v. Pariso, 65 M.J. 722 (A. F. Ct. of C. App. 2007).

b) One who knowingly ingests a controlled substance that he believes to be only cocaine, but actually contains cocaine laced with methamphetamine, may be found guilty of wrongful use of both substances; an accused need not know the exact pharmacological identity of the substance, but merely that it is contraband.  United States v. Stringfellow, 32 M.J. 335  (C.M.A. 1991); see United States v. Miles, 31 M.J. 7  (C.M.A. 1990) (holding that findings were proper but that, when evidence indicates use of multiple drugs was not separate, the use should be consolidated into a single specification); United States v. Alexander, 32 M.J. 664  (A.C.M.R. 1991), aff’d, 34 M.J. 121  (C.M.A. 1992).  In United States v. Dillon, 61 M.J. 221 (2005) (ecstasy and methamphetamine).

c) Accused not guilty of wrongful use of marijuana if he is a law enforcement official conducting legitimate law enforcement activities.  United States v. Flannigan, 31 M.J. 240  (C.M.A. 1990); see generally TJAGSA Practice Note, Lawfully Using Marijuana to Protect One’s Cover, Army Law., Mar. 1991, at 47 (discusses Flannigan).  This rule does not apply, however, to possession or use of drugs caused by addiction, incurred as a result of earlier drug use necessitated when supplier forced accused, a drug informant who was not acting with approval of law enforcement authorities, to use drugs to prove that he was not an informer, occurring after accused was no longer an informant and his use was not necessary to protect his life or his cover.  United States v. Wilson, 44 M.J. 223 (C.A.A.F. 1996).

d) Prosecution may not argue that the defense of innocent ingestion of marijuana should be rejected by court members to discourage other soldiers from raising it.  United States v. Causey, 37 M.J. 308 (C.M.A. 1993).

e) Use of hemp products may be limited or prohibited by regulation or order as long as the limit or prohibition has a valid military purpose. (United States v. Pugh, 77 M.J. 1 (C.A.A.F. 2017) (finding a provision of AFI 90-507 overly broad and lacking a valid military purpose, thus overturning the accused’s convictions on that charge).  Such use would be prosecuted under Article 92, UCMJ.

D. Possession.

1. Elements. 

a) Possession of controlled substance.

b) Knowledge of possession.

c) Knowledge of contraband nature of substance.

d) Possession is wrongful, i.e., without legal justification or authorization.

2. Possession Defined.

a) Possession means the exercise of control over something, including the power to preclude control by others.  United States v. Zubko, 18 M.J. 378 (C.M.A. 1984); MCM, pt. IV, ¶ 50c(2).

b) More than one person may possess an item simultaneously.

c) Possession may be direct or constructive.  Awareness of the presence of a controlled substance may be inferred from circumstantial evidence.

3. Constructive Possession.

a) An accused constructively possesses a contraband item when he is knowingly in a position or had the right to exercise dominion and control over an item, either directly or through others.  United States v. Traveler, 20 M.J. 35 (C.M.A. 1985).

b) Mere association with one who is known to possess illegal drugs is not sufficient to convict on a theory of constructive possession.  United States v. Seger, 25 M.J. 420 (C.M.A. 1988) ; see also United States v Wilson, 7 M.J. 290 (C.M.A. 1979).

c) Mere presence on the premises where a controlled substance is found or proximity to a proscribed drug is insufficient to convict on a theory of constructive possession.  United States v. Wilson, 7 M.J. 290  (C.M.A. 1979); United States v. Corpening, 38 M.J. 605 (A.C.M.R. 1993) (presence in automobile in which contraband found, without more, legally insufficient to sustain conviction).

4. Innocent Possession.

a) Accused’s possession of drugs cannot be innocent if the accused neither destroys the drug immediately nor delivers them to the police.  United States v. Kunkle, 23 M.J. 213 (C.M.A. 1987).

b) Innocent or “inadvertent” possession.  The “inadvertent” possession defense requires that the drugs were planted or left in the accused’s possession without his knowledge, coupled with certain subsequent actions taken with an intent to immediately destroy the contraband or deliver it to law enforcement agents.  Returning contraband drugs to a prior possessor or owner will not entitle an accused to claim innocent possession unless the accused inadvertently comes into possession of contraband and reasonably believes that he would be exposing himself to immediate physical danger unless he returned it to the prior possessor.  United States v. Angone, 57 M.J. 70 (C.A.A.F. 2002).

5. Deliberate Avoidance.  MCM, pt. IV, ¶ 50c(11).  

a) Deliberate avoidance may also be called “deliberate ignorance,” or “conscious avoidance.”  This doctrine allows the fact finder to infer knowledge by the defendant of a particular fact if the defendant intentionally decides to avoid knowledge of that fact. See generally United States v. Rodriguez, 983 F.2d 455, 457 (2d Cir. 1993).

b) The rationale for the conscious avoidance doctrine is that a defendant’s affirmative efforts to “‘see no evil’ and ‘hear no evil’ do not somehow magically invest him with the ability to ‘do no evil.’” United States v. Di Tommaso, 817 F.2d 201, 218 n.26 (2d Cir. 1987).

c) United States v. Brown, 50 M.J. 262 (1999) (military judge erroneously gave deliberate avoidance (a.k.a. “ostrich”) instruction when evidence did not reach “high plateau” required for the instruction); see also United States v. Newman, 14 M.J. 474 (C.M.A. 1983).

6. Attempted Possession.  One who possesses a legal drug believing it to be an illegal drug is guilty of attempted possession.  United States v. Newak, 15 M.J. 541 (A.F.C.M.R. 1982), rev’d in part on other grounds, 24 M.J. 238 (C.M.A. 1987).  If the evidence is insufficient to identify the substance beyond a reasonable doubt, the accused may be guilty of attempted possession.  United States v. LaFontant, 16 M.J. 236 (C.M.A. 1983).

7. Awareness of the presence of a controlled substance may be inferred from circumstantial evidence.  MCM, pt. IV, ¶ 50c(2).  United States v. Mahan, 1 M.J. 303 (C.M.A. 1976); see generally DA Pam 27-9, ¶ 7-3; Hug, Presumptions and Inferences in Criminal Law, 56 Mil. L. Rev. 81 (1972).

8. Applications. 

a) Accused properly convicted of possession with intent to distribute when accused purchased 4.1 grams of marijuana, distributed 2.8 grams, but did not realize that 1.3 grams leaked out of the bag and remained in his pocket.  United States v. Gonzalez, No. 20080111 (A. Ct. Crim. App. Jun. 26, 2009).

b) Accused in stockade is in “possession” of package of drugs mailed by him and returned to the stockade for inability to deliver.  United States v. Ronholt, 42 C.M.R. 933 (N.C.M.R. 1970).

c) Mere speculation as to the identity of a substance by one non-expert witness is not legally sufficient evidence to prove possession of marijuana.  United States v. Nicholson, 49 M.J. 478 (C.A.A.F. 1998).

d) Accused who comes into possession of drugs and who intended to return them to the original possessor is guilty of wrongful possession unless returning the drugs to the original possessor was motivated by fear for personal safety or to protect the identity/safety of an undercover investigator.  United States v. Kunkle, 23 M.J. 213  (C.M.A. 1987); MCM (2016 ed.), pt. IV, ¶ 37 (analysis).

e) Possessing drugs for the purpose of giving them over to authorities is not an offense under Art. 112a.  United States v. Grover, 27 C.M.R. 165  (C.M.A. 1958).

f) No “usable quantity” defense.  United States v. Birbeck, 35 M.J. 519 (A.F.C.M.R. 1992) (small quantity of cocaine was found in bindle and entire amount consumed in testing; possession of a controlled substance is criminal without regard to amount possessed).

g) An accused who involuntarily comes into possession and intends to give it to authorities, but forgets to do so, has a legitimate defense.  United States v. Bartee, 50 C.M.R. 51  (N.C.M.R. 1974).

h) An accused who acts on a commander’s suggestion to buy drugs in order to further a drug investigation is in innocent possession.  United States v. Russell, 2 M.J. 433 (A.C.M.R. 1955).

i) Possession is not “wrongful” where an enlisted pharmacy specialist, pursuant to his understanding of local practice and with the knowledge of and under the supervision of his superiors, maintains an average stock of narcotic drugs in order to supply sudden pharmacy needs or fill an inventory shortfall.  This is so even though the stock was in his possession outside the pharmacy and its existence was prohibited by regulations.  The latter fact might justify prosecution for violation of the regulation.  United States v. West, 34 C.M.R. 449  (C.M.A. 1964).

j) Specification charging accused with possession of marijuana with intent to distribute was sufficient despite not alleging element of wrongfulness.  United States v. Berner, 32 M.J. 570  (A.C.M.R. 1991).

k) Possession is a lesser included offense of possession with intent to distribute.  United States v. Gould, 13 M.J. 734  (A.C.M.R. 1982); United States v. Burno, 624 F.2d 95 (10th Cir. 1980).

E. Distribution.

1. MCM, pt. IV, ¶ 50c(3) states:  “Distribute” means to deliver to the possession of another.  “Deliver” means the actual, constructive, or attempted transfer of an item, whether or not there is an agency relationship.

2. Mens Rea. 

a) Distribution is a general intent crime.  United States v. Brown, 19 M.J. 63 (C.M.A. 1984).

b) The only mens rea necessary for wrongful distribution of controlled substances is the intent to perform the act of distribution.  Distribution can occur even if the recipient is unaware of the presence of drugs.  United States v. Sorrell, 23 M.J. 122 (C.M.A. 1986).  (allowing an unknowing party to deliver his controlled substances to a third party with the intent of recovering them later still constituted distribution).

c) Knowledge of the presence and the character of the controlled substance is an essential requirement of wrongful distribution.  United States v. Crumley, 31 M.J. 21 (C.M.A. 1990).

d) Distribution may continue, for purposes of establishing aider and abettor liability, after the actual transfer if the “criminal venture” contemplates the exchange of drugs for cash.  United States v. Speer, 40 M.J. 230 (C.M.A. 1994).

3. Pleading.  Wrongfulness is an essential element of distribution. Failure to allege wrongfulness may not be fatal if the specifications as a whole can be reasonably construed to embrace an allegation of the element of wrongfulness required for conviction.  United States v. Brecheen, 27 M.J. 67 (C.M.A. 1988).

4. Applications. 

a) Distribution can consist of passing drugs from one co-conspirator to another.  United States v. Tuero, 26 M.J. 106  (C.M.A. 1988); see United States v. Figueroa, 28 M.J. 570  (N.M.C.M.R. 1989).

b) Distribution can consist of passing drugs back to the original supplier.  United States v. Herring, 31 M.J. 637  (N-M.C.M.R. 1990); see generally TJAGSA Practice Note, Distributing Drugs to the Drug Distributor, Army Law., Mar. 1991, at 44 (discussing Herring).

c) Distribution includes the attempted transfer of drugs.  United States v. Omick, 30 M.J. 1122 (N-M.C.M.R. 1989); see generally TJAGSA Practice Note, Does Drug Distribution Require Physical Transfer? Army Law., Nov. 1990, at 44 (discussing Omick).

d) The Swiderski exception.

(1) Sharing drugs is distribution.  United States v. Branch, 483 F.2d 955 (9th Cir. 1973); United States v. Ramirez, 608 F.2d 1261 (9th Cir. 1979).  However, when two individuals simultaneously and jointly acquire possession of a drug for their own use, intending to share it together, their only crime is joint possession.  United States v. Swiderski, 548 F.2d 445  (2d Cir. 1977).

(2) The Swiderski exception probably does not apply to the military. See United States v. Manley, 52 M.J. 748  (N-M. Ct. Crim. App. 2000); United States v. Ratleff, 34 M.J. 80  (C.M.A. 1992) (PFC Ratleff went to mess hall with PFC Jaundoo who had hidden hashish in a can; PFC Jaundoo carried the can back to a barracks room and then gave the can to PFC Ratleff who opened the can and gave the hashish back to PFC Jaundoo; PFC Ratleff’s distribution conviction affirmed).  United States v. Tingler, 65 M.J. 545 (N-M.C.C.A 2006) (Swiderski decision expressly rejected as applying to courts-martial); United States v. McCormick, 2016 CCA LEXIS 384 (A. F. Ct. C. App. 2016) (holding that Swiderski does not apply in cases where accused is acting as middleman or facilitator of drug transaction).  But see United States v. Hill, 25 M.J. 411 (C.M.A. 1988) (dicta).

(3) Examples of cases where evidence did not raise the Swiderski exception.  United States v. Hill, 25 M.J. 411  (C.M.A. 1988); United States v. Viser, 27 M.J. 562  (A.C.M.R. 1988); United States v. Allen, 22 M.J. 512  (A.C.M.R. 1986); United States v. Tracey, 33 M.J. 142  (C.M.A. 1991); United States v. Lippoldt, 34 M.J. 523  (A.F.C.M.R. 1991); United States v. Espronceda, 36 M.J. 535 (A.F.C.M.R. 1992).

e) An accused cannot aid and abet a distribution between two government agents, where accused’s former “agent” became a government agent and sold to a person known by the accused to be a government agent and the accused did not ratify the sale or accept the proceeds.  United States v. Bretz, 19 M.J. 224 (C.M.A. 1985); United States v. Elliott, 30 M.J. 1064 (A.C.M.R. 1990).  But cf. United States v. Dayton, 29 M.J. 6 (C.M.A. 1989) (accused guilty of distribution from source of one government agent to another government agent); United States v. Lubitz, 40 M.J. 165 (C.M.A. 1994) (accused not a “mere conduit” for drug distribution when he acted as buyer of cocaine with money supplied by government agent and subsequently transferred drugs to another covert government agent).

f) Evidence that the distribution was a sale for profit will normally be admissible on the merits.  If not, it may be admissible for aggravation in sentencing in a guilty plea or in a contested case.  United States v. Vickers, 13 M.J. 403 (C.M.A. 1982); see United States v. Stokes, 12 M.J. 229 (C.M.A. 1982).

g) Possession and Distribution.  The elements of possession with intent to distribute are “necessarily included” within elements of distribution of a controlled substance, so accused cannot be found guilty of possession of marijuana with intent to distribute and distribution of the same marijuana on the same day.  United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999); see also United States v. Scalarone, 52 M.J. 539 (N-M. Ct. Crim. App. 1999).

5. Use of Firearms.  Carrying a firearm during a drug trafficking crime is a violation of 18 U.S.C. § 924(g) and may be separately punished.

6. Use of a communication facility (e.g., telephone, fax, beeper) to facilitate a drug transaction is a violation of 21 U.S.C. § 843(b) and may be separately punished.

F. Manufacture.

1. MCM, pt. IV, ¶ 50c(4) states:  “Manufacture” means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of such substance or labeling or relabeling of its container.  The term “production” as used above includes the planting, cultivating, growing, or harvesting of a drug or other substance.

2. The definition is drawn from 21 U.S.C. § 802 (14) and (21).

3. Psilocybin mushrooms.  Appellant planted spores from “magic mushroom” kit, but they failed to germinate.  For the offense to be complete, the controlled substance must be present in the cultivated planting.  Here, appellant is guilty only of an attempt to produce a controlled substance.  Appellant ordered the “magic mushroom” kit, followed the instructions, and planted the spores with the specific intent of growing the contraband, acts that amounted to more than mere preparation.  United States v. Lee , 61 M.J. 627 (C.G. Ct. Crim. App. 2005).

G. Introduction.

1. Introduction means to bring into or onto an installation, vessel, vehicle, or aircraft used by or under control of the Armed Forces.  Installation is broadly defined and includes posts, camps, and stations.  See generally United States v. Jones, 6 C.M.R. 80 (C.M.A. 1952) (Augsburg Autobahn Snack Bar a station).

2. An accused cannot be convicted of aiding and abetting introduction of marijuana by AFOSI agent where accused had already sold marijuana to agent off base and marijuana was agent’s sole property when agent brought it onto base.  United States v. Mercer, 18 M.J. 644 (A.F.C.M.R. 1984).

3. Accused must have actual knowledge that he is entering an installation to be guilty of introduction.  United States v. Thomas, 65 M.J. 132 (C.A.A.F. 2007).

H. Drug Paraphernalia.

1. Because possession of “drug paraphernalia” constitutes only a remote and indirect threat to good order and discipline, it cannot be charged under Article 134(1) as an offense which is directly and palpably prejudicial to good order and discipline.  This offense therefore must be charged under Article 92 as the violation of a general order/regulation or under Article 134(3), assimilating a local state statute under 18 U.S.C. §13.  United States v. Caballero, 49 C.M.R. 594 (C.M.A. 1975)).  The AFCCA has interpreted Caballero to mean that when a punitive lawful general order or regulation proscribing the possession of drug paraphernalia exists, the offense must be charged under Art. 92(1), UCMJ, and not Art. 134.  See also United States v. Borunda, 67 M.J. 607 (A.F. Ct. Crim. App. 2009).  In the absence of a lawful general order or regulation, the Government is at liberty to charge the possession of drug paraphernalia under either Art. 92(3) or Art. 134.  Borunda, 67 M.J. at 607.

2. Most installations have promulgated local punitive regulations dealing with drug paraphernalia. 

3. The DEA model statute has come under attack for being unconstitutionally vague and overbroad.  Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916 (6th Cir. 1980), vacated and remanded, 451 U.S. 1013 (1981).  See generally Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1981) (ordinance requiring a business to obtain a license if it sells any items “designed or marketed for use with illegal cannabis or drugs” upheld; DEA code as adopted in Ohio struck down).

4. Military regulations have been challenged for vagueness and overbreadth.  United States v. Sweney, 48 C.M.R. 476 (A.C.M.R. 1974) (regulation upheld as being neither vague nor overbroad); see also United States v. Cannon, 13 M.J. 777 (A.C.M.R. 1982) (upholding regulation prohibiting possession of instruments or devices that might be used to administer or dispense prohibited drugs).  See generally United States v. Clarke, 13 M.J. 566 (A.C.M.R. 1982); United States v. Bradley, 15 M.J. 843 (A.F.C.M.R. 1983); United States v. Hester, 17 M.J. 1094  (A.F.C.M.R. 1984).

5. To show violation of a regulation by possessing drug paraphernalia, the government need only prove that the accused exercised dominion and control over the paraphernalia.  United States v. McKnight, 30 M.J. 205 (C.M.A. 1990).  Prosecutors must also establish a nexus between drug use and an article that is not intrinsically drug-related.  United States v. Camacho, 58 M.J. 624 (N-M. Ct. Crim. App. 2003) (government failed to show a nexus between use of methamphetamines a butane torch).

6. Applications.

a) Regulations will be closely scrutinized.  Bindles, scales, zip-lock bags, and other materials associated with use or ingestion of drugs did not fall within regulatory prohibition of “drug abuse paraphernalia” of Navy Instruction.  United States v. Painter, 39 M.J. 578  (N.M.C.M.R. 1993) (conviction set aside).

b) Written instructions for producing controlled substances could constitute “drug paraphernalia” within meaning of Air Force Regulation.  United States v. McDavid, 37 M.J. 861  (A.F.C.M.R. 1993).

I. Multiplicity. 

1. Simultaneous possession of different drugs constitutes only one offense for sentencing.  United States v. Hughes, 1 M.J. 346  (C.M.A. 1976); United States v. Griffen, 8 M.J. 66 (C.M.A. 1979).  Simultaneous use of two substances is not necessarily multiplicious for findings but may be unreasonable multiplication of charges.  United States v. Ray, 51 M.J. 511 (N-M. Ct. Crim. App. 1999) overruled on other grounds by United States v. Quiroz, 53 M.J. 600  (N-M.C.C.A. 2000).  Not multiplicious to charge two separate specifications for the simultaneous use of ecstacy and methamphetamine because one is listed in Article 112a, UCMJ, and the other is found in the schedules of the Controlled Substances Act. United States v. Dillon, 61 M.J. 221 (A.F. Ct. C. App. 2005). Simultaneous distribution of two different substances is not multiplicious but may constitute unreasonable multiplication of charges.  See United States v. Inthavong, 48 M.J. 628 (Army Ct. Crim. App. 1998).

2. No distinction between marijuana and hashish.  United States v. Kelly, 527 F.2d 961 (9th Cir. 1976); United States v. Lee, 1 M.J. 15 (C.M.A. 1975); United States v. Nelson, 47 C.M.R. 395 (A.C.M.R. 1973). 

3. Sales at the same place between same parties but fifteen minutes apart were separately punishable.  United States v. Hernandez, 16 M.J. 674 (A.C.M.R. 1983).

4. Possession of drugs from one cache at another time and place constitutes a separate offense warranting separate punishment.  United States v. Marbury, 4 M.J. 823 (A.C.M.R. 1978).

5. Solicitation to sell and transfer of drugs are separately punishable when respective acts occurred at separate times (four hours apart) and at separate locations.  United States v. Irving, 3 M.J. 6 (C.M.A. 1977).

6. Use was separately punishable from possession and sale where quantity used was not same as quantity possessed.  United States v. Smith, 14 M.J. 430 (C.M.A. 1983); see United States v. Nixon, 29 M.J. 505 (A.C.M.R. 1989).  But if quantity used and possessed is the same, possession charge is multiplicious for findings.  United States v. Bullington, 18 M.J. 164 (C.M.A. 1984); see United States v. Hogan, 20 M.J. 221 (C.M.A. 1985). See generally United States v. Cumber, 30 M.J. 736 (A.F.C.M.R. 1990) (use and distribution of same drug not multiplicious for sentencing).

7. Attempted sale of a proscribed drug and possession of the same substance were so integrated as to merge as a single event subject only to a single punishment.  United States v. Smith, 1 M.J. 260 (C.M.A. 1976); see also United States v. Clarke, 13 M.J. 566 (A.C.M.R. 1982).

8. Where charges of possession and transfer of heroin were based on accused’s retention of some heroin after transferring a quantity of the drug to two persons who were to sell it on the open market as accused’s agents, the two offenses were treated as single for purposes of punishment.  United States v. Irving, 3 M.J. 6 (C.M.A. 1977).

9. Possession of one packet of drugs and simultaneous distribution of a separate packet of drugs were separately punishable.  United States v. Wilson, 20 M.J. 3 (C.M.A. 1985) (summary disposition).  Possession with intent to distribute 35 hits of LSD was separately punishable from the simultaneous distribution of 15 hits of LSD.  United States v. Coast, 20 M.J. 3 (C.M.A. 1985) (possession of LSD with intent to distribute was multiplicious with distribution of LSD); see also United States v. Kitts, 23 M.J. 105 (C.M.A. 1986); United States v. Muller, 21 M.J. 205 (C.M.A. 1986); United States v. Jennings, 20 M.J. 223 (C.M.A. 1985).  Sale and possession of a separate, cross-town cache were separately punishable.  United States v. Isaacs, 19 M.J. 220 (C.M.A. 1985).  Where the accused bought a large amount of marijuana to be sold in smaller quantities at a profit, where he made a final sale of approximately one eighth of it to a friend, and where the remainder was retained for future sales or other disposition, different legal and societal norms were violated by the sale and possession, and separate punishments were proper.  United States v. Wessels, 8 M.J. 747 (A.F.C.M.R. 1980); accord United States v. Chisholm, 10 M.J. 795  (A.F.C.M.R. 1981); United States v. DeSoto, 15 M.J. 645  (N-M.C.M.R. 1982); United States v. Anglin, 15 M.J. 1010 United States v. Ansley, 16 M.J. 584  (A.C.M.R. 1983); United States v. Worden, 17 M.J. 887  (A.F.C.M.R. 1984). 

10. Possession and distribution of cocaine on divers occasions may be separate offenses under certain facts.  United States v. Bowers, 20 M.J. 1003 (A.F.C.M.R. 1985) (considering guilty plea and facts before the court).

11. Distribution of a controlled substance necessarily includes possession with intent to distribute. United States v. Savage, 50 M.J. 244 (C.A.A.F. 1999); United States v. Scalarone, 52 M.J. 539 (N-M. Ct. Crim. App. 1999).

12. Introduction of drugs onto military installation and sale of portion on same day not multiplicious for sentencing.  United States v. Beardsley, 13 M.J. 657  (N.M.C.M.R. 1982).  Introduction and possession are, however, multiplicious.  United States v. Decker, 19 M.J. 351  (C.M.A. 1985); United States v. Roman-Luciano, 13 M.J. 490  (C.M.A. 1982) (summary disposition); United States v. Miles, 15 M.J. 431  (C.M.A. 1983); United States v. Hendrickson, 16 M.J. 62  (C.M.A. 1983).  But if the amount possessed is greater than the amount introduced, possession of the excess amount may not be multiplicious for any purpose if the excess amount is explained on the record.  United States v. Morrison, 18 M.J. 108  (C.M.A. 1984) (summary disposition); cf. United States v. Hill, 18 M.J. 459 (possession of excess amount dismissed where not explained on the record).  Finally, introduction and possession with intent to distribute are not multiplicious.  United States v. Zupancic, 18 M.J. 387 (C.M.A. 1984).

13. Introduction with intent to distribute and distribution are multiplicious for findings.  United States v. Wheatcraft, 23 M.J. 687 (A.F.C.M.R. 1986); contra United States v. Beesler, 16 M.J. 988 (A.C.M.R. 1983).

14. Possession and distribution when time, place, and amount are the same are multiplicious for findings.  United States v. Zubko, 18 M.J. 378 (C.M.A. 1984); United States v. Brown, 19 M.J. 63 (C.M.A. 1984).

15. Larceny of and possession of same drugs not multiplicious for sentencing.  United States v. Logan, 13 M.J. 821 (A.C.M.R. 1982).

16. Possession and possession with intent to distribute are multiplicious for sentencing.  The appropriate remedy is dismissal of the possession specification.  United States v. Forance, 12 M.J. 312 (C.M.A. 1981) (summary disposition); United States v. Conley, 14 M.J. 229 (C.M.A. 1982) (summary disposition).

17. Possession of drugs and drug paraphernalia at the same time and place are multiplicious for sentencing.  United States v. Bell, 16 M.J. 204 (C.M.A. 1983) (summary disposition).

18. Possession with intent to distribute and introduction are multiplicious.  United States v. Antonitis, 29 M.J. 217 (C.M.A. 1989), aff’d, 32 M.J. 315  (C.M.A. 1991).

19. Distribution by injection and distribution of tablets of the same drug are multiplicious.  United States v. Gumbee, 30 M.J. 736 (A.F.C.M.R. 1990).

20. Use and distribution based upon accused smoking a marijuana cigarette then passing it to a friend were not multiplicious for sentencing purposes.  United States v. Ticehurst, 33 M.J. 965 (N.M.C.M.R. 1991).

21. For an example of prejudicial multiplicious pleading, see generally United States v. Sturdivant, 13 M.J. 323 (C.M.A. 1982) (charges dismissed where accused’s phone conversation arguably setting up buy of his monthly marijuana ration led to 10 specifications being charged, a general court-martial conviction, and a sentence of dishonorable discharge, 3 years confinement and total forfeitures).

22. Simultaneous distribution not multiplicious. United States v. Inthavong, 48 M.J. 628 (C.A.A.F. 1998).

23. The offenses of introduction of a controlled substance, with the aggravating factor of intent to distribute, and distribution of the same controlled substance are not multiplicious. United States v. Monday, 52 M.J. 625 (Army Ct. Crim. App. 1999). 

J. Special Rules of Evidence.

1. The laboratory report qualifies as a business record or public record exception to the hearsay rule and can be admitted into evidence once its authenticity is established.  M.R.E. 803(6) and (8); United States v. Evans, 45 C.M.R. 353  (C.M.A. 1972); United States v. Miller, 49 C.M.R. 380  (C.M.A. 1974); United States v. Strangstalien, 7 M.J. 225  (C.M.A. 1979); United States v. Vietor, 10 M.J. 69  (C.M.A. 1980).

2. The admission of a laboratory report into evidence as either a business or public record does not give accused an automatic right to the attendance of the person who performed the test.  Rather, the accused must make a showing as to the necessity for producing the witness.  United States v. Vietor, 10 M.J. 69 DA Form 4137 (the chain of custody form) is admissible as either a business record or public record exception to the hearsay rule.  M.R.E. 803(6) and (8).  Contra United States v. Nault, 4 M.J. 318 (C.M.A. 1978); United States v. Porter, 7 M.J. 30  (C.M.A. 1979); United States v. Neutze, 7 M.J. 32  (C.M.A. 1979); United States v. Oates, 560 F.2d 45  (2nd Cir. 1977); United States v. Helton, 10 M.J. 820 United States v. Scoles, 33 C.M.R. 226 (C.M.A. 1963).

3. In United States v. Solis, the Air Force Court of Criminal Appeals held that the Confrontation Clause applies to drug testing reports, rendering them testimonial hearsay and making them inadmissible unless the expert conducting the testing is available for cross examination by the accused. United States v. Solis, 2015 CCA LEXIS 309 (A. F. Ct. C. App. 2015); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

4. When dealing with fungible evidence such as drugs, military courts have traditionally required that an unbroken chain of custody be established to show that the drugs seized were in fact the drugs tested at the lab, and that they were not tampered with prior to testing.  The Court of Military Appeals broadened this approach and declared that even fungible evidence may be introduced without showing an unbroken chain of custody so long as the government can establish that the substance was contained in a “readily identifiable” package and that the contents of that package were not altered in any significant way.  United States v. Parker, 10 M.J. 415  (C.M.A. 1981); United States v. Lewis, 11 M.J. 188 (C.M.A. 1981); United States v. Madela, 12 M.J. 118 (C.M.A. 1981); United States v. Ettelson, 13 M.J. 348, 350­-51 (C.M.A. 1982).  See generally United States v. Morsell, 30 M.J. 808 United States v. Hudson, 20 M.J. 607 (A.C.M.R. 1985).

5. The chemical nature of a drug may be established without the aid of a laboratory report or expert witness but with the testimony of a lay witness familiar with the physical attributes of the drug.  United States v. Tyler, 17 M.J. 381 (C.M.A. 1984) (lay witness qualified to testify what used was cocaine despite alcohol intoxication at time of use).  Tests administered by investigators to determine lay witness’ ability to identify drugs were relevant to ability to identify drugs at time of use. Id.; United States v. Coen, 46 C.M.R. 1201 (N.C.M.R. 1972) (accused’s statement); United States v. Torrence, 3 M.J. 804 (C.G.C.M.R. 1977) (accomplice witness); United States v. Watkins, 5 M.J. 612 (A.C.M.R. 1978) (informer and CID agent); United States v. Jenkins, 5 M.J. 905 (A.C.M.R. 1978) (accused’s admission is not enough to establish nature of drugs without corroborative evidence); United States v. White, 9 M.J. 168 (C.M.A. 1980) (accused’s corroborated extrajudicial statement); United States v. Morris, 13 M.J. 666 (A.F.C.M.R. 1982) (transferee and witness); United States v. Jessen, 12 M.J. 122, 126 (C.M.A. 1981) (“simulated smoking” by undercover agent); cf. United States v. Hickman, 15 M.J. 674 (A.F.C.M.R. 1983) (witness merely calling the substance “marijuana” at trial insufficient); but see United States v. LaFontant, 16 M.J. 236  (C.M.A. 1983) (if evidence insufficient to identify substance beyond a reasonable doubt, accused may be guilty of an attempt).

6. The buyer in a drug sale case is an accomplice, and the defense is entitled to an accomplice instruction.  United States v. Hopewell, 4 M.J. 806  (A.F.C.M.R. 1978); United States v. Helton, 10 M.J. 820 (A.F.C.M.R. 1981); United States v. Scoles, 33 C.M.R. 226 (C.M.A. 1963).  No such instruction is required if buyer was Government informant.  United States v. Hand, 8 M.J. 701 (A.F.C.M.R. 1980), rev’d on other grounds, 11 M.J. 321 (C.M.A. 1981); United States v. Kelker, 50 C.M.R. 410  (A.C.M.R. 1975).

K. Defenses.

1. The fact that the amount of controlled substance involved in any given offense is de minimis is no defense except as it may bear on the issues of the accused’s knowledge.  United States v. Alvarez, 27 C.M.R. 98 (C.M.A. 1958); United States v. Nabors, C.M.R. 101 (C.M.A. 1958); see MCM, pt. IV, ¶ 50c(7).

2. Knowledge, ignorance and mistake defenses. 

a) Ignorance of the law (not knowing that the substance was illegal) is no defense.  United States v. Mance, 26 M.J. 244 (C.M.A. 1988); United States v. Greenwood, 19 C.M.R. 335  (C.M.A. 1955); United States v. Heitkamp, 65 M.J. 861 (A. Ct. Crim. App. 2007) (accused stated that he did not know it was illegal to possess methandienone, a Schedule III controlled substance).

b) Ignorance of the physical presence of the substance is a legitimate defense (“I didn’t know there was anything in the box . . . the locker . . . my pocket . . . the pipe.”).  United States v. Mance, 26 M.J. 244 (C.M.A. 1988).

(1) Ignorance need not be reasonable, only honest. United States v. Hansen, 20 C.M.R. 298 (C.M.A. 1955).

(2) Knowledge that a container was present, without knowledge of the presence of the substance within, will not defeat the defense.  United States v. Avant, 42 C.M.R. 692  (A.C.M.R. 1970).

(3) The accused’s suspicion that a substance may be present is insufficient for guilt.  United States v. Whitehead, 48 C.M.R. 344  (N.C.M.R. 1973); United States v. Heicksen, 40 C.M.R. 475  (A.B.R. 1969). But see United States v. Valle-Valdez, 554 F.2d 911  9th Cir. 1977).  (holding a deliberate avoidance of knowledge was culpable only when coupled with a subjective awareness of high probability).

(4) Under some circumstances deliberate ignorance of a fact can create the same criminal liability as actual knowledge.  United States v. Newman, 14 M.J. 474 (C.M.A. 1983). 

c) Ignorance or mistake as to “the physical composition or character” of the substance is a legitimate defense. (“I thought it was powdered sugar.”  “I didn’t know what it was”).  United States v. Mance, supra; United States v. Greenwood, 19 C.M.R. 335 (C.M.A. 1955); United States v. Ashworth, 47 C.M.R. 702 (A.F.C.M.R. 1973).

