New published NMCCA opinion upholding conviction under Article 134 clauses (1) and (2) as alternative to Article 134 clause (3)

NMCCA issued a published opinion today revisiting the vexsome question of the proper relationship between Article 134 clauses (1) and (2) and Article 134 clause (3). United States v. Purdy, __ M.J. ___, No. NMCCA 200700659 (N-M. Ct. Crim. App. June 17, 2009). The opinion isn't yet on NMCCA's web site, so I've posted a copy here. Senior Judge Geiser wrote the opinion of the court, in which Judge Kelly and Senior Judge Couch joined. Senior Judge Couch also wrote a separate concurring opinion.

The opinion is sketchy on the precise fact pattern giving rise to the clauses (1) and (2) versus clause (3) issue. But here's what I think happened, piecing together the pieces of the puzzle that the opinion provides and guessing at the rest. Petty Officer Purdy was charged with receiving and possessing child pornography under Article 134 clause (3) for violating 18 U.S.C. § 2252A. The accused pleaded not guilty to the specification as worded, but guilty to an LIO of violating Article 134 clauses (1) and (2). The military judge conducted the providence inquiry on that basis and ultimately accepted Petty Officer Purdy's plea and found him guilty on that basis. (If anyone is familiar with the record in this case, can you please confirm or correct that assumption about the facts?)

The court notes that the case was tried before CAAF decided United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). The court continues, "Having considered Medina's refinement of Article 134, UCMJ, as applied to child pornography offenses under 18 U.S.C. § 2252A, we find the appellant's argument that his plea was improvident unpersuasive." Id. NMCCA observes that in Sapp, CAAF held that "clauses 1 and 2 are not necessarily lesser included offenses of offenses alleged under clause 3, although they may be, depending on the drafting of the specification." Id., slip op. at 4 (quoting Medina, 66 M.J. at 26). NMCCA observes that Medina, while preferring a "rigid 'elements test' over the 'implicit connection' referenced in" United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), nevertheless "seemingly left the door open for the possibility of clauses 1 or 2 to serve as lesser included offenses of clause 3 under unspecified circumstances." Id., slip op. at 4 (footnote omitted).

But in Purdy, NMCCA sidesteps the question of "whether the appellant's conduct and the wording of the specification constitute a lesser-included offense under the facts and circumstances of this case." Id. NMCCA opines that the "gravamen of Medina is the protection of the appellant's right to a knowing and voluntary plea. Even assuming, arguendo, that the offense to which the appellant pled guilty was erroneously referred to as a lesser included offense, the ultimate issue under Medina is whether the appellant had fair notice he was pleading guilty to a distinct theory of liability as compared to that which appeared on the charge sheet." Id. NMCCA holds that in this case, the accused had such fair notice.

NMCCA observes that under Medina, "it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a 'disorder or neglect' under clause 1, conduct proscribed under clause 2, or all three." Id., slip op. at 5 (quoting Medina, 66 M.J. at 26). NMCCA continues, "This can be accomplished either on the charge sheet or through the military judge during the plea inquiry." Id. (citing Medina, 66 M.J. at 27).

NMCCA then holds that in this case, "we are satisfied that the appellant's plea to clauses 1 and 2, as distinct from the charged clause 3 offense, was knowing and voluntary." Id. NMCCA observes that "the appellant voluntarily entered into a stipulation of fact in which he admitted that his conduct was both prejudicial to good order and discipline and service discrediting." Id. "Second, the appellant entered into a pretrial agreement in which he agreed to plead not guilty to the charged clause 3 offense, but instead plead guilty to offenses under clauses 1 and 2 of Article 134, UCMJ." Id. "Third, in expressly indicating that the appellant was pleading guilty to an offense other than that which appeared on the charge sheet, the military judge sufficiently explained the different theories of liability under each clause to include the fact that clauses 1 and 2 carry the additional elements of prejudice to good order and discipline and conduct of a nature to bring discredit to the service." Id.

NMCCA concludes that the "persistent references" in the record "to clauses 1 and 2 as 'lesser included offenses' of the charged clause 3 specification" do not "constitute a substantial basis in law or fact for questioning the guilty plea." Id., slip op. at 5-6.

While concurring in the majority opinion, Senior Judge Couch wrote separately to emphasize that a violation of clauses (1) and (2) of Article 134 shouldn't be considered an LIO of a violation of Article 134 clause 3 because clauses (1) and (2) each contains an element that isn't present in clause (3).