The general article. UCMJ Art. 134

Three Bases of Criminal Liability

  1. test1 079 (Side 79)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.

Offenses Listed in MCM, pt. IV,  61-113

  1. Require proof of prejudice to good order and discipline or tendency to bring discreditupon the armed forces.
  2. This list is nonexhaustive. Other novel offenses may be charged, provided thealleged 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.

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, 60c(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 Apr. 7, 1999)(unpublished) (allegation of knowing and willful harassment by repeated contact causing substantial emotional stress and reasonable fear of bodily harm was legally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); see United States v. Davis , 26 M.J. 445 (C.M.A. 1988) (cross dressing); United States v. Woods , 28 M.J. 318 (C.M.A. 1989) (unprotected sexual intercourse where the accused has the HIV virus).
  3. A breach of custom may result in a violation of clause one of Article 134. MCM, pt.IV, 60c(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.

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 itin public esteem. MCM, pt. IV,  60c(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); 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 isconsidered 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).
  3. Public knowdge 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.”) O verruling 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 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).

Conduct Punishable Under First Two Theories

test1 080 (Side 80)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 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).
    1. 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).
    2. United States v. Choate , 32 M.J. 423 (C.M.A. 1991) (“mooning,” under some circumstances, can be PGO & D).
    3. United States v. Johnson , 4 M.J. 770 (A.C.M.R. 1978) (peeping tom).
    4. United States v. Kopp , 9 M.J. 564 (A.F.C.M.R. 1980) (wrongfully setting off a false alarm in a residential building at Air Force base).
    5. 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).
    6. United States v. Davis , 26 M.J. 445 (C.M.A. 1988) (on-post cross-dressing); United States v. Guerrero , 33 M.J. 295 (C.M.A. 1991), cert. denied , 502 U.S. 1096 (1992) (off-post cross-dressing).
    7. 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).
    8. United States v. Sullivan , 42 M.J. 360 (C.A.A.F. 1995) (non-consensual, obscene phone calls).
    9. 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).
    10. 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).
    11. 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).
    12. 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).
    13. United States v. Saunders , 59 M.J. 1 (C.A.A.F. 2003) (harassment/stalking). Be cognizant of preemption concerns (Art. 120a, Stalking).
    14. 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).
    15. Child Pornography. See Ch. 3, Part II, Para. II.G.
      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).

Speech Offenses

    1. test1 131 (Side 131)“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.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. 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 service members 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.
  2. 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.
  3. 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 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.”

Crimes and Offenses Not Capital (Clause Three)

  1. Specific Federal Statute.
    1. test1 130 (Side 130)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”).
    2. The offense must occur in a place where the law in question applies. MCM, pt. IV,  60c(4)(c)(i); see United States v. Williams , 17 M.J. 207 (C.M.A. 1984); United States v. Clark , 41 C.M.R. 82 (C.M.A. 1969); United States v. Kolly , 48 M.J. 795 (N-M. Ct. Crim. App. 1998) (federal child porn statute applied extraterritorially to offenses servicemember committed in Japan).
    3. Elements of the federal statute are controlling. United States v. Ridgeway , 13 M.J. 742 (A.C.M.R. 1982).
    4. 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).
    5. A specification containing allegations of fact insufficient to establish a violation of a designated federal statute may nonetheless be sufficient to constitute a violation of either clause one or two, Article 134. United States v. Mayo , 12 M.J. 286 (C.M.A. 1982); United States v. Wagner , 52 M.J. 634 (N-M. Ct. Crim. App. 1999); see also United States v. Robbins , 48 M.J. 745 (A.F. Ct. Crim. App. 1998), modified in part , 52 M.J. 159 (1999)(Sullivan, J. dissenting); United States v. Gould , 13 M.J. 734 (A.C.M.R. 1982).
    6. 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.
  2. State Law: Federal Assimilative Crimes Act (FACA). 18 U.S.C. §13.
    1. Adopts un-preempted state offenses as the local federal law of application.
    2. 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).
    3. “Offenses” may include any non-regulatory statutory prohibition that provides for some form of punishment if violated. 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). But cf. United States v. Clinkenbeard , 44 M.J. 577 (A.F. Ct. Crim. App. 1996) (reaching contrary result).
    4. Applies state law whether enacted before or after passage of FACA. United States v. Rowe , 32 C.M.R. 302 (C.M.A. 1962).
    5. 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?
    6. 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).
    7. 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).