(1) The ignorance or mistake need not be reasonable.  United States v. Fleener, 43 C.M.R. 974  (A.F.C.M.R. 1971).

(2) Knowledge of the name of the substance will not necessarily defeat the defense; to be guilty, the accused must know the “narcotic quality” of the substance.  United States v. Crawford, 20 C.M.R. 233  (C.M.A. 1955); United States v. Baylor, 37 C.M.R. 122  (C.M.A. 1967) (Court approves instruction that accused “must know of the presence of the substance and its narcotic nature”).

(3) The mistake must be one which, if true, would exonerate the accused.  United States v. Jefferson, 13 M.J. 779  (A.C.M.R. 1982) (mistake not exonerating where accused accepted heroin thinking he was getting hashish); see also United States v. Morales, 577 F.2d 769, 776  (2nd Cir. 1978); United States v. Jewell, 532 F.2d 697, 698  (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1978).

3. Defense of innocent ingestion does not require corroborative witnesses or direct evidence.  United States v. Lewis, 51 M.J. 376 (C.A.A.F. 1999).

4. The defense of innocent possession does not apply in those cases where an accused exercises control over an item for the purpose of preventing its imminent seizure by law enforcement or other authorities, even if he intends to thereafter expeditiously destroy the item.  United States v. Angone, 54 M.J. 945 (A. Ct. Crim. App. 2001), aff’d, 57 M.J. 70  (C.A.A.F. 2002).

5. Regulatory immunity.  Issue of whether accused was entitled to regulatory exemptions of Army Regulation 600-85 were waived if not raised at trial.  United States v. Gladdis, 12 M.J. 1005  (A.C.M.R. 1982); United States v. Mika, 17 M.J. 812 (A.C.M.R. 1984).

LVI. DRUNKEN OR RECKLESS OPERATION OF A VEHICLE, AIRCRAFT, OR VESSEL, ART 113

 

ENDANGERMENT/THREATENING OFFENSES

LVII. ENDANGERMENT OFFENSES, ART 114

A. Article 114 now includes the offenses of:  1) reckless endangerment; 2) dueling; 3) discharging a firearm under circumstances such as to endanger human life; and 4) carrying a concealed weapon.

1. Reckless Endangerment:

a) Elements

(1) That the accused did engage in conduct

(2) That the conduct was wrongful and reckless or wanton; and

(3) That the conduct was likely to produce death or grievous bodily harm to another person.

b) Definitions: 

(1) “Likely to produce death or grievous bodily harm,” as required for the offense of reckless endangerment, Article 114 does not differ from “likely to produce death or grievous bodily harm” for aggravated assault, Article 128.

(2) Likely to Produce.  When the natural or probable consequence of particular conduct would be death or grievous bodily harm, it may be inferred that the conduct is likely to produce that results.

(3) Wantonness.  “Wanton” includes “reckless” but may connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.

(4) Recklessness.  “Reckless” conduct is conduct that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved.  The accused need not intentionally cause a resulting harm or know that his conduct is substantially certain to cause that result.  The ultimate question is whether, under all the circumstances, the accused’s conduct was of that heedless nature that made it actually or imminently dangerous to the rights or safety of others.

c) Cases.

(1) In United States v. Herrmann, 75 M.J. 672 (A. Ct. Crim. App. 2016), Herrmann failed to inspect parachutes so he could go home early; ACCA held this satisfied the requisite likelihood of harm.  ACCA held for offenses like reckless endangerment, where the harm need not be actually inflicted, the “likelihood” of harm focuses on: (1) on the danger the conduct posed (if the magnitude of the harm is great, evidence is sufficient though the risk is statistically low); (2) the relative needlessness of one's actions (not checking parachutes in order to go home early is reckless; not checking them because of a need for rapid response may not be). Likelihood does not turn on mathematical principles like greater than 50%.  “’Ultimately, the likelihood determination must clear a reasonable threshold of probability’” 

(2) In United States v. Gutierrez, 74 M.J. 61, 66 (C.A.A.F. 2015), an aggravated assault Article 128 case, CAAF overruled the previous standard that the risk of death or grievous bodily harm must be “more than merely a fanciful, speculative, or remote possibility.”  The Court held the correct standard is, “whether—in plain English—the charged conduct was ‘likely’ to bring about grievous bodily harm.”  In United States v. Odie, No. ARMY 20130122, 2016 WL 3008136, at *4 (A. Ct. Crim. App. May 13, 2016), review granted, decision aff'd as modified, (C.A.A.F. July 20, 2016), ACCA applied the newly announced standard to reckless endangerment.  ACCA ultimately held, even though the military judge gave Odie the wrong standard during his guilty plea, the plea could be affirmed applying the new standard to facts admitted by Odie which included that he placed a loaded weapon under a fence near a playground, with a round chambered and the safety on “fire.”

2. Discharging a Firearm:

a) Elements.

(1) That the accused discharged a firearm;

(2) That the discharge was willful and wrongful; and

(3) That the discharge was under circumstances such as to endanger human life.

b) Definitions.

(1) Firearm discharge, endangering human life.  “Under circumstances such as to endanger human life” refers to a reasonable potentiality for harm to human beings in general.  The test is not whether the life was in fact endangered but whether, considering the circumstances surrounding the wrongful discharge of the weapon, the act was unsafe to human life in general.

3. Carrying a Concealed Weapon

a) Elements.

(1) That the accused carried a certain weapon concealed on or about the accused’s person;

(2) That the carrying was unlawful; and

(3) That the weapon was a dangerous weapon.

b) Definitions.

(1) Concealed weapon.  A weapon is concealed when it is carried by a person and intentionally covered or kept from sight.

(2) Dangerous weapon.  For purposes of this paragraph, a weapon is dangerous if it was specifically designed for the purpose of doing grievous bodily harm, or it was used or intended to be used by the accused to do grievous bodily harm.

(3) On or about.  “On or about” means the weapon was carried on the accused’s person or was within the immediate reach of the accused.

LVIII. COMMUNICATING THREATS, ART. 115

A. Communicating Threats.  MCM, pt. IV, ¶ 53; UCMJ art. 115.

1. Elements.

a) That the accused communicated certain language [that a reasonable person would understand as] expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;

b) That the communication was made known to that person or to a third person; and

c) That the communication was wrongful [in that the speaker intended the statements as something other than a joke or idle banter, or intended the statements to serve something other than an innocent or legitimate purpose].

2. Explanation.  This offense consists of wrongfully communicating an avowed present determination or intent to injure the person, property, or reputation of another presently or in the future.  It relates to a potential violent disturbance of public peace and tranquility.  United States v. Grembowic, 17 M.J. 720  (N.M.C.M.R. 1983).  The language in brackets in ¶ 1 originates from a CAAF opinion which analyzed the mens rea requirement for this offense. United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016).  This language reflects the CAAF’s holding in that case that stated whether the communication is a threat is determined using an objective standard.  However, for the threat to be wrongful, it must be judged from the subjective standard (from the accused’s perspective). 

3. Pleading.  United States v. Wartsbaugh, 45 C.M.R. 309 (C.M.A. 1972) (pleading sufficient because evidence of surrounding circumstances may disclose the threatening nature of the words).

4. Applications.

a) Avowed present intent or determination to injure.

(1) Accused’s statement that “I’d kill [my first sergeant] with no problem,” made to health care professional while seeking help for drug addiction and suicidal urges, was not a present determination or intent to kill the putative victim.  United States v. Cotton, 40 M.J. 93 (C.M.A. 1994); United States v. Wright, 65 M.J. 703 (N-M. Ct. Crim. App. 2007) (statements to health care professional not communicating a threat).

(2) Ineffective disclaimer.  United States v. Johnson, 45 C.M.R. 53  (C.M.A. 1972) (“I am not threatening you . . . but in two days you are going to be in a world of pain,” constitutes a threat when considered within the totality of the circumstances).

(3) Conditional threat.

(a) The “impossible” variable.  United States v. Shropshire, 43 C.M.R. 214 (C.M.A. 1971) (physical threat to guard by restrained prisoner not actionable as no reasonable possibility existed that threat would be carried out); see also United States v. Gately, 13 M.J. 757  (A.F.C.M.R. 1982) (upheld lesser included offense of provoking words).

(b) The “possible” variable.  United States v. Phillips, 42 M.J. 127 (C.A.A.F. 1995) (accused’s statement to airman to “keep her damn mouth shut and [she would] make it through basic training just fine” was not premised on an impossible condition, even if the victim was not inclined to report accused’s misconduct); United States v. Brown, 65 M.J. 227 (2006) (accused could control the contingency, and the combination of words & circumstances could make a contingent threat immediate for purposes of Article 134); United States v. Holiday, 16 C.M.R. 28 (C.M.A. 1954) (unrestrained prisoner’s threat to injure guard was actionable even though conditioned on guard’s not pushing prisoner; the condition was one accused had no right to impose); United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App. 1999) (acts and words may express what accused can and will do in the future), aff’d, 55 M.J. 38  (C.A.A.F. 2001); see United States v. Alford, 32 M.J. 596  (A.C.M.R. 1991), aff’d, 34 M.J. 150  (C.M.A. 1992).

(4) Idle jest, banter, and hyperbole are not threatening words.  United States v. Gilluly, 32 C.M.R. 458  (C.M.A. 1963).  In appraising the legal sufficiency of the evidence to sustain a conviction of communicating a threat, the circumstances surrounding the uttering of the words and consideration of whether the words were stated in jest or seriousness are to be evaluated.  See United States v. Johnson, 45 C.M.R. 53 (C.M.A. 1972) (Considered in the light of the circumstances of the situation the following was held to be an illegal threat, “I am not threatening you, but I am telling you that I am not personally going to do anything to you, but in two days you are going to be in a world of pain,” adding a suggestion that the victim “damn well better sleep light”).

(5) The words used by the accused are significant in that they may not evidence a technical threat but rather merely state an already completed act, e.g., “I have just planted a bomb in the barracks.”  Such a statement may constitute a simple disorder under Article 134 or a false official statement under Article 107 if made to a person in an official capacity (e.g., Charge of Quarters).   To meet potential problems of proof, trial counsel should plead such offenses in the alternative.  See United States v. Gilluly, 32 C.M.R. 458  (C.M.A. 1963).

(6) Lack of intent to actually carry out the threat is not a basis for rejecting a guilty plea.  United States v. Greig, 44 M.J. 356 (C.A.A.F. 1996) (accused admitted making threats and wished that the individuals who heard the threats believed them).

(7) Consider language and surrounding circumstances to determine whether or not words express a present determination or intent to wrongfully injure.  United States v. Hall, 52 M.J. 809  (N-M. Ct. Crim. App 1999).

b) Communication to the victim is unnecessary.  United States v. Gilluly, 32 C.M.R. 458  (C.M.A. 1963).

c) No specific intent is required.  The intent which establishes the offense is that expressed in the language of the declaration, not the intent locked in the mind of the declarant.  This is not to say the declarant’s actual intention has no significance as to his guilt or innocence.  A statement may declare an intention to injure and thereby ostensibly establish this element of the offense, but the declarant’s true intention, the understanding of the persons to whom the statement is communicated, and the surrounding circumstances may so belie or contradict the language of the declaration as to reveal it to be a mere jest or idle banter.  United States v. Humphrys, 22 C.M.R. 96 (C.M.A. 1956).

d) A threat to reputation is sufficient.  United States v. Frayer, 29 C.M.R. 416 (C.M.A. 1960); see also United States v. Farkas, 21 M.J. 458 (C.M.A. 1986) (threat to sell victim’s diamond ring sufficient).

e) Threats not directly prejudicial to good order and discipline nor service discrediting do not constitute an offense.  United States v. Hill, 48 C.M.R. 6, 7  (C.M.A. 1973) (lovers’ quarrel).

f) Merger with an assault crime.  United States v. Metcalf, 41 C.M.R. 574  (A.C.M.R. 1969) (threat after assault merges with assault for punishment purposes).

g) Threatening a potential witness is a separate offense from and may constitute obstruction of justice in violation of Article 134.  United States v. Oatney, 41 M.J. 619  (N.M. Ct. Crim. App. 1994), aff’d, 45 M.J. 185  (C.A.A.F. 1996); United States v. Rosario, 19 M.J. 698  (A.C.M.R. 1984).

B. Communicating Threat to Use Explosive and Communicating False Threat Concerning Use of Explosive.  MCM, pt. IV, ¶ 53; UCMJ art. 115(b) and 115(c).

1. Expansion of Offense.  In 2005, this offense was expanded from “bomb” threats or hoaxes to include threats and hoaxes of other types, including explosives, weapons of mass destruction, biological agents, chemical agents, and other hazardous material.  See MCM, pt. IV, ¶ 53c; MCM, App. 23 ¶ 109.

2. Explanation.  “Threat” and “hoax” offenses can be charged under either Article 115, UCMJ, or under Article 134(3), UCMJ, a non­-capital federal crime violative of 18 U.S.C.  

3. “Innocent Motive.”  Claim of joking motive is not a defense to “bomb hoax” charge, as the victim’s concern, which satisfies the requirement for maliciousness, can be inferred.  United States v. Pugh, 28 M.J. 71 (C.M.A. 1989); see TJAGSA Practice Note, “I Was Only Joking” Not a Defense to “Bomb Hoax” Charge, Army Law., Jul. 1989, at 39 (discusses Pugh).

4. Similarly to Communicating a Threat, whether the communication is a threat is determined using an objective standard.  However, for the threat to be wrongful, it must be judged from the subjective standard (from the accused’s perspective).  See United States v. Gebert, 2016 CCA LEXIS 662 (N-M Ct. Crim. App. Nov. 15, 2016) (citing United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016)).

 

LIX. RIOT OR BREACH OF PEACE, ART. 116

LX. PROVOKING SPEECHES OR GESTURES, ART. 117

A. Provoking Words or Gestures. 

1. Elements.

a) That the accused wrongfully used words or gestures towards a certain person;

b) That the words or gestures used were provoking or reproachful; and

c) That the person toward whom the words or gestures were used was a person subject to the UCMJ.

2. Mens Rea.  No specific intent is required.  United States v. Welsh, 15 C.M.R. 573 (N.B.R. 1954).

3. Applications.

a) The provoking words must be used in the presence of the victim and must be words which a reasonable person would expect to induce a breach of the peace under the circumstances.  MCM, pt. IV, ¶ 55c.

(1) United States v. Davis, 37 M.J. 152 (C.M.A. 1993).  Accused’s statement to MP, “F___ you, Sergeant,” and “F___ the MPs” was expected to induce a breach of the peace, even though the MP was not personally provoked and was trained to deal with such comments.

(2) United States v. Thompson, 46 C.M.R. 88 (C.M.A. 1972).  Because of the physical circumstances, the offensive words to a stockade guard were unlikely to cause a fight.

(3) United States v. Shropshire, 34 M.J. 757 (A.F.C.M.R. 1992). Insulting comments to policeman by handcuffed suspect under apprehension were insufficient to constitute provoking words as police are trained to overlook abuse.

(4) United States v. Meo, 57 M.J. 744 (C.A.A.F. 2002).  Guilty plea improvident when accused told ensign “[T]his is bullshit, I’m going to explode and I don’t know when or on who.”  Although statement was disrespectful, it did not rise to the level of “fighting words.”

(5) United States v. Ybarra, 57 M.J. 807 (N-M. Ct. Crim. App. 2002) pet. denied, 58 M.J. 289 (C.A.A.F. 2003).  Accused pled guilty to provoking speech for using racial slurs to an NCO who was trying to restrain him.

(6) United States v. Killion, 75 M.J. 209 (C.A.A.F. 2016).  Military judge erred in instructing members to consider how an average person would react to accused's offensive words, not how hospital staff to whom the words were directed would react. The judge's instruction was incorrect in this case because a violation of Article 117 depended not on the likely reaction of the hypothetical average person but rather on the likely reaction of an objectively reasonable person in the position of the person to whom the words were addressed, and medical personnel who treated the Servicemember had training in dealing with unruly and intoxicated patients.

b) Not necessary that the accused know that the person towards whom the words or gestures are directed is a person subject to the UCMJ.  MCM, pt. IV, ¶ 55c(2).

c) Merger with an assault crime.  United States v. Palms, 47 C.M.R. 416 (A.C.M.R. 1973).

d) Separate offense from disrespect.  United States v. McHerrin, 42 M.J. 672 (Army Ct. Crim. App. 1995).

e) Whether the speech or conduct is provoking or reproachful is judged by its impact on the actual parties to whom the language or behavior is directed, not the “average person.”  United States v. Killion, 75 M.J. 209 (C.A.A.F. 2016).

LXI. WRONGFUL BROADCAST/DISTRIBUTION OF INTIMATE VISUAL IMAGES, ART 117a

 

MURDER/MANSLAUGHTER/CHILD ENDANGERMENT

LXII. MURDER, ART. 118

A. Common Law Classifications of Homicides.

1. At common law, homicides are classified as justifiable, excusable, or criminal.  Justifiable homicides are those commanded or authorized by law; they are not punishable.  Excusable homicides are those in which the killer is to some extent at fault but where circumstances do not justify infliction of full punishment for criminal homicide; i.e., the killing remains criminal but the penalty is reduced.  Any killing that is not justifiable or excusable is criminal homicide -- either murder, manslaughter, or negligent homicide.

2. “Born Alive” Rule.  United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000).  The UCMJ does not define “human being” for the purposes of Articles 118 and 119, but Congress intended those articles to be construed with reference to the common law.  A child is “born alive” if it: (1) was wholly expelled from its mother’s body, and (2) possessed or was capable of an existence by means of a circulation independent of that of the mother.  Even if the child never took a breath of air from its own lungs, the child’s capability to do so is sufficient.  But see UCMJ, Article 119a, Death or Injury of an Unborn Child, as cited in United States v. Boie, 70 M.J. 585, 2011 CCA LEXIS 422, where conviction was upheld under Article 119a where airman put drugs into his pregnant wife’s food causing an abortion.

B. Causation.

1. Generally.  See also Chapter 5, Defenses.

2. Death From Multiple Causes.

a) United States v. Gomez, 15 M.J. 954 (A.C.M.R. 1982) (adopts two-part time of death standard:  either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of total brain functions).

b) United States v. Schreiber, 18 C.M.R. 226 (C.M.A. 1955) (accused held responsible for death even if his gunshot wound, following a severe beating of the victim by another, only contributed to the death by causing shock).

c) United States v. Houghton, 32 C.M.R. 3 (C.M.A. 1962) (in child abuse death, contributing to or accelerating the death of the victim sufficient to establish responsibility).

3. The Fragile Victim.  If the wound, though not ordinarily fatal, causes the death of the victim, the accused is responsible.  United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958).

4. Negligent or improper medical treatment of the victim will not excuse the accused unless it constitutes gross negligence or intentional malpractice.  United States v. Baguex, 2 C.M.R. 424 (A.B.R. 1952) (death by asphyxiation from aspiration into lungs of blood from facial injuries); United States v. Eddy, 26 C.M.R. 718 (A.B.R. 1958).

5. Accused’s act need not be the sole cause of death, or the latest/most immediate cause of death.  United States v. Romero, 1 M.J. 227 (C.M.A. 1975) (accused guilty of negligent homicide in overdose death after helping victim position syringe); see also United States v. Mazur, 13 M.J. 143 (C.M.A. 1982) (accused guilty of involuntary manslaughter by culpable negligence when assisted victim who could no longer inject self with heroin).

6. Accused is responsible if his act caused the victim to kill herself unintentionally or by her negligence.  See United States v. Schatzinger, 9 C.M.R. 586 (N.B.R. 1953).

7. Intervening cause.

a) An unforeseeable, independent, intervening event that causes the victim’s death may negate causation by the accused.  See United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003) (holding doctors’ failure to diagnose appellant’s pregnancy was not an intervening cause of the baby’s death sufficient to relieve appellant of criminal liability (negligent birthing of child)).

b) Contributory negligence by the victim must loom so large in comparison to the accused’s conduct as to be an intervening cause.  United States v. Oxendine, 55 M.J. 323 (2001) (victim’s voluntary participation in a dangerous joint venture, being held outside a third-story window by his ankles, was not an intervening cause).

c) When an accused’s wrongful acts set in motion an unbroken, foreseeable chain of events resulting in another’s death, his conduct is the proximate cause of the death.  United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week old infant, who was resuscitated at the emergency room but remained in a persistent vegetative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability); see also United States v. Markert, 65 M.J. 677 (N-M. Ct. Crim. App. 2007) (weapon horseplay resulted in Marine being shot in head; removal of life support was not an intervening cause).

C. Premeditated Murder.  UCMJ art. 118(1).

1. Intent.  Requires a specific intent to kill and consideration of the act intended to bring about death.  The intent to kill need not be entertained for any particular or considerable length of time and the existence of premeditation may be inferred from the circumstances surrounding the killing.  MCM, pt. IV, ¶ 56c(2)(a).  See generally United States v. Eby, 44 M.J. 425 (1996).

a) The “premeditated design to kill” does not have to exist for any particular or measurable length of time.  United States v. Sechler, 12 C.M.R. 119 (C.M.A. 1953).

b) Intent only to inflict grievous bodily harm is insufficient.  United States v. Mitchell, 7 C.M.R. 77 (C.M.A. 1953).

c) The distinction between premeditated murder and unpremeditated murder is sufficiently clear to withstand constitutional challenge.  United States v. Curtis, 44 M.J. 106, 147 (C.A.A.F. 1996);   United States v. Loving, 41 M.J. 213 at 279-80 (C.M.A. 1994), aff’d, 517 U.S. 748 (1996).

d) Premeditation is not a question of time but of reflection.  United States v. Cole, 54 M.J. 572 (Army Ct. Crim. App. 2000), aff’d, 55 M.J. 466 (C.A.A.F. 2001).

e) Instructions.  Because of the potential confusion to panel members in making the distinction between premeditated and unpremeditated murder, counsel should consider requesting instructions in addition to the pattern instruction in the Military Judges BenchbookSee United States v. Eby, 44 M.J. 425 (C.A.A.F. 1996); United States v. Hoskins, 36 M.J. 343 (C.M.A. 1993), cert. denied, 513 U.S. 809 (1994).

2. Proof of Premeditation.

a) The existence of premeditation may be inferred from the circumstances.  MCM, pt. IV, ¶ 56c(2)(a).  United States v. Williams, 39 M.J. 758 (A.C.M.R. 1994).

b) Inferred from the viciousness of the assault. United States v. Ayers, 34 C.M.R. 116 (C.M.A. 1964).

c) Inferred from the number of blows and the nature and location of injuries. United States v. Teeter, 12 M.J. 716 (A.C.M.R. 1981), aff’d in part, 16 M.J. 68 (C.M.A. 1983).

d) Inferred from prior anger and threats against the victim. United States v. Bullock, 10 M.J. 674 (A.C.M.R. 1981), aff’d, 13 M.J. 490  (C.M.A. 1982).

e) Inferred from the fact that the weapon was procured before killing. United States v. Mitchell, 2 M.J. 1020 (A.C.M.R. 1976).

f) Inferred from accused’s elaborate preparations preceding the murder, elaborate precautions to avoid detection, and brutal nature of the attack on the victim. United States v. Matthews, 13 M.J. 501 (A.C.M.R. 1982), rev’d as to sentence, 16 M.J. 354 (C.M.A. 1983).

g) Inferred from lack of provocation; disadvantage of victim; and nature, extent and duration of attack.  United States v. Viola, 26 M.J. 822 (A.C.M.R. 1988), cert. denied, 490 U.S. 1020 (1989).

h) Other circumstances.  United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996) (after clearly premeditated murder of first victim accused stabbed victim’s wife who came to his aid and then indecently assaulted her); United States v. Curry, 31 M.J. 359 (C.M.A. 1990) (violent shaking of child victim, coupled with the accused’s demeanor at hospital, prior abuse of child, and incredible explanation of injuries); United States v. Levell, 43 M.J. 847 (N-M. Ct. Crim. App. 1996) (opening gun case, walking to victim laying on the ground, saying “what do you think of this,” then firing fatal shots showed accused reflected with a cool mind on killing victim); United States v. Shanks, 13 M.J. 783 (A.C.M.R. 1982) (homicidal act part of conspiracy); see also United States v. Cooper, 28 M.J. 810 (A.C.M.R. 1989), aff’d, 30 M.J. 201  (C.M.A. 1990); United States v. Nelson, 28 M.J. 553 (A.C.M.R. 1989).

3. Transferred Intent.  See MCM, pt. IV, ¶ 56c(2)(b).

a) United States v. Black, 11 C.M.R. 57 (C.M.A. 1953) (where the accused shot the first victim with intent to murder and the bullet passed through his body striking a second, unintended victim, the accused was properly convicted of murder as to both victims; though the accused was convicted of unpremeditated murder for the second victim).

b) United States v. Willis, 46 M.J. 258 (C.A.A.F. 1997) (accused’s act of pulling trigger three times at nearly point blank range, moving the pistol between each shot with the evident intent of covering small area occupied by intended victim and her husband was sufficient to infer accused’s intent to kill intended victim’s husband under doctrine of transferred intent).

4. State of Mind Defenses.  All state of mind defenses apply to reduce premeditated murder to unpremeditated murder; however,

a) Voluntary intoxication may reduce premeditated murder to unpremeditated murder or murder by murder by inherently dangerous act, but it may not reduce premeditated or unpremeditated murder to manslaughter or any other lesser offense.  United States v. Morgan, 37 M.J. 407 (C.M.A. 1993); M.C.M. pt. IV, ¶ 43c(2)(c). 

b) Rage or personality disorder do not necessarily reduce to unpremeditated murder.  United States v. Roukis, 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d, 62 M.J. 212 (2005) (“The fact that appellant may have been enraged at the time of the killing, whether as a result of his particular personality disorder or the circumstances of his marriage, ‘does not necessarily mean that he was deprived of the ability to premeditate or that he did not premeditate.’”).

5. Punishment.

a) Maximum: Death.  Capital case procedures are set forth in R.C.M. 1004.  The M.C.M. capital procedures were held to be constitutional in Loving v. United States, 517 U.S. 748 (1996).

b) Mandatory Minimum: Imprisonment for life with eligibility for parole.  M.C.M., pt. IV, ¶ 56d(1).

D. Unpremeditated Murder.  UCMJ art. 118(2).

1. Nature of Act.  The offense can be based on an act or omission to act where there is a duty to act; United States v. Valdez, 35 M.J. 555 (A.C.M.R. 1992) (parent’s deliberate failure to provide medical and other care to his child which resulted in child’s death supported charge of murder), aff’d, 40 M.J. 491  (C.M.A. 1994).  See also United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000)(holding that a mother who chose to give birth without medical assistance and failed to check on the health of her newborn for over an hour, resulting in the child’s death, could be guilty of involuntary manslaughter based on culpable negligence in her duty to care for the child); but see United States v. Riley, 47 M.J. 603 (A.F. Ct. Crim. App. 1997) (murder conviction set aside and finding of involuntary manslaughter of an accused who sought no medical attention during pregnancy or delivery), modified and aff’d, 58 M.J. 305 (C.A.A.F. 2003) (involuntary manslaughter conviction set aside in favor of negligent homicide conviction because accused’s failure to seek medical care was not culpably negligent).

2. Intent.  Accused must have either a specific intent to kill or inflict great bodily harm.

a) The inference of intent.  A permissive inference is recognized that a person intends the natural and probable consequences of an act purposely done by him.  United States v. Owens, 21 M.J. 117, 126 (C.M.A. 1985); United States v. Varraso, 21 M.J. 129 (C.M.A. 1985) (assisted suicide); see United States v. Wilson, 26 M.J. 10 (C.M.A. 1988).

b) Great bodily harm.  A serious injury not including minor injuries such as a black eye or bloody nose, but includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injury.  MCM, pt. IV, ¶ 56c(3)(b).

c) All state of mind defenses apply except voluntary intoxication.  MCM, pt. IV, ¶ 56c(2)(c). Voluntary intoxication cannot defeat capacity of accused to entertain intent to kill or inflict great bodily harm required for unpremeditated murder; one who voluntarily intoxicates himself or herself cannot be heard to complain of being incapable, by virtue of that intoxication, of intentionally committing acts leading to death of another person.  United States v. Morgan, 37 M.J. 407 (C.M.A. 1993).

3. Heat of passion defense reduces unpremeditated murder to voluntary manslaughter.  See paragraph H, below.

a) Heat of passion must be caused by adequate provocation.  The provocation must be adequate to excite uncontrollable passion in a reasonable person.  MCM, pt. IV, ¶56c(1)(b).

4. Transferred intent also applies to unpremeditated murder.  MCM. pt. IV, ¶ 56c(3)(a) (“The intent need not be directed toward the person killed”).  See United States v. Willis, 43 M.J. 889 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 (C.A.A.F. 1997).

5. Maximum Punishment: Life imprisonment, with or without eligibility for parole.  MCM, pt. IV, ¶ 43e(2).  R.C.M. 1003(b)(7).

E. Murder While Doing An Inherently Dangerous Act.  UCMJ art. 118(3).

1. In General.  Alternative theory to unpremeditated murder.

2. Intent.

a) Specific intent not required. United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (firing a weapon indiscriminately in an inhabited area during a sham firefight in Panama during Operation JUST CAUSE).

b) Knowledge. Accused must have known that the probable consequence of his act would be death or great bodily harm. United States v. Berg, 30 M.J. 195 (C.M.A. 1990), aff’d on reconsideration, 31 M.J. 38, 40 (C.M.A. 1990).  Such knowledge may be proved by circumstantial evidence.  MCM, pt. IV, ¶ 56c(4)(b).

c) Death-causing act must be intentional. United States v. Hartley, 36 C.M.R. 405 (C.M.A. 1966).

d) The act must evidence wanton heedlessness of death or great bodily harm.  MCM, pt. IV, ¶ 56c(4)(a).

3. Nature of Act.  The conduct of the accused must be inherently dangerous to “another”, i.e., at least one other person.  This is a change Congress made in the law pursuant to the National Defense Authorization Act for Fiscal Year 1993 in response to United States v. Berg, 31 M.J. 38 (C.M.A. 1990), in which the Court of Military Appeals required the accused’s conduct to endanger more than one other person.

4. Malice Requirement.  For a discussion of the malice required, see United States v. Vandenack, 15 M.J. 230 (C.M.A. 1983) ((vehicular homicide case with no defense that accused did not intend to cause death or great bodily injury, provided the act showed wanton disregard of human life).

5. Voluntary intoxication not a defense. MCM, pt. IV, ¶ 56c(3)(c).

6. Examples of Inherently Dangerous Conduct.

a) United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993) (firing a weapon indiscriminately in an inhabited area during a sham firefight in Panama during Operation JUST CAUSE).

b) United States v. Hartley, 36 C.M.R. 405 (C.M.A. 1966) (shooting into a crowded room).

c) United States v. Judd, 27 C.M.R. 187 (C.M.A. 1959) (shooting into a house trailer with two others present).

d) United States v. Vandenack, 15 M.J. 230 (C.M.A. 1983) (speeding and intentionally running red light after a prior accident).

F. Felony Murder.  UCMJ art. 118(4).

1. Statutory Penalty:  death or life imprisonment.

2. In General.  Homicide must be committed during the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abuse of a child, robbery, or aggravated arson.  United States v. Jefferson, 22 M.J. 315 (C.M.A. 1986).

3. Intent.  No specific intent required, except that of underlying felony.  United States v. Hamer, 12 M.J. 898 (A.C.M.R. 1982).

4. Causation.  Causal relationship between felony and death must be established.  United States v. Borner, 12 C.M.R. 62 (C.M.A. 1953).

5. Multiplicity.  Felony murder is multiplicious with premeditated murder, United States v. Teeter, 16 M.J. 68 (C.M.A. 1983), and with unpremeditated murder.  United States v. Hubbard, 28 M.J. 27 (C.M.A. 1989).

6. Capital Punishment.

a) In Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court held that to impose the death penalty for felony murder the accused must have killed or have had the intent to kill. 

b) Tison v. Arizona, 481 U.S. 137 (1987) (expands Enmund, holding that the Eighth Amendment does not prohibit the death penalty where the accused is a major participant in a felony that results in murder and “the mental state is one of reckless indifference”).

c) R.C.M. 1004(c)(8) allows the death penalty only if the accused was the actual perpetrator of the killing or was a principal whose participation in the burglary, rape, rape of a child, sexual assault, sexual assault of a child, aggravated sexual contact, sexual abused of a child, robbery, or aggravated arson was major and who manifested a reckless indifference for human life.  CAAF has held that this factor requires proof of an intent to kill or reckless indifference to human life.  Loving v. Hart, 47 M.J. 438 (C.A.A.F. 1998).

d) Accused’s pleas of guilty to unpremeditated murder and robbery by means of force and violence were, in context, pleas to the capital offense of felony murder and as such violated Article 45(b), UCMJ.  United States v. Dock, 28 M.J. 117 (C.M.A. 1989).

7. Instructions.  Where members could have reasonably found that accused formed the intent to steal from victim either prior to the infliction of the death blows or after rendering him helpless, he was not entitled to an instruction that, to be convicted of felony-murder he had to have the intent to commit the felony at the time of the actions which caused the killing.  United States v. Fell, 33 M.J. 628 (A.C.M.R. 1991).

G. Attempted Murder.  UCMJ art. 80.  Attempted murder requires a specific intent to kill.

1. Although a service member may be convicted of murder if he commits homicide without an intent to kill, but with an intent to inflict great bodily harm (UCMJ art. 118(2)) or while engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life (UCMJ art. 118(3)), those states of mind will not suffice to establish attempted murder.  United States v. Roa, 12 M.J. 210 (C.M.A. 1982).

2. Beyond mere preparation.  Where the purported co-conspirator was acting as a government agent at all relevant times, the court would consider only the acts of the accused in determining whether the planned murder-for-hire went beyond mere preparation, so as to constitute attempted murder.  United States v. Owen, 47 M.J. 501 (Army Ct. Crim. App. 1997).

