United States v. ConliffeUnited States v. Conliffe
Lead Opinion
delivered the opinion of the Court.
Appellant entered guilty pleas before a military judge sitting as a general court-martial at West Point, New York. Following the providence inquiry, the military judge accepted Appellant’s pleas and found Appellant guilty of three specifications of housebreaking, five specifications of conduct unbecoming an officer and a gentleman, and “intentionally us[ing] an image recording device for the purpose of videotaping the sexual conduct of [another] without her consent,” in violation of Articles 130, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 930, 933, and 934 (2000), respectively.
WHETHER APPELLANT’S PLEAS OF GUILTY TO THE THREE SPECIFICATIONS OF CHARGE II, HOUSEBREAKING, ARE IMPROVIDENT WHERE THE INTENDED CRIMINAL OFFENSE UPON ENTRY, CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN, IS A PURELY MILITARY OFFENSE.
We hold that “conduct unbecoming an officer and gentleman” is a purely military offense for the purposes of an Article 130, UCMJ, housebreaking charge. We therefore reverse the lower courts decision with respect to Appellant’s guilty pleas to Charge II. However, for the reasons stated below, we affirm the lesser included offense of unlawful entry for each of the offenses under Charge II.
BACKGROUND
The lower court’s opinion provides the facts at issue in this case:
Appellant was a first class cadet (a senior) at the United States Military Academy (the Academy), scheduled for graduation and commissioning as a second lieutenant in May, 2003....
[In 2003], appellant twice unlawfully entered the locker room of an Academy women’s