Child Pornography

  1. test1 091 (Side 91)There is no enumerated crime addressing child pornography in the UCMJ and thePresident has not listed a child pornography offense under Article 134. Crimes in the military that involve child pornography must be charged under a general article (Article 133 or Article 134). There are two ways to charge child pornography crimes using Article 134:
    1. Charge the criminal conduct using Article 134, clauses 1 and 2.
    2. Charge a violation of an applicable federal statute using Article 134, clause
  2. Clauses 1 and 2, Article 134.
    1. “It is a mystery to me why, after this [c]ourt’s ten-year history of invalidating convictions for child pornography offenses under clause 3, and of upholding convictions for such offenses under clause 2, we continue to see cases charged under clause 3.” United States v. Medina , 66 M.J. 21, 29 n.1 (C.A.A.F. 2008) (Stucky, J., dissenting).
    2. Possession of child pornography may be charged as a Clause 1 or Clause 2 offense. United States v. Irvin , 60 M.J. 23 (C.A.A.F. 2004).
    3. Virtual Child Pornography under Clauses 1 and 2.
      1. United States v. Mason , 60 M.J. 15 (C.A.A.F. 2004) (“The receipt or possession of “virtual” child pornography can, like “actual” child pornography, be service-discrediting or prejudicial to good order and discipline.”).
      2. United States v. Brisbane , 63 M.J. 106 (C.A.A.F. 2006) (“The knowing possession of images depicting sexually explicit conduct by minors, whether actual or virtual, when determined to be service- discrediting conduct or conduct prejudicial to good order and discipline, is an offense under Article 134”).
    4. 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). This analysis should also apply if the offense was charged under clauses 1 and 2 of Article 134.
    5. The nature of the images is not dispositive as to whether receiving such images is PGO & D or SD. United States v. O’Connor , 58 M.J. 450 (C.A.A.F. 2003) (providence inquiry failed to establish whether accused pled guilty to possession of virtual or actual child pornography; no LIO of clause 1 or clause 2 because no discussion of PGO & D or SD).
    6. Although United States v. Medina , 66 M.J. 21 (C.A.A.F. 2008) provides the current state of the law regarding the relationship between the three clauses of Article 134, the following cases were affirmed under clause 2 of Article 134:
      1. United States v. Sapp , 53 M.J. 90 (C.A.A.F. 2000) (after finding that the military judge failed to adequately advise the accused of the elements of federal offense of possession of child pornography, under 18 U.S.C. § 2252(a)(4)(A), which he was charged with violating under clause 3 of Article 134, the Air Force court did not err by affirming the lesser included offense of service-discrediting conduct, under clause 2 of Article 134.
      2. United States v. Augustine , 53 M.J. 95 (C.A.A.F. 2000) (affirming under clause 2 rather than clause 3 of Article 134).
      3. United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005) (holding the plea inquiry did not implicate the appellant’s First Amendment rights, thus placing the analysis under Sapp and Augustine ; although the MJ did not discuss with appellant whether his conduct was service discrediting or prejudicial to good order and discipline, there is no doubt that appellant was aware of the impact of his conduct on the image of the armed forces; affirmed under Clause 2).
  3. Clause 3, Article 134.
    1. test1 097 (Side 97)See generally MCM, pt. IV, ¶ 60c(4).
    2. Key federal statutes. The following federal statutes are available for charging various conduct involving the production, possession, transportation, and distribution of child pornography:
      1. 18 U.S.C. § 2251, Sexual Exploitation of Children. Among other prohibitions, this provision covers the use of minors in the production of child pornography.
      2. 18 U.S.C. § 2252, Certain Activities Relating to Material Involving the Sexual Exploitation of Minors. This child pornography provision was the predecessor to the computer-specific 18 U.S.C. § 2252A.
      3. 18 U.S.C. § 2252A, Certain Activities Relating to Material Constituting or Containing Child Pornography. This is the federal provision that most comprehensively covers the use of computers and the Internet to possess, transport, and distribute child pornography.
      4. Statutory Definitions. 18 U.S.C. § 2256 contains the applicable definitions for child pornography offenses.
    3. Recent Amendments.
      1. The Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358 (Oct. 8, 2008) (addsusing any means or facility of interstate or foreign commerceto several sections in 18 USC 2251, 2251A, 2252, and 2252A).
      2. The Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. No. 110-358 (Oct. 8, 2008) (adds to 18 USC 2252(a)(4) and 2252A(a)(5) the following language afterpossesses:or knowingly accesses with intent to view).