LXIII. MANSLAUGHTER, ART. 119

A. Voluntary Manslaughter. UCMJ art. 119(a).

1. Defined.  An unlawful killing done with an intent to kill or inflict great bodily harm but done in the heat of sudden passion caused by adequate provocation.

a) Article 119(a) as a lesser-included offense.  When the evidence places heat of passion and adequate provocation at issue in the trial, the military judge must instruct the members, sua sponte, on the lesser included offense of voluntary manslaughter.  United States v. Wells, 52 M.J. 126 (C.A.A.F. 1999).

b) Objective requirements.

(1) Adequate provocation so as to excite uncontrollable passion in a reasonable man. Adequate provocation is an objective concept. United States v. Stark, 17 M.J. 519 (A.C.M.R. 1984) (insulting, teasing, and taunting remarks are inadequate provocation).  But cf. United States v. Saulsberry, 43 M.J. 649 (Army Ct. Crim. App. 1995) (finding adequate provocation after sustained taunting and simple assault), aff’d, 47 M.J. 493 (C.A.A.F. 1998).

(2) Provocation not sought or induced.

(3) Unspent at moment killing occurs. United States v. Bellamy, 36 C.M.R. 115 (C.M.A. 1966) (whether a particular provocation has spent its force & what constitutes a reasonable time for cooling off are questions of fact for the panel/fact-finder). The rage must continue throughout the attack.  United States v. Seeloff, 15 M.J. 978 (A.C.M.R. 1983).

c) Subjective requirements.  The accused must in fact have been acting under such a heat of passion, fear, or rage.  See United States v. Staten, 6 M.J. 275 (C.M.A. 1979); United States v. Jackson, 6 M.J. 261 (C.M.A. 1979).

d) Sufficiency of proof.  Despite defense claim that accused acted in sudden heat of passion, conviction of premeditated murder of wife’s lover was supported by sufficient evidence, including the obtaining of a special knife, decapitation of the victim, and comment to onlookers that “this is what happens when you commit adultery.” United States v. Schap, 44 M.J. 512 (Army Ct. Crim. App. 1996), aff’d, 49 M.J. 317 (C.A.A.F. 1998) (once raised at trial, Gov’t must disprove its existence beyond a reasonable doubt).

e) Marital infidelity alone is not enough to justify voluntary manslaughter, still need to show accused was deprived of ability to premeditate or that the accused did not premeditate.  United States v. Roukis, 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d, 62 M.J. 212 (2005).

2. Attempted Voluntary Manslaughter.  The offenses of attempted voluntary manslaughter and assault with intent to commit voluntary manslaughter require a showing of accused’s specific intent to kill.  A showing only of a specific intent to inflict great bodily harm will be insufficient to establish these offenses.  However, an intent to kill can be inferred from circumstantial evidence.  United States v. Barnes, 15 M.J. 121 (C.M.A. 1983).

B. Involuntary Manslaughter Resulting From A Culpably Negligent Act.  UCMJ art. 119(b)(1).

1. Intent.  The standard of culpable negligence applies.  MCM, pt. IV, ¶ 57c(2).

2. Culpable negligence.  “A degree of carelessness greater than simple negligence.  It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others.”  MCM, pt. IV, ¶ 57c(2)(a)(i). 

a) Consequences are “foreseeable” when a reasonable person, in view of all the circumstances, would have realized the substantial and unjustifiable danger created by his acts.  United States v. Oxendine, 55 M.J. 323 (2001) (holding a drunk victim by his ankles out of a third-story window without safety devices as part of a game of trust).

b) Applications:

(1) Horseplay with Weapon.  United States v. Markert, 65 M.J. 677 (N-M. Ct. Crim. App. 2007).

(2) Drug overdose death of another.  United States v. Henderson, 23 M.J. 77 (C.M.A. 1986) (providing drug, encouraging use, providing private room, presence); United States v. Mazur, 13 M.J. 143 (C.M.A. 1982) (assisting fellow soldier to inject heroin into his vein); see generally Milhizer, Involuntary Manslaughter and Drug Overdose Death:  A Proposed Methodology, Army Law., Mar. 1989, at 10.

(3) Child Abuse.  United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week old infant, who was resuscitated at the emergency room but remained in a persistent vegetative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability); United States v. Brown, 26 M.J. 148 (C.M.A. 1988) (violently shaking a child); United States v. Baker, 24 M.J. 354 (C.M.A. 1987) (violently throwing child to an unpadded floor); United States v. Mitchell, 12 M.J. 1015 (A.C.M.R. 1982) (beating a child who would not stop crying).

(4) Participating in a dangerous joint venture. United States v. Oxendine, 55 M.J. 323 (C.A.A.F. 2001) (accused helped hang drunk Marine out of a third story window during thrill-seeking game with other Marines; drunk Marine fell to his death).

(5) Giving car keys to a drunk.  United States v. Brown, 22 M.J. 448 (C.M.A. 1986) (finding an individual culpably negligent in aiding and abetting involuntary manslaughter by allowing drunk person to his car while remaining as passenger).

(6) Failing to follow safety rules and driving after brakes failed.  United States v. Cherry, 22 M.J. 284 (C.M.A. 1986).

(7) Culpably negligent surgical procedures.  United States v. Ansari, 15 M.J. 812 (N.M.C.M.R. 1983); but see United States v. Billig, 26 M.J. 744 (N.M.C.M.R. 1988).

(8) Failure of parent to seek medical care for child.  United States v. Martinez, 48 M.J. 689 (Army Ct. Crim. App. 1998), aff’d, 52 M.J. 22 (1999); United States v. Nelson, 53 M.J. 319 (C.A.A.F. 2000)but see United States v. Riley, 58 M.J. 305 (2003) (intentionally unassisted delivery of a baby where medical care was readily available was not culpably negligent so as to support a finding of involuntary manslaughter; found negligent homicide).

3. Proximate Causation. 

a) "To be proximate, an act need not be the sole cause of death, nor must it be the immediate cause--the latest in time and space preceding the death. But a contributing cause is deemed proximate only if it plays a material role in the victim's [death]." United States v. Cooke, 18 M.J. 152, 154 (C.M.A. 1984) (quoting United States v. Romero, 24 C.M.A. 39, 1 M.J. 227, 230, 51 C.M.R. 133 (C.M.A. 1975)).

b) United States v. Stanley, 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week old infant, who was resuscitated at the emergency room but remained in a persistent vegetative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability).

4. Effect of Contributory Negligence.  The deceased’s or a third party’s contributory negligence may exonerate the accused if it “looms so large” in comparison with the accused’s negligence that the accused’s negligence is no longer a substantial factor in the final result.  United States v. Cooke, 18 M.J. 152 (C.M.A. 1984).

5. Charge of involuntary manslaughter based upon culpably negligent failure to act requires, as a threshold matter, proof of a legal duty to act.  United States v. Cowan, 42 M.J. 475 (C.A.A.F. 1995); MCM, pt. IV, ¶ 57c(2)(a)(ii).

6. Involuntary manslaughter by culpable negligence not raised when death is the result of an intentional assault.  United States v. Wilson, 26 M.J. 10 (C.M.A. 1988).

7. Pleading.  When charged under a culpable negligence theory, an involuntary manslaughter specification must allege that death was a reasonably foreseeable consequence of the accused’s misconduct.  United States v. McGhee, 29 M.J. 840 (A.C.M.R. 1989); see generally TJAGSA Practice Note, The Scope of Assault, Army Law., Apr. 1990, Oct. 67, 68-70 (discusses McGhee).

C. Involuntary Manslaughter While Perpetrating An Offense Directly Affecting The Person Of Another.  UCMJ art. 119(b)(2).

1. Requires an act affecting some particular person as distinguished from an offense affecting society in general.  MCM, pt. IV, ¶ 57c(2)(b).

2. Applications.

a) Assault.  United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Wilson, 26 M.J. 10 (C.M.A. 1988); United States v. Madison, 34 C.M.R. 435 (C.M.A. 1964); see generally TJAGSA Practice Note, Involuntary Manslaughter Based Upon an Assault, Army Law., Aug. 1990, at 32 (discusses Jones); but see United States v. Richards, 56 M.J. 282 (2002) (insufficient evidence to necessitate involuntary manslaughter instruction).

b) Drug Overdose Death of Another.  United States v. Sargent, 18 M.J. 331 (C.M.A. 1984) (mere sale of drugs is not an offense “directly affecting the person of another”); see also United States v. Dillon, 18 M.J. 340 (C.M.A. 1984); see generally Milhizer, Involuntary Manslaughter and Drug-Overdose Deaths:  A Proposed Methodology, Army Law., Mar. 1989, at 10.

LXIV. DEATH OR INJURY OF AN UNBORN CHILD, ART. 119a

A. Death or Injury to an Unborn Child.  UCMJ Article 119a.

1. Implementing Executive Order signed 18 April 2007.  ISSUES:

a) Article 119a exempts the following individuals from prosecution: 

(1) Any person authorized by state or federal law to perform abortions for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;

(2) Any person for any medical treatment of the pregnant woman or her unborn child; or

(3) Any woman with respect to her unborn child.

b) Intentional Killing of an Unborn Child or Attempts.  UCMJ art. 119a specifically states that an individual who intentionally kills an unborn child or attempts to kill an unborn child will be punished under Articles 80, 118, or 119.  Nonetheless, Part IV, ¶ 58a.b.(3) & (4) provide elements for an offense involving the intentional killing of an unborn child as well as elements for an offense involving attempts to do so.  These elements require the specific intent to kill the unborn child. 

c) Scienter.  For injuring or killing an unborn child, the government need not prove: 1) that the accused knew the victim was pregnant, nor 2) that the accused should have known that the victim was pregnant.  Additionally, for these two offenses, the government need not prove that the accused specifically intended to cause the death of, or bodily injury to, the unborn child.

d) Punishment.  Such punishment, other than death, as a court-martial may direct, but shall be consistent with the offense had it occurred to the unborn child’s mother. 

2. No reported cases on this offense.  But see United States v. Robbins, 52 M.J. 159 (1999) (prosecuting accused for involuntary manslaughter by terminating the pregnancy of his wife, in violation of § 2903.04 of the Ohio Revised Code, as assimilated by the Assimilative Crimes Act (ACA)).

LXV. CHILD ENDANGERMENT, ART. 119b

A. Child Endangerment.  Article 119b.  MCM, pt. IV, ¶ 59.

1. Elements:

a) That the accused had a duty for the care of a certain child;

b) That the child was under the age of 16 years; and

c) That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence.

2. Issues.

a) Culpable negligence is a degree of carelessness greater than simple negligence.  It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission.  MCM, pt. IV, ¶ 59(c)(2).

b) There is no requirement of actual physical or mental harm to the child.  However, if the accused’s conduct does cause actual physical or mental harm, the potential maximum punishment increases.   MCM, pt. IV, ¶ 59(c)(3).

c) Age of the victim is a factor in determining the quantum of negligence.  The explanation provides several examples of acts to assist in determining whether an act is negligent, and if so, whether the negligence rises to the level of culpable negligence.  See MCM, pt. IV, ¶ 59(c)(5).

d) The duty of care is determined by the totality of the circumstances and may be established by statute, regulation, legal parent-child relationship, mutual agreement, or assumption of control or custody by affirmative act. 

3. Cases

a) In United States v. Plant, 74 M.J. 297 (C.A.A.F. 2015), the CAAF held that “endanger” requires proof that the accused’s conduct resulted in a reasonable probability that the child would be harmed.  The Court found legally insufficient a conviction for child endangerment based on the accused’s being intoxicated while responsible for the care of a healthy thirteen-month-old boy because the government established no more than a possibility of harm from the accused’s irresponsible behavior. 

b) United States v. Medeiros, ACM S32289, 2016 LEXIS 338 (A. F. Ct. C. App. 2016)  (holding that evidence was insufficient to sustain a conviction of child endangerment when Servicemember used methamphetamine and marijuana with her boyfriend, and knew her boyfriend used methamphetamine and marijuana in the presence of the child, because there was no reasonable probability the child would be harmed).

c) Service member found to have committed child endangerment by culpable negligence when she failed to take her ten year old son to a hospital after he received visible injuries on 8% of his body. Court held this was a general intent crime that could be proven by circumstantial evidence.  Evidence that child lived with the service member, that she was familiar with her son’s extracurricular activities and the types of injuries he sustained, and that his injuries were visible enough to school staff that they sought immediate medical attention was sufficient.  United States v. Koth, ARMY 20150179, 2017 CCA LEXIS 145 (A. C. C. A. 2017). See also United States v. Jackson, No. 201600299, 2017 CCA LEXIS 758 (N.M.C.C.A. 2017). (holding that accused committed child endangerment by culpable negligence when he placed his four-year-old stepdaughter in a bathtub and ran hot water to punish her, then did not seek immediate medical treatment for the resulting second and third-degree burns to her legs and feet).

d) Evidence that accused left her six-week-old child in a car seat outdoors, during which time he was exposed to 50-degree temperatures and periodic rain for almost seven hours, left her son in soiled diapers for hours at a time, exposed him to animal feces and urine, open trash bags, and dirty diapers because she did not clean her home, was sufficient to sustain a conviction for two counts of child endangerment.  United States v. Lafontaine, No. ACM 39004, 2017 CCA LEXIS 523 (A. F. Ct. C. App. 2017).

 

LARCENY/FRAUD OFFENSES

LXVI. LARCENY AND WRONGFUL APPROPRIATION, ART. 121

A. Larceny and Wrongful Appropriation.  MCM, pt. IV, ¶ 64; UCMJ art. 121.

1. Elements.

a) Larceny.

(1) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

(2) That the property belonged to a certain person;

(3) That the property was of a certain value, or of some value; and

(4) That the taking, obtaining, or withholding by the accused was with the intent permanently to deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property for the use of the accused or for any person other than the owner.

(5) [If the property is alleged to be military property, add the following element:]  That the property was military property.

b) Wrongful appropriation.

(1) That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

(2) That the property belonged to a certain person;

(3) That the property was of a certain value, or of some value; and

(4) That the taking, obtaining, or withholding by the accused was with the intent temporarily to deprive or defraud another person of the use and benefit of the property or temporarily to appropriate the property for the use of the accused or for any person other than the owner.

2. Types of Property Covered.

a) Must be tangible personal property.  Article 121 lists the objects which can be the subject of larceny as “any money, personal property, or article of value of any kind.” 

(1) Gift cards have tangible value.  United States v Manriquez, ARMY 20140893 (A. Ct. Crim. App. May 20, 2016) (unauthorized use of a credit or debit card requires the user falsely represent he has the authority to use the card, so it is usually charged as an “obtaining” type larceny by “false pretenses,” but gift cards, have value in themselves without any representation.  Activated gift cards have a “market value” that is greater than the cost of the plastic used to make the card.  An activated gift card, like a movie ticket, sports ticket, or lottery ticket, is an object with a value equal to its market value.  When the Accused placed $2,600 worth of money on seven (7) stolen gifts card he committed a larceny in that amount.)

b) Intangible or incorporeal items cannot be the subject of an Article 121 violation.  United States v. Stevens 75 M.J. 548 (N-M.Ct.Crim.App. 2015)(online “currency” for use in a video game is not tangible or capable of being possessed); United States v. Mervine, 26 M.J. 482 (C.M.A. 1988) (held that debt is not the equivalent of money for purposes of Article 121 and, therefore, an attempt to falsify payment records in order to extinguish the debt cannot be the subject of a larceny); United States v. Dunn, 27 M.J. 624 (A.F.C.M.R. 1988) (administrative costs incurred by the owner of stolen property cannot be stolen because they are an inherent intangible interest of the owner of the property); United States v. Ford, 2000 WL 35801710 (A. Ct. Crim. App. 2000) (Distinguish from Mervine  in that when the appellant entered a credit to her account via the J.C. Penny system it resulted in her credit card company issuing her a check for the amount of the credit which is a theft of tangible property). United States. v. Loniak, 2017 WL 3610472 (A. Ct. Crim. App. 2017 (fraudulent acquisition of store credit can be subject of larceny) .

c) Article 121 does not cover theft of services.  Theft of taxicab services, phone services, use and occupancy of government quarters, and use of a rental car cannot be the subject of larceny under Article 121.  They may be charged under Article 121b.  United States v. Abeyta, 12 M.J. 507 (A.C.M.R. 1981); United States v. Case, 37 C.M.R. 606 (A.B.R. 1966); United States v. Jones, 23 C.M.R. 818 (A.F.B.R. 1956); United States v. McCracker, 19 C.M.R. 876 (A.F.B.R. 1955).

d) Theft of services may be prosecuted in any of the following ways: (1) under Article 121b, UCMJ, as obtaining services under false pretenses or as dishonorably failing to pay just debts under Article 134, UCMJ; (2) under 18 U.S.C. § 641 as assimilated into military law by Article. 134(3), UCMJ, if the services taken are property of the United States; (3) as a violation of a state statute assimilated through 18 U.S.C. § 13.  See United States v. Wright, 5 M.J. 106 (C.M.A. 1978), and United States v. Herndon, 36 C.M.R. 8 (C.M.A. 1965); see also United States v. Hitz, 12 M.J. 695 (N.M.C.M.R. 1981) (accused was properly charged with and convicted of unlawfully obtaining telephone services of the U.S. Navy in violation of UCMJ art. 134); United States v. Roane, 43 M.J. 93 (C.A.A.F. 1995); United States v. Green, 44 M.J. 631 (C.G. Ct. Crim. App. 1996) (obtaining rental car services by false pretenses was properly charge as theft of services under Article 134).

e) Larceny involving the misuse of a credit or debit card occurring prior to 1 January 2019, the proper victim is usually either the merchant offering the purchased goods or the entity presenting the money, i.e. the bank or credit card company, not the holder of the misused card.  See United States v. Williams, 75 M.J. 129 (C.A.A.F. 2016) and MCM pt. IV, para. 46.c.(1)(i)(vi)).  In some instances, the card holder may be the appropriate victim, but these are rare.  United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014) (Air Force was proper victim as card agreement between Air Force and U.S. Bank obligated Air Force to make payment for transactions even if they involved misuse or abuse by the cardholder).  United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010) (When there is a principal-agent relationship between the accused and the debit card holder and the accused obtains access to the account by false pretenses, it is proper to list the account holder as the victim).

3. Element 1:  That the accused wrongfully took, obtained, or withheld property (not services) from another.  The drafters intended to codify only common law larceny, larceny by false pretenses, and embezzlement.  United States v. Williams, 75 M.J. 129 (C.A.A.F. 2016); United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010)

a) Wrongful taking.  Requires dominion, control, and asportation.  See generally United States v. Carter, 24 M.J. 280 (C.M.A. 1987); United States v. Pacheco, 56 M.J. 1 (C.A.A.F. 2001) (stealing war trophies). The taking, obtaining or withholding is wrongful if done without the knowing consent of the owner or other lawful authority.  MCM, pt. IV, ¶ 64c(1)(d); See also United States v. McGowan, 41 MJ 406 (C.A.A.F. 1995).

(1) United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968).  Where accused’s accomplices were government agents, larceny of government property could not stand as no taking ever occurred, i.e., articles were never out of government control.  See United States v. Cosby, 14 M.J. 3 (C.M.A. 1982) (accused can be guilty of wrongful taking even though property was released to him by competent authority); see also United States v. Cassey, 34 C.M.R. 338 (C.M.A. 1964) (OSI authorized accomplices to proceed with delivery of government property and then apprehended accused after delivery as he attempted to leave base).

(2) Asportation.

(a) Larceny by taking continues as long as asportation of the property continues.  The original asportation continues as long as the perpetrator is not satisfied with the location of the goods and causes the flow of their movement to continue relatively uninterrupted.  United States v. Escobar, 7 MJ 197 (M.C.A. 1979). 

(b) Larceny continues as long as the asportation continues.  United States v. Escobar, 7 M.J. 197 (C.M.A. 1979) (considering duration of larceny/asportation in context of establishing court-martial jurisdiction; accused stole jacket off post and carried it onto post, thus providing court-martial jurisdiction over the offense); see also United States v. Henry, 18 M.J. 773 (N.M.C.M.R. 1984) (accused’s mistaken claim-of-right defense negated during asportation phase) aff’d in part, rev’d in part on multiplicity grounds, 21 M.J. 172  (C.M.A. 1985).  See also United States v. Whitten, 56 M.J. 234 (C.A.A.F. 2002) (an accused’s actions in joining an ongoing conspiracy to steal a duffel bag before two co-conspirators completed asportation of the property was legally sufficient to sustain convictions of conspiracy to commit larceny and larceny).

(c) Because the crime of larceny continues through the asportation phase, anyone who knowingly assists in the actual movement of the stolen property is a principal in the larceny.  No distinction is made whether the continuation of the asportation by one other than the actual taker was prearranged or the result of decisions made on the spur of the moment.  United States v. Escobar, 7 M.J. 197 (C.M.A. 1979).  See also United States v. Ramirez, 2015 WL 5610416 (N-M.Ct.Crim.App. 2015).

(d) Person who participates in on-going larceny may simply be an accessory after the fact, not a principal, depending upon the purpose of his participation.  If participant’s motive is to secure the fruits of the crime, the aider becomes a participant in the larceny and is chargeable with larceny; but if his motive is to assist the perpetrator to escape detection and punishment, he is properly charged as an accessory after the fact. United States v. Manuel, 8 M.J. 823 (A.F.C.M.R. 1979).

(e) Larceny complete when soldier having custody over items moved them to another part of central issue facility with felonious intent.  As such, when accused received the property it was already stolen, his actions did not make him a principal to larceny but rather only a receiver of stolen property under Article 134.  United States v. Henderson, 9 M.J. 845 (A.C.M.R. 1980).

(f) When asportation is ongoing and the accused helps the perpetrator of the larceny he is guilty of larceny as an aider or abettor.  United States v. Cannon, 29 M.J. 549 (A.C.M.R. 1989).  See generally TJAGSA Practice Note, Larceny and Proving Asportation, Army Law., Feb. 1990, at 67 (discusses Cannon). See generally TJAGSA Practice Note, Aiding and Abetting Larceny, Army Law., Nov. 1990, at 40 (discussing Keen).

(3) Lost or abandoned property.  Abandoned property has no owner and cannot be stolen. United States v. Meeks, 32 MJ 1033 (A.F.C.M.R. 1991). Additionally, as larceny requires the specific intent to steal, if accused had an honest belief that the property was abandoned he has a complete defense. United States v. Turner, 27 M.J. 217 (C.M.A. 1988).

(4) Electronic transfers as a “taking.” 

(a) United States v. Meng, 43 M.J. 801 (A.F. Ct. Crim. App. 1995), rev. denied, 44 M.J. 47 (C.A.A.F. 1996) (data entries made by accused in his computerized finance records to pay himself more BAS than he was eligible for was larceny).

(b) Where accused never took, obtained, withheld, or possessed the fees, guilty pleas to so much of larceny specifications as pertained to credit card and automatic teller machine (ATM) processing fees were legally improvident.  United States v. Sanchez, 54 M.J. 874 (A. Ct. Crim. App. 2001) (court notes in dicta that the appellant would have been provident to obtaining services under false pretenses as to the bank processing fees).

b) Obtaining by false pretenses.  A false pretense is a false representation of past or existing fact, which may include a person’s power, authority or intention.  The pretense must be false when made and when the property is obtained, and it must be knowingly false in the sense that it is made without a belief in its truth.  Although the pretense need not be the sole cause inducing the owner to part with the property, it must be an effective and intentional cause of the obtaining.  MCM, pt. IV, ¶ 64c(1)(e).

(1) Debit Card and ATM Transactions.  United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010) (accused obtained access to account by false pretenses, representing that he would use the funds only for the purposes victim authorized; evidence was legally sufficient to support a larceny).  However, see United States v. Helfer, 2003 WL 25945577 (A. Ct. Crim. App. 2003) (ATM processing fees/surcharges are not included in the amount of the theft from an ATM).

(2) In loan application, false promises to repay may support larceny by false pretenses.  United States v. Cummins, 26 C.M.R. 449 (C.M.A. 1958).  

(3) Knowledge of fraud not imputed between government agents. United States v. Williams, 3 M.J. 555 (A.C.M.R. 1977), rev’d on other grounds, 4 M.J. 336 (1978). 

(4) Insurance fraud larceny not complete until accused cashed settlement check. United States v. Seivers, 8 M.J. 63 (C.M.A. 1979), aff’d, 9 M.J. 397 (C.M.A. 1980). 

(5) Sham marriage to obtain monetary benefits may support larceny by false pretenses. United States v. Bolden, 28 M.J. 127 (C.M.A. 1989). 

(6) Obtaining services by false pretenses (long-distance telephone services) is charged under Article 121b (previously Article 134). United States v. Flowerday, 28 M.J. 705 (A.F.C.M.R. 1989); United States v. Perkins, 56 M.J. 825 (A. Ct. Crim. App. 2001).

(7) False pretenses and unauthorized pay/allowances.

(a) When Congress authorized basic allowance for housing for service members with “dependents,” it did not intend to include a person linked to a service member only by a sham marriage.  A marriage, as intended by Congress, is an undertaking by two parties to establish a life together and assume certain duties and obligations.  A marriage entered into solely for the purpose of obtaining government benefits is a sham marriage and not entitled to BAH.  United States v. Phillips, 52 M.J. 268 (C.A.A.F. 2000)United States v. Windham, 77 M.J. 543 (A.Ct.Crim.App. 2017) (the determinative issue is not whether the appellant’s marriage certificate is or is not valid, but rather whether the appellant’s sole purpose in entering into the marriage was to obtain government funds to which he was not otherwise entitled due to entering into a sham marriage).

(b) A false pretense may exist by one’s silence or by a failure to correct a known misrepresentation.  The accused obtained use of government quarters at Fort Stewart, Georgia between 4 November 1994 and 14 January 1998 by misrepresenting that he was married, when in fact he was divorced.  Even though he made no affirmative misrepresentation, his silence when his divorce became final and subsequent failure to correct a known misrepresentation constituted false representation sufficient to establish that he wrongfully obtained services under false pretenses, an Article 134 offense.  The court specifically analogized obtaining services by false pretenses (Article 134) with larceny by false pretenses (Article 121).  United States v. Perkins, 56 M.J. 825 (A. Ct. Crim. App. 2001) (ACCA formally adopted the position already taken by NMCCA and AFCCA).

(c) Procuring casual pay by misrepresentation or failing to inquire into legitimacy of casual pay does not amount to larceny by false pretenses. United States v. Johnson, 30 M.J. 930 (A.C.M.R. 1990).

(d) United States v. Johnson, 39 M.J. 707 (N.M.C.M.R. 1993), aff’d, 40 M.J. 318 (C.M.A. 1993) (larceny of BAQ and VHA by false pretenses when accused divorced his wife, knew that he was under a duty to report his change in marital status, but remained silent and exploited government reliance on his previous statement of marital status in order to continue receiving pay).

(e) United States v. Bulger, 41 M.J. 194 (C.M.A. 1994) (Larceny by false pretenses includes those instances where a service member has dependents, but, while drawing BAH based on those dependents, does not provide financial support to them).

(8) Defrauding insurance company by killing insured or intentionally destroying property in order to collect insurance proceeds is larceny by false pretenses. United States v. Garner, 43 M.J. 435 (C.A.A.F. 1996).

(9) United States v. Fenner, 53 M.J. 666 (A.F. Ct. Crim. App. 2000) (sole lessee collected $225 from his 3 roommates for rent and utilities.  After his roommates paid him one month, he told them that someone had stolen all the money, which was a lie.  Each of the roommates agreed to pay an extra $75 per month for the next three months to replace the stolen money.  The court affirmed the part of a specification that alleged larceny of $75 that one of the roommates paid the accused toward the supposedly stolen rent as the roommate paid the accused $75 under the false pretense that the money had been stolen).

c) Withholding.  A “withholding” may arise as a result of a failure to return, account for, or deliver property to its owner when a return, accounting, or delivery is due, even if the owner has made no demand for the property; or it may arise as a result of devoting property to a use not authorized by its owner.  Generally this is so whether the person withholding the property acquired it lawfully or unlawfully.  MCM, pt. IV, ¶ 64c(1)(b).  This theory encompasses the common law offenses of embezzlement and conversion.

(1) United States v. Moreno, 23 M.J. 622 (A.F.C.M.R.), pet. denied, 24 M.J. 348 (C.M.A. 1986) (accused wrote checks against money erroneously deposited in his account; intent to steal (withholding) may be formed after the property is obtained).

(2) Embezzlement requires a fiduciary relationship and a lawful holding. United States v. Castillo, 18 M.J. 590 (N.M.C.M.R. 1984);  see also United States v. McFarland, 23 C.M.R. 266 (C.M.A. 1957).

(3) Wrongful conversion requires an accounting to the owner. United States v. Paulk, 32 C.M.R. 456 (C.M.A. 1963). 

(4) United States v. Head, 6 M.J. 840 (N.C.M.R. 1979) (larceny by withholding when a victim mistook accused to be a robber and handed his wallet to the accused who, at that time, formed the intent and took money from the wallet.  Though he abandoned the wallet, the accused was responsible for larceny of the sum he took).

(5) Neither a receiver of stolen property nor an accessory after the fact can be convicted of larceny on the theory that, with knowledge of the identity of the owner, he withheld the stolen property from the owner. United States v. Sanderson, CM 438057 (A.C.M.R. 29 Jun. 79) (unpub.); see also United States v. Jones, 33 C.M.R. 167 (C.M.A. 1963).

(6) United States v. Bilbo, 9 M.J. 800 (N.C.M.R. 1980).  Accused who lawfully obtained loans from fellow Marines but then failed to repay those loans was found guilty of wrongful appropriation, not larceny. 

(7) United States v. Hale, 28 M.J. 310 (C.M.A. 1989).  Retention of rental car beyond period contemplated by rental contract constitutes wrongful appropriation (unless intent to permanently deprive the owner of the property can be proven).

(8) Withholding of unauthorized pay or allowances.  These cases differ from the cases annotated above in which unauthorized pay and allowances are obtained by false pretenses.  The withholding cases discussed here involve either government error or a change in the serviceman’s status, which effects his continued entitlement to the pay or allowance.  The property is obtained lawfully. 

(a) In the absence of a fiduciary duty to account, a withholding of funds otherwise lawfully obtained is not larcenous. United States v. Watkins, 32 M.J. 327 (A.C.M.R. 1990); United States v. Johnson, 39 M.J. 707 (N.M.C.M.R. 1993); but see United States v. Thomas, 36 M.J. 617 (A.C.M.R. 1992) (accused had a duty to inform government of change in circumstances, by failing to do so he is guilty of larceny of funds); cf. United States v. Markley, 40 M.J. 581 (A.F.C.M.R. 1994) (failure of duty to report change in marital status effecting entitlement to allowances may support conviction for dereliction of duty); United States v. Antonelli, 43 M.J. 183 (C.A.A.F. 1995) (allowances, including BAQ and VHA, remain the property of the United States unless they are used for their statutory or regulatory purposes), aff’d, 45 M.J. 12  (C.A.A.F. 1996).

(b) Once service member realizes that he or she is erroneously receiving pay or allowances and forms the intent to steal that property, the service member has committed larceny even without an affirmative act of deception or a duty to account for the funds.  United States v. Helms, 47 M.J. 1 (C.A.A.F. 1997) (unanimously resolving issue left open in United States v. Antonelli, 43 M.J. 183 (C.A.A.F. 1995), aff’d, 45 M.J. 12  (C.A.A.F. 1996)); United States v. Perkins, 56 M.J. 825 (Army Ct. Crim. App. 2001).

(c) United States v. Gray, 44 M.J. 585 (N-M. Ct. Crim. App. 1996) (accused’s silence after he discovered error of housing office and finance to continue his BAQ and VHA payments after government quarters were assigned was insufficient to support conviction for larceny by wrongful withholding absent any affirmative steps by accused to ensure that he would continue to be overpaid.  Further, the accused fully expected the Navy to recoup overpayments eventually, without disciplinary action, as it had done in the past).

(d) United States v. Stadler, 44 M.J. 566 (A.F. Ct. Crim. App. 1996) (larceny of OHA and COLA allowances where accused continued to collect these allowances after his family returned to CONUS and he moved into government quarters), aff’d, 47 M.J. 206  (C.A.A.F. 1997).

(e) Evidence insufficient to establish that accused’s spouse had possessory or ownership rights to BAQ at w/dep rate and thus failed to establish that accused had stolen BAQ from his wife.  United States v. Evans, 37 M.J. 468 (C.M.A. 1993).

(f) Excess BAQ was “military property of the United States.”  United States v. Dailey, 37 M.J. 463 (C.M.A. 1993).

(9) Conversion.  The wrongful possession or disposition of another’s property as if it were one’s own. Additionally, the act of appropriating the property of another to one’s own benefit or the benefit of another.    Black’s Law Dictionary (8th Ed. 2004).

(a) United States v. Antonelli, 35 M.J. 122 (C.M.A. 1992).  Conversion theory of larceny may apply to accused who receives BAQ and VHA allowances to support his dependents, but who does not actually provide support.

4. Element 2:  That the property described belonged to a person other than the accused.

a) The “owner” refers to the person who, at the time of the taking, obtaining, or withholding, had the superior right to possession of the property in light of all conflicting interests therein which may be involved in the particular case.  MCM, pt. IV, ¶ 46c(1)(c)(ii).  See United States v. Evans, 37 M.J. 468 (C.M.A. 1993) (evidence insufficient to establish that accused’s spouse had possessory or other ownership right to BAQ and, thus, failed to establish that accused stole BAQ from his spouse); United States v. Cohen, 12 M.J. 573 (A.F.C.M.R. 1981) (even though the checks were intended for various banks and credit unions, the United States had possession of the checks while they were in the mail; thus the charge of larceny from the United States was proper); United States v. Jett, 14 M.J. 941 (A.C.M.R. 1982) (victim is anyone with a superior right of possession to the accused, regardless of who has title); United States v. Meadows, 14 M.J. 1002 (A.C.M.R. 1982) (can commit larceny or wrongful appropriation by taking military equipment from one unit to another); United States v. Lewis, 19 M.J. 623 (A.C.M.R. 1984) (government retains ownership in TDY advance).

b) To be guilty of larceny, accused must take property from one having a superior possessory interest. United States v. Faircloth, 45 M.J.172 (C.A.A.F. 1996) (accused forged endorsement in financing company’s behalf on insurance check issued to accused and financing company as co payees to auto damage; during providency, accused admitted financing company had superior possessory interest).  See also United States v. Faggiole, 2016 WL 6426694 (N-M.Ct.Crim.App. 2016) (bank account holder had superior possessory interest in funds than did bank as bank account holder withdrew the money from his own account and possessed it prior to giving it the appellant).

