Thursday, February 14, 2008

Clarifying the relationship between Article 134's clause 3 and clauses 1 and 2

United States v. Medina, __ M.J. ___, No. 07-0096/AR (C.A.A.F. Feb. 14, 2008), is almost certainly the most important of the six cases CAAF has released thus far this week.

In Medina, CAAF holds that unless expressly pled, clauses 1 and 2 of Article 134 are not LIOs of a clause 3 offense. Judge Baker, joined by Chief Judge Effron and Judges Erdmann and Ryan. Judge Stucky dissented.

CAAF also held that in this case, it was insufficient that during the providence inquiry, the military judge elicited Staff Sergeant Medina's agreement that his conduct was actually service discrediting. CAAF reasoned, "while we know that Appellant admitted to service discrediting conduct in the context of pleading guilty
to the violations of Title 18, we do not know whether he would have done so with the knowledge that he was not required to admit his conduct satisfied the alternate theory under Article 134(2)." Id., slip op. at 15-16. CAAF observes that it isn't clear whether Staff Sergeant Medina would have believed his conduct to be service discrediting if it had been legal under federal law. Judge Baker offers this wonderful analogy to illuminate the point:

[T]he Endangered Species Act, 16 U.S.C. § 1531-1544 (2000), authorizes criminal sanctions for taking or possessing, among other things, a variety of wildlife species listed by the Secretary of the Interior as endangered. Presumably, an accused could be charged and could plead guilty to violations of this act under the "crimes or offenses not capital" clause of Article 134, UCMJ. As in this case, he might even agree that his conduct was service discrediting. If, however, on appeal it is discovered that the particular species was, for instance, removed from the list before the date of the alleged offense, then the accused would only stand convicted of conduct that without the express proscription under federal law would not otherwise be criminal under the United States Code.

Medina, slip op. at 16-17.

In his dissent, Judge Stucky offers this trenchant observation: "It is a mystery to me why, after this Court'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." I think Professor George Santayana solved that mystery.


Mike "No Man" Navarre said...
This comment has been removed by the author.
Mike "No Man" Navarre said...

CAAF didn't make a full frontal assault on Appendi v. New Jersey in this case, I am shocked and appalled. Ok, I am actually neither, see my earlier posts on the issue. But, it would have been nice to see the last system in the nation to address Apprendi actually address it. Se la vie, the judges have one more chance this term to change that record.

Anonymous said...

Judge Stucky's dissenting opinion leave me somewhat perplexed. Unless I am mistaken he is saying that the physical act of including the language was in error, but irrelevant because the specification as written implicitly included that element in the offense. How is this any different then a CCA affirming under Art 134 from an enumerated offense and amending the spec to reflect the lesser offense?

Interestingly, if the TC had simply heeded the advice in Foster (which seems to stand on some pretty shaky legal ground) and charged in the alternative, Medina would already have his DD-214.

Anonymous said...

With Medina and Stevenson, CAAF continues its trend as being soft on sex offenders.

Anonymous said...

Medina is a horrid little case. It “conflates” splitting hairs and a lack of candor. [conflates is a term used by both judges baker (here) and stucky (in Wallace) but surely not understood by many appellants – I think it means mixes, merges, or combines] The Harvard/Yale word for this case - disingenuous. Even though judge baker in Medina says that CAAF is building on Mason, 60 mj 15 - it doesn’t. It overrules Mason. For that matter, it overrules Sapp, 53 mj 90, Augustine, 53 mj 95, Hague-Campbell, 60 mj 328, Jenson, 60 mj 330, Davis, 60 mj 338, Keyser, 60 mj 338, Appledorn, 60 mj 339, Hays, 62 mj 158, Brewer, 62 mj 368, Martens, 62 mj 369, and Burkeen, 62 mj 371. And it virtually overrules all of the “closely related” offense jurisprudence.

This is like the Campbell/Green fiasco on urinalysis, where CAAF first established a mandatory 3-part proof test and then changed it to a non-mandatory standard by saying its initial opinion had been misunderstood. Hogwash.

Frankly, the Endangered Species Act doesn’t help here (and what the heck is a “less visceral criminal context” and couldn’t we also fit in another reference to the dolly sods wilderness area?). I get the fact that if you plead guilty to possessing an eagle in violation of the ESA, and later, it turns out that the eagle has been taken off the ESA list, you are not guilty of violating both the ESA and Art. 134. But when has child porn been taken off the list?

The president has specified over 50 offenses under Art 134 in the manual. Not one of the sample specifications for those offenses requires the addition of the words – conduct prejudicial to good order and discipline or service-discrediting conduct. But Medina now requires that we add these words and specify the particular clause for child porn. Are you kidding me?

Let’s make this clear – MEDINA PLED GUILTY AND ADMITTED HIS GUILT – he was even advised that prejudicial and service-discrediting conduct was an element – and he admitted that element and discussed it with the judge. But because the judge didn’t explain to him what an lio was, CAAF busts the case. Holy Cow!

To quote General Anthony C. McAuliffe at the Battle of the Bulge, “NUTS!”

What will CAAF do next – say that 18 USC 2252A doesn’t apply to a US serviceman who downloads child porn onto a US government computer in a US government library on a US government base overseas? Oh sorry, wait, wait, don't tell me --CAAF already said this – Reeves, 62 mj 88.

At least judge stucky got it right here. A great american.

CAAF - aka - Change an annotation frequently.

Anonymous said...