      3. The Providing Resources, Officer, and Technology to Eradicate Cyber Threats to Our Children Act of 2008 (or The PROTECT Our Children Act of 2008), Pub. L. No. 110-401 (Oct. 13, 2008) (Sec 301 prohibits broadcast of live images of child abuse, Sec. 302 amends the definition ofvisual imageunder 18 USC 2256(5) by insertingand data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format, Sec. 304 prohibits the adaptation or modification of an image of an identifiable minor to produce child pornography).
    4. Pleading Child Pornography Offenses Using Clause 3.
      1. See MCM, pt. IV,  60c(6).
      2. See infra Chapter 7, Appendix B.
    5. Actual versus Virtual Children.
      1. Using the CPPA and Clause 3, Article 134. (a) In Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002), the U.S. Supreme Court held that specific language within the definition of child pornography in the 1996 Child Pornography Prevention Act (CPPA) was unconstitutional . Specifically, the definition impermissibly prohibited “virtual” child pornography in contravention of the First Amendment. The “virtual image” language was contained in § 2256(8)(B) and § 2256(8)(D). (b) Following Ashcroft , the CAAF made the “actual” character of visual depictions of child pornography a factual predicate for guilty pleas under the CPPA. United States v. O’Connor , 58 M.J. 450 (C.A.A.F. 2003). (c) Either the “appears to be” language or “conveys the impression” language found in the CPPA’s unconstitutional definition of child pornography can trigger the requirement to prove an “actual” child was used to make an image of child pornography. United States v. Wolford , 62 M.J. 418 (C.A.A.F. 2006).
      2. Using Clauses 1 and 2, Article 134. Child pornography, whether virtual or actual, can be prejudicial to good order and discipline and service-discrediting. See United States v. Mason , 60 M.J. 15 (C.A.A.F. 2004); United States v. Brisbane , 63 M.J. 106 (C.A.A.F. 2006).
    6. Issues.
      1. Constitutionality of the Federal statute. (a) In Ashcroft v. Free Speech Coalition , 535 U.S. 234 (2002), the U.S. Supreme Court held that specific language within the definition of child pornography in the 1996 Child Pornography Prevention Act (CPPA) was unconstitutional . Specifically, the definition impermissibly prohibited “virtual” child pornography in contravention of the First Amendment. The “virtual image” language was contained in § 2256(8)(B) and § 2256(8)(D). (b) The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003), which amended 18 U.S.C. § 2252A to include a provision that prohibits the solicitation and pandering of child pornography. United States v. Williams , 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008) (holding the Act to be neither impermissibly vague nor overbroad and holding that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment). (c) The Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252. Constitutional because its prohibition against knowing transport, shipment, receipt, distribution, or reproduction of a visual depiction of a minor engaged in sexually explicit conduct requires that the accused know that the performer in the depiction was a minor, thereby satisfying First Amendment concerns. United States v. X-Citement Video , 115 S.Ct. 464 (1994); United States v. Maxwell , 42 M.J. 568 (A.F. Ct. Crim. App. 1995), reversed in part United States v. Maxwell , 45 M.J. 406 (C.A.A.F. 1996) (transmission of visual images electronically through the use of an on-line computer service is “transport in interstate or foreign commerce’ in light of legislative intent to prevent the transport of obscene material in interstate commerce regardless of the means used to effect that end and statute is constitutional in light of United States v. X- Citement Video , 115 S.Ct. 464 (1994) (statute contains a scienter requirement because the word “knowingly” must be read as applying to the words “use of a minor”).
      2. test1 094 (Side 94)Extraterritoriality. Practitioners in overseas and deployed locations should ensure that the federal statute is applicable to the conduct at issue. (a) United States v. Martinelli , 62 M.J. 52 (C.A.A.F. 2005). Appellant pled guilty, in relevant part, to sending, receiving, reproducing, and possessing child pornography under Article 134, Clause 3, in violation of the CPPA. The conduct was charged using 18 U.S.C. §2252A(a)(1–3). Appellant’s misconduct took place in Germany, both at an off-post internet café, and in his on-post barracks room. HELD: 1) The CPPA is not extraterritorial as there is no evidence of specific congressional intent to extend its coverage; 2) domestic application is possible under a “continuing offense” theory for sending material that flowed through servers in the United States; 3) appellant’s plea to specification 1 under clause 3 of Article 134 is improvident under O’Connor because of the focus on the unconstitutional definition of child pornography and the lack of focus on “actual” vs. “virtual” images; and 4) there was no reference to appellant’s conduct