5. Element 3:  That the property in question was of a value alleged, or of some value.

a) Ordinarily the value of stolen property is determined by its market value at the time of the theft.  United States v. Smith, 1960 WL 4439 (C.A.A. 1960).  See also United States v. Lewis, 13 M.J. 561 (A.F.C.M.R. 1982) (accused properly convicted of full value of item where he switched price tags and paid the lower price).

(1) Government item.  Government price lists can be used to establish value.  See M.R.E 803(17).

(2) Non-government item.  Average retail selling price established by recent purchase price of like item, testimony of market expert, testimony of owner’s opinion as to value, etc.

b) Value tokens.  Writings representing value may be considered to have the value which they represent, even though contingently, at the time of the theft.  MCM, pt. IV, ¶ 64c(1)(g)(iii).  See United States v. Windham, 36 C.M.R. 21 (C.M.A. 1965); United States v. Riverasoto, 29 M.J. 594 (A.C.M.R. 1989) (drafted check—face value);United States v. Cook, 15 C.M.R. 622 (A.F.B.R. 1954) (gasoline coupons—face value); United States v. Frost, 46 C.M.R. 233 (C.M.A. 1973) (blank check—nominal value); see also United States v. Falcon, 16 M.J. 528 (A.C.M.R. 1983); United States v. Stewart, 1 M.J. 750 (A.C.M.R. 1973) (airline ticket—face value); United States v. Payne, 9 M.J. 681 (A.F.C.M.R. 1980) (accounts receivable—nominal value); United States v. Sowards, 5 M.J. 864 (A.F.C.M.R. 1978) (money orders—face value); but see United States v. McCollum, 13 M.J. 127 (C.M.A. 1982) (value can include what items might bring in illegal channels—“thieves value”).

c) Value of property must reasonably approximate the loss.  United States v. Eggleton, 47 C.M.R. 920 (C.M.A. 1973).

d) Operating a scheme that results in the taking or diversion of money on a recurring basis (i.e. housing allowance fraud) results in one crime and the value of the taken money can be aggregated.  United States v. Hines, 73 M.J. 119 (C.A.A.F. 2014).

e) For larceny and sale of military property under Article 108, the same aggregation principles apply as for standard larceny:  values can be aggregated for items stolen or sold at the same time and place.  United States v. Fiame, 74 M.J. 585 (A. Ct. Crim. App. 2015).

f) In United States v. Batiste, 11 M.J. 791 (A.F.C.M.R. 1981), the court held that urine, which was to be sent to the laboratory for testing, was an article of value for purposes of larceny prosecution and the immediate substitution by accused of a like quantity of urine did not diminish the offense of wrongful appropriation.

6. Element 4:  That the taking, obtaining, or withholding by the accused was with the intent [permanently/temporarily] to deprive or defraud another person of the use and benefit of the property or [permanently/temporarily] to appropriate the property for the use of the accused or for any other person other than the owner.

a) Concurrence of intent and wrongful act.  The wrongful taking, obtaining or withholding must be accompanied by the intent to steal or wrongfully appropriate the property.  Although a person gets property by a taking or obtaining which was not wrongful or which was without a concurrent intent to steal, a larceny is nevertheless committed if an intent to steal is formed after the taking or obtaining and the property is wrongfully withheld with that intent.  MCM, pt. IV, ¶ 64c(1)(f)(i).

b) Intent may be proved by circumstantial evidence.  United States v. Zaiss, 42 M.J. 586 (Army Ct. Crim. App. 1995) (intent to steal may be inferred when accused secretly takes property, hides it, and denies knowing anything about it).

c) Wrongful appropriation of government property requires a specific intent to deprive the government or a unit thereof of more than mere possession of its property.  United States v. McGowan, 41 M.J. 406 (C.A.A.F. 1995).  Taking military equipment for maintenance does not constitute wrongful appropriation.  United States v. Taylor, 44 C.M.R. 274 (C.M.A. 1972).  Similarly, the incidental use of a government vehicle for private purposes does not constitute misappropriation, provided the vehicle is also used for authorized purposes without diversion or deviation.  United States v. Lutgert, 40 C.M.R. 94 (C.M.A. 1969). 

d) Mere borrowing without consent is not always an offense.  United States v. Harville, 14 M.J. 270 (C.M.A. 1982); United States v. Thomas, 34 C.M.R. 3 (C.M.A. 1963) (borrowing clothes from barracks occupant can be defense to wrongful appropriation).

e) There may be a limited right of self-help to seize another’s property in order to satisfy a debt or acquire security for it, if there is a prior agreement between the parties providing for such recourse, or if the soldier takes property honestly believing he has a superior claim of right to that specific property.  United States v. Jackson, 50 M.J. 868 (Army Ct. Crim. App. 1999), aff’d, 53 M.J. 220 (C.A.A.F. 2000); United States v. Gunter, 42 M.J. 292 (C.A.A.F. 1995); United States v. Smith, 14 M.J. 68 (C.M.A. 1982).

(1) Self-help is not justified where the debt is uncertain; and the value of the property taken must reasonably approximate the loss.  United States v. Cunningham, 14 M.J. 539 (A.C.M.R. 1982), rev’d and remanded on other grounds, 15 M.J. 282 (C.M.A. 1983); United States v. Kelley, 39 M.J. 1011 (A.C.M.R. 1994); see also United States v. Eggleton, 47 C.M.R. 920 (C.M.A. 1973).

(2) Honest mistake of fact by accused that he was entitled to receive property may be a defense to larceny.  United States v. Turner, 27 M.J. 217 (C.M.A. 1988).

(3) “Claim of Right.”  A defense exists for a soldier who takes property from another honestly believing that he has a superior claim of right to that specific property.  United States v. Gunter, 42 M.J. 292 (1995); United States v. Jackson, 50 M.J. 868 (Army Ct. Crim. App. 1999) (engagement ring and exercise bike given to fiancé).

(4) No right of retrieval is recognized for contraband.  United States v. Petrie, 1 M.J. 333 (C.M.A. 1976).

(5) No right of accused to unilaterally elevate himself to position of secured creditor by grabbing at will chattels belonging to service member. United States v. Martin, 37 M.J. 546 (N.M.C.M.R. 1993)(taking of ring from service member who owed money as security for debt was wrongful taking).

f) Motive does not negate intent.  For example, if the accused took an item as a joke or to teach the owner a lesson about security, the taking is nonetheless wrongful if, viewed objectively, harm was caused (i.e., the owner is permanently or temporarily deprived of the use or benefit of the property).  MCM, pt. IV, ¶ 64c(1)(f)(iii); United States v. Kastner, 17 M.J. 11 (C.M.A. 1983); United States v. Johnson, 17 M.J. 140 (C.M.A. 1984).

g) An accused that believes property to be abandoned lacks the mens rea required for larceny.  United States v. Malone, 14 M.J. 563 (N.M.C.M.R. 1982); see also MCM, pt. IV, ¶ 46c(1)(h)(i); see also United States v. Turner, 27 M.J. 217 (C.M.A. 1988); United States v. Jones, 26 M.J. 1009 (A.C.M.R. 1988).  But see United States v. Clark, 2014 WL 1725799 (N-M.Ct.Crim.App. 2014) (willful ignorance of the status of the property will not be construed as mistake of fact as to its status).

h) Intent to pay for, replace, or return property is not a defense.  MCM, pt. IV, ¶ 64c(1)(f)(iii)(A)-(B); see United States v. Brown, 30 M.J. 693 (A.C.M.R. 1990); United States v. Woodson, 52 M.J. 688 (C.G. Ct. Crim. App. 2000).   But see United States v. Boddie, 49 M.J. 310 (C.A.A.F. 1998) (in dicta, the CAAF states that an intent to pay for property may be a defense if there is “a substantial ability to do so”).

i) Intent to pay for, replace, or return money or a negotiable instrument having no special value above its face value, with the intent to return an equivalent amount, is a defense to larceny.  United States v. Hegel, 52 M.J. 778 (C.G. Ct. Crim. App. 2000) (accused stole CitiBank Visa card and used it, but because the accused claimed he intended to pay the bill in full when due, the plea of guilty to larceny of funds from CitiBank was improvident).

j) Overdraft protection may negate intent to steal in cases of larceny by false pretenses involving bad checks.  United States v. McCanless, 29 M.J. 985 (A.F.C.M.R. 1990); see United States v. McNeil, 30 M.J. 648 (N.M.C.M.R. 1990); see generally TJAGSA Practice Note, Overdraft Protection and Economic Crimes, Army Law., Jul. 1990, at 45.

k) Where transfer of possession occurred prior to act of accused, no wrongful taking or withholding has occurred. United States v. Hughes, 45 M.J. 137 (C.A.A.F. 1996)(accused merely placed lock on his assigned wall locker which contained property belonging to another soldier that was stored there without the permission of the accused).

7. Multiplicity.

a) When a larceny of several articles is committed at substantially the same time and place, it is a single larceny, even though the articles belong to different persons.  MCM, pt. IV, ¶ 64c(1)(h)(ii); United States v. Warner, 33 M.J. 522 (A.F.C.M.R. 1991); United States v. Ruiz, 30 M.J. 867 (N.M.C.M.R. 1990); United States v. Miller, 2000 C.A.A.F. LEXIS 207 (Feb. 24, 2000) (contemporaneous theft of two different victims’ checks, which the accused found in one victim’s drawer, constituted a single larceny); United States v. LePresti, 52 M.J. 644 (N-M. Ct. Crim. App. 1999).

b) United States v. Florence, 5 C.M.R. 48 (C.M.A. 1952).  Without evidence to justify joining larcenies into one specification and thereby increasing the penalty, the Government should have charged separately.  See also United States v. Armstrong, 2003 WL 21511139, (A.F.Ct.Crim.App. 2003).

c) United States v. Gillingham, 1 M.J. 1193 (N.C.M.R. 1976).  Theft of calculator from one office was not multiplicious with theft of second calculator, moments later, from adjoining office.

d) United States v. Alvarez, 5 M.J. 762 (A.C.M.R. 1978).  Housebreaking and larceny in the same transaction were not multiplicious.

e) United States v. Burney, 44 C.M.R. 125 (C.M.A. 1971).  Larceny and wrongful appropriation of a truck to transport stolen goods were not multiplicious.

f) United States v. Harrison, 4 M.J. 332 (C.M.A. 1978).  Six larcenies and six facilitating false official statements were not multiplicious for sentencing purposes.

8. Divisible Property.  United States v. Pardue, 35 C.M.R. 455 (C.M.A. 1965).  Where the accused is charged only with larceny of an automobile, he may not be found not guilty of wrongful appropriation of the automobile but guilty of larceny of an essential part (i.e., the tires).  See also United States v. Jones, 13 M.J. 761 (A.F.C.M.R. 1982).

9. Permissive Inferences.

a) Inference of wrongfulness arising out of possession of recently stolen property.  If the facts establish that property was wrongfully taken from the possession of the owner and that shortly thereafter the property was discovered in the knowing, conscious, exclusive, and unexplained possession of the accused, the fact-finder at trial may infer that the accused took the property.  United States v. Pasha, 24 M.J. 87 (C.M.A. 1987); United States v. Hairston, 26 C.M.R. 334 (C.M.A. 1958); United States v. Morton, 15 M.J. 850 (A.F.C.M.R. 1983).

b) Passing cash register without offering to pay for an item concealed in the accused’s pocket creates a permissive inference of intent to steal.  United States v. Wynn, 23 M.J. 726 (A.F.C.M.R. 1986), sentence vacated and remanded by, 26 M.J. 232 (C.M.A. 1988).

10. Variance.

a) Because the identity of the victim is not an essential element of either larceny or wrongful appropriation, a variance in establishing ownership of the item taken will not always be fatal to the government’s case.  United States v. Craig, 24 C.M.R. 28 (C.M.A. 1957) (variance regarding victim in larceny case not prejudicial error); United States v. Davis, 31 C.M.R. 486 (C.G.B.R. 1962) (identity of victim of wrongful appropriation not an essential element); United States v. Roberto, 31 C.M.R. 349 (A.B.R. 1961) (variance as to ownership of funds in larceny case not fatal).

b) Variance in the date of the larceny may be fatal when the theory of larceny also changes.  United States v. Wray, 17 M.J. 735 (C.M.A. 1984) (change of dates and theory from taking to taking and withholding was fatal variance).

11. Larceny of Mail Matter.  Theft of misaddressed mail is included within the offenses of stealing mail under Article 109a (formerly Article 134).  MCM, pt. IV, ¶ 93; UCMJ art. 109a; United States v. Fox, 50 M.J. 444 (C.A.A.F. 1999).

12. Credit Card/Automatic Teller Machine Offenses under Article 121 (for offenses occurring before 1 January 2019; for offenses occurring after 1 January 2019, see UCMJ art. 121a).  

a) “Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them.”  See MCM (2008 ed.), pt. IV, ¶ 46.c(1)(h)(vi).

b) United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010).  The accused, under the guise of assisting the elderly victim with her finances, used her credit cards, ATM cards, and debit cards, for his own benefit. 

(1) Credit card transactions.  Under the facts of the case, the unauthorized use of credit cards to obtain cash advances and unspecified goods of a certain value, was not a larceny from the cardholder herself.  In using the credit cards in this case, the accused did not obtain anything from the cardholder, but instead obtained items of value from other entities.  As such, the court concluded that the proper subject of the credit-card-transaction larcenies in this case was not the cardholder.

(2) Debit/ATM Transactions.  The accused obtained access to the victim’s account by false pretenses, representing that he would use the funds only for the purposes she authorized.  Any authority he had to access the victim’s funds was limited by his “beneficiary status and [the accused’s] fiduciary role.”  Although he had access to the account, his authority to use funds from the account was limited to purchasing items for the cardholder’s benefit.  Therefore, the evidence was legally sufficient to show that the accused wrongfully obtained money from her with the intent to permanently deprive her of it.

c) Larceny of another soldier’s ATM card and the use of the card to make withdrawals are separate crimes and are separately punishable.  United States v. Garner, 28 M.J. 634 (A.F.C.M.R. 1989); United States v. Abendschein, 19 M.J. 619 (A.C.M.R. 1984); United States v. Jobes, 20 M.J. 506 (A.F.C.M.R. 1985).

d) Withdrawals from several different accounts using one banking machine are separate crimes.  United States v. Aquino, 20 M.J. 712 (A.C.M.R. 1985).

e) Misuse of Gov’t travel card.

(1) Dereliction of duty.  Article 92(3).  United States v. Long, 46 M.J. 783 (Army Ct. Crim. App. 1997).

(2) Violation of general regulation.  Article 92(1).  United States v. Hughey, 46 M.J. 152 (1997) (Air Force base regulation restricting use of government charge cards and establishing payment requirements was lawful general regulation).

13. Military Property As An Aggravating Factor For Larceny.  See supra ¶ XLVIII for a discussion of military property under Article 108.

14. See Captain David O. Anglin, Service Discrediting: Misuse, Abuse, and Fraud in the Government Purchase Card Program, Army Law., August 2004, at 1.

LXVII. FRADULENT USE OF CREDIT CARDS, DEBIT CARDS, AND OTHER ACCESS DEVICES, ART 121a

A. Elements.

1. That the accused knowingly used a stolen credit card, debit card, or other access device; or

2. That the accused knowingly used a revoked, cancelled, or otherwise invalid credit card, debit card; or

3. That the accused knowingly used a credit card, debit card, or other access device without the authorization of a person whose authorization was required for such use;

4. That the use was to obtain money, property, services, or anything else of value; and

5. The use by the accused was with the intent to defraud.

B. Explanation.

1. In general. This offense focuses on the intent of the accused and the technology used by the accused.

2. Intent to defraud.  “Intent to defraud” means an intent to obtain, through a misrepresentation, an article or thing of value and to apply it to one’s own use and benefit or to the use and benefit of another, either permanently or temporarily.

3. Inference of intent.  An intent to defraud may be proved by circumstantial evidence. 

4. Use of a credit card, debit card, or other access device without the authorization of a person whose authorization was required for such use.  This provision applies to situations where an accused has no authorization to use the access device from a person whose authorization is required for such use, as well as situations where an accused exceeds the authorization is required for such use. 

LXVIII. FALSE PRETENSES TO OBTAIN SERVICES, ART. 121b

LXIX. ROBBERY, ART. 122

A. Robbery.  MCM, pt. IV, ¶ 67; UCMJ art. 122.

1. Elements.

a) That the accused wrongfully took certain property from the person or from the possession and in the presence of a person named or described;

b) That the taking was against the will of that person;

c) That the taking was by means of force, violence, or force and violence, or putting the person in fear of immediate or future injury to that person, a relative, a member of the person’s family, anyone accompanying the person at the time of the robbery, the person’s property, or the property of a relative, family member, or anyone accompanying the person at the time of the robbery.

d) That the property belonged to a person named or described; and

e) That the property was of a certain or of some value;

f)  [If the robbery was committed with a dangerous weapon , add the following element:]  That the means of force or violence or of putting the person in fear was a dangerous weapon.

2. Pleading.

a) Failure to allege ownership of the property.  United States v. Smith, 40 C.M.R. 432 (A.B.R. 1968) (no error); United States v. Goudeau, 44 C.M.R. 438 (A.C.M.R. 1971) (implied from allegation that item was taken from the purse of a named victim).

b) Failure to allege a taking from the person or in the presence of the victim is fatal, but the specification may be sufficient to allege larceny.  United States v. Rios, 15 C.M.R. 203 (C.M.A. 954); United States v. Dozier, 38 C.M.R. 507 (A.B.R. 1967); United States v. Hunt, 7 M.J. 985, 988 (A.C.M.R. 1979), aff'd, 10 M.J. 222 (C.M.A. 1981).

c) Failure to allege a taking “against his or her will.”  United States v. Smith, 40 C.M.R. 432 (A.B.R. 1968) (no defect; implied from allegation that taking was by means of force and violence).

3. Robbery has two theories:  taking by force and/or violence, or taking by putting in fear.  The alleged theory must be proved; evidence of the non-alleged theory will not suffice.  See United States v. Hamlin, 33 C.M.R. 707 (A.F.B.R. 1963).  Consequently, most prosecutors allege both theories.

a) Theory 1:  Taking by force and/or violence.

(1) Victim’s fear unnecessary.

(2) Amount of force required:

(a) Overcomes actual resistance, or

(b) Puts victim in a position not to resist, or

(c) Overcomes the restraint of a fastening (e.g., in snatching purse the thief breaks strap of purse).

(3) The sequence and relationship of application of force and the intent to steal.  Force and intent must be contemporaneous, but need not be simultaneous.  If the accused’s force and violence place the victim in vulnerable circumstances, this is sufficient for robbery if thereafter, while the victim is still vulnerable, the accused formulates the intent and takes the property.  United States v. Chambers, 12 M.J. 443  (C.M.A. 1982); United States v. Washington, 12 M.J. 1036 (A.C.M.R. 1982).

(4) Picking a victim’s pocket by stealth is not sufficient force for robbery; however, jostling a victim in conjunction with picking his pocket is sufficient force for robbery.  United States v. Reynolds, 20 M.J. 118 (C.M.A. 1985).

b) Theory 2:  Taking by putting in fear.

(1) Demonstration of force or menaces.

(2) Victim placed in fear of death or bodily injury in the present or future to himself, relative, or anyone in his company at the time.

(a) Reasonable fear.  The test for its existence is objective.  United States v. Bates, 24 C.M.R. 738 (A.F.B.R. 1957).

(b) Sufficient to warrant giving up property.

(c) Sufficient to warrant making no resistance.

(3) Taking while fear exists.

4. Wrongful taking must be from the person or in the presence of the victim.  It is not necessary that the property taken be located within any certain distance of the victim. 

a) “Presence” for purposes of robbery means that possession or control is so imminent that force or intimidation is required to remove the property. United States v. Cagle, 12 M.J. 736 (A.F.C.M.R. 1982)

b) “In the presence” is satisfied where victim held by force while his property is secured from another building and destroyed before him. United States v. Maldonado, 34 C.M.R. 952 (A.B.R.), rev’d on other grounds, 35 C.M.R. 257 (C.M.A. 1964). 

c) Property taken need not be from person of victim, but may be from victim’s immediate control. United States v. Hamlin, 33 C.M.R. 707 (A.F.B.R. 1963). 

d) No fatal variance exists between specification and proof where the former alleges “from the person” but evidence shows “in the presence.” United States v. McCray, 5 M.J. 820 (A.C.M.R. 1978). 

5. Robbery is a composite offense combining larceny with assault.  United States v. Chambers, 12 M.J. 443 (C.M.A. 1982) (force applied after taking effected sufficient for robbery); United States v. Brown, 33 C.M.R. 17 (C.M.A. 1963).

6. Robbery requires a larceny by wrongful taking.  The other theories of larceny, wrongful withholding or obtaining, will not suffice.  United States v. Brazil, 5 M.J. 509 (A.C.M.R. 1978).

7. Intent.

a) Robbery is a specific intent crime and mental impairment short of legal insanity is relevant to the accused’s formation of the requisite intent.  See United States v. Carver, 19 C.M.R. 384 (C.M.A. 1955); United States v. Thomson, 3 M.J. 271 (C.M.A. 1977).

b) The intent to rob need not be focused upon specific property.  An intent to deprive the victim of whatever is in a pocket or purse is sufficient.  United States v. Davis, 6 M.J. 669 (A.C.M.R. 1978).

c) The intent to rob need not precede or be simultaneous with the taking of the property.  It must only be contemporaneous with such taking.  United States v. Fell, 33 M.J. 628 (A.C.M.R. 1991); see also United States v. Washington, 12 M.J. 1036 (A.C.M.R. 1982); United States v. Henry, 18 M.J. 773 (N.M.C.M.R. 1984) (intent to steal formulated during asportation phase) aff’d in part, rev’d in part on multiplicity grounds, 21 M.J. 172  (C.M.A. 1985).

d) Claim of Right defense.  The intent to take one’s own property, or property one believes is one’s own, is not sufficient to form the specific intent required for robbery.  United States v. Mack, 6 M.J 598 (A.C.M.R. 1978).  But see United States v. Cunningham, 14 M.J. 539 (A.C.M.R. 1979) (Claim of right defense is unavailable to an accused who takes money or valuables in liquidation of an uncertain obligation or debt for money.)

8. Forcible taking of property belonging to one entity from multiple persons constitutes one robbery.  United States v. Szentmiklosi, 55 M.J. 487 (2001), aff’d, 57 M.J. 103  (C.A.A.F. 2002).

9. Lesser included Offenses.

a) Assaults under Article 128 are lesser included offenses of robbery when the assault offense is the force alleged to have been used to accomplish the gravamen robbery offense.  United States v. Johnson, No. ARMY 20140480, 2015 CCA LEXIS 569 (A. Ct. Crim. App. 2015); United States v. Franklin, No. 2013 CCA LEXIS 72, 2013 WL 416027 (A. Ct. Crim. App. 2013.)

b) Receipt of Stolen Property is a lesser included offense of robbery.  United States v. Michelena, No. NMCCA 201400376, 2015 CCA LEXIS 463 (N-M. Ct. Crim. App. 2015.)

c) Under the “elements test,” the federal offense of bank larceny was not a lesser included offense of the federal offense of bank robbery, so the defendant was not entitled to a jury instruction on it.  A textual comparison of the elements of the two offenses in 18 U.S.C. § 2113 demonstrates that bank larceny requires three elements not required for bank robbery: (1) intent to steal; (2) asportation; and (3) value exceeding $1,000. Carter v. United States, 120 S.Ct. 2159 (2000) (although larceny is a lesser included offense of robbery under the UCMJ, the significance of this 5-4 decision is how a majority of the Court mechanically applied the “elements test” by comparing the statutory text).

LXX. RECEIVING STOLEN PROPERTY, ART. 122a

A. Receiving Stolen Property.   MCM, pt. IV, ¶ 68; UCMJ art. 122a.

1. Elements:

a) That the accused wrongfully received, bought, or concealed certain property of some value.

b) That the property belonged to another person.

c) That the property had been stolen.

d) That the accused then knew the property had been stolen.

2. Acts which constitute the offense of unlawfully receiving, buying, or concealing stolen property or of being an accessory after the fact are not included within the meaning of ‘withholds.’ Therefore, neither a receiver of stolen property nor an accessory after the fact can be convicted of larceny [or wrongful appropriation] on that basis alone. As such, the actual thief cannot be a receiver of the goods he has stolen.  MCM (2016 ed.), pt. IV, ¶ 106(c)(1); United States v. Ford, 30 C.M.R. 3 (C.M.A. 1960); United States v. Mazzullo, ARMY 20000629, 2002 CCA LEXIS 369 (A.Ct.Crim.App. 2002).  Thus, the original asportation (carrying away) of the property must be completed by the thief before another can be found guilty of receiving stolen property.  United States v. Graves, 20 M.J. 344 (C.M.A. 1985).

3. The soldier who receives stolen property innocently and later discovers that it is stolen cannot be guilty of receiving stolen property.  United States v. Rokoski, 30 C.M.R. 433 (A.B.R. 1960); United States v. Lowery, 19 M.J. 754 (A.C.M.R. 1984).

4. Although a principal who is not the actual thief may be liable as a principal or receiver of stolen property, he may not be found guilty of both as the President has clearly expressed his intent to limit the general article offense of receipt of stolen property by prohibiting conviction both for it and for larceny of the same property. United States v. Cartwright, 13 M.J. 174 (C.M.A. 1982); MCM, pt. IV, ¶ 106(c)(1); United States v. Michelena, NMCCA 201400376, 2015 CCA LEXIS 463, (N-M.Ct.Crim.App. 2015).

5. A conspirator to the larceny may not be found guilty of being an accessory after the fact or a receiver of the stolen property.  United States v. Lampani, 14 M.J. 22 (C.M.A. 1982).

LXXI. OFFENSES CONCERNING GOVERNMENT COMPUTERS, ART. 123

A. Three offenses.

1. Unauthorized distribution of classified information obtained from a government computer.

a) Elements.

(1) That the accused knowingly accessed a government computer with an unauthorized purpose;

(2) That the accused obtained classified information;

(3) That the accused had reason to believe the information could be used to injury the United States or benefit a foreign nation; and

(4) That the accused intentionally communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted, such information to any person not entitled to receive it. 

2. Unauthorized access of a government computer and obtaining classified or other protected information.

a) Elements.

(1) That the accused intentionally accessed a government computer with an unauthorized purpose; and

(2) That the accused thereby obtained classified or other protected information from any such government computer.

3. Causing damage to a government computer. 

a) Elements.

(1) That the accused knowingly accused the transmission of a program, information, code, or command; and

(2) That the accused, as a result, intentionally and without authorization caused damage to a government computer.

B. Explanation.

1. “Access” means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer.

2. The phrase “with an unauthorized purpose” may refer to more than one unauthorized purpose, or an unauthorized purpose in conjunction with an authorized purpose. The phrase covers persons accessing Government computers without any authorization, i.e., “outsiders,” as well as persons with authorization who access Government computers for an improper purpose or who exceed their authorization, i.e., “insiders.” The key criterion to determine criminality is whether the person intentionally used the computer for a purpose that was clearly contrary to the interests or intent of the authorizing party.

3. Classified information is defined at 10 U.S.C. § 801(15).

4. Non-classified protected information includes Personally Identifiable Information (PII), as well as information designated as Controlled Unclassified Information (CUI) by the Secretary of Defense, and information designated as For Official Use Only (FOUO), Law Enforcement Sensitive (LES), Unclassified Nuclear Information (UCNI), and Limited Distribution.

5. The definition of “damage” is taken from 18 U.S.C. § 1030 and means any impairment to the integrity or availability of data, a program, a system, or information. 

6. The definition of “computer” is taken from 18 U.S.C. § 1030 and means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.  A portable computer, including a smartphone, is a computer. 

LXXII. MAKING, DRAWING, OR UTTERING CHECK, DRAFT, OR ORDER WITHOUT SUFFICIENT FUNDS, ART. 123a

A. Article 123a

1. Making, drawing or uttering check, draft or order with intent to defraud or deceive. 

a) Elements:

(1) The accused made, drew, uttered or delivered a check/draft/order for payment of money payable to a named person or organization.

(2) The accused did so for the purpose of procuring an article or thing of value.

(3) That the act was committed with intent to defraud; and

(4) That at the time of making drawing, uttering, or delivery of the instrument the accused knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment.

b) For a good discussion and application of these elements, see United States . Carter, 32 M.J. 522 (A.C.M.R. 1990).

2. For the payment of any past due obligation, or for any other purpose, with intent to deceive.

a) Elements:

 (1) That the accused made, drew, uttered, or delivered a check, draft, or order for the payment of money payable to a named person or organization;

(2) That the accused did so for the purpose or purported purpose of effecting the payment of a past due obligation or for some other purpose;

(3) That the act was committed with the intent to deceive; and

(4) That at the time of making, drawing, uttering, or delivering of the instrument, the accused knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the bank or other depository for the payment thereof upon presentment.

b) Definitions.  MCM, pt. IV, ¶ 70c.

(1) Written instruments covered.  Includes any check, draft, or order for payment or money drawn upon any bank or other depository.  See, e.g., United States v. Palmer, 14 M.J. 731 (A.F.C.M.R. 1982) (union share drafts).

(2) “Bank” or “other depository”.  Includes any business regularly but not exclusively engaged in public banking activities.

(3) “Making” and “drawing.”  Synonymous words and refer to act of writing and signing instrument.

(4) “Uttering” and “delivering.”  Both mean transferring instrument to another, but “uttering” includes offering to transfer.

(5) “For the procurement.”  Means for purpose of obtaining any article or thing of value.

(6) “For the payment.”  Means for purpose of satisfying in whole or part any past due obligation.

(7) “Sufficient funds.”  Means account balance at presentation is not less than face amount of check.

(8) “Upon its presentment.”  The time the demand for payment is made upon presentation of the instrument to the depository on which it was drawn.

(9) “For any other purpose.”  For any other purpose includes all purposes other than the payment of a past due obligation or the procurement of any article or thing of value.

(10) “Article or thing of value.”  Article or thing of value extends to every kind of right or interest in property, or derived from contract, including interests and rights which are intangible or contingent or which mature in the future.

(11) “Past due obligation.”  A past due obligation is an obligation to pay money, which obligation has legally matured before making, drawing, uttering, or delivering the instrument.

c) Mens Rea.

(1) “Intent to defraud” (UCMJ art. 123a(1)).  An intent to obtain through misrepresentation, an article or thing of value with intent permanently or temporarily to apply it to one’s own use or benefit.  MCM, pt. IV, ¶ 70c(14).  See United States v. Sassaman, 32 M.J. 687 (A.F.C.M.R. 1991). (Drawer cannot be convicted of writing bad checks with intent to defraud if drawer can show reasonable expectation that check would be paid as result of arrangement or understanding with bank or expectation to be able to make deposit sufficient to cover check before it is presented for payment).

(2) “Intent to deceive” (UCMJ art. 123a(2)).  An intent to mislead, cheat, or trick another by means of a misrepresentation made for the purpose of gaining an advantage or of bringing about a disadvantage to another.  MCM, pt. IV, ¶ 70c(15).

(3) “Intent to deceive” is not the same as “intent to defraud.”  United States v. Wade, 34 C.M.R. 287 (C.M.A. 1964) (specification fails to state offense which alleges “making a check with intent to deceive for the purpose of obtaining lawful currency”).

d) Articles or thing of value.

(1) Need not actually be obtained.  United States v. Cordy, 41 C.M.R. 670 (A.C.M.R. 1967).

(2) Includes every right or interest in property or contract, including intangible, contingent, or future interests.  United States v. Ward, 35 C.M.R. 834 (A.F.B.R. 1965) (check used to procure auto insurance).

(3) Includes checks given as a gift.  United States v. Woodcock, 39 M.J. 104 (C.M.A. 1994) (only advantage secured by accused was temporary aggrandizement in the eyes of the person to whom the checks were given).

e) “Past due obligation” or “any other purpose”.

(1) “Past due obligation.”  Obligation to pay money which has legally matured prior to the making or uttering.

(2) “Any other purpose.”

(a) Includes all purposes other than payment of past due obligation or the procurement of any article or thing of value, e.g., paying an obligation not yet past due.

(b) Excludes checks made for the purpose of obtaining any article or thing of value covered by Article 123a(1), UCMJ.  United States v. Wade, 34 C.M.R. 287 (C.M.A. 1964).

f) Knowledge. 

(1) Requires present knowledge that bank account is presently, or will be, insufficient at time of presentment.  See United States v. Crosby, 22 M.J. 854 (A.F.C.M.R. 1986); United States v. Matthews, 15 M.J. 622 (N.M.C.M.R. 1982).

(2) “Sufficient funds” relates to time of presentment.

(3) Neither proof of presentment nor refusal of payment is necessary, if it can otherwise be shown that accused had requisite intent and knowledge at time of making or uttering.  For example: (a) drawn on nonexistent bank or (b) drawn on overdrawn or closed account.

(4) Conviction does not require proof that the accused knew that the account holders (from whom accused had stolen and used starter checks) had insufficient funds in their bank account.  Proof of the accused’s knowledge that he was not the owner of the account satisfies the knowledge requirement.  United States v. Guess, 48 M.J. 69 (C.A.A.F. 1998).

