A case that will tax John O'Connor's patience?

United States v. Leonard is the type of case that will drive John O'Connor crazy. Airman First Class Leonard pled guilty to knowingly receiving visual depictions of a minor engaging in sexually explicit conduct, in violation of clause (1) or (2) of Article 134. "Prior to sentencing, the military judge, trial counsel, and defense counsel agreed that the maximum term of imprisonment for Appellant's offense was fifteen years." Leonard, slip op. at 2-3. The military judge imposed a sentence that included confinement for 45 months. CAAF specified two issues concerning whether all of the trial participants were mistaken about the maximum confinement. Today, more than three-and-a-half years after Leonard was sentenced on 30 July 2003, CAAF upheld the sentence. John -- are you screaming yet? Just another 25 days until 15 April.

So my first reaction to Leonard is that it seems an odd case for CAAF to have exercised its discretionary jurisdiction. Leonard seems unnecessary, but it may also be important -- and troubling.

The key issue in Leonard is whether the trial participants were correct to look to a federal child pornography statute for the maximum sentence where the Article 134 specification omitted the jurisdictional element of the federal offense: that the child pornography was received through a medium of interstate or foreign commerce. The majority indicates that it is sufficient to look to a federal statute for a novel 134 offense's maximum punishment if "the offense as charged is 'essentially the same,' as that proscribed by the federal statute." Leonard, slip op. at 8 (quoting United States v. Jackson, 17 C.M.A. 580, 583, 38 C.M.R. 378, 381 (1968)). The majority concludes, "The military judge did not err by referencing a directly analogous federal statute to identify the maximum punishment in this case, where every element of the federal crime, except the jurisdictional element, was included in the specification." Leonard, slip op. at 8.

Judge Baker agrees that "it was appropriate for the military judge to look to 18 U.S.C. [section] 2522(a)(2) to determine the maximum penalty." Leonard, slip op. at 3 (Baker, J., concurring). But in his insightful concurrence, Judge Baker highlights what appears to be an important distinction between his approach and the majority's. The majority indicates that it need not decide where this case fits within Rule for Courts-Martial 1003(c)'s taxonomy for determining the maximum punishment for an Article 134 offense. The majority indicates that Article 134 itself answers this question: "Article 134, UCMJ, which applies only to conduct 'not specifically mentioned' under the UCMJ, specifically provides that an accused 'shall be punished at the discretion of [the] court.'" Leonard, slip op. at 7. The majority continues, "While a court's discretion is bounded both where specific direction is given under R.C.M. 1003(c) and the limitations established by the President pursuant to Article 56, UCMJ, R.C.M. 1003(c) does not give specific direction here, and no maximum punishment has been set by the President for the offense set forth in the specification." Id. at 7-8. This language suggests to me that the majority views this child pornography offense as having NO maximum punishment. The military judge could have, had he wished, sentenced Leonard to confinement for life without parole. By limiting the maximum confinement to a mere 15 years, the military judge was doing Leonard a favor.

Someone please convince me I am misreading the opinion, but that is what it suggests to me. It also suggests, therefore, that any time a court-martial finds a servicemember guilty of an offense not listed in Part IV or closely related to a specified offense that doesn't perfectly match an 18 U.S.C. offense or fall within a custom of the service, the servicemember may be sentenced to anything up to LWOP, since the majority's opinion suggests that the accused "shall be punished at the discretion of [the] court." Leonard, slip op. at 7. I read R.C.M. 1003(c)(1) differently -- it looks to me like the President was attempting to cover the field and leave no offense unlimited. Indeed, the first sentence of R.C.M. 1003(c)(1)(B)(ii) appears to support just that conclusion. Let's examine that language closely: "An offense not listed in Part IV and not included in or closely related to any offense listed therein is punishable as authorized by the United States Code, or as authorized by the custom of the service." Note that the reference to offenses seems to cover EVERY offense that doesn't fall within R.C.M. 1003(A) or (B)(1). And such an offense "is punishable" in only one of two ways: (1) by reference to 18 U.S.C. or (2) by reference to custom of the service. The plain language of this rule indicates that if an offense is NOT punishable in one of those two ways, it is NOT punishable. Under that R.C.M., a gap in the coverage results not in a maximum of LWOP, but a maximum of no punishment. As the majority itself points out, Article 56 allows the President to set caps for the punishment that a court-martial may prescribe for a particular offense. Through R.C.M. 1003(c)(1)(B)(ii), the President did that for a class of Article 134 offenses. And he was free to set no punishment as the max. We need not be too frightened by setting the default position at 0 rather than LWOP. The government controls the charging process and the government can plead a novel 134 offense so that it either lines up with an 18 U.S.C. offense or so that it is closely related to a listed offense. In the alternative, perhaps the misconduct can be charged as a simple disorder. If it is none of those things, perhaps the conduct isn't properly characterized as criminal.

So I agree with Judge Baker that Article 134's provision that a violation "shall be punished at the discretion of [the] court" "must be read in light of the President's adoption of R.C.M. 1003(c)(1)(B)." Leonard, slip op. at 1 (Baker, J., concurring). As Judge Baker observes, this "rule is intended to delimit the exercise of discretion by courts-martial in adjudicating punishment for offenses 'not listed in Part Iv' of the Manual for Courts-Martial, United States (MCM) 'and not included in or closely related to any offense listed therein.'" Id. at 1-2 (quoting R.C.M. 1003(c)(1)(B)(ii)).

Judge Baker comments in a footnote, "The majority relies alone on the 'discretion of [the] court' language of Article 134, UCMJ, in holding that the military judge did not abuse his discretion in applying an analogous federal statute. But it is not clear where this discretion ultimately ends." Id. at 2 n.1. As I indicated above, it would seem to end at LWOP. And that's a pretty scary terminal point.

What are the odds that the Joint Service Committee will step in and plug the hole recognized (or created) by the Leonard case? I'd be willing to bet John O'Connor's income tax refund against it. Come on, John, sing it with me:

Well I'm the Tax Man
Yea I'm the Tax Man . . . .