as service discrediting or prejudicial to good order and discipline . Strong dissents from both C.J. Gierke and J. Crawford. (b) United States v. Reeves , 62 M.J. 88 (C.A.A.F. 2005). The accused was stationed in Hanau, Germany and used the on-post library computer to receive and print out images of child pornography that had been sent over the Internet. While still in Germany, he also used a videocamera to record sexually explicit imagery of two German girls from about 200 feet away. His conduct was charged using 18 U.S.C. §§ 2251 and 2252A(a)(1–3). Citing Martinelli , the court held none of the following acts were continuing offenses with conduct that occurred in the United States, and as such, there could be no domestic application of the CPPA: (1) possession of child pornography at an on-post public library, land used by and under the control of the federal government; (2) receiving child pornography that had been transmitted through the internet; and (3) using minors to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.
      3. Definitions. United States v. Kuemmerle , 67 M.J. 141 (C.A.A.F. 2009). The CPPA does not define “distribute.” The court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions. See also United States v. Craig , 67 M.J. 742 (N-M. Ct. Crim. App. 2009) (military judge read part of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to the possession of another.”) .
      4. Method of Distribution. (a) Yahoo! Briefcase. United States v. Navrestad , 66 M.J. 262 (C.A.A.F. 2008). Sending a hyperlink to a Yahoo! Briefcase during an internet chat session, where the Briefcase contained images of child pornography, does not constitute either distribution of child pornography as defined in the CPPA or possession of child pornography as affirmed by the ACCA under Clauses 1 and 2, where the link itself only provides a roadmap to the child pornography and where the accused did not download or print any of the images to his own computer. The accused was initially charged under Clause 3 of Article 134, but Clause 1 and 2 language was added to both specifications prior to arraignment. Convictions for both possession under Clauses 1 and 2, and distribution under the CPPA were set aside. Note: Yahoo! discontinued its Briefcase service on 30 March 2009. (b) KaZaA. United States v. Ober, 66 M.J. 393 (C.A.A.F. 2008). Using KaZaA to search for and download child pornography from host users over the Internet constituted transportation of child pornography in interstate commerce for purposes of 18 U.S.C. § 2252A(a)(1) because “a user’s download caused an upload on the host user’s computer.” (c) Peer-to-Peer Software in General. United States v. Christy , 65 M.J. 657 (A. Ct. Crim. App. 2007). The accused downloaded peer-to-peer software and set up a “shared files” folder. As part of his licensing agreement with the software company, he agreed to share all files in that folder, i.e., his child pornography, with other users. While the term “distribution” is not defined in the statute, definitions found in federal case law are broad enough to cover the act of posting images in a shared file folder and agreeing to allow others to download from the folder. Additionally, the accused’s conduct was “knowing” under the CPPA, as he admitted during his providence inquiry that he knew 1) that he was posting his child pornography images in a shared file folder, and 2) that anyone with the same peer-to-peer software both had his permission and the general ability to download the files he posted.
      5. Lesser included offenses: Clause 1 and Clause 2. The use of Clause 1 and Clause 2 as a LIO to a Clause 3 offense has recently been limited by the CAAF holding in United States v. Medina , 66 M.J. 21 (C.A.A.F. 2008). The court holds that in order for either Clause 1 or Clause 2 to be considered as a LIO to a Clause 3 offense, the Clause 3 specification should contain Clause 1 or Clause 2 language. If Clause 1 or Clause 2 language is absent from a Clause 3 offense, the opinion may yet allow for Clause 1 or Clause 2 to operate as a LIO provided the military judge clearly explains Clause 1 and Clause 2 and how they can operate as a LIO to the accused. Prudence, however, dictates that counsel plead the Clause 1 and/or Clause 2 language to avoid the issue at trial.
      6. test1 029 (Side 29)Evidence to determine age of models. United States v. Russell , 47 M.J. 412 (C.A.A.F. 1998) (accused admitted that he guessed the models were “13 or older”; a pediatrician testified that the females shown in the exhibits were not more than 15.5 years old; and members were able to look at the pictures and use their common sense and experience to conclude that the girls were under age 18); United States v. Maxwell , 45 M.J. 406 (C.A.A.F. 1996) (government was only required to prove that accused believed the images depicted minors to support conviction for knowingly transporting or receiving child pornography in interstate commerce (18 U.S.C. § 2252); government was not required to prove that accused had basis for actual knowledge of the subjects’ ages). United States v. Cendejas , 62 M.J. 334 (C.A.A.F. 2006) (factfinder can make the determination that pornographic images are actual children based upon a review of the images alone).