(5) Past “floating” of checks several days before payday does not negate proof of intent.  United States v. Smith, 49 M.J. 279 (C.A.A.F. 1998).

g) Post-dated check.  Compare United States v. Hodges, 35 C.M.R. 867 (A.F.B.R. 1965) (check made with requisite knowledge and intent; conviction affirmed), with United States v. Birdine, 31 M.J. 674 (C.G.C.M.R. 1990) (post-dated check did not support conviction, because no intent to deceive by accused; accused believed the checks would be covered).

h) Statutory 5-day notice.  MCM, pt. IV, ¶ 70c(17).

(1) Failure of maker to pay holder within 5 days after notice of non­-payment is prima facie evidence that:

(a) Maker had intent to defraud or deceive.

(b) Maker had knowledge of insufficiency of funds.

(2) The above inference is only permissive and is rebuttable.

(3) Either failure to give notice or payment by accused within 5 days precludes prosecution use of inference, but it does not preclude conviction if elements are otherwise proved.

(4) Notice.  United States v. Jarrett, 34 C.M.R. 652 (A.B.R. 1964) (reading of bad check charges to an account drawer by his detachment commander does not fulfill the statutory requirement of notice of dishonor); United States v. Cauley, 9 M.J. 791 (A.C.M.R. 1980), rev’d on other grounds, 12 M.J. 484 (C.M.A. 1982) (introduction at trial of letter from bank to accused’s CO seeking his assistance in effecting payment of accused’s dishonored checks did not alone constitute proper notice even though letter contained a notation indicating that a copy was to be forwarded to the accused).

(5) Period of redemption.  The 5-day redemption period means 5 calendar days and is not limited to ordinary business days, at least when the terminal date is not a Sunday or holiday.  Days are computed by excluding the first day and including the last day.  United States v. O’Briant, 32 C.M.R. 933 (A.F.B.R. 1963).

i) Pleading check offenses.

(1) Specification charging that the accused, on divers occasions, uttered worthless checks was legally sufficient to protect the accused from subsequent prosecutions.  United States v. Carter, 21 M.J. 665 (A.C.M.R. 1985); see also United States v. Krauss, 20 M.J. 741 (N.M.C.M.R. 1985).

(2) “Mega-specs” permitted, and maximum punishment is determined by the number and amount of the checks as if they had been charged separately. United States v. Mincey, 42 M.J. 376  (C.A.A.F. 1995) (overruling  United States v. Poole, 26 M.J. 272 (C.M.A. 1988)).

(3) Failure to object to duplicitous pleading of bad-check offenses waives any complaint that accused might have had about the pleadings.  United States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995).

j) Defenses.

(1) Honest mistake of fact.  United States v. Callaghan, 34 C.M.R. 11 (C.M.A. 1963) (belief funds credited to account a legitimate defense).

(2) Redemption beyond 5-day period.  United States v. Broy, 34 C.M.R. 199 (C.M.A. 1964) (no defense).

(3) “The Gambler’s Defense.”  The Gambler’s Defense is no longer recognized for check offenses arising under UCMJ art. 123a.  United States v. Falcon, 65 M.J. 386 (C.A.A.F. 2008) (declining to apply United States v. Allbery, 44 M.J. 226 (C.A.A.F. 1996) and United States v. Wallace, 36 C.M.R. 148  (C.M.A. 1966) to the Article 123a line of cases which held 1) that transactions designed to facilitate gambling are against public policy and 2) that courts will not enforce obligations arising therefrom).

(4) Overdraft protection, relied upon by the accused without false pretenses, constitutes a defense to larceny and related bad check offenses.  United States v. McCanless, 29 M.J. 985  (A.F.C.M.R. 1990); see United States v. Crosby, 41 C.M.R. 927  (A.F.C.M.R. 1969).  Unilateral action by a bank in honoring checks, unknown to the accused, does not constitute a defense.  United States v. McNeil, 30 M.J. 648  (N.M.C.M.R. 1990); see generally TJAGSA Practice Note, Overdraft Protection and Economic Crimes, Army Law., Jul. 1990, at 45.

(5) Reasonable expectation of payment.  United States v. Webb, 46 C.M.R. 1083  (A.C.M.R. 1972) (accused who writes overdrafts but reasonably expects to have funds to deposit before presentment has a legitimate defense).

(6) Compulsive gambling not a defense where accused hoped to win large sums to redeem worthless checks.  United States v. Zojak, 15 M.J. 845  (A.F.C.M.R. 1983).

k) See generally Richmond, Bad Check Cases:  A Primer for Trial and Defense Counsel, Army Law., Jan. 1990, at 3.

LXXIII. FRAUDS AGAINST THE UNITED STATES, ART. 124

A. Frauds Against The United States.  MCM, pt. IV, ¶ 71; UCMJ art. 124. 

1. Merely creating a fraudulent document does not, by itself, constitute "making a claim;" some act, not necessarily amounting to presentment for payment, is necessary before a writing is considered a claim.  See United States. v. Thomas, 31 M.J. 517 (A.C.M.R. 1990); United States v. Thomas, 31 M.J. 517 (A.C.M.A 1990).  See also False Claims, 57 C.J.S. Military Justice § 97.

2. Submission of a travel voucher for a TDY trip “concocted” to primarily conduct personal business is a false claim under Article 124 (formerly 132).  United States v. Mann, 50 M.J. 689  (A.F. Ct. Crim. App. 1999). 

3. Forgery is a lesser included offense of this Article 124 (formerly 132)UCMJ. See U.S. v. Morita, 73 M.J. 548 (A.F.Ct.Crim.App. 2014).

LXXIV. BRIBERY, ART. 124a

LXXV. GRAFT, ART. 124b

 

OFFENSES AGAINST PERSONS

LXXVI. KIDNAPPING, ART. 125

A. Elements. 

1. That the accused seized, confined, inveigled, decoyed, or carried away a certain person;

2. That the accused then held such person against that person’s will; and

3. That the accused did so wrongfully.

B. Theories of Prosecution.  

1. If the misconduct occurred in an area over which the United States exercises exclusive or concurrent jurisdiction, the accused may be charged with violating state penal law as assimilated into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13, which, in turn, is incorporated into military law under the Clause 3 of Article 134.

2. If it meets the jurisdictional requirements of the Federal Kidnapping Act, 18 U.S.C. § 1201, which is also assimilated into military law by Clause 3 of Article 134, the crime may be prosecuted under that statute.

C. Nature of Detention.   In order to convict accused of kidnapping, there must be more than “incidental” detention. 

1. Factors to consider in determining whether the detention was incidental include, U.S. v. Barnes, 38 M.J. 72 (C.M.A. 1993):

a) Whether there was an unlawful seizure, confinement, inveigling, decoying, kidnapping, abduction or carrying away and holding for a period of time.  Both elements must be present;

b) The duration of detention.  Is it appreciable or de minimis? This determination is relative and turns on the established facts;

c) Whether the detention occurred during the commission of a separate offense;

d) The character of any separate offense in terms of whether the detention/asportation is inherent in the commission of that kind of offense, at the place where the victim is first encountered, without regard to the particular plan devised by the criminal to commit it;

e) Whether the detention or asportation exceeded that which was inherent in any separate offense and, in the circumstances, showed a voluntary and distinct intention to move/detain the victim beyond that necessary to commit the separate offense at the place where the victim was first encountered; and

f) The existence of any significant additional risk to the victim beyond that inherent in the commission of the separate offense at the place where the victim is first encountered. It is immaterial that the additional harm is not planned by the criminal or that it does not involve the commission of another offense.

2. United States v. Seay, 60 M.J. 73 (C.A.A.F. 2004).  Accused and accomplice removed victim from his home, strangled, and pinned victim to ground before stabbing victim to death.  These acts of restraint and asportation (removing the victim from his home) occurred prior the actual murder and exceeded the acts inherent to the commission of the murder.   

3. United States v. Newbold, 45 M.J. 109 (C.A.A.F. 1996) (victim was moved no more than 12 feet and was detained only long enough to complete the multiple indecent and aggravated assaults; however, movement of the victim limited the possibility of escape, and once the detention began, the subsequent offenses necessarily were “fed” by the increasingly more heinous actions of the assailants; thus, asportation was not merely incidental to other charged offenses, and evidence was sufficient to sustain guilty plea).

4. United States v. Jeffress, 28 M.J. 409 (C.M.A. 1989) (detention of victim consisted of moving her some 15 feet; she was moved from traveled area into greater darkness; there was increased risk of harm to the victim; dragging victim away from beaten path was not inherent in offense of forcible sodomy; factually sufficient to sustain a guilty plea to kidnapping).

5. United States v. Broussard, 35 M.J. 665 (A.C.M.R. 1992) (accused grabbed his wife from behind, dragged her into the bedroom, bound her arms and legs to furniture, and held her for a sufficient period of time).

6. United States v. Caruthers, 37 M.J. 1006 (A.C.M.R. 1993) (accused’s asportation and holding of his wife were more than incidental; accused conceded his wife was seized or held when she was grabbed from behind, gagged, tied and dragged short distance away where she was held for two to three-hour period during commission of sexual assaults).

7. United States v. Sneed, 74 M.J. 612 (A. Ct. Crim. App. 2015) (accused’s locking his pregnant girlfriend in a closet for approximately ten minutes was not incidental to the attempted robbery of her debit card and supported a conviction for kidnapping; kidnapping was not inherently necessary for the attempted robbery of her debit card that the accused also committed).

D. Inveigling.  “Inveigle” means to lure, lead astray, or entice by false representations or other deceitful means.  MCM, pt. IV, ¶ 74c(1).

1. United States v. Blocker, 32 M.J. 281 (C.M.A. 1991) (kidnapping conviction affirmed where accused inveigled 17-year-old victim to remain in car when he drove off highway and down dirt hiking path before raping her).

2. United States v. Mathai, 34 M.J. 33 (C.M.A. 1992) (NCO accused inveigled victim into his office by stating, “Follow me, Private,” after which he prevented her from leaving the room several times and held her against her will).

3. United States v. Acevedo, 77 M.J. 185 (C.A.A.F. 2018) (a reasonable trier of fact could find beyond a reasonable doubt that the E-6 accused inveigled an E-2 victim by mentally coercing victim into a taxi by threatening her with disciplinary action and mentally coerced victim into staying in the taxi against her will).

E. The involuntariness of the seizure and detention is the essence of the offense of kidnapping.  Once the offense is complete, the duration of the restraint is not germane, except for sentencing purposes.  United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App. 1999) (victim did not tell the accused she wanted to go home, and after initially getting out of the accused’s truck and being carried back, she did not try to get out of the truck again; however, a victim is not required to voice lack of consent under the law; once the accused carried the unwilling victim back to his truck, the offense of kidnapping was complete), aff’d, 55 M.J. 38  (C.A.A.F. 2001).

F. Lesser Included Offenses. 

1. The elements test determines if one offense is a lesser included offense of another.  See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (abrogating United States v. Virgilito, 47 C.M.R. 331 (C.M.A. 1973)).

2. Reckless endangerment is not a lesser included offense of kidnapping.  United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009).

3. Unlawful detention, Article 97, is a lesser included offense of kidnapping.  United States v. McCuistion, 47 C.M.R. 379 (A.C.M.R. 1973).

LXXVII. ARSON; BURNING PROPERTY WITH INTENT TO DEFRAUD, ART. 126

A. Arson and Burning Property with Intent to Defraud. 

1. Elements.

a) Aggravated arson.

(1) Inhabited dwelling.

(a) That the accused burned or set on fire an inhabited dwelling; and

(b) That the act was willful and malicious.

(2) Structure.

(a) That the accused burned or set on fire a certain structure;

(b) That the act was willful and malicious;

(c) That there was a human being in the structure at the time;

(d) That the accused knew that there was a human being in the structure at the time; and

b) Simple arson.

(1) That the accused burned or set fire to certain property of another;

(2) That the act was willful and malicious.

(3) (If the property is of a value of more than $1,000, add the following element) That the property is of a value of more than $1,000.

c) Burning with the intent to defraud.

 (1)  That the accused burned or set fire to certain property;

 (2)  That the act was willful and malicious; and

 (3)  That such burning or setting on fire was with the intent to defraud a certain person or organization.

2. Mens Rea.

a) All degrees of arson require proof of willfulness and maliciousness; that is, not merely negligence or accident.  MCM, pt. IV, ¶ 75c.  Specific intent is not an element of aggravated or simple arson.  United States v. Acevedo-Velez, 17 M.J. 1  (C.M.A. 1983) (intent requirement for aggravated arson met where accused set fire to a coat where there was a great possibility the building would catch on fire even though accused did not intend to burn the building); see United States v. Marks, 29 M.J. 1  (C.M.A. 1989); United States v. Banta, 26 M.J. 109  (C.M.A. 1988) (voluntary intoxication is not a defense); United States v. Acevedo-Velez, 17 M.J. 1 (C.M.A. 1983); United States v. Caldwell, 17 M.J. 8  (C.M.A. 1983).

b) In the offense of aggravated arson by setting fire to an inhabited dwelling, the accused’s knowledge of the type or purpose of structure is not required.  United States v. Duke, 37 C.M.R. 80  (C.M.A. 1966) (intoxication no defense).  See also United States v. Jones, 2 M.J. 785 (A.C.M.R. 1976.  Accused properly convicted of aggravated arson for burning his own  residence that he  intended to abandon and from which his family had moved .  United States v. Dasha, 23 M.J. 66  (C.M.A. 1986).

c) Intentionally starting a fire and negligently failing to ensure it is extinguished is arson.  United States v. Crutcher, 49 M.J. 236  (C.A.A.F. 1998) (accused made some effort to put out the fire he had started).

d) In burning with intent to defraud, it is the fraudulent intent motivating the burning of any property that is the essential element.  MCM, pt. IV, ¶ 75c.

3. Actual burning or charring of alleged property or structure is required, and mere scorching or discoloration is insufficient.  MCM, pt. IV, ¶ 75c(2)(c); United States v. Littrell, 46 C.M.R. 628  (A.B.R. 1972) (burning of desk within building insufficient to prove aggravated arson; affirmed lesser included offense of attempted aggravated arson).

4. Disorderly conduct as lesser included offense.  United States v. Evans, 10 M.J. 829  (A.C.M.R. 1981) (accused could be convicted of disorderly conduct as a lesser included offense of arson where specification alleged that accused was disorderly in quarters by setting fire to commode seat in latrine of his billets room and proof reasonably established all elements of disorderly conduct).

5. Simple arson is a lesser included offense of attempted aggravated arson.  United States v. Dorion, 17 M.J. 1064 (A.F.C.M.R. 1984).  But see United States v. Langhorne, No. ACM 39047, 2017 CCA LEXIS 746 (A.F. Ct. Crim. App.) (finding that the evidence adduced at trial on an aggravated arson offense did not reasonably raise the lesser included offense of simple arson because this issue of whether the structure in question was an “inhabited dwelling” was not in dispute and the defense conceded in closing argument that the accused knew it was the victim’s house.)

6. Burning with intent to defraud is now a violation of UCMJ art. 126.  See generally United States v. Banta, supra at H.2.a.; United States v. Fuller, 25 C.M.R. 405  (C.M.A 1958); United States v. Snearley, 35 C.M.R. 434  (C.M.A. 1965); United States v. Colyon, 35 C.M.R. 870  (A.F.C.M.R. 1965).  United States v. Falcone, No. 20110297, . 20110297 (A. Ct. Crim. App. 2013).

LXXVIII. EXTORTION, ART. 127

A. Extortion. 

1. Elements.

a) That the accused communicated a certain threat to another; and

b) That the accused intended to unlawfully obtain something of value, or any acquittance, advantage, or immunity.  MCM, pt. IV, ¶ 76(b).

2. Applications. 

a) United States v. McCollum, 13 M.J. 127 (C.M.A. 1982).  (holding the element of value or advantage is sufficiently alleged if any reasonable person would be compelled to conclude that the object of extortion had some value or constituted some advantage).

b) United States v. Brown, 67 M.J. 147 (C.A.A.F. 2009).  Accused threatened to release videotape depicting the victim’s sexual acts unless she engaged in sexual intercourse with him.  The specification alleged that “with intent unlawfully to obtain an advantage, to wit: sexual relations, [the accused] communicate[d] to [PFC RA] a threat to expose to other members of the military their past sexual relationship and to use his rank, position, and connections to discredit her and ruin her military career.”  The CAAF held that the specification in this case was legally sufficient.  The specification described the “advantage” that he accused sought to receive: sexual relations with the victim.  By seeking to have her engage in sexual relations with him, the accused intended to “obtain an advantage.”  The specification also described the threat the accused communicated in an effort to obtain the stated advantage: to expose their past sexual relationship in a manner that would harm the victim’s military career. 

LXXIX. ASSAULT, ART. 128

A. Simple Assault / Battery.  Under the UCMJ, assault is defined as an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated.  An assault can therefore be committed in one of three separate ways: by offer, by attempt, or by battery.  UCMJ art. 128.

1. Assault by Offer. 

a) An act or omission that foreseeably puts another in reasonable apprehension that force will immediately be applied to his person is an assault by offer provided the act or omission involved is either intentional or culpably negligent.  The gravamen of this offense is the placing of the victim in reasonable apprehension of an immediate unlawful touching of his person.  The fact that the offered touching cannot actually be accomplished is no defense provided the victim is placed in reasonable apprehension.  MCM, pt. IV, ¶ 77c(2)(b)(ii).

b) Victim’s apprehension of harm.

(1) The ability to inflict injury need not be real but only reasonably apparent to the victim.  Thus, the test to determine whether an assault is an offer-type assault is a subjective test.  For example, pointing an unloaded pistol at another in jest constitutes an assault by intentional offer if the victim is aware of the attack and is placed in reasonable apprehension of bodily injury.  United States v. Bush, 47 C.M.R. 532 (C.G. Ct. Crim. App. 1973) (citing United States v. Gallines, 8 C.M.R. 606 (C.G. Ct. Crim. App. 1963).

(2) The victim’s belief that the accused does not intend to inflict injury vitiates the offense under the theory of offer.  United States v. Norton, 4 C.M.R. 3 (C.M.A. 1952).

(3) The victim’s apprehension of impending harm must be reasonable.  See United States v. Hernandez, 44 C.M.R. 500 (A.C.M.R. 1971).

c) Mere words or threats of future violence are insufficient to constitute an offer-type assault.  United States v. Hines, 21 C.M.R. 201 (C.M.A. 1956) (operating the bolt of a loaded weapon so that it was ready for instant firing, coupled with a statement indicating a present intent to use the weapon, was more than mere preparation and constituted an act of assault, despite the fact that the accused did not point the weapon at any person); see also United States v. Milton, 46 M.J. 317 (C.A.A.F. 1997) (holding that words alone are generally not sufficient to constitute an assault by offer, but assault may occur where circumstances surrounding threat may constitute assault if victim feels “reasonable apprehension”).

d) An accused who tries but fails to offer violence to frighten a victim may be guilty of an attempt to commit an assault by offer under UCMJ art. 80.  United States v. Locke, 16 M.J. 763 (A.C.M.R. 1983).  Whether an “attempted offer to batter” is an offense under the UCMJ remains an open question.  See United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994) (discussing in dicta the completed nature of an attempted offer type assault where the victim failed to apprehend the danger vice the inchoate nature of an attempted battery type assault).    Cf. United States v. Williamson, 42 M.J. 613 (N-M. Ct. Crim. App. 1995).

e) The culpably negligent offer.  Culpable negligence is defined is a degree of carelessness greater than simple negligence.  It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission.  United States v. Pittman, 42 C.M.R. 720 (A.C.M.R. 1970); United States v. Gibson, 39 M.J. 1043 (A.C.M.R. 1994), aff’d, 43 M.J. 343 (1995). "The actor need not actually intend or foresee those consequences: it is only necessary that a reasonable person in such circumstances would have realized the substantial and unjustified danger created by his act." United States v. Baker, 24 M.J. 354, 356 (C.M.A. 1987).  The absence of intent to do bodily harm is not a defense.  United States v. Redding, 34 C.M.R. 22 (C.M.A. 1963).  An example of such an assault would be a situation wherein the accused knowingly conducts rifle target practice in a built up area and thus frightens innocent bystanders into a reasonable belief of imminent injury.

2. Assault by Attempt. 

a) An overt act that amounts to more than mere preparation and is done with apparent present ability and with the specific intent to do bodily harm constitutes an assault by attempt.  MCM, pt. IV, ¶ 77c(2)(b)(i).

b) More than mere preparation to inflict harm is required.  United States v. Crocker, 35 C.M.R. 725 (A.F.B.R. 1965) (where the accused with open knife advances towards his victim at the time when an affray is impending or is in progress and comes within striking distance, this amounts to more than mere preparation and is sufficient to complete the offense).

(1) Words alone, or threats of future harm, are insufficient. United States v. Hines, 21 C.M.R. 201 (C.M.A. 1956).

(2) An apparent ability to inflict bodily harm must exist.  United States v. Hernandez, 44 C.M.R. 500 (A.C.M.R. 1971) (no offense where Government failed to prove that instrument used under the circumstances was likely to result in harm); United States v. Smith, 15 C.M.R. 41 (C.M.A. 1954) (accused need not be within actual striking distance of victim to constitute apparent ability to inflict harm).

c) Mens Rea.  Attempt-type assault requires a specific intent to inflict bodily harm upon the victim.  MCM, pt. IV, ¶ 77c(2)(b)(i).

(1) Victim’s apprehension of impending harm is unnecessary.  MCM, pt. IV, ¶ 77c(2)(b)(i).  See United States v. Anzalone, 41 M.J. 142 (C.M.A. 1994); United States v. Van Beek, 47 C.M.R. 99 (A.C.M.R. 1973).

(2) United States v. Davis, 49 C.M.R. 463 (A.C.M.R. 1974).  Firing pistol over the heads of victims, without the intent to injure them, is insufficient for assault by attempt.

3. Battery. 

a) An intentional or culpably negligent application of force or violence to the person of another by a material agency constitutes a battery.  MCM, pt. IV, ¶ 77c(3).  See generally United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994) (discussing alternative theories of battery in the context of an HIV case).

b) Any offensive touching will suffice.  See United States v. Sever, 39 M.J. 1 (C.M.A. 1994) (nonconsensual kiss); United States v. Bonano-Torres, 29 M.J. 845 (A.C.M.R. 1989), aff’d, 31 M.J. 175 (C.M.A. 1990) (nonconsensual kiss on the cheek); United States v. Madigar, 46 M.J. 802 (C.G. Ct. Crim. App. 1997) (unnecessary exposure to X-ray radiation was sufficient physical touching); United States v. Banks, 39 M.J. 571 (N.M.C.M.R. 1993), aff’d, 40 M.J. 320 (C.M.A. 1994) (smoke inhalation).

c) The unit of prosecution for an ongoing assault under Article 128 – as opposed to Articles 120 or 134 –  with multiple blows united in time, circumstance, and impulse, is the number of beatings the victim endured, not the number of blows inflicted.  United States v. Clarke, 74 M.J. 627 (A. Ct. Crim. App. 2015).

d) Mens Rea

(1) Unlawful touching must be the result of an intentional or culpably negligent act.  A culpably negligent act requires a negligent act/omission coupled with a culpable disregard for the foreseeable consequences to others.  See United States v. Turner, 11 M.J. 784 (A.C.M.R. 1981) (contrasting an intentional battery with a culpably negligent battery; the court agreed that the accused who threw a rake at an MP, hitting him on the arm, had in fact committed a battery, but it split on whether the violent act was intentional or culpably negligent).

(2) United States v. Gibson, 43 M.J. 343 (C.A.A.F. 1995) (playing with and dropping a 40mm grenade round was a culpably negligent act sufficient to support a charge of aggravated assault (by battery); a reasonable soldier should have known what the object was and that dropping it would create a substantial and unjustified danger to bystanders).

(3) United States v. Banks, 39 M.J. 571 (N.M.C.M.R. 1993) (finding the accused was culpably negligent when he consumed alcohol while cooking and passed out, thereby causing stove to catch fire and causing smoke inhalation injury to his infant son), aff’d, 40 M.J. 320  (C.M.A. 1994).

(4) United States v. Mayo, 50 M.J. 473 (C.A.A.F. 1999) (intentionally throwing a 19-month-old child, while playing, with sufficient force and from sufficient height to fracture the child’s femur could be a culpably negligent act).

e) Consent is not always a defense. United States v. Arab, 55 M.J. 508 (A. Ct. Crim. App. 2001) (consent not a defense where the accused’s subjective belief that the victim consented was not objectively reasonable; consent was not a defense to assault consummated by battery arising from sadomasochistic activities involving an accused’s wife, where the nature of injuries and means used suggested the wife was subjected to extreme pain);  United States v. Wilhelm, 36 M.J. 891 (A.F.C.M.R. 1993) (consent not a defense when parties are engaged in a mutual affray); United States v. Dumford, 28 M.J. 836 (A.F.C.M.R. 1989), aff’d, 30 M.J. 137 (C.M.A. 1990), cert. denied, 498 U.S. 854  (1990) (consent not a defense to assault for sexual activity where the accused has the AIDS virus); United States v. Bygrave, 46 M.J. 491 (1997) (holding that a person cannot consent to an assault that involves means likely to produce death or grievous bodily harm; victim’s informed consent is no defense to a charge of aggravated assault for unprotected intercourse by HIV-infected accused); United States v. Brantner, 28 M.J. 941 (N.M.C.M.R. 1989) (consent not a defense to assault by using unsterilized needles);  United States v. Holmes, 24 C.M.R. 762 (A.F.B.R. 1957) (consent not a defense if the injury more than trifling or there is a breach of public order);  United States v. Rath, 27 M.J. 600 (A.C.M.R. 1988) (child may consent to some types of assault, but mere submission does not constitute consent); United States v. Serrano, 51 M.J. 622 (N.-M. Ct. Crim. App. 1999) (act likely to produce grievous bodily harm or death); United States v. Booker, 25 M.J. 114 (C.M.A. 1987) & United States v. Outhier, 45 M.J. 326 (C.A.A.F. 1996) (consent invalid where obtained by fraud).

f) Notice of Lack of Consent.  United States v. Johnson, 54 M.J. 67 (2000) (where there was a friendly relationship involving touchings that were not offensive and the victim never protested against backrubs, the government had to prove that the accused was on notice of lack of consent), aff’d by 55 M.J. 243  (C.A.A.F. 2001).

g) Justification. See also Chapter 5, Defenses.

(1) Certain persons may be justified in touching others even without their permission.  See, e.g., United States v. McDaniel, 7 M.J. 522 (A.C.M.R. 1979) (no assault for NCO to place drunk and protesting soldier in a cold shower to sober him up).  See R.C.M. 916(c).

(2) Parental discipline defense.  See generally United States v. Rivera, 54 M.J. 489 (2001); United States v. Robertson, 36 M.J. 190 (C.M.A. 1991); United States v. Brown, 26 M.J. 148 (C.M.A. 1988).  Requirements:

(a) Proper parental purpose.  Force used for safeguarding or promoting the welfare of the minor, including prevention or punishment of misconduct.

(b) Reasonable force.  Force must not be intended, or known to create a substantial risk of, serious bodily injury, disfigurement, extreme pain or mental distress, or gross degradation.

B. Aggravated Assault With a Dangerous Weapon. 

1. Aggravated assault with a dangerous weapon includes the assault theories of offer, attempt, and battery.  MCM, pt. IV, ¶ 77b(4)(a).

2. Dangerous.  A means/force/weapon is dangerous when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm. Thus, a bottle, beer glass, a rock, a bunk adaptor, a piece of pipe, a piece of wood, boiling water, drugs, or a rifle butt may be used in a manner capable of inflicting death or grievous bodily harm. Furthermore, under the appropriate circumstances, fists, teeth, feet, elbows, etc. may be considered a dangerous weapon when employed in a manner capable of inflicting death or grievous bodily harm.  MCM, pt. IV, ¶ 77c(5)(a)(iii). 

3. Grievous bodily harm means a bodily injury that involves: 1) a substantial risk of death; 2) extreme physical pain; 3) protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. MCM, pt. IV, ¶ 77c(1)(c).

4. An assault and threat, which occur at the same time, are multiplicious.  United States v. Morris, 41 C.M.R. 731 (A.C.M.R. 1970); United States v. Metcalf, 41 C.M.R. 574 (A.C.M.R. 1969); United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012).

C. Aggravated Assault By Inflicting Substantial Bodily Harm or Grievous Bodily Harm. 

1. Assault in which substantial or grievous bodily harm is inflicted is a general intent crime which requires that the accused assaulted another person and that the assault resulted in substantial or grievous bodily harm.  The offense does not require specific intent to cause substantial or grievous bodily harm.  The focus of the offense is the degree of bodily harm resulting from an assault.  This contrasts with the offense of assault with a dangerous weapon, where the focus of the offense is the accused’s intent to do bodily harm and the use of a dangerous weapon, regardless of whether any bodily harm results. MCM, pt. IV, ¶ 77b(4)(b)-(c).

2. Aggravated assault by intentionally inflicting grievous bodily harm is multiplicious with maiming under Article 124 when the same actions give rise to both convictions.  United States v. Allen, 59 M.J. 515 (N-M. Ct. Crim. App. July 30, 2003).

3. When committed on a child under 16 years of age, the maximum punishment is increased.  Knowledge that the person assaulted was under the age of 16 years is not an element of the offense.

4. When committed on a spouse, intimate partner, or an immediate family member, the maximum punishment is increased.

D. Assault and Communication of Threat Distinguished.  An assault (UCMJ art. 128) is an attempt or offer to do bodily harm with unlawful force or violence.  Communication of a threat (UCMJ art. 115) embraces a declaration or intent to do bodily harm.  Both offenses therefore relate to infliction of physical injury.  When committed simultaneously upon the same victim, they are properly a single offense for punishment purposes.  United States v. Lockett, 7 M.J. 753 (A.C.M.R. 1979); United States v. Morris, 41 C.M.R. 731 (A.C.M.R. 1970); United States v. Conway, 33 C.M.R. 903 (A.F.C.M.R. 1963).

LXXX. MAIMING, ART. 128a

A. Elements.

1. That the accused inflicted a certain injury upon a certain person;

2. That this injury seriously disfigured the person’s body, destroyed or disabled an organ or member, or seriously diminished the person’s physical vigor by the injury to an organ or member; and

3. That the accused inflicted this injury with an intent to cause some injury to a person. 

B. Nature of Offense.  It is maiming to put out a person’s eye, to cut off a hand, foot, or finger, or to knock out a tooth, as these injuries destroy or disable those members or organs.  It is also maiming to injure an internal organ so as to seriously diminish the physical vigor of a person.  Likewise, it is maiming to cut off an ear or to scar a face with acid, as these injuries seriously disfigure a person.  A disfigurement need not mutilate any entire member to come within the article, or to be of any particular type, but must be such as to impair perceptibly and materially the victim’s comeliness. The disfigurement, diminishment of vigor, or destruction or disablement of any member or organ must be a serious injury of a substantially permanent nature.  However, the offense is complete if such an injury is inflicted even though there is a possibility that the victim may eventually recover the use of the member or organ, or that the disfigurement may be cured by surgery.  MCM, pt. IV, ¶ 78c(1).

C. Intent.  Maiming is a specific intent crime.  The government must prove a specific intent to injure a person; not the specific intent to maim.  MCM, pt. IV, ¶ 78(c)(3).

1. The 1969 Manual described maiming as a general intent crime.  MCM, 1969, ¶ 203.  This interpretation was based on United States v. Hicks, 20 C.M.R. 337 (C.M.A. 1956).  See also United States v. Tua, 4 M.J. 761 (A.C.M.R. 1977).

2. The 1984 Manual, however, also relying on Hicks, describes maiming as requiring a specific intent to injure generally, not a specific intent to maim.  MCM, pt. IV, ¶ 50c, analysis.  See United States v. Berri, 33 M.J. 337 (C.M.A. 1991).

3. When grievous bodily harm has been inflicted by means of intentionally using force in a manner likely to achieve that result, it may be inferred that grievous bodily harm was intended.  MCM, pt. IV (2016 ed.), ¶ 54c(4)(b)(ii); United States v. Allen, 59 M.J. 515 (N-M. Ct. Crim. App. 2003) (circumstantial evidence of injury to infant victim sufficient to support inference of accused’s intent to injure; affirmed conviction for maiming), aff’d, 59 M.J. 478  (C.A.A.F. 2004). [NOTE:  Intent to inflict grievous bodily harm is not required for maiming, but the facts of this case supported that finding].

D. Injury. 

1. Must be a serious injury of a substantially permanent nature.

2. Maiming may exist even if the injury can be cured by surgery, or if the disfigurement would not be visible under everyday circumstances. United States v. Spenhoff, 41 M.J. 772 (A.F. Ct. Crim. App. 1995) (scar on victim’s buttocks).  But see United States v. McGhee, 29 M.J. 840 (A.C.M.R. 1989) (where the scars to the victim’s face and body, predominately on the buttocks, were not easily detectable to the casual observer, the injury was insufficient to support a maiming charge), rev’d in part on other grounds, 32 M.J. 322  (C.M.A. 1991).

3. Disfigurement need not mutilate an entire body part, but it must cause visible bodily damage and significantly detract from the victim’s physical appearance. United States v. Outin, 42 M.J. 603 (N-M. Ct. Crim. App. 1995) (scars sustained by child victim who was immersed in scalding water were clearly visible at trial and substantially permanent in nature supported conviction for maiming, even though doctor testified that scars would become less visible with passage of time); United States v. Morgan, 47 M.J. 644 (Army Ct. Crim. App. 1997) (permanent scarring and de-pigmentation of the infant victim’s groin and buttocks, caused by the accused’s immersing him in scalding water, was “perceptible and material” disfigurement within the meaning of Article 128a, even though the injury would normally be covered from public view by clothing and affected a relatively small area of the child’s skin). 

E. Unreasonable Multiplication/Lesser Included.

1. Aggravated assault with intent to inflict grievous bodily harm is not a lesser included offense of maiming because of the different mens rea for each offense.  United States v. Hanks, 74 M.J. 556 (A. Ct. Crim. App. 2014).  Charging both was not an unreasonable multiplication of charges because of the different mens reas.