Good riddance!

Anonymous said...

This isn't about being soft on child porn (technically appellant now faces 10 yrs more possible punishment) its about due process and notice-pleadings. What CAAF is simply saying is that: clause 3 is not a lesser-included of clause 2; and the "gratuitous" element provided was irrelevant because appellant did not understand he was being tried for a different offense. You can disagree with either of those propositions (or their application to the facts of this case), but it is bad legal ju-ju to link that with tough or soft on crime. Frankly, I see a stronger argument for clause 2 being a lesser-included of clause 3 then for the enumerated articles.

Anonymous said...

Although not the model of clarity, Medina is not a horrid opinion. Sapp was incorrectly decided and CAAF has been way overdue to correct itself. In holding that clause 1 or 2 offenses were LIO's of clause 3 offenses in Sapp, the court relied on its holding in U.S. v. Bivins, 49 M.J. 238 (1998). In Bivins, CAAF applied an "inherent relationship" or "closely related" test to determine that dereliction of duty was an LIO of violating a lawful general order. In Schmuck, the Supreme Court rejected the "inherent relationship" or "closely related" test for determing LIO offenses and stated that the language and history of the LIO statute required an elements test. In U.S. v. Foster, CAAF recognized that our LIO statute mirrored the federal one, and so adopted the elements test for military courts. Then for some reason, in Sapp, the court completely overlooked Foster and, relying on Bivins, again applied the "closely related" test. In comparing the Foster and Sapp line of cases, two separate lines of jurisprudence have emerged. As to every offense but Clause 3, Article 134, CAAF requires application of the ‘elements test’ to determine if one offense is an LIO of another. However, as to Clause 3, Article 134, and only as to Clause 3, Article 134, CAAF continued to support the correctness of the application of the ‘inherent relationship’ test in Sapp. The application of two different tests, arising from the same Article of the UCMJ, Article 79, could not stand. CAAF was long overdue in correcting itself.

Anonymous said...

I disagree with CAAFLog's premise that "[i]n Medina, CAAF holds that unless expressly pled, clauses 1 and 2 of Article 134 are not LIOs of a clause 3 offense." What CAAF held was that "we conclude 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. This reasoning is further buttressed by
the principle of fair notice when pleading."

CAAF goes on to focus on notice as the primary fact, stating that "this is a question about the knowing and voluntary nature of the plea and not the adequacy of the factual basis supporting the plea."

If the three clauses are "alternative theories of prosecution," as CAAF indicates, then as long as the accused knows what clause he is pleading to, the plea is sufficient. Notice of a theory of prosecution does not necessarily come in the pleadings, but can be acomplished through a bill of particulars or through instructions in a contested case (think aider and abettor or conpiracy liability, which are also theories of criminal prosecution which do not need to be expressly pled, but often are).

Medina is inconsistent with with the Sapp line of cases. Had this logic been employed in those cases, none of them would have been affirmed, though there is a footnote designed to protect those decisions (Footnote 6). However, internal consitency has never been CAAF's strong point.

CAAF was correct to leave Apprendi out of the discussion; its a complete red herring in this case. Apprendi is about facts being determined at a sentencing hearing that increase the statutory maximum penalty, rather than determined by a jury, beyond a reasonable doubt. It has nothing to do with lesser included offenses, which are defned by statute and sovered by the Supreme Court's decision in Schmuck. Furthermore, RCM 307(c)(3) incoroporates the holding in Apprendi anyway.

Dwight Sullivan said...


Medina does expressly refer to determining whether clauses 1 and 2 are LIOs of an Article 134 clause 3 offense "depending on the drafting of the specification": "Based on the foregoing, we conclude 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." Medina, majority opinion at 13.

Any TC or MJ who thinks Medina's requirement can be satisfied by some document beyond the four corners of the charge sheet -- such as an offer of proof -- is probably in for a rude appellate awakening and a repeat of Judge Stucky's mystification about why court-martial participants continue to court disaster when the safe path is so clear. Any court-martial participatant should assume that if prejudice to good order and discipline or discrediting of the service isn't in an Article 134(3) spec, then clauses 1 and 2 are not LIOs.

John O'Connor said...


Aren't your comments based on the (generally erroneous) supposition that most TCs actually read CAAF opinions and therefore apply them in their charging decisions? I doubt in most cases that there is a conscious decision to "play with fire" by charging these offenses under clause 3. It seems to me that this is more about cleaning up the mess when a TC who (predictably) is concerned not with appellate developments, charges a child porn case under clause 3 the next time . . . and the time after that . . . and the time after that . . .

Dwight Sullivan said...


My comments were in response to the anonymous commentator before me, who argued that it wasn't necessary to plead clause 1 or clause 2 language in order to have those offenses be recognized as LIOs of clause 3. That suggestion was what I thought of as playing not with matches, but an acetylene torch.

John O'Connor said...

I get where you're coming from, CAAFlog. I guess my point is that, for the most part, lance corporals and legalmen decide how crimes are charged, and there is (with some exceptions, obviously) little to no cognizance of recent appellate decisions by the TCs that ultimately approve a set of charges. So, my point basically is that most TCs won't take the "wrong" lesson from Medina, but will take "no" lesson from Medina because they won't read the case or even a squib of the case prepared by someone else. I wish that weren't true. Thus, Medina's effect going forward is much more likely to be setting a framework for cleaning up charging messes on appeal and less likely to provide guidance to TCs who are signing off on the charges.