    7. Other Applications.
      1. United States v. Kuemmerle , 67 M.J. 141 (C.A.A.F. 2009). As the CPPA does not expressly define “distribute,” the court looked to three sources for a definition of the term: (1) the plain meaning, (2) the manner Article III courts have interpreted the term, and (3) the guidance that the UCMJ provides through parallel provisions. Considering these sources, under the CPPA, distribution of child pornography through the Internet consists of two acts: (1) the posting of the image, where the image left the possession of the original user, and (2) the delivery of the image, where another user accessed and viewed the image. Here, the accused posted the image to his Yahoo! profile prior to his entry on active duty. The court reasoned that the profile serves as a “’public bulletin board’ such that all Internet users can access information posted by the profile’s owner.” Although this was done prior to entering active duty, he accessed the account while on active duty and could have removed the image. The offense of distribution occurred while he was on active duty when the ICE agent accessed and viewed the image that he had posted for others to view.
      2. United States v. Craig , 67 M.J. 742 (N-M. Ct. Crim. App. 2009). As 18 U.S.C. § 2252A does not define “distribute,” the military judge read part of the definition of “distribute” from Article 112a, stating, “Distribute means to deliver to the possession of another.” the plain meaning of the term “distribute” includes “the transfer of an item from the possession of one person into the possession of another.” The military judge provided a correct statement of the law in defining “distribute.”
      3. United States v. Smith, 61 M.J. 696 (N-M. Ct. Crim. App. 2005) (Appellant engaged in marketing adult entertainment for profit on the internet, posting hundreds of photos of females engaged in sexually explicit conduct, many of them minors. Among other offenses, appellant ultimately pled guilty to violating 18 U.S.C. § 2257, under Clause 3, Article 134 for managing a website containing these depictions without maintaining proper records of each performer as that section requires. HELD: Appellant’s failure to determine the age and record the identity of the child performer bore a direct relationship to the Government’s interest in preventing child pornography).
      4. “Lascivious exhibition” category of sexually explicit conduct prohibited by § 2251(a). United States v. Roderick , 62 M.J. 425 (C.A.A.F. 2006) (applying the “Dost” factors to determine “lascivious exhibition”).
      5. In prosecuting a violation of 18 U.S.C. § 2252 (a)(2) by knowingly receiving sexually explicit depictions of minors that have been transported in interstate commerce, “knowingly” applies to the sexually explicit nature of the materials and the ages of the subjects. The Government does not have to prove that the accused knew that the sexually explicit depictions passed through interstate commerce. The interstate commerce element is merely jurisdictional. United States v. Murray , 52 M.J. 423 (C.A.A.F. 2000).
    8. Multiplicity/UMC.
      1. United States v. Purdy , 67 M.J. 780 (N-M. Ct. Crim. App. 2009). The accused downloaded child pornography from the Internet onto his personal computer while stationed in Belgium. He then downloaded the images from the hard drive onto a compact disk and reformatted the hard drive, but retained the compact disk. He was charged with both receiving and possessing child pornography under Clause 3 of Art. 134. He pled guilty to both offenses under Clauses 1 and 2. In this case, his act of saving the images to the CD-ROM “was a clear exercise of dominion . . . separate and apart” from his receipt of the images at an earlier point in time. The conviction for both offenses was proper and the military judge did not commit plain error.
      2. test1 026 (Side 26)United States v. Craig , 67 M.J. 742 (N-M. Ct. Crim. App. 2009). The accused used “LimeWire,” a peer-to-peer file-sharing software program to search for and download child pornography. He downloaded the child pornography into a “share” folder on his hard drive. He kept some of the images in the “share” folder, copied some to compact disks, and deleted others. He pled guilty to both receipt and possession of child pornography under 18 U.S.C. § 2252A using Clause 3 of Art. 134. The court held that these two specifications were not facially duplicative and therefore military judge did not commit plain error in failing to dismiss these specifications as multiplicious. The charges of receipt and possession “address at least two criminal actions by the [accused] each of which occurred at a different time within the charged time period and involved separate media.

Limitations on the Use of Article 134, UCMJ

  1. The Preemption Doctrine. MCM, pt. IV,  60c(5)(a). (See also the discussion ofFACA preemption above).
    1. Article 134 cannot be used to prohibit conduct already prohibited by Congress in UCMJ arts. 78 & 80-132.
    2. 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,
      2. The offense sought to be charged is composed of a residuum of elements of an enumerated offense under the UCMJ.
    3. Applications.
      1. Prosecution under Article 134, Clause 1 for inhalation (“huffing”) nitrous oxide is not preempted by Article 112a. 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. test1 139 (Side 139)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. 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, ¶ 60c(5)(b).
    1. Capital crimes are those crimes made punishable by death under the common law or by statute of the United States.
    2. 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, ¶ 60c(2)(b).
    1. 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.
    2. 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).
    3. 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.

Pleading Considerations

  1. Pleading the Terminal Element in Clause 1 and 2 Offenses.
    1. 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.
    2. 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.
    3. test1 142 (Side 142)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.
    4. 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. Ballard , ___ M.J. ___ (C.A.A.F 2012). See also United States v. Watson , ___M.J.___(C.A.A.F. 2012); United States v. Nealy , ___M.J.___(C.A.A.F. 2012).
  2. Clause Three.
    1. Each element of the federal or assimilated statute must be alleged expressly or by necessary implication. MCM, pt. IV, ¶ 60c(6)(b).
    2. The federal or assimilated state statute should be identified. MCM, pt. IV, ¶ 60c(6)(b).
    3. 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.
    4. Sample specifications. See Chapter 7, Appendix B.
  3. Article 134 offenses are not per se LIOs of offenses arising under other articles ofthe 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.

Punishment

  1. test1 135 (Side 135)For the offenses listed in MCM, pt. IV, paras. 61-113, the specified punishmentscontrol. R.C.M. 1003(c)(1)(A).
  2. For other offenses, the following rules apply:
    1. If the offense is either included in, or closely related to, an offense listed in paras. 61-113, 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).
    2. 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 section XXII.D.2., supra .
    3. If the punishment for an unlisted offense cannot be determined by applying the above tests (a & d, 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).
      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).

Pleading the Terminal Element in Clause 1 and 2 Offenses.

Clause Three.