2. Unreasonable multiplication of charges to charge both maiming and attempted murder if both are aimed at the same criminal act. United States v. Sanks, No.  20130085, 2016 WL 1179191, at *4 (A. Ct. Crim. App. Mar. 23, 2016), review denied, 75 M.J. 399 (C.A.A.F. July 11, 2016).

LXXXI. DOMESTIC VIOLENCE, ART. 128b

  1. General.  The essence of this offense is that certain criminal acts, when committed against a spouse, intimate partner or immediate family member, are particularly egregious and warrant special treatment. 
  2. Elements.  An act of domestic violence in violation of Art. 128b can be committed in any of five separate ways:  violent offense, offense with intent to threaten or intimidate, violation of protection order with intent to threaten or intimidate, violation of protection order with intent to commit a violent offense, or assault by strangulation or suffocation.  See generally the Electronic Benchbook, para. 3a–52b–1.
    1. Violent Offense:
      1. That (state the time and place alleged), the accused committed a violent offense against (state the name of the alleged victim), to wit: (state the alleged violent offense); and
      2. That, at the time, (state the name of the alleged victim) was a/an (spouse) (intimate partner) (immediate family member) of the accused.
    2. Offense With Intent to Threaten or Intimidate:
      1. That (state the time and place alleged), the accused committed an offense under the Uniform Code of Military Justice against (state the name of the alleged victim against whom the offense was committed) (describe the alleged property or animal against which the offense was committed), to wit: (state the alleged offense);
      2. That the accused committed said offense with an intent to threaten or intimidate (state the name of the alleged victim of the threat or intimidation); and
      3. That, at the time, (state the name of the alleged victim of the threat or intimidation) was a/an (spouse) (intimate partner) (immediate family member) of the accused.
    3. Violation of Protection Order With Intent to Threaten or Intimidate:
      1. That (state the time alleged) there existed a protection order applicable to the accused;
      2. That (state the time and place alleged) the accused violated the protection order by (state the manner in which the order was allegedly violated);
      3. That the accused did so with an intent to threaten or intimidate (state the name of the alleged victim of the threat or intimidation); and
      4. That, at the time, (state the name of the alleged victim of the threat or intimidation) was a/an (spouse) (intimate partner) (immediate family member) of the accused.
    4. Violation of Protection Order With Intent to Commit a Violent Offense:
      1. That (state the time alleged) there existed a protection order applicable to the accused;
      2. That (state the time and place alleged) the accused violated the protection order by (state the manner in which the order was allegedly violated);
      3. That the accused did so with an intent to commit a violent offense against (state the name of the alleged victim of the intended violent offense), to wit: (state the alleged violent offense); and
      4. That, at the time, (state the name of the alleged victim of the intended violent offense) was a/an (spouse) (intimate partner) (immediate family member) of the accused.
    5. Assault by Strangulation or Suffocation:
      1. That (state the time and place alleged), the accused assaulted (state the name of the alleged victim) by (strangling) (suffocating) him/her; and
      2. That, at the time, (state the name of the alleged victim) was a/an (spouse) (intimate partner) (immediate family member) of the accused.
  3. Unresolved Matters:
    1. Maximum Punishment.  The President has not established a maximum punishment for this article.  R.C.M. 1003(c)(1)(B) addresses maximum punishments for punitive articles not listed in Section IV of the M.C.M., as is the case with Art. 128b.  Although not yet established, a “violent offense” under this article is likely “closely related” to assault consummated by a battery upon a child, spouse, intimate partner or immediate family member, for purposes of determining the appropriate maximum sentence.  While there are crimes under the U.C.M.J. which are similar to the other four ways of violating this article, none of them take into account the relationship status between the Victim and the Accused.  10 U.S.C. 928b does not establish a maximum punishment for this article.  As such, the correct maximum punishments for the other four ways of violating this article are less clear.        
    2. Model Specification.  The President has not established model specifications for this article.  Practitioners should carefully draft specifications, ensuring that all elements are alleged.  Referring to similar articles, such as Art. 128, while drafting the specification may be helpful.   
    3. Definitions.  The President has not established definitions for this article.  Typically, the military judge, in coordination with counsel, will determine the appropriate definitions for key terms associated with this article.  The following definitions found in the United States Code and the Manual for Courts-Martial may be helpful:
      1. Intimate Partner.  "Intimate partner" means a former spouse of the accused, a person who shares a child in common with the accused, or a person who cohabitates with or has cohabitated as a spouse with the accused; or a person who has been in a social relationship of a romantic or intimate nature with the accused, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the person and the accused.  10 U.S.C. §930, Art. 130, U.C.M.J.
      2. Immediate Family Member.  "Immediate family member" means the accused's spouse, parent, brother or sister, child, or other person to whom the accused stands in loco parentis; or any other person living in the accused's household and related to the accused by blood or marriage.  10 U.S.C. §930, Art. 130, U.C.M.J.
      3. Violent Offense:  A “violent offense” means an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another, or any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.  18 U.S.C. §16.
      4. Protection Order:  A “protection order” includes any injunction, restraining order, or any other order issued by a civil court, a criminal court, or a military commander for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person.  This may also include court-ordered support, child custody or visitation provisions, orders, remedies or other relief issued.  18 U.S.C. §2266.
      5. Strangulation:  “Strangling” means intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pressure to the throat or neck, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.  18 U.S.C. §113.
      6. Suffocation:  “Suffocating” means intentionally, knowingly, or recklessly impeding the normal breathing of a person by covering the mouth of the person, the nose of the person, or both, regardless of whether that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.  18 U.S.C. §113. 
  4. Definitions found in Art. 128 of the U.C.M.J. may also be useful as they relate to this article.  

LXXXII.BURGLARY; UNLAWFUL ENTRY, ART. 129

A. Burglary and Unlawful Entry.

1. Elements.

a) Burglary. 

(1) That the accused unlawfully broke and entered the building or structure of another; and

(2) That the breaking and entering were done with the intent to commit an offense punishable under the UCMJ

(3) (If the breaking and entering were with the intent to commit an offense punishable under Articles 118-120, 120b-121, 122, 125-128a, and 130, add the following element)  That the breaking and entering were done with the intent to commit an offense punishable under Article 118-120, 120b-121, 122, 125-128a, and 130.

b) Unlawful entry.

(1) That the accused entered 1) the real property of another, or 2) certain personal property of another which amounts to a structure usually used for habitation or storage; and

(2) That such entry was unlawful.

2. “Breaking” requirement applies only to burglary.

a) Burglary requires that a “breaking” occur. This element demands a substantial and forcible act.  More than the passing of an imaginary line is required.  A breaking, removing, or putting aside of something material constituting a part of a dwelling house and relied on as a security against invasion is required.  United States v. Hart, 49 C.M.R. 693  (A.C.M.R. 1975).  A breaking may be either actual or constructive.  A constructive breaking occurs when the entry is gained by trick, false pretense, or by intimidating the occupants through violence or threats.  MCM, pt. IV, ¶ 79c(2).

b) Pushing aside closed Venetian blinds and entering through an otherwise open window constitutes a breaking.  United States v. Thompson, 29 M.J. 609 (A.C.M.R. 1989), aff’d, 32 M.J. 65  (C.M.A. 1991); see generally TJAGSA Practice Note, Burglary and the Requirement for a Breaking, Army  Law., Jan. 1990, at 32 (discussing the A.C.M.R. opinion in Thompson).

c) Specification failing to allege “break and” prior to “enter” was fatally defective.  United States v. Hoskins, 17 M.J. 134 (C.M.A. 1984).

d) No such breaking is required unlawful entry.  An unauthorized entry of the protected area is sufficient.1.“Entry” requirement applies to both burglary and unlawful entry.  An entry must be effected before the crime is complete, but the entry of any part of the body, even a finger, is sufficient.  Insertion into the house of a tool or other instrument is also a sufficient entry, unless the insertion is solely to facilitate the breaking or entry.  MCM, pt. IV, ¶ 79.c.(3).

3. Intent requirements.

             a) Burglary requires that at the time of the breaking the accused possess the specific intent to commit an offense under the UCMJ.  It is immaterial whether the offense intended is committed or even attempted. MCM, pt. IV, ¶ 79.c.(5)(a).

             b)Neither specific intent to commit an offense, nor breaking is required for this offense.  MCM, pt. IV, ¶ 79.c.(5)(b).

LXXXIII. STALKING, ART. 130

A. Elements.

1. That the accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself/herself, to a member of his/her immediate family, or to his/her intimate partner;

2. That the accused knew, or should have known, that the specific person would be placed in reasonable fear of death or bodily harm, including sexual assault, to himself/herself, to a member of his or her immediate family, or to his/her intimate partner; and

3. That the accused’s conduct induced reasonable fear in the specific person of death or bodily harm, including sexual assault, to himself/herself, to a member of his/her immediate family, or to his/her partner.

B. Stalking defined. 

1. The criminal act is a “course of conduct” which is:

a) A repeated maintenance of visual or physical proximity to a specific person, or

b) A repeated conveyance of verbal threats, written threats, or threats implied by conduct, or a combination of such threats, directed at or towards a specific person.

c) A pattern of conduct composed of repeated acts evidencing a continuity of purpose.

2. “Repeated,” in the definition of “course of conduct,” means two or more occasions.

a) Be alert to the implications of these statutory definitions for conduct occurring in a barracks, on a ship, or in a deployed environment where soldiers are compelled to be in close visual or physical proximity to one another.

3. “Threat” means a communication, by words or conduct, of a present determination or intent to cause bodily harm to a specific person, an immediate family member of that person, or intimate partner of that person, presently or in the future.  The threat may be made directly to or in the presence of the person it is directed at or towards, or the threat may be conveyed to such person in some manner.  Actual intent to cause bodily harm is not required.

4. Conduct must cause a reasonable person to fear death or bodily harm to himself/herself, to a member of his/her immediate family, or to his or her intimate partner;

a) Immediate family is defined as spouse, parent, child, sibling, or other person to whom he or she stands in loco parentis; or any person living in his or her household and related to him or her by blood or marriage.

b) Intimate partner is defined as a former spouse of the specific person, a person who shares a child in common with the specific person, or a person who cohabits with or has cohabited as a spouse with the specific person; or a person who has been in a social relationship of a romantic or intimate nature with the specific person, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

5. Accused engaging in conduct must have knowledge or should have knowledge that the specific person would be put in such fear; and

6. Reasonable fear must actually be induced in that specific person.

7. Threats communicated via computer and text message may be considered “written” for purposes of the statute, at least when combined with other threats.  See generally United States v. Gutierrez, 73 M.J. 172 (C.A.A.F. 2014).

8. Though acquitted of a concomitant rape, evidence of that alleged rape may properly be considered in assessing whether the evidence of stalking was factually sufficient.  See id.

9. Stalking conviction that consisted of accused co-worker and former intimate partner calling victim’s cellular phone, yelling at her, following her during off-duty hours, and placing a weapons target outside her residence, which began weeks after victim was sexually assaulted by accused, was held to be legally sufficient.  While victim refused a no-contact order that was offered, the court held this was not dispositive in assessing the reasonable fear she felt, given the fact that she had expressed to accused that his behavior placed her in fear.  United States v. Condon, 2017 CCA LEXIS 187 (2017).

 

 

OBSTRUCTION OFFENSES

LXXXIV. PERJURY, ART. 131

A. Perjury. 

1. Elements.

a) Giving false testimony.

(1) That the accused took an oath or affirmation in a certain judicial proceeding or course of justice;

(2) That the oath or affirmation was administered to the accused in a matter in which an oath or affirmation was required or authorized by law;

(3) That the oath or affirmation was administered by a person having authority to do so;

(4) That upon the oath or affirmation that accused willfully gave certain testimony;

(5) That the testimony was material;

(6) That the testimony was false; and

(7) That the accused did not then believe the testimony to be true.

b) Subscribing false statement.

(1) That the accused subscribed a certain statement in a judicial proceeding or course of justice;

(2) That in the declaration, certification, verification, or statement under penalty of perjury, the accused declared, certified, verified, or stated the truth of that certain statement;

(3) That the accused willfully subscribed the statement;

(4) That the statement was material;

(5) That the statement was false; and

(6) That the accused did not then believe the statement to be true.

2. Distinguished From False Swearing and False Official Statement.

a) Although often used interchangeably, perjury and false swearing are different offenses.  The primary distinctions are that perjury requires that the false statement be made in a judicial proceeding and be material to the issue, whereas these matters are not part of the offense of false swearing.  As such, false swearing is not a lesser included offense of perjury.  United States v. Smith, 26 C.M.R. 16 (C.M.A. 1958).

b) The offense of false official statement (UCMJ art. 107) differs from perjury in that such a statement can be made outside a judicial proceeding and materiality is not an essential element, but bears only on the issue of intent to deceive.  It, too, is not a lesser included offense of perjury.  United States v. Warble, 30 C.M.R. 839 (A.F.B.R. 1960).

3. “Judicial proceeding” includes a trial by court-martial and “course of justice” includes an investigation under Article 32, UCMJ.  MCM, pt. IV, ¶ 81c(1).

4. Discussion of Elements for Subsection 1 – False Testimony.

a) That the accused took an oath or its equivalent in a judicial proceeding or at an Article 32 investigation.

(1) The oath must be one required or authorized by law.  MCM, pt. IV, ¶ 81c(2)(d).

(2) Article 42(b), UCMJ, requires that each witness before a court-martial be examined under oath.  R.C.M. 405(j)(2)(A) provides that all witnesses who testify at an Article 32 investigation do so under oath.

(3) R.C.M. 807 lists the various forms of oaths to be used at courts­-martial and Article 32 investigations.  A literal application of such formats is not essential.  The oath is sufficient if it conforms in substance to the prescribed form.  At the request of the party being sworn an affirmation may be substituted for an oath.

(4) DA Pam 27-9, Military Judges’ Benchbook, ¶ 3-149, defines an “oath” as a formal, external pledge, coupled with an appeal to the Supreme Being, that the truth will be stated.  An “affirmation” is a solemn and formal, external pledge, binding upon one’s conscience that the truth will be stated.

(5) The oath must be duly administered by one authorized to administer it.  MCM, pt. IV, ¶ 81c(2)(d).

(6) Articles 41(c) and 136(a), UCMJ, along with R.C.M. 405 and R.C.M. 807, set out in detail those persons authorized to administer oaths at judicial proceedings and Article 32 investigations.

(7) The president, military judge, trial counsel and assistant trial counsel for all general and special courts-martial, along with all investigating officers and judge advocates, are included in this group.

(8) If the accused is charged with having committed perjury before a court­-martial, the jurisdictional basis of the prior court-martial must be proved beyond a reasonable doubt.

(a) Ordinarily this may be shown by introducing in evidence pertinent parts of the record of trial of the case in which the perjury was allegedly committed or by the testimony of a person who was counsel, the military judge, or a member of the court in that case to the effect that the court was so detailed and constituted.  See United States v. Giles, 58 M.J. 634 (N-M. Ct. Crim. App. 2003) rev’d on other grounds and remanded by, 59 M.J. 374  (C.A.A.F. 2004).

(b) Where (1) the evidence at trial on charges of perjury before another court-martial did not identify the convening authority of that court-martial; (2) no appointing order was either recited or introduced; and (3) no other evidence providing a factual basis for concluding the prior court was properly detailed and constituted is presented, the evidence was insufficient despite lack of objection by the defense at the trial level.  United States v. McQueen, 49 C.M.R. 355 (N.C.M.R. 1974).

b) That the accused willfully gave what he believed to be false testimony at the proceeding in question.

(1) A witness may commit perjury by testifying that he knows a thing to be true when in fact he either knows nothing about it at all or is not sure about it, and this is so whether the thing is true or false in fact.  MCM, pt. IV, ¶ 81c(2)(a).

(2) A witness may also commit perjury in testifying falsely as to his belief, remembrance, or impression, or as to his judgment or opinion.  Thus, if a witness swears that he does not remember certain matters when in fact he does or testifies that in his opinion a certain person was drunk when in fact he entertained the contrary opinion, he commits perjury if the other elements of the offense are present.  MCM, pt. IV, ¶ 81c(2)(a).

(3) To undermine the willfulness and knowledge elements of this offense the following defenses are available:

(a) Voluntary intoxication.  Intoxication may so impair the mental processes as to prevent a person from entertaining a particular intent or reaching a specific state of mind.  To successfully argue this defense in a perjury prosecution, the evidence must show that the accused was intoxicated at the time he testified.  Evidence that he was intoxicated at the time of the event about which he testified is immaterial insofar as raising this defense is concerned.  United States v. Chaney, 30 C.M.R. 378 (C.M.A. 1961).

(b) Mistake of fact.  Evidence that an accused charged with perjury was intoxicated at the time of the events about which he testified raises the defense of mistake since such evidence relates to his ability to see and recall what transpired.  United States v. Chaney, 30 C.M.R. 378 (C.M.A. 1961).

(c) That the false testimony provided was not in respect to a material matter.

(4) Material Matter.  Determination of whether the false testimony was with respect to a material matter is a question of fact to be determined by the fact-finder.  United States v. Gaudin, 515 U.S. 506 (1995); see Johnson v. United States, 520 U.S. 461, 463-66 (1997). 

(5) To constitute a “material matter”, the matter need not be the main issue in the case.  The test is whether the false statement has a natural tendency to influence, or be capable of influencing, the decision of the tribunal in making a determination required to be made.  United States v. McLean, 10 C.M.R. 183 (A.B.R. 1953).  Materiality must be judged by the facts and circumstances in the particular case.  The color of an accused’s hair may be totally immaterial in one case, but decisively material in another.  Weinstock v. United States, 231 F.2d 699 (D.C. Cir. 1956).

(a) False denial of prior convictions by a witness in response to cross-examination conducted to impeach him and attack his credibility constitutes perjury, as such false testimony relates to a material matter. State v. Swisher, 364 Mo. 157, 260  S.W.2d (1968). 

(b) United States v. Martin, 23 C.M.R. 437  (A.B.R. 1956) (accused’s testimony at a previous trial that he was authorized to wear certain decorations, which was not in fact the case, was a material matter for purposes of sustaining a charge of perjury).

(6) Even inadmissible evidence may be material and therefore the subject of a perjury charge.  Where a court improperly admits evidence, such impropriety is not per se evidence of immateriality if the evidence goes to the jury.  See United States v. Whitlock, 456 F.2d 1230 (10th Cir. 1972); United States v. Parker, 447 F.2d 826 (7th Cir. 1971).

5. Discussion of Elements for Subsection 2 – False Statement

a) Article 131 reads, in pertinent part:  “Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully and corruptly. . . (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, subscribes any false statement material to the issue or matter of inquiry; is guilty of perjury and shall be punished as a court-martial may direct.”

b) Under this subsection, the false statement must expressly contain language that the statement is being made under penalty of perjury.  MCM, pt. IV, ¶ 81c(3).

c) “As permitted under section 1746 of title 28” applies to the whole of subsection (2), not just the “statement” portion. United States v. Tauala, 75 M.J. 752, 756 (A. Ct. Crim. App. 2016).  Thus, to convict an accused of perjury, pursuant to subsection (2), based on false statements in declaration, certificate, or verification, prosecutors must prove such statements were submitted in a federal proceeding under penalty of perjury.  Submission of a false document in a state court proceeding, does not qualify as a “false statement” under subsection (2).  United States v. Tauala, 75 M.J. 752, 756 (A. Ct. Crim. App. 2016.)

6. Corroboration:  Special Evidentiary Rules.

a) A unique characteristic of Article 131 is that it contains a quantitative norm as to what evidence must be presented to establish a crucial element of falsity.  A mere showing of guilt beyond a reasonable doubt is not enough.  Specifically:

(1) “Two witness rule.”  The falsity of accused’s statement must be shown by the testimony of at least two witnesses or by the testimony of one witness which directly contradicts accused’s statement plus other corroborating evidence.  See United States v. Olivero, 39 M.J. 246 (C.M.A. 1994) (circumstantial evidence of marijuana use insufficient; must have at least one corroborated witness with direct proof of such use). United States v. Tunstall, 24 M.J. 235 (C.M.A. 1987) (where alleged false oath relates to two or more facts that one witness contradicts accused as to the one fact and another witness as to another fact, the two witnesses corroborate each other in the fact that accused swore falsely, and their testimony will authorize conviction); United States v. Lowman, 50 C.M.R. 744 (A.C.M.R. 1975) (accused’s testimony contradicted by two witnesses); United States v. Jordan, 20 M.J. 977 (A.C.M.R. 1985) (two witnesses rule not applicable where falsity of accused’s oath is directly proved by documentary testimony).

(2) Direct proof required.  No conviction may be had for perjury, regardless of how many witnesses testify as to falsity and no matter how compelling their testimony may be, if such testimony is wholly circumstantial.  See Olivero, 39 M.J. 246 (C.M.A. 1994).

b) Documentary evidence directly disproving the truth of accused’s statement need not be corroborated if the document is an official record shown to have been well known to the accused at the time he took the oath or if the documentary evidence appears to have sprung from the accused himself -or had in any manner been recognized by him as containing the truth - before the allegedly perjured statement was made.  See generally Hall, The Two-Witness Rule in Falsification Offenses, Army Law., May 1989, at 11.

c) With the passage of Title IV of the Organized Crime Control Act of 1970 (18 U.S.C. § 1623), Congress eliminated application of the two witnesses rule in federal court and grand jury proceedings.  In its stead was adopted a beyond a reasonable doubt standard.  This statute, however, has not been made applicable to the military.  See United States v. Lowman, 50 C.M.R. 744 (A.C.M.R. 1975).

d) Inconsistent Sworn Statements.  Because of the requirements of the “two witness rule,” contradictory sworn statements made by a witness cannot by themselves be the basis of a perjury prosecution under Article 131.  For example, X testifies under oath that on 15 March he was in a certain bar with accused from 1900-2100.  At the same or subsequent trial he again testifies under oath, but this time states that although he was in the bar from 1900­-2100, he never saw the accused.  Under military law, insufficient evidence exists to prosecute X for perjury.

7. Application of evidentiary rules.

a) United States v. Downing, 6 C.M.R. 568  (A.F.B.R. 1952).  Mere circumstantial evidence showing nonpresence at a hospital by nonexistence of entry in hospital records held to be insufficient.

b) United States v. McLean, 10 C.M.R. 183 (A.B.R. 1953).  Weighty direct and circumstantial evidence of drinking which accused denied found sufficient.

c) United States v. Taylor, 19 C.M.R. 71 (C.M.A. 1955).  Directly contradictory testimony of prosecution witness corroborated by strong circumstantial evidence held sufficient.

d) United States v. Walker, 19 C.M.R. 284 (C.M.A. 1955).  Proof by circumstantial evidence alone of falsity of accused’s negative assertion of what he saw - something by its nature not susceptible of direct proof - was held to be sufficient. 

e) United States v. Guerra, 32 C.M.R. 463 (C.M.A. 1963).  Contradictory testimony held not directly so, therefore insufficient.          

f) United States v. Martin, 23 C.M.R. 437 (A.B.R. 1956).  Documentary evidence directly disproving accused’s assertion of holding various decorations insufficient where uncorroborated.

g) United States v. Anders, 23 C.M.R. 448 (A.B.R. 1956).  Facts similar to those in United States v. Martin, supra.  Documentary evidence properly corroborated by testimony negating claim of awards.

h) United States v. Giles, 58 M.J. 634 (N-M. Ct. Crim. App. 2003)(accused’s testimony that she “did not believe she was purchasing LSD” was sufficiently contradicted by her prior confession to CID that she knew she was buying LSD, her own handwritten note stating that she got “acid” and from the observations of an informant; totality of the evidence supports conviction for perjury) rev’d on improper joinder grounds, remanded by, 59 M.J. 374  (C.A.A.F. 2004).

8. Res Judicata is No Longer a Defense for Perjury at a Separate Court-Martial.

a) The defense of res judicata is no longer a valid defense for accused being prosecuted for committing perjury after testifying at their previous court-martial.  Earlier case law that recognized the defense of res judicata, were based on paragraph 71b of the 1951 Manual for Courts-Martial.  see United States v. Martin, 24 C.M.R. 156 (C.M.A. 1957); United States v. Hooten, 30 C.M.R. 339 (C.M.A. 1961).  United States v. Harris, 67 M.J. 611, 613-615 (A.F. Ct. Crim. App 2009).

b) R.C.M. 905(g) replaced paragraph 71b in 1984.  R.C.M. 905(g).  The drafters' analysis to R.C.M. 905(g) cites two major differences between it and Paragraph 71b.  First, the broad term “res judicata” is no longer part of the rule.   Drafters' Analysis, MCM, A21–54 (2008 ed.).  Second, the doctrine of collateral estoppel is recognized and applied so that “parties are not bound by determinations of law when the causes of action in the two suits arose out of different transactions.”  United States v. Harris, 67 M.J. 611 (A.F. Ct. Crim. App 2009).

LXXXV. SUBORNATION OF PERJURY, ART. 131a

LXXXVI. OBSTRUCTING JUSTICE, ART. 131b

A. Obstructing Justice. 

1. Elements.

a) That the accused wrongfully did a certain act;

b) That the accused did so in the case of a certain person against whom the accused had reason to believe there were or would be criminal proceedings pending; and

c) That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice.

2. Scope.  Obstructing justice under Article 131b is much broader than under the United States Code.  See United States v. Jones, 20 M.J. 38 (C.M.A. 1985).  It proscribes efforts to interfere with the administration of military justice throughout the investigation of a crime, not simply at pending judicial proceedings.  The crime can be constituted where the accused had reason to believe that criminal proceedings were or would be pending.  United States v. Tedder, 24 M.J. 176 (C.M.A. 1987); United States v. Bailey, 28 M.J. 1004 (A.C.M.R. 1989); United States v. Chodkowski, 11 M.J. 605 (A.F.C.M.R. 1981), aff’d, 14 M.J. 126 (C.M.A. 1982); but cf. United States v. Kellough, 19 M.J. 871 (A.F.C.M.R. 1985) (not obstruction to “plant” evidence where no proceeding pending; offense was a disorder under Article 134).  Criminal proceedings are broadly defined to include nonjudicial punishment.  MCM, pt. IV, ¶ 83c.  An official act, inquiry, investigation, or other criminal proceeding with a view toward possible disposition in the military justice system is required.  United States v. Gray, 28 M.J. 858 (A.C.M.R. 1989).  MCM 1984, pt. IV 96F is amended by Change 5 by making wrongfulness a required element.

3. Applications.

a) Assault on witness who had testified at summary court-martial.  United States v. Long, 6 C.M.R. 60 (C.M.A. 1952).

b) Intimidating witnesses who were to testify at a summary court-martial.  United States v. Rossi, 13 C.M.R. 896(A.F.B.R. 1953).

c) Intimidating a witness who was to appear before an Article 32 investigating officer.  United States v. Daminger, 31 C.M.R. 521 (A.F.B.R. 1961).  But see United States v. Chodkowski, 11 M.J. 605  (A.F.C.M.R. 1981) (arguing that Daminger no longer accurately represents controlling law on obstruction issue and that such a charge does not require that charges had been preferred in the underlying case or investigation).

d) Attempt to influence and intimidate a witness to retract a statement made during course of an Article 15 hearing.  United States v. Delaney, 44 C.M.R. 367 (A.C.M.R. 1971).

e) MP tried to conceal money which came into his possession in the course of official duty when the money was possible evidence pertaining to an alleged criminal offense by another person.  United States v. Favors, 48 C.M.R. 873 (A.C.M.R. 1974).

f) Communications among co-conspirators not embraced by the conspiracy.  United States v. Williams, 29 M.J. 41 (C.M.A. 1989); see United States v. Dowlat, 28 M.J. 958  (A.F.C.M.R. 1989).

g) Endeavoring to impede trial by soliciting a murder.  United States v. Thurmond, 29 M.J. 709 (A.C.M.R. 1989).

h) Accused’s threat to airman, which airman understood as an inducement to testify falsely if he were called as a witness at the accused’s trial, constituted offense even if accused was not on notice that airman would be a witness.  United States v. Caudill, 10 M.J. 787 (A.F.C.M.R. 1981); United States v. Rosario, 19 M.J. 698 (A.C.M.R. 1984).

i) Attempt to have witness falsely provide an alibi.  United States v. Gomez, 15 M.J. 954 (A.C.M.R. 1983).

j) Accused’s act of simultaneously soliciting false testimony from two potential witnesses constituted a single obstruction of justice.  United States v. Guerro, 28 M.J. 223 (C.M.A. 1989).

k) Asking witnesses to withdraw statements.  United States v. Latimer, 30 M.J. 554 (A.C.M.R. 1990).

l) Accused’s statement “don’t report me” did not constitute obstruction of justice.  United States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990).

m) Tampering with own urine sample during command-directed urinalysis of unit to avoid detection of cocaine use is not obstructing justice.  At the time of the inspection, accused was not a suspect in any crime or part of any criminal investigation.  There were no other criminal proceedings or other official acts taking place that would lead to disciplinary action.  United States v. Turner, 33 M.J. 40, 43 (C.M.A. 1991).

n) Seeking to have minor daughter’s boyfriend influence daughter to change her testimony at a state court proceeding, in exchange for consenting to daughter’s marriage to boyfriend.  United States v. Smith, 32 M.J. 567 (A.C.M.R. 1991) rev’d on other grounds 39 M.J. 448 (C.M.A. 1994) (merely requesting a soldier to contact a witness in a state proceeding, without evidence that accused also asked him to convince the witness to change her testimony, is not sufficient to sustain conviction for obstruction of justice).

o) No obstruction of justice where accused’s conduct consisted only of calling friends and begging them not to press charges. United States v. Kirks, 34 M.J. 646 (A.C.M.R. 1992).

p) Staging firefight to conceal loss of commander’s pistol constitutes obstruction of justice, since accused had reason to believe there would be criminal proceedings pending for his loss of superior’s pistol.  United States v. Finsel, 36 M.J. 441 (C.M.A. 1993).

q) Making false and misleading statement to investigators may constitute obstruction of justice.  United States v. Arriaga, 49 M.J. 9 (1998).

r) A senior drill instructor’s attempt to get two trainees to change their story regarding a sexual assault against one of the trainees was legally sufficient to sustain convictions for two specifications of obstruction of justice.  The accused’s statement, “I’ll do anything if you don’t tell,” and its converse implication of more severe treatment if the trainee did not accede was inconsistent with the duties of a senior drill sergeant.  Additionally, the accused knew his offense against the trainee had been reported and that the trainee was pursuing the matter.  United States v. Barner, 56 M.J. 131 (2001).

s) An interested party who advises, with a corrupt motive, a witness to exercise a constitutional right may obstruct the administration of justice.  United States v. Reeves, 61 M.J. 108 (2005) (accused, a tech school instructor, told a trainee not to speak to investigators and to seek counsel once the accused came under suspicion for several offenses). 

4. Applies to state court proceedings.  United States v. Smith, 32 M.J. 567 (A.C.M.R. 1991), rev’d on other grounds, 39 M.J. 448 (C.M.A. 1994).

5. Nonjudicial punishment procedure is a criminal proceeding, for purpose of obstructing justice.  United States v. Larson, 39 M.J. 516 (A.F.C.M.R. 1993).

6. Communications between accomplices are subject to obstruction-of-justice charges so long as particular communications do not embrace objects of original conspiracy.  United States v. Williams, 29 M.J. 41 (C.M.A. 1989).

7. Requisite intent not found unless accused aware that there is or possibly could be an investigation.  United States v. Athey, 34 M.J. 44 (C.M.A. 1992).

8. It is not necessary that the potential evidence be within the control of authorities or already seized when destroyed by the accused in order to be considered obstruction of justice.  United States v. Lennette, 41 M.J. 488 (1995).

9. An accused can be convicted of obstruction of justice, even if the court-martial acquits him of the offense for which he was under investigation. United States v. Bailey, 52 M.J. 786 (A.F. Ct. Crim. App. 1999), aff’d, 55 M.J. 38  (C.A.A.F. 2001).

10. Fact that Servicemember has general legal right to dispose of property that he or she owns is not defense to obstruction of justice if property is evidence of crime and Servicemember purposefully disposes of it to conceal crime with intent of influencing, impeding, or otherwise obstructing investigation of crime or due administration of justice.  United States v. Davis, 62 M.J. 691 (A.C.C.A. 2006), set aside, remanded 64 M.J. 173 (C.A.A.F. 2006), and corrected, adopted on remand, 64 M.J. 663 (A. Ct. Crim. App. 2007).

11. If the conduct at issue falls under obstructing justice, then government cannot charge a novel specification under Article 134 instead of obstructing justice.  Novel specifications under article 134 cannot be used to relieve the government of proving elements they would otherwise need to prove under the enumerated offense.  United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017).

12. Using the U.S. Code.

a) A more restrictive, and thus generally less desirable, way to charge this offense is under Article 134(3), UCMJ, as a violation of one of the below-listed sections of the U.S. Code:

(1) 18 U.S.C. § 1503 (1982) - Obstruction of proceedings before any federal court, commissioner, magistrate, or grand jury.  United States v. Aguilar, 115 S. Ct. 2357 (1995) (adopting the “nexus” requirement - that the conduct in question had the natural and probable effect of interfering with the due administration of justice).

(2) 18 U.S.C. § 1505 (1982) - Obstruction of proceedings before departments, agencies and committees.

(3) 18 U.S.C. § 1510 (1982) - Obstruction of criminal investigations.  See generally United States v. Casteen, 17 M.J. 580  (A.F.C.M.R. 1983) (not intended to deal with communications between accomplices) reconsidered on other grounds, 17 MJ 800  (1983), rev'd. in part, 24 MJ 62  (C.M.A. 1987)But see United States v. Williams, 29 M.J. 41  (C.M.A. 1989) (disapproving of Casteen  and stating that communications to an accomplice will be subject to obstruction charge under either Article 134(1) or 134(2)).

(4) 18 U.S.C. § 1511 (1982) - Obstruction of state or local law enforcement.

b) See Annot., 18 A.L.R. Fed. 875 (1974).

c) If the offense is charged under the U.S. Code, the military judge must instruct on the elements set out in the statute and the Government must prove the same.  United States v. Canter, 42 C.M.R. 753 (A.C.M.R. 1970); see generally United States v. Ridgeway, 13 M.J. 742 (A.C.M.R. 1982).

d) The MCM obviates the need for proceeding under some of these statutes as Article 131g provides the offense of “Wrongful Interference With An Adverse Administrative Proceeding.”  See MCM, pt. IV, ¶ 88.

LXXXVII. MISPRISION OF SERIOUS OFFENSE, ART. 131c

A. Misprision of a Serious Offense. 

1. Elements.

a) That a certain serious offense was committed by a certain person;

b) That the accused knew that the said person had committed the serious offense; and

c) That, thereafter, the accused wrongfully concealed the serious offense and failed to make it known to civilian or military authorities as soon as possible.

2. Taking affirmative steps to conceal the identity of the offender constitutes misprision; conviction of misprision of serious offense does not violate Fifth Amendment right against self-incrimination. United States v. Sanchez, 51 M.J. 165 (C.A.A.F. 1999) (accused took affirmative steps to conceal the identity of the offender).

3. See supra, ¶ II.D, this chapter, for a discussion of differences between Misprision of a Serious Offense and Accessory After the Fact.

B. Lesser Included Offenses and Multiplicity.  If properly pleaded, communicating a threat ay be a lesser included offense of obstruction of justice.  United States v. Benavides, 43 M.J. 723 (Army Ct. Crim. App. 1995) (relying on “pleading elements” analysis of United States v. Weymouth, 43 M.J. 329, 340  (1995)); United States v. Craft, 44 C.M.R. 664 (A.C.M.R. 1971).  But see United States v. Oatney, 41 M.J. 619 (N-M. Ct. Crim. App. 1994) (relying on strict “statutory elements” analysis of United States v. Teters, 37 M.J. 370 (C.M.A. 1993), the Navy-Marine Court held that communication of a threat and obstruction of justice are not multiplicious, even in a particular case where the threat factually must be proved in order to prove the obstruction of justice), aff’d, 45 M.J. 185  (C.A.A.F. 1996).       

LXXXVIII. WRONGFUL REFUSAL TO TESTIFY, ART. 131d

LXXXIX. PREVENTION OF AUTHORIZED SEIZURE OF PROPERTY, ART. 131e

A. Prevention of authorized seizure of property  MCM, pt. IV, ¶ 86; UCMJ art. 131e.

1. Elements.

a) That one or more persons authorized to make searches and seizures were seizing, about to seize, or endeavoring to seize certain property;

b) That the accused destroyed, removed, or otherwise disposed of that property with intent to prevent the seizure thereof; and

c) That the accused then knew that persons(s) authorized to make searches were seizing, about to seize, or endeavoring to seize certain property.

2. The offense has no requirement that criminal proceedings be pending or that the accused intended to impede the administration of justice. Cf. United States v. Ridgeway, 13 M.J. 742 (A.C.M.R. 1982).  The crime is constituted where the accused intended to prevent the seizure of certain property that the accused knew persons authorized to make seizures were endeavoring to seize.

3. Not a defense that the search or seizure was technically defective.  MCM, pt. IV, ¶ 89.

4. Application.

a) Throwing marijuana out the window as military policemen enter the accused’s barracks room to seize it is a punishable offense.  United States v. Fishel, 12 M.J. 602 (A.C.M.R. 1981).

b) Throwing and kicking a bottle of LSD while the executive officer conducts search of accused’s wall locker after smelling marijuana.  United States v. Rengel, 15 M.J. 1077 (N-M.C.M.R. 1983).

XC. NONCOMPLIANCE WITH PROCEDURAL RULES, ART. 131f

XCI. WRONGFUL INTERFERENCE WITH ADVERSE ADMINISTRATIVE PROCEEDING, ART. 131g

XCII. RETALIATION, ART 132

A. Two offenses.

1. Retaliation

a) Elements.

(1) That the accused wrongfully

(a) took or threatened to take an adverse personnel action against any person, or

(b) withheld or threatened to withhold a favorable personnel action with respect to any person; and

(2) That, at the time of the action, the accused intended to retaliate against any person or reporting or planning to report a criminal offense, or for making or planning to make  protected communication. 

2. Discouraging a report of criminal offense or protected communication.

a) Elements.

(1) That the accused wrongfully

(a) took or threatened to take adverse personnel action against any person, or

(b) withheld or threatened to withhold a favorable personnel action with respect to any person; and

(2) That, at the time of the action, the accused intended to discourage any person from reporting a criminal offense or making a protected communication. 

3. Definitions.

a) “Protected communication” means:

(1) A lawful communication to  A Member of Congress or an Inspector General.

(2) A communication to a covered individual or organization in which a member of the armed forces complains of, or discloses information that the member reasonably believes constitutes evidence of, any of the following:

(a) A violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination.

(b) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.  

b) “Covered individual or organization” means

(1) a Member of Congress

(2) an Inspector General

(3) a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;

(4) any person or organization in the chain of command;

(5) a court-martial proceeding; or

(6) any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.

4. Explanation.

a) In general. This offense focuses upon the abuse of otherwise lawful military authority for the purpose of retaliating against any person for reporting or planning to report a criminal offense or for making or planning to make a protected communication or to discourage any person from reporting a criminal offense or for making or planning to make a protected communication. The offense prohibits personnel actions, either favorable or adverse, taken or withheld, or threatened to be taken or withheld, with the specific intent to retaliate against any person for reporting or planning to report a criminal offense or for making or planning to make a protected communication or to discourage any person from reporting a criminal offense or for making or planning to make a protected communication. The offense may be committed by any person subject to the UCMJ with the authority to initiate, forward, recommend, decide, or otherwise act on a favorable or adverse personnel action who takes such action wrongfully and with the requisite specific intent. This offense does not prohibit the lawful and appropriate exercise of command authority to discipline or reward Servicemembers.

b) For purposes of this offense, “personnel action” means any action taken on a Servicemember that affects, or has the potential to affect, that Servicemember’s current position or career, including promotion, disciplinary or other corrective action, transfer or reassignment, performance evaluations, decisions concerning pay, benefits, awards, or training, relief and removal, separation, discharge, referral for mental health evaluations, and any other personnel actions as defined by law or regulation, such as 5 U.S.C. § 2302 and DoD Directive 7050.06 (17 April 2015).

c) An action is taken with the intent to retaliate when the personnel action taken or withheld, or threatened to be taken or withheld, is done for the purpose of reprisal, retribution, or revenge for reporting or planning to report a criminal offense or for making or planning to make a protected communication.

d) Threatens to take or withhold. This offense requires that the accused had the intent to retaliate, but proof that the accused actually intended to take an adverse personnel action, or to withhold a favorable personnel action, is not required. A declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving a favorable or adverse personnel action.

e) Criminal offense for purposes of this offense includes violations of the UCMJ, the United States Code, or state law.

f) Taking or threatening to take adverse personnel action, or withholding or threatening to withhold favorable personnel action, is wrongful when used for the purpose of reprisal, rather than for purposes of lawful personnel administration.

g) Other retaliatory actions. This offense does not prohibit the Secretary of Defense and Secretaries of the Military Services from proscribing other types or categories of prohibited retaliatory actions by regulation, which may be punished as violations of Article 92.

 

OFFENSES OF GENERAL APPLICATION

XCIII. CONDUCT UNBECOMING AN OFFICER, ART. 133

A. Conduct “must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.”  William Winthrop, Military Law and Precedents 711-12 (2d ed.1920)).

B. “Unbecoming conduct” means conduct morally unfitting and unworthy, rather than merely inappropriate or unsuitable.  It is misbehavior which is more than merely a lack of good taste or propriety. United States v. Rogers, 54 M.J. 244, 255-256 (C.A.A.F. 2000).

C. Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal. United States v. Moore, 38 M.J. 490 (C.M.A. 1994); United States v. Norvell, 26 M.J. 477, 481 (C.M.A.1988).  Conduct which violates Article 133 may constitute an offense elsewhere under the UCMJ. United States v. Taylor, 23 M.J. 314, 318 (C.M.A.1987).

D. Applies to female officers.  United States v. Norvell, 26 M.J. 477 (C.M.A.1988). 

E. Acts Covered.  Includes acts punishable under other articles of the UCMJ and offenses not so listed, except for minor derelictions that do not satisfy the requirements of Article 133.  United States v. Taylor, 23 M.J. 314 (C.M.A. 1987) (UCMJ art. 133 conviction affirmed even where misconduct does not violate a punitive article); United States v. Wolfson, 36 C.M.R. 722 (A.B.R. 1965) (not every deviation in conduct constitutes unbecoming conduct; to be actionable conduct must be morally unbefitting and unworthy).  Examples include:

1. Child Pornography.  United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009).  Conduct involving child pornography, including receipt and possession, can constitute conduct unbecoming an officer.  This can include both actual and virtual child pornography.  But see United States v. Amazaki, 67 M.J. 666 (A. Ct. Crim. App. 2009) (holding that, where accused received disk which he did not know contained images of child pornography, as a matter of due process, the accused was not “on fair notice that his unwitting possession of child pornography…was negligent or that his conduct in failing to discover, delete, or secure these images amounted to conduct unbecoming an officer and gentleman.”). See also section XXVIII, Para. G and H.

2. Drugs.  United States v. Maderia, 38 M.J. 494 (C.M.A. 1994) (publicly associating with person known by the accused to be a drug smuggler and discussing drug use and possibility of assistance in drug smuggling operations). United States v. Harrell, 75 M.J. 359, 361 (C.A.A.F 2016) (noting without comment that possession of marijuana and drug paraphernalia resulted in violation of Article 133).

3. Sex.  United States v. Coronado, 11 M.J. 522 (A.F.C.M.R. 1981) (even though the offense occurred off the military installation, jurisdiction was properly exercised by general court-martial which convicted accused of conduct unbecoming an officer and gentleman by performing acts of sodomy on an enlisted man); United States v. Jefferson, 21 M.J. 203 (C.M.A. 1986) (adultery and fraternization); United States v. Shobar, 26 M.J. 501 (A.F.C.M.R. 1988) (sexual exploitation of civilian waitress under the accused’s supervision); United States v. Frazier, 34 M.J. 194 (C.M.A. 1992) (officer’s engaging in open and intimate relationship with wife of enlisted soldier constituted conduct unbecoming an officer).

4. Sexual Harassment.  United States v. Lofton, 69 M.J. 386 (C.A.A.F. 2011) (a senior male officer made repeated, unwanted comments in attempts to establish a personal and unprofessional relationship with a senior female noncommissioned officer, who was not his immediate subordinate).  But see United States v. Brown, 55 M.J. 375, 386-87 (C.A.A.F. 2001) (holding that sexual remarks towards female officers of similar rank may not violate Article 133 for sexual harassment if accused is never informed that conduct may be offensive).

5. Indecent language and conduct.  United States v. Parini, 12 M.J. 679 (A.C.M.R. 1981) (colonel attempted to extract sexual favors from subordinates in return for favorable treatment); United States v. Hartwig, 35 M.J. 682 (A.C.M.R. 1992) (officer was properly convicted of conduct unbecoming based on his letter containing sexually suggestive comments to 14 year-old girl in response to her letter of support for Operation Desert Storm), aff’d, 39 M.J. 125  (C.M.A. 1994); United States v. Moore, 38 M.J. 490 (C.M.A. 1994) (private remarks to sex partner in adulterous relationship regarding oral and anal sex were indecent and degrading and not protected by First Amendment); see also United States v. Mazer, 58 M.J. 691 (N-M. Ct. Crim. App. 2003) (making suggestive, explicit and indecent statements on an internet chat room to someone the accused believed to be a 14-year old girl), set aside on other grounds, remanded by, 60 M.J. 344  (C.A.A.F. 2004).

6. Lying and breaches of trust.  United States v. Lindsay, 11 M.J. 550 (A.C.M.R. 1981) (lying to a criminal investigator about a subject of official investigation is conduct unbecoming an officer and gentleman.  Even though making a false statement to a CID agent was, at the time, generally not an offense absent an independent duty to account the special status of an officer and the position of trust he occupies makes the intentional deceit a crime under Article 133); United States v. Timberlake, 18 M.J. 371 (C.M.A. 1984) (forging false PCS orders); United States v. Gunnels, 21 C.M.R. 925 (A.B.R. 1956) (taking money to procure a discharge); United States v. Rushatz, 30 M.J. 525 (A.C.M.R. 1990) (advising junior officers how to overstate rent for off-post housing using backdated receipts), aff’d, 31 M.J. 450  (C.M.A. 1990).

7. Financial impropriety.  United States v. Brunson, 30 M.J. 766 (A.C.M.R. 1990) (failing to pay a just debt); United States v. Jenkins, 39 M.J. 843 (A.C.M.R. 1994) (negligently writing 76 dishonored checks and six false letters purportedly from bank officials).

8. Physical contact.  United States v. Isaac, 59 M.J. 537 (C.G. Ct. Crim. App. 2003) (officer pled guilty to three specifications of Art. 133 for “forcefully” picking up and carrying three different female enlisted personnel on three separate occasions). 

9. Obstruction of Justice.  Can include obstruction of foreign criminal investigations or proceedings.  United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009); United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009).

10. Miscellaneous conduct.  United States v. Schumacher, 11 M.J. 612 (A.C.M.R. 1981) (officer’s public intoxication in uniform); United States v. Bonar, 40 C.M.R. 482 (A.B.R. 1969) (affirming conviction for driving in violation of a state justice of the peace’s court order);  United States v. Norvell, 26 M.J. 477 (C.M.A. 1988) (dishonorable catheterization to avoid giving a valid urine sample, and then informing an enlisted person of this); see TJAGSA Practice Note, Drugs, Sex and Commissioned Officers:  Recent Developments Pertaining to Article 133, UCMJ, Army Law., Feb. 1989, at 62 (discusses Norvell); United States v. Lewis, 28 M.J. 179 (C.M.A. 1989) (charging a fellow officer approximately $2,000 for tutoring in leadership after the battery commander had directed all officers to assist the junior officer in their professional performance); see TJAGSA Practice Note, Charging “Tuition” Can Constitute Conduct Unbecoming an Officer and a Gentleman, Army Law., Aug. 1989, at 36 (discusses Lewis); United States v. Bilby, 39 M.J. 467 (C.M.A. 1994) (soliciting someone to violate a federal statute); United States v. Miller, 37 M.J. 133 (C.M.A. 1993) (failing to report child abuse by spouse and failing to obtain necessary medical care for abused child). 

F. Examples of Acts not Covered.  Conviction reversed for visiting legal brothel with enlisted members where the accused did not seek or engage in sex, United States v. Guaglione, 27 M.J. 268 (C.M.A. 1988); see generally TJAGSA Practice Note, Drugs, Sex, and Commissioned Officers:  Recent Developments Pertaining to Article 133, UCMJ, Army Law., Feb. 1989, at 62 (discusses Guaglione), and for merely loaning money to a subordinate.  United States v. Smith, 16 M.J. 694 (A.F.C.M.R. 1983).

G. Article 133 is not unconstitutionally void for vagueness.  Parker v. Levy, 417 U.S. 733 (1974).

H. Pleadings.

1. Referencing an unconstitutional statutory definition of child pornography in the pleadings and instructing the members using the unconstitutional statutory definition created instructional error in an Article 133 child pornography case.  United States v. Forney, 67 M.J. 271 (C.A.A.F. 2009) (Effron, C.J., concurring in the result) (Erdmann, J., dissenting).   “(Stucky, J. writing for the court and joined by Baker, J. held that there was no error and Officer could be convicted under Article 133 for possessing images which were constitutionally protected for civilians.  Effron, C.J., concurring in the result found that despite instructional error, it was harmless beyond a reasonable doubt in this case) (Erdmann, J., joined by Ryan, J., dissenting).” 

2. Allegations of “undue familiarity” and “excessive social contacts” with married female service members were legally insufficient.  United States v. Kroop, 38 M.J. 470 (C.M.A. 1993).  But cf. United States v. Boyett, 42 M.J. 150 (C.A.A.F. 1995) (affirming conviction for unprofessional close personal relationship, including sexual intercourse, with enlisted person not under accused’s supervision); United States v. Rogers, 54 M.J. 244 (C.A.A.F. 2000) (specification that LTC had “unprofessional relationship of undue familiarity” with LT in his command did state an offense).

3. LIOs.

a) Where the underlying acts of misconduct are the same, a service disorder or discredit under Article 134 is a lesser included offense of conduct unbecoming an officer under Article 133.  United States v. Cherukuri, 53 M.J. 68 (C.A.A.F. 2000), aff’d by 54 M.J. 448 (C.A.A.F. 2001); see also United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009); United States v. Harwood, 46 M.J. 26 (C.A.A.F. 1997); United States v. Rodriguez, 18 M.J. 363, 368-369 n. 4 (C.M.A. 1984).

b) Where the underlying act of misconduct is the same, larceny under Article 121 is a lesser included offense of conduct unbecoming an officer under Article 133.  United States v. Frelix-Vann, 55 M.J. 329 (C.A.A.F. 2001) (Army captain pled guilty to one specification of conduct unbecoming and one specification of larceny for same underlying misconduct), aff’d by 56 M.J. 458  (C.A.A.F. 2002).  See also United States v. Timberlake, 18 M.J. 371 (C.M.A. 1984) (violation of punitive article, such as art. 123, forgery, is lesser included offense of conduct unbecoming when same underlying misconduct at issue).

4. Multiplicity.  While any misconduct may be charged as an article 133 offense—even when chargeable as a violation of one of the other punitive articles—findings for both an article 133 offense and the same underlying offense may not stand.  United States v. Timberlake, 18 M.J. 371 (C.M.A. 1984); United States v. Frelix-Vann, 55 M.J. 329 (C.A.A.F. 2001); United States v. Cherukuri, 53 M.J. 68 (C.A.A.F. 2000); United States v. Mathis, No. ARMY 20140473, 2016 WL 1553126 (A. Ct. Crim. App. Apr. 13, 2016), review denied, (C.A.A.F. June 27, 2016).   Where service court found conduct unbecoming charge and obstructing justice charge multiplicious, no error in allowing the government to elect which finding to retain.  United States v. Palagar, 56 M.J. 294 (C.A.A.F. 2002).

5. Unreasonable Multiplication of Charges (UMC).  Four specifications of communicating sexually suggestive and sexually explicit language to a minor via e-mail, in violation of Art. 133, did not represent UMC, because they did not reflect the same act or transaction.  Each specification identified a discrete and unique communication.  United States v. Mazer, 58 M.J. 691 (N-M. Ct. Crim. App. 2003), set aside on other grounds, remanded by 60 M.J. 344 (C.A.A.F. 2004).

I. Punishment.

1. Maximum punishment is a dismissal, forfeiture of all pay and allowances, and confinement for a period not in excess of that authorized for the most analogous offense for which a punishment is prescribed by the MCM, or, if none is prescribed, for one year.  MCM, pt. IV, ¶ 90e.

2. The maximum sentence that may be adjudged for a duplicitously pled specification under Article 133 will be that imposable for “the most analogous offense” with the greatest maximum punishment.  United States v. Hart, 32 M.J. 101 (C.M.A. 1991).

XCIV. GENERAL ARTICLES, ART. 134

A. Three Bases of Criminal Liability.

1. Conduct Prejudicial to Good Order and Discipline.

2. Conduct of a Nature to Bring Discredit upon the Armed Forces.

3. Conduct Constituting a Non-capital Crime.

B. Offenses Listed in MCM, pt. IV, ¶¶ 91-108.

1. Require proof of prejudice to good order and discipline or tendency to bring discredit upon the armed forces.

2. This list is nonexhaustive.  Other novel offenses may be charged, provided the alleged misconduct satisfies the standard in one of the three clauses of Article 134 and the misconduct cannot be prosecuted under another article of the UCMJ.

C. Conduct Prejudicial to Good Order and Discipline (Clause 1).

1. Not every irregular, mischievous or improper act is a court-martial offense.  MCM, pt. IV, ¶ 91c(2)(a).  United States v. Sadinsky, 34 C.M.R. 343 (C.M.A. 1964); United States v. Rowe, No. 32852, 1999 CCA LEXIS 125 (A.F. Ct. Crim. App. Apr. 7, 1999)(unpublished) (allegation of knowing and willful harassment by repeated contact causing substantial emotional stress and reasonable fear of bodily harm was legally sufficient).

2. Conduct must be directly and palpably prejudicial to good order and discipline.  United States v. Sadinsky, 34 C.M.R. 343 (C.M.A. 1964); United States v. Woods, 28 M.J. 318 (C.M.A. 1989) (unprotected sexual intercourse where the accused has the HIV virus); MCM, pt. IV, ¶ 91c(2)(a).

3. A breach of custom may result in a violation of clause one of Article 134.  MCM, pt. IV, ¶ 91c(2)(b).  United States v. Smart, 12 C.M.R. 826 (A.F.B.R. 1953).  It must satisfy the following requirements: (1) long established practice; (2) common usage attaining the force of law; (3) not contrary to military law; and (4) ceases when observance has been abandoned. 

4. Conduct of soliciting a prostitute was not shown to be prejudicial to good order and discipline, but the offense could be affirmed as it was service discrediting.  United States v. Mullings, No. ARMY 20140079, 2016 WL 234634 (A. Ct. Crim. App. Jan. 14, 2016), review denied, (C.A.A.F. Apr. 19, 2016). 

D. Conduct of a Nature to Bring Discredit upon the Armed Forces (Clause 2).

1. Conduct must have the tendency to bring the service into disrepute or tend to lower it in public esteem.  MCM, pt. IV, ¶ 91c(3); United States v. Sullivan, 42 M.J. 360 (C.A.A.F. 1995) (any reasonable officer would have known that asking strangers of the opposite sex intimate questions about their sexual activities, while using a false name and a fictional publishing company as a cover, was service discrediting conduct) overruled on other grounds by United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017); United States v. Sanchez, 29 C.M.R. 32 (C.M.A. 1960) (sex act with chicken; “[W]hen an accused performs detestable and degenerate acts which clearly evince a wanton disregard for the moral standards generally and properly accepted by society, he heaps discredit on the . . . Government he represents.”).

2. Considering “open and notorious” conduct.  The time and place of conduct is considered by the finder of fact in weighing whether it is service-discrediting.  For cases of this type, it is not necessary to prove that a third person actually observed the act, but only that it was reasonably likely that a third person would observe it. United States v. Izquierdo, 51 M.J. 421 (C.A.A.F. 1999) (sexual intercourse in barracks room while two roommates also in room, even though accused hung sheet that substantially blocked roommates’ side of room); United States v. Sims, 57 M.J. 419 (2002) (not open and notorious when appellant was in his unlocked private dorm room, with a greater expectation of privacy than a shared room, and neither party had disrobed); United States v. Carr, 28 M.J. 661 (N.M.C.M.R. 1989) (intercourse on a public beach at night not likely to be seen); but see United States v. McLeod, 67 M.J. 501, 504 (C.G. Ct. Crim. App. 2008) (early morning sexual activity in unlocked but empty chapel was open and notorious when there was no expectation of privacy because any person could have entered at any time). 

3. Public knowledge not necessary.  United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011)(“The statute, which requires proof of the ‘nature’ of the conduct, does not require the government to introduce testimony regarding views of ‘the public’ or any segment thereof.”)  Overruling sub-silentio United States v. Green, 39 M.J. 606 (A.C.M.R. 1994)(holding that conduct will be service discrediting where civilians are aware of both the military status and the discrediting behavior;  see also United States v. Kirksey, 20 C.M.R. 272 (C.M.A. 1955).

4. Violations of state or foreign law is not per se service discrediting.  United States v. Sadler, 29 M.J. 370 (C.M.A. 1990). 

5. Proof of the underlying criminal conduct may be sufficient to establish its service-discrediting nature.  United States v. Norman, 74 M.J. 144 (C.A.A.F. 2015) (while the only testimony on the terminal element was erroneously admitted – because it simply restated the element without providing any reasoning supporting the conclusion that the accused’s conduct satisfied that element – the accused’s actions of leaving his ten-month-old son unattended in a bathtub with running hot water was sufficient to meet the government’s burden of proof on that element).

E. Conduct Punishable Under First Two Theories.  Prosecutors often charge and courts often affirm various offenses invoking both the language of Clause 1 and of Clause 2.  When using the list below, be sure to distinguish whether the specific court treated the conduct as both PGO&D and SD, or exclusively as one or the other.

1. Historically, other offenses have also been prosecuted.  United States v. Light, 36 C.M.R. 579 (A.B.R. 1965) (borrowing money from subordinates); United States v. Baur, 10 M.J. 789 (A.F.C.M.R. 1981) (obstruction of justice); United States v. Pechefsky, 13 M.J. 814 (A.F.C.M.R. 1982) (forging credit recommendations).

2. These listings are not exhaustive and other novel offenses may be charged under the first two theories of the article, providing the offenses are not prosecutable elsewhere in the UCMJ.  United States v. Wright, 5 M.J. 106 (C.M.A. 1978).

a) United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005) (inhalation “huffing” nitrous oxide); United States v. Glover, 50 M.J. 476 (C.A.A.F. 1999) (inhaling Dust-Off, a cleaning product). 

b) United States v. Choate, 32 M.J. 423 (C.M.A. 1991) (“mooning,” under some circumstances, can be PGO&D).

c) United States v. Kopp, 9 M.J. 564 (A.F.C.M.R. 1980) (wrongfully writing profanity on barracks doors and setting off a false alarm in a residential building at Air Force base).

d) United States v. Woods, 28 M.J. 318 (C.M.A. 1989) (unprotected sexual intercourse where the accused has the AIDS virus); see also United States v. Morris, 30 M.J. 1221 (A.C.M.R. 1990).

e) United States v. King, 34 M.J. 95 (C.M.A. 1992); United States v. Perez, 33 M.J. 1050 (A.C.M.R. 1991) (adultery); See also M.C.M. pt. IV, ¶ 62.

f) United States v. Sullivan, 42 M.J. 360 (C.A.A.F. 1995) (non-consensual, obscene phone calls).

g) United States v. Warnock, 34 M.J. 567 (A.C.M.R. 1991) (photographing nude female officer with her consent and showing negatives to enlisted paramour NOT prejudicial to good order and discipline under the circumstances).

h) United States v. Henderson, 32 M.J. 941 (N.M.C.M.R. 1991), aff’d, 34 M.J. 174 (C.M.A. 1992) (sexually exploiting recruits). 

i) United States v. Stone, 40 M.J. 420 (C.M.A. 1994) (falsely claiming during a speech to high school students to have been a Special Forces leader in Iraq).

j) United States v. Vaughan, 58 M.J. 29 (C.A.A.F. 2003) (child neglect where soldier-mom left infant at home, unattended for several hours). 

k) United States v. Saunders, 59 M.J. 1 (C.A.A.F. 2003) (harassment/stalking).  Be cognizant of preemption concerns (Art. 120a, Stalking).

l) United States v. Farence, 57 M.J. 674 (C.G. Ct. Crim. App. 2002), pet. denied, 58 M.J. 203 (2003) (displaying images depicting bestiality to subordinates while on duty).

m) Child Pornography.  See M.C.M. pt. IV, ¶ 91b; ¶ 95.

(1) United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004) (child pornography). 

(2) United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) (virtual, as well as actual, child pornography).

(3) United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006) (knowing possession of images depicting sexually explicit conduct by minors, whether actual or virtual).

3. Speech Offenses.

a) Parker v. Levy, 417 U.S. 733 (1974) (upholding application of Article 134 to “a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat,” and finding that such conduct “was unprotected under the most expansive notions of the First Amendment.”)

(1) “While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.” Id. at 758.

(2) “The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.” Id. at 758.

b) United States v. Priest, 45 C.M.R. 338 (C.M.A. 1972) (upholding the accused’s conviction under Article 134 for making disloyal statements, including statements protesting U.S. involvement in Vietnam, in a publications where copies were made available to Servicemembers at the Navy Exchange, the Washington Navy Yard, and at a Pentagon newsstand).

(1) “[T]he right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of our Country.”  Id. at 344.

(2) “Our inquiry, therefore, is whether the gravity of the effect of accused's publications on good order and discipline in the armed forces, discounted by the improbability of their effectiveness on the audience he sought to reach, justifies his conviction.”  Id. at 344–45.

(3) Because of the court’s veneration for free speech under the First Amendment, misconduct involving speech or publication must palpably and directly affect military order and discipline to be punishable under the general article.  Id. at 346.

c) United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008).  In determining whether speech can be punished under Article 134 as prejudicial to good order and discipline, or service-discrediting, a balance must be struck “between the essential needs of the armed forces and the right to speak out as a free American.”  Before reaching this balancing test, though, there are two threshold determinations: (1) whether the speech is otherwise protected under the First Amendment, and (2) whether the government proved the elements of the Article 134 offense.  In addressing the first prong, certain types of speech lack protection under the First Amendment.  They include fighting words, dangerous speech, and obscenity.  In the military, dangerous speech is that which “interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops.”  See United States v. Brown, 45 M.J. 389, 395 (C.A.A.F. 1996).  In addressing the second prong, the CAAF stated that in order to prove the element of an Article 134 offense involving speech where the question is whether the conduct is prejudicial to good order and discipline, the government must prove that there is a “direct and palpable connection between speech and the military mission.”  See Priest, supra, at 343.  In order to prove that the conduct is service-discrediting, there must be “a direct and palpable connection between [the] speech and the military mission or military environment.”  In Wilcox, the court held that the accused’s statements on the Internet were not unprotected speech.  The postings were not dangerous speech because the language did not “interfere[ ] with or prevent[ ] the orderly accomplishment of the mission or present[ ] a clear danger to loyalty, discipline, mission, or morale of the troops.”  Furthermore, the court concluded that the language did not constitute fighting words and was not obscene.  As the language was protected speech, the court next addressed the connection between the speech and the military.  The court found that the connection between the accused’s statements and the military was so “tenuous and speculative as to be legally insufficient to support the conclusion” that his conduct was either prejudicial to good order and discipline or service discrediting.  Concluding that the speech is protected and that the government did not prove the elements of an Article 134 charge, the court did not conduct the balancing test between the First Amendment protections and the needs of the military.   

d) United States v. Blair, 67 M.J. 566 (C.G. Ct. Crim. App. 2009).  Accused, while in civilian clothes, posted Ku Klux Klan recruiting flyers in an airport bathroom.  Plea to “wrongfully recruit[ing] for, solicit[ing] membership in, and promot[ing] the activities of the Ku Klux Klan,” “while publicly displaying an affiliation with the Armed Services,” which conduct was of a nature to bring discredit to the Armed Forces, was provident.  The court concluded that “publicly displaying an affiliation with the Armed Services” includes conduct that takes place in an area available to the public, whether or not another person is actually present.  In this case, there was a sufficient factual basis for his plea because there was the possibility that a member of the public who knew him to be in the Coast Guard could have readily seen him posting the flyers.  Next, the court applied the test in United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008), and found that the conviction was warranted despite First Amendment concerns.  Considering matters presented at sentencing, including the airport director’s testimony that it “made [him] sick” when he found out that the source of the flyers was an active duty Coast Guardsman, the CGCCA found that “the potential effects, both stated and inherent, of [the accused’s] conduct on the Coast Guard’s reputation outweigh [his] interest in his right to speak out while on government business at the airport.”

F. Crimes and Offenses Not Capital (Clause Three).

1. Specific Federal Statute.

a) Example:  Threat Against the President Under 18 U.S.C. § 871.  United States v. Ogren, 54 M.J. 481 (C.A.A.F. 2001) (threat made while in pretrial confinement for unrelated charges: “ . . . I’m going to find Clinton and blow his f______ brains out”), should be viewed with objective rather than subjective test); But see United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016) (offense of communicating a threat against the President requires wrongfulness, which must be understood to reference the accused’s subjective intent.  This prevents the criminalization of otherwise innocent conduct and places the case at bar beyond the reach of United States v. Elonis, 135 S.Ct. 2001 (2015)).

b) For offenses occurring prior to 1 January 2019, the offense must occur in a place where the law in question applies.  MCM (2016 ed.), pt. IV, ¶ 60c(4)(c)(i); see United States v. Williams, 17 M.J. 207 (C.M.A. 1984); United States v. Martinelli, 62 M.J. 52, 59 (C.A.A.F. 2005) (federal child porn statute does not apply extraterritorially to offenses Servicemember committed in Germany).  However, for offenses occurring after 1 January 2019, Clause Three applies extraterritorially to any conduct engaged in outside the United States that would constitute a federal crime or offense not capital if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. § 5.

c) Elements of the federal statute are controlling.  United States v. Ridgeway, 13 M.J. 742 (A.C.M.R. 1982).

d) A Servicemember can be convicted of an attempt to commit a federal offense under clause three, even if the underlying federal statute has no attempt provision.  United States v. Craig, 19 M.J. 166 (C.M.A. 1985).

e) Examples.

(1) Soliciting a minor (or not). United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005).  Appellant was convicted of violating 18 U.S.C. § 2422(b) under Article 134, Clause 3, for attempting to commit the offense of carnal knowledge with a victim under the age of twelve, and wrongfully soliciting an individual under the age of eighteen to engage in a criminal sexual act.  Appellant never communicated directly with a minor or a person he believed was a minor.  A conviction under Sec. 2422(b) does not require direct inducement of a minor, nor does it require an actual minor.  The relevant intent is the intent to persuade or to attempt to persuade, not the intent to commit the actual sexual act.  In this case appellant acted with the intent to induce a minor to engage in unlawful sexual activity, and then completed the attempt with actions that strongly corroborated the required culpability.  See also United States v. Amador, 61 M.J. 619 (A.F. Ct. Crim. App. 2005). 

(2) Storing stolen explosives.  United States v. Disney, 62 M.J. 46 (C.A.A.F. 2005).  Appellant stole ordnance from several military training events. Appellant was convicted of one specification of larceny of military property under Article 121 and one specification of storing stolen explosives in violation of 18 U.S.C. § 842 (h) under clause 3 of Article 134.

(3) Transporting a minor in interstate commerce.  United States v. Kearns, 73 M.J. 177 (C.A.A.F. 2014).  Appellant was convicted of transporting a minor in interstate commerce when he paid a friend to drive a minor with whom he had had sexual relations from Pennsylvania to Texas, where he was stationed.  Appellant contended the evidence was insufficient to establish he possessed the required level of intent because the minor had told him that she had been sexually abused by a family member and he was trying to help her escape a dangerous situation.  Appellant relied on several decisions from the circuit courts of appeals that required a showing that the “dominant,” “predominant,” “significant,” or “efficient and compelling” intent was to have sexual relations with the minor.  The CAAF rejected the reasoning of these decisions and held, consistent with decisions from other courts of appeals, that sexual activity needed to be only a purpose for transporting the minor across state lines.

2. State Law: Federal Assimilative Crimes Act (FACA).  18 U.S.C. §13.

a) Adopts un-preempted state offenses as the local federal law of application.

b) The purpose of FACA is to fill the gaps left by the patchwork of federal statutes.  United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999); United States v. Picotte, 30 C.M.R. 196 (C.M.A. 1961).

c) In Army and Air Force Courts, “offenses” may not include any traffic offenses which have been designated as non-criminal even if they still carry a fine.  United States v. Brooks, 64 M.J. 587 (A. Ct. Crim. App. 2006)  and United States v. Clinkenbeard, 44 M.J. 577 (A.F. Ct. Crim. App. 1996).  But cf. United States v. White, 39 M.J. 796 (N.M.C.M.R. 1994) (assimilating provisions of state motor vehicle code denominated as “violations” rather than “crimes”, but which provide for penal sanctions). This split between the Service courts has not been addressed by C.A.A.F.

d) Applies state law whether enacted before or after passage of FACA.  United States v. Rowe, 32 C.M.R. 302 (C.M.A. 1962).

e) State law may not be assimilated if the act or omission is punishable by any enactment of Congress.  Lewis v. United States, 523 U.S. 155, 118 S.Ct. 1135 (1998).  Lewis establishes a two-part test (This test should be applied in conjunction with the related, but similar Article 134 preemption analysis discussed below):

(1) Is the accused’s “act or omission…made punishable by any enactment of Congress?”  If not, then assimilate.  If so, ask:

(2) Do the relevant federal statutes preclude application of the state law?  Specifically, would the application of the state law interfere with the achievement of a federal policy, effectively rewrite an offense definition that Congress carefully considered, or run counter to Congressional intent to occupy the entire field under consideration?

f) The FACA may not be used to extend or narrow the scope of existing federal criminal law.  Lewis v. United States, 523 U.S. 155, 118 S.Ct. 1135 (1998); United States v. Perkins, 6 M.J. 602 (A.C.M.R. 1978); see also United States v. Robbins, 52 M.J. 159 (1999) and MCM, pt. IV, ¶ 91c(4)(a)(iii).

g) Jurisdiction.

(1) The government must establish exclusive or concurrent federal jurisdiction before FACA is applicable.  See United States v. Dallman, 34 M.J. 274 (C.M.A. 1992), aff’d, 37 M.J. 213  (C.M.A. 1993).

(2) A guilty plea may be sufficient to establish jurisdiction required by the Act.  United States v. Kline, 21 M.J. 366 (C.M.A. 1986); United States v. Jones, 34 M.J. 270 (C.M.A. 1992), but see United States v. Dallman, above, where guilty plea was dismissed after court held that lack of discussion of jurisdiction by parties or military judge made plea improvident.

h) Refer to state case law for interpretation of the offense

(1) Defendant provided alcohol to someone under age 21and was charged under FACA with the violation of the South Carolina code. He stated during the providence inquiry he did not know at the time he provided the alcohol, but found out “later” the person was under age 21. ACCA looked to South Carolina Code to determine the offense was not a strict liability offense and then dismissed the specification. United States v. Narewski, No. ARMY 20140080, 2016 WL 4446559, at *1 (A. Ct. Crim. App. Aug. 22, 2016)

G. Limitations on the Use of Article 134, UCMJ.

1. The Preemption Doctrine.  MCM, pt. IV, ¶ 91c(5)(a).  (See also the discussion of FACA preemption above).

a) Article 134 cannot be used to prohibit conduct already prohibited by Congress in UCMJ arts. 78 & 80-132. 

b) Under the test provided in United States v. Wright, 5 M.J. 106 (C.M.A. 1978), conduct is already prohibited if:

(1) Congress intended to limit prosecutions for certain conduct to offenses defined in specific articles of the UCMJ, and

(2) The offense sought to be charged is composed of a residuum of elements of an enumerated offense under the UCMJ. 

c) Applications.

(1) Prosecution under Article 134, Clause 1 for inhalation (“huffing”) nitrous oxide is not preempted by Article 112a because the legislative record indicates that Congress did not intend for Article 112a to be a comprehensive law covering all drug-related offenses. United States v. Erickson, 61 M.J. 230 (C.A.A.F. 2005).

(2) Federal Statutes:  Prosecution for attempting to engage a minor in illegal sexual activity (sodomy and carnal knowledge) in violation of 18 U.S.C. § 2422(b) is not preempted by Articles 80, 120, or 125.  United States v. Kowalski, 69 M.J. 705 (C.G. Ct. Crim. App. 2010).  Prosecution of bank fraud under 18 U.S.C. § 1344 is not be preempted by Article 132. United States v. Tenney, 60 M.J. 838 (N-M. Ct. Crim. App. 2005); Prosecution under 18 U.S.C. § 842 (h) for possession of stolen explosives is not preempted.  United States v. Canatelli, 5 M.J. 838 (A.C.M.R. 1978).

(3) State Statutes:  State statute prohibiting wrongfully eluding a police officer is not preempted.  United States v. Kline, 21 M.J. 366 (C.M.A. 1986); State auto burglary statute is not preempted where Congress had not included automobiles within protection of unauthorized entry laws.  United States v. Sellars, 5 M.J. 814 (A.C.M.R. 1978); State statute prohibiting hunting at night is not preempted.  United States v. Fishel, 12 M.J. 602 (A.C.M.R. 1981); State statute prohibiting the unlawful termination of another’s pregnancy is not preempted by Articles 118 and 119.  United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999); State child abuse statute is not preempted per se; however, evidence establishes no more than assault under article 128.  United States v. Irvin, 21 M.J. 184 (C.M.A. 1985), cert. denied, 479 U.S. 852 (1986); see also United States v. Wallace, 49 M.J. 292 (C.A.A.F. 1998).

(4) Preempted Statutes: State statute prohibiting false reports of crimes is preempted.  United States v. Jones, 5 M.J. 579 (A.C.M.R. 1978); Prosecution of cable television fraud using Hawaii statute is preempted by an applicable federal statute on cable television fraud, 47 U.S.C. § 553 (a) & (b).  United States v. Mitchell, 36 M.J. 882 (N.M.C.M.R. 1993), aff’d, 40 M.J. 270  (C.M.A. 1994), cert. denied 513 U.S. 1041  (1994).

2. The Capital Crime Exception.  MCM, pt. IV, ¶ 91c(4)(a)(1)(i).

a) Capital crimes are those crimes made punishable by death under the common law or by statute of the United States. 

b) Capital crimes may not be tried under Article 134.  Only non-capital offenses may be prosecuted under article 134.  United States v. French, 27 C.M.R. 245 (C.M.A. 1959).

3. Crimes Punishable under Article 92.  MCM, pt. IV, ¶ 91c(2)(b).

a) Violations of “customs of the service” that are now contained in regulations should be charged as violations of Article 92, if the regulation is punitive.

b) United States v. Caballero, 49 C.M.R. 594 (C.M.A. 1975) (setting aside a conviction under Art. 134 for possession of drug paraphernalia, holding that possession of drug paraphernalia is properly prosecuted under Art. 92, where an order or regulation proscribing such possession exists).

c) United States v. Borunda, 67 M.J. 607 (A.F. Ct. Crim. App. 2009).  The AFCCA interpreted Caballero “to mean that when a lawful general order or regulation proscribing the possession of drug paraphernalia exists, an order which by definition is punitive,” the offense must be charged under Art. 92(1), UCMJ, and not Art. 134.  In the absence of a lawful general order or regulation, the Government is at liberty to charge the conduct under another theory of Article 92 or Article 134. 

H. Pleading Considerations.

1. Pleading the Terminal Element in Clause 1 and 2 Offenses.

a) Historically, enumerated Article 134 offenses did not require the explicit pleading of the terminal element within the specification.  However, United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) marks a dramatic shift in charging Article 134 offenses.  Article 134 offenses charged under Clause 1 or 2 should explicitly allege the terminal element, notwithstanding the language of the MCM and prior case law holding otherwise.  Specifications that fail to explicitly allege the terminal element will receive increased scrutiny to determine if the terminal element is necessarily implied.

b) Explicit Pleading.  The Fosler court reaffirms that a specification provides sufficient notice when it alleges every element of the charged offense either expressly or by necessary implication as reflected in R.C.M. 307(c)(3).  In the context of Article 134, the court states “[a]n accused must be given notice as to which clause or clauses [of Article 134] he must defend against.”  When the terminal element is not expressly alleged, the court analyzes whether the element is necessarily implied. 

c) Necessary Implication.  With respect to whether the terminal element is necessarily implied, the court looks at historical precedent and stare decisis, including the MCM and Parker v. Levy, 417 U.S. 733 (1974).  CAAF notes that increased emphasis on constitutional notice requirements in recent cases has changed both U.S. Supreme Court and CAAF LIO jurisprudence and “circumsrib[ed] the extent to which Article 134 – and particularly its terminal element – can be implied.”  The court states that the historical practice of implying the terminal element and stare decisis supporting this practice “has been substantially eroded.”  Merely alleging that a crime is an Article 134 offense does not imply the terminal element and, therefore, the specification does not provide adequate notice – even when coupled with words of criminality (i.e., “wrongfully”) in the specification.

d) Notice is the legal issue; plain error is the test.

(1) Contested trials:  Failing to allege the terminal element is error because the accused does not know against which theory of criminality he must defend.  If the specification is challenged for a failure to state an offense at a contested trial, the remedy is dismissal.  See Fosler, 70 M.J. at 226.

(2) Guilty pleas:  Despite error failing to allege the terminal element, “in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused.  A court will not “find prejudice and disturb the providence of a plea where the providence inquiry clearly delineates each element of the offense and shows that the [accused] understood ‘to what offense and under what legal theory [he was] pleading guilty.’”  United States v. Ballan, 71 M.J. 28, 35 (C.A.A.F 2012).  See also United States v. Watson, 71 M.J. 54 (C.A.A.F. 2012); United States v. Nealy, 71 M.J. 73 (C.A.A.F. 2012).

2. Clause Three.

a) Each element of the federal or assimilated statute must be alleged expressly or by necessary implication.  MCM, pt. IV, ¶ 91c(6)(b).

b) The federal or assimilated state statute should be identified.  MCM, pt. IV, ¶ 91c(6)(b).

c) Clause 1 and 2 offenses are not per se LIOs of Clause 3.  Consequently, in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) and United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), it is prudent to add language to the Clause 3 specification alleging that the conduct was prejudicial to good order and discipline and/or service discrediting.

d) Sample specifications.  See Chapter 7, Appendix B.

3. Article 134 offenses are not per se LIOs of offenses arising under other articles of the UCMJ.  Consequently, applying United States v. Foster, 40 M.J. 140 (C.M.A. 1994), United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), and United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009), practitioners should use extreme care when the MCM suggests that offenses under Article 134 are lesser included offenses of offenses arising under the enumerated articles of the UCMJ.   

I. Punishment.

1. For the offenses listed in MCM, pt. IV, paras. 92-108 the specified punishments control.  R.C.M. 1003(c)(1)(A).

2. For other offenses, the following rules apply:

a) If the offense is either included in, or closely related to, an offense listed in paras. 92-108, then the penalty provided in the MCM for the listed offense applies.  United States v. Sellars, 5 M.J. 814 (A.C.M.R. 1978) (state auto burglary statute was closely related to Article 130 housebreaking and should therefore be punished consistent with article 130 punishments); R.C.M. 1003(c)(1)(B)(i).

b) If an unlisted offense is included in a listed crime and is closely related to another, or is equally related to two or more listed offenses, the lesser punishment of the related crimes shall apply.  R.C.M. 1003(c)(1)(B)(i).  This is the opposite rule from that of Article 133, where the greater punishment applies.  See supra ¶ XCIII., this chapter.

c) If the punishment for an unlisted offense cannot be determined by applying the above tests (a & b), which is usually the case, then the punishment is that provided by the civilian statute or authorized by the custom of the service.  R.C.M. 1003(c)(1)(B)(ii).

(1) The accused was charged with and knowingly receiving visual depictions of minors engaging in sexually explicit conduct under Clauses 1 and 2 of Article 134.  The military judge did not err in referencing the analogous federal statute, 18 USC § 2252(a)(2) to determine the maximum punishment, “when every element of the federal crime, except the jurisdictional element, was included in the specification.”  United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007); but see United States v. Beaty, 70 M.J. 39, 45 (C.A.A.F. 2011) (where accused was charged with possessing “what appears to be” child pornography, it was error for military judge to apply federal maximum punishment for possession of child pornography.  These materials were different from what may be criminalized under federal law.  Charge should have been treated as a general disorder, with a maximum punishment of four months confinement and forfeitures).

(2) Prosecution under 18 U.S.C. § 842 (h), for possession of stolen explosives, is punished under penalties provided in the federal statute.  United States v. Canatelli, 5 M.J. 838 (A.C.M.R. 1978).

(3) Prosecution under 4 U.S.C. § 3, for wrongfully and dishonorably defiling the American flag, is punished under the penalties provided in the statute.  United States v. Cramer, 24 C.M.R. 31 (C.M.A. 1957).  However, counsel should consider Texas v. Johnson, 491 U.S. 397 (1989), where Supreme Court held that civilians may not be punished for desecrating flag.  As in Beaty maximum punishment may be limited to that of a general disorder, four months confinement and forfeitures.

XCV. OFFENSES UNDER ART. 134.

A. Fraternization

1. Military case law.

a) Military case law suggests that wrongful fraternization is more easily described than defined.  Usually, some other criminal offense was involved when officers were tried for this offense.  Whatever the nature of the relationship, each case was clearly decided on its own merits with a searching examination of the surrounding circumstances rather than focusing on the act itself.

b) The legal test for describing or defining fraternization is found in United States v. Free, 14 C.M.R. 466 (N.B.R. 1953):  “Because of the many situations which might arise, it would be a practical impossibility to lay down a measuring rod of particularities to determine in advance what acts are prejudicial to good order and discipline and what are not.  As we have said, the surrounding circumstances have more to do with making the act prejudicial than the act itself in many cases.  Suffice it to say, then, that each case must be determined on its own merits.  Where it is shown that the acts and circumstances are such as to lead a reasonably prudent person, experienced in the problems of military leadership, to conclude that the good order and discipline of the armed forces has been prejudiced by the compromising of an enlisted person’s respect for the integrity and gentlemanly obligations of an officer, there has been an offense under Article 134.”

2. The Manual for Courts-Martial specifically includes fraternization between officer and enlisted personnel as an offense under UCMJ art. 134.  The elements of the offense are:

a) That the accused was a commissioned or warrant officer;

b) That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner;

c) That the accused then knew the person(s) to be (an) enlisted member(s);

d) That such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and

e) 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.  MCM, pt. IV, ¶ 101b.

3. In addition to Article 134, UCMJ, which only proscribes fraternization between officers and enlisted personnel, the services have promulgated punitive regulations punishable under Article 92, UCMJ that proscribe relationships between officers and between enlisted personnel that do not respect differences in grade or rank.

a) Army.  AR 600-20, paras. 4-14 and 4-15 (6 Nov 2014), define improper superior-subordinate relationships, to include several specified prohibited relationships.  DA Pam 600-35 (21 Jul 2017) provides additional regulatory guidance for determining improper superior-subordinate relationships or wrongful fraternization.  Additional scrutiny should be given to relationships involving (1) direct command/supervisory authority or (2) power to influence personnel or disciplinary actions.  “[A]uthority or influence . . . is central to any discussion of the propriety of a particular relationship between Soldiers of a different rank.”

b) Navy and Marine Corps.  U.S. NAVY REGULATIONS, 1990, art. 1165 (14 Sept. 1990) proscribes personal relationships between officer and enlisted members that are unduly familiar and that do not respect differences in grade or rank.  These types of relationships are declared to be per se prejudicial to good order and discipline and violate long-standing traditions of the naval service.  Personal relationships between officer members or between enlisted members that are unduly familiar and that do not respect differences in grade or rank are also proscribed if they are discrediting or prejudicial to good order and discipline.  The regulation provides a non-exhaustive listing of circumstances that would qualify as service discrediting or prejudicial to good order and discipline.

4. In addition to service regulations, many commands have published regulations and policy letters concerning fraternization.  Violations of regulations or policy letters are punishable under Article 92, if:

a) The regulation or policy letter specifically regulates individual conduct without being vague or overbroad.  See United States v. Callaway, 21 M.J. 770 (A.C.M.R. 1986); United States v. Adams, 19 M.J. 996 (A.C.M.R. 1985); United States v. Moorer, 15 M.J. 520 (A.C.M.R. 1983), aff’d in part, rev’d in part, 16 M.J. 451 (C.M.A. 1983); United States v. Hoard, 12 M.J. 563 (A.C.M.R. 1981);

b) The regulation or policy letter indicates that violations of the provisions are punishable under the UCMJ (directory language may be sufficient); and

c) Knowledge:  Service members are presumed to have knowledge of lawful general regulations if they are properly published.  Actual knowledge of regulations or policy letters issued by brigade-size or smaller organizations must be proven.  See generally United States v. Mayfield, 21 M.J. 418 (C.M.A. 1981); United States v. Tolkack, 14 M.J. 239 (C.M.A. 1982); see also United States v. Tedder, 24 M.J. 176, 1981 (C.M.A. 1987).

5. Charging Fraternization. 

a) Fraternization between an officer and an enlisted service member is charged generally under Article 134, UCMJ.

b) Fraternization between enlisted personnel and officers is generally charged as a violation of Article 92, UCMJ if there is an applicable service regulation or general order that is punitive.  In the past, fraternization has been successfully charged as a violation of Article 134, UCMJ as well.  See United States v. Clarke, 25 M.J. 631 (A.C.M.R. 1987), aff’d, 27 M.J. 361  (C.M.A. 1989); United States v. Carter, 23 M.J. 683 (N.M.C.M.R. 1986); United States v. March, 32 M.J. 740 (A.C.M.R. 1991).

(1) United States v. Williams, No. 201500296, 2017 WL 1034020, (N-M. Ct. Crim. App. 2017), review denied, (C.A.A.F. July 7, 2017).  Declined to extend the holding of Carter that charging fraternization between enlisted personnel under Article 134, UCMJ was viable to a relationship between a Corporal (E-4) accused and a Lance Corporal (E-3).

(2) Based on the holding in Williams, fraternization between enlisted personnel should be charged as a violation of Article 92, UCMJ in any case where a punitive regulation or general order is available.

c) Additionally, Article 134 has been successfully used to prosecute instances of officer-officer fraternization, United States v. Callaway, 21 M.J. 770 (A.C.M.R. 1986

6. Options Available to Commanders.

a) Counsel the individuals involved.

b) Pursue other non-punitive measures (e.g., reassignment, oral or written admonitions or reprimands, adverse OER/EER, bar to reenlistment, relief, administrative elimination).

c) Consider nonjudicial or punitive action.

(1) If the offense amounts to a social relationship between an officer and an enlisted person and violates good order and discipline, it may be charged under UCMJ art. 134.

(2) If the relationship violates other offenses such as adultery, sodomy, indecent acts, maltreatment, etc., the conduct should be alleged as such.

(3) Other articles may be charged depending upon the specific facts of the case.

(4) The conduct may be in violation of a regulation or order and charged under Art 92.

7. Applications.

a) Sexual activity.

(1) United States v. Froehlke, 390 F. Supp. 503 (D.D.C. 1975).  Upheld conviction of warrant officer for undressing and bathing an enlisted woman (not his wife) with whom he had been drinking.  Offense of unlawful fraternization held not unconstitutionally vague.

(2) United States v. Hoard, 12 M.J. 563 (A.C.M.R. 1981).  “[W]rongfully socializing, drinking, and engaging in sexual intercourse with female receptees in violation of cadre-trainee regulation.”

(3) United States v. Lowery, 21 M.J. 998 (A.C.M.R. 1986), aff’d, 24 M.J. 347 (C.M.A. 1987).  Conviction upheld when accused officer had sexual intercourse with enlisted female, formerly under his command, where the female would not have gone to the accused’s office to make an appointment but for the superior-subordinate relationship.

(4) United States v. Tedder, 24 M.J. 176 (C.M.A. 1987).  Charges of unbecoming conduct based on officer having sexual relationship with enlisted woman Marine and seeking to have subordinates arrange dates for him with another subordinate Marine were not impermissibly vague.

(5) United States v. Parrillo, 31 M.J. 886 (A.F.C.M.R. 1990), aff’d 34 M.J. 112 (C.M.A. 1992) Sexual relations with enlisted members under the accused officer’s supervision violated an Air Force custom against fraternization.

(6) United States v. Sanchez, 50 M.J. 506 (A. F. Ct. Crim. App. 1998).  Accused cannot be convicted of both conduct unbecoming (Art. 133) and fraternization (Art. 134) when the misconduct alleged in the specifications is identical; fraternization gets dismissed.  Those fraternization allegations not alleged in conduct unbecoming specifications remain.  Court cites United States v. Harwood, 46 M.J. 26, 28 (1997) in support.

(7) United States v. Rogers, 54 M.J. 244 (2000).  Evidence legally sufficient to sustain Art. 133 conviction for the offense of conduct unbecoming an officer by engaging in an unprofessional relationship with a subordinate officer in appellant’s chain of command.  AF Court holds there is no need to prove breach of custom or violation of punitive regulation.

(8) United States v. Delgado, No. ARMY 20140927, 2016 WL 109792, at *1 (A. Ct. Crim. App. Jan. 6, 2016), review denied, (C.A.A.F. Mar. 30, 2016) (nonconsensual sexual assault cannot form the basis to establish an inappropriate relationship under AR 600-20).

b) Drugs and other illegal activities.

(1) United States v. Graham, 9 M.J. 556 (N.C.M.R. 1980).  Navy lieutenant convicted under Article 133 for conduct unbecoming an officer for smoking marijuana on shore with members of his ship’s crew. 

(2) United States v. Chesterfield, 31 M.J. 942 (A.C.M.R. 1990).  Drinking and smoking hashish with subordinates constituted fraternization.

c) Excessive socializing. 

(1) United States v. Arthen, 32 M.J. 541 (A.F.C.M.R. 1990).  Accused officer’s romantic relationship with an enlisted co-worker did not constitute fraternization.

(2) United States v. McCreight, 43 M.J. 483 (C.A.A.F. 1996).  Conviction for fraternization sustained where 1LT showed partiality and preferential treatment to senior airman; associated with airman on a first name basis at work and during numerous social contacts, including drinking and gambling; repeatedly allowed the same airman to stay in his apartment; and on one occasion drank with same airman under circumstances where the accused was the “designated drunk” and the airman was the designated driver.  No sexual aspect alleged or proven.  Fraternization does not require sexual conduct.  Accord United States v. Nunes, 39 M.J. 889 (A.F.C.M.R. 1994) (“That no sexual relationship was alleged is irrelevant.  This case is a useful corrective to the common notion that fraternization perforce must include sexual hanky-panky.”).

d) Proof of custom and other facts.

(1) United States v. Wales, 31 M.J. 301 (C.M.A. 1990).  Accused’s conviction for fraternization was reversed because the judge did not instruct that the members must find that the accused (an Air Force officer) was the supervisor of the enlisted member at the time of the alleged fraternization, and because the government did not prove that the accused’s conduct violated a custom of the service.  To prove a custom of the military service, proof must be offered by a knowledgeable witness--subject to cross-examination--about that custom.

(2) United States v. Appel, 31 M.J. 314 (C.M.A. 1990).  If the government relies on a violation of a custom as fraternization, it must prove the custom (Air Force accused).  Proof of a military custom may not be based on judicial notice.

(3) United States v. Thompson, 31 M.J. 781 (A.C.M.R. 1990).  Military judge is entitled to take judicial notice of a post regulation proscribing fraternization.

(4) United States v. Johanns, 20 M.J. 155 (C.M.A. 1985), cert. denied 474 U.S. 850 (1985).  Decision of A.F.C.M.R. that “[C]ustom in the Air Force against fraternization has been so eroded as to make criminal prosecution against an officer for engaging in mutually voluntary, private, non-deviate sexual intercourse with an enlisted member, neither under his command or supervision, unavailable.” 

(5) United States v. Fox, 34 M.J. 99 (C.M.A. 1992).  Air Force fraternization specification must at least imply existence of a superior-subordinate or supervisory relationship and court members must be instructed that to find the accused guilty they must find the existence of such a relationship.

(6) United States v. Blake, 35 M.J. 539 (A.C.M.R. 1992).  Specification alleging fraternization between Army 1SG and female NCO in his company was fatally defective where it failed to allege a violation of Army custom, which is an essential element.           

(7) United States v. Boyett, 37 M.J. 872 (A.F.C.M.R. 1993), aff’d 42 M.J. 150 (1995).  Determination in previous case (Johanns) that custom against fraternization in the Air Force had been so eroded as to make criminal prosecution against officer for engaging in mutually voluntary, private, nondeviate sexual intercourse with enlisted member, neither under his command nor supervision, unavailable was limited to state of customs reflected in record in that case, and would not preclude every prosecution for fraternization based on such conduct. (Per Heimberg, J., with three Judges concurring and one Judge concurring separately).

(8) United States v. Brown, 55 M.J. 375 (C.A.A.F. 2001). The military judge did not abuse his discretion when he admitted the nonpunitive Air Force Pamphlet (AFP) 36-2705, Discrimination and Sexual Harassment (28 February 1995) over defense objection.  In so ruling, the CAAF agreed with the military judge that the AFP was relevant to establish notice of the prohibited conduct and the applicable standard of conduct in the Air Force community to the appellant.  Additionally, the CAAF stated that in cases were evidence of the custom of the service is needed to prove an element of an offense, it is likely that the probative value will outweigh the prejudicial effect.  

B. Worthless check by dishonorably failing to maintain sufficient funds. 

1. Elements.

a) That the accused made and uttered a certain check.

b) That the check was made and uttered for the purchase of a certain thing, in payment of debt, or for a certain purpose.

c) That the accused did thereafter fail to place or maintain sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment for payment.

d) That such failure was dishonorable.

e) That such failure was prejudicial to good order and discipline or was service discrediting.

2. “Dishonorable” failure to maintain sufficient funds.

a) Bad faith, gross indifference, fraud or deceit is necessary.  United States v. Brand, 28 C.M.R. 3  (C.M.A. 1959).

b) Negligent failure insufficient.  United States v. Kess, 48 C.M.R. 108  (A.F.B.R. 1973).

c) Redemption negates evidence of dishonorableness.  United States v. Groom, 30 C.M.R. 11  (C.M.A. 1960).

d) Evidence sufficient.  United States v. Silas, 31 M.J. 829 (N.M.C.M.R. 1990). 

e) May occur after initial presentment.  United States v. Call, 32 M.J. 873 (N.M.C.M.R. 1991).

3. Defenses.

a) Lack of sophistication regarding checking insufficient for guilt under either an Article 123a or Article 134 theory.  United States v. Elizondo, 29 M.J. 798 (A.C.M.R. 1989); see generally, TJAGSA Practice Note, Mens Rea and Bad Check Offenses, Army Law., Mar. 1990, at 36 (discusses Elizondo).

b) Honest mistake, not a result of bad faith or gross indifference, is a legitimate defense.  United States v. Connell, 22 C.M.R. 18  (C.M.A. 1956).

c) Bad checks written to satisfy gambling debts not enforceable on public policy grounds. United States v. Allberry, 44 M.J. 226  (C.A.A.F. 1996); But see United States v. Falcon, 65 M.J. 386 (C.A.A.F. 2008) overruling United States v. Wallace, 36 C.M.R. 148  (C.M.A. 1966) finding public policy rationale applied to illegal gambling has changed and “legal” gambling has grown in terms of popularity and acceptance).  United States v. Green, 44 M.J. 828  (Army Ct. Crim. App. 1996) (public policy defense applies only when there is a direct connection between the check cashing service and the gambling activity).

C. Debt; dishonorably failing to pay

1. Elements.

a) That the accused was indebted to a certain person or entity in a certain sum;

b) That this debt became due and payable on or about a certain date;

c) That while the debt was still due and payable the accused dishonorably failed to pay this debt; and

d) 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.       

2. More than negligence in nonpayment is necessary.  MCM, pt. IV, ¶ 71c.  A mere failure to pay a debt does not establish dishonorable conduct.  Even a negligent failure to pay a debt is not dishonorable.  The term “dishonorable” connotes a state of mind amounting to gross indifference or bad faith, and is characterized by deceit, evasion, false promises, denial of indebtedness, or other distinctly culpable circumstances.  United States v. Bullman, 56 M.J. 377  (C.A.A.F. 2002), aff’d, 57 M.J. 478  (C.A.A.F. 2002); United States v. Burris, 59 M.J. 700 (C.G. Ct. Crim. App. 2004).  (Guilty plea to offense was improvident where the military judge failed to define dishonorable conduct with respect to an AAFES debt, failed to elicit a factual predicate for dishonorable conduct regarding the debt, and failed to resolve inconsistencies which indicated an inability to pay the debt and a lack of deceit or evasion.)

a) Evidence was legally sufficient to support conviction for dishonorable failure to pay a just debt where accused failed to make an arrangement for payment, had made late payments before, failed to contact rental agent even after formal notice, and surreptitiously vacated the apartment without paying, cleaning, or repairing damage. United States v. Polk, 47 M.J. 116 (C.A.A.F. 1997)

 

OTHER OFFENSES

XCVI. WARTIME RELATED OFFENSES

A. Offenses.

1. Desertion.  UCMJ art. 85.

2. Willfully Disobeying Superior Commissioned Officer.  UCMJ art. 90.

3. Misbehavior Before the Enemy.  UCMJ art. 99.

4. Subordinate Compelling Surrender.  UCMJ art. 100.

5. Improper Use of a Countersign.  UCMJ art. 101.

6. Forcing A Safeguard.  UCMJ art. 102.

7. Captured or Abandoned Property.  UCMJ art. 108a.

8. Aiding the Enemy.  UCMJ art. 103b.

9. Misconduct as a Prisoner.  UCMJ art. 98.

10. Spies.  UCMJ art. 103.

11. Espionage.  UCMJ art. 103a.

12. Offenses by Sentinel or Lookout.  UCMJ art. 95.

13. Malingering.  UCMJ art. 83.

14. Straggling.  UCMJ art. 134. 

15. Other Offenses.

a. Failure to Obey Lawful General Regulation.  UCMJ art. 92.

b. Dereliction of Duty.  UCMJ art. 92.

c. Violation of Federal Statutes.  UCMJ art. 134.

B. The “Triggers”.  Typically the offenses listed above can occur or become aggravated only when one of the two triggers below exist.

1. Time of War.

2. Before the Enemy.

C. Time Of War.

1. Definition.  “Time of war” means a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that time of war exists.  R.C.M. 103(21).

a) Definition applies only to R.C.M. 1004(c)(6) and to Parts IV and V of the Manual.

b) The UCMJ does not define “time of war.”  R.C.M. 103(21), analysis.

c) The Court of Military Appeals (now Court of Appeals for the Armed Forces) has held that “time of war,” as used in the UCMJ, does not necessarily mean declared war.  Whether a time of war exists depends on the purpose of the specific article in which the phrase appears.

d) For purposes of Art. 2a(10), “time of war” means a war formally declared by Congress or during contingency operations.  United States v. Ali, 71 M.J. 256, 262 (C.A.A.F. 2012).

e) Vietnam conflict was time of war for purposes of suspension of the statute of limitations under Article 43.  United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968).

f) Conflicts in Iraq and Afghanistan in 2007 was a time of war for the suspension of the statute of limitations under Article 43.  United States v. Rivaschivas, 74 M.J. 758 (A. Ct. Crim. App. 2015) (desertion).

2. The court has examined the following circumstances to determine if time of war exists:

a) The nature of the conflict, i.e. there must exist armed hostilities against an organized enemy.  United States v. Shell, 23 C.M.R. 110, 114 (C.M.A. 1957);

b) The movement and numbers of United States forces in the combat area;

c) The casualties involved;

d) Legislation, executive orders or proclamations concerning the hostilities.  United States v. Bancroft, 11 C.M.R. 3 (C.M.A. 1953).

3. Geographical limitation of time of war.

a) Not limited with respect to Article 43, UCMJ.  United States v. Anderson, 38 C.M.R. 386 (C.M.A. 1968).

b) May be limited for other purposes.  See United States v. Taylor, 15 C.M.R. 232 (C.M.A. 1954); United States v. Ayers, 15 C.M.R. 220 (C.M.A. 1954).

4. For a more broad discussion of the impact of “time of war” on offenses for purposes of Article 43, see Chapter 22 (Defenses) in this deskbook.

D. Applications.

1. Offenses which can occur only in time of war.

a) Improper use of a countersign.  UCMJ art. 101.

b) Misconduct as a prisoner.  UCMJ art. 98.

c) Spies.  UCMJ art. 103.

2. Offenses which are capital offenses in time of war.

a) Desertion.  UCMJ art. 85.

b) Willful Disobedience of a Superior Commissioned Officer’s Order.  UCMJ art. 90.

c) Offenses As A Sentinel.  UCMJ art. 95 (Drunk or sleeping on post, or leaving post before being relieved).

d) Homicide. See R.C.M. 1004(c)(6).

3. Offenses where time of war is an aggravating factor.

a) Drug offenses.  UCMJ art. 112a.

b) Malingering.  UCMJ art. 83.

c) Offenses by a Sentinel.  UCMJ art. 95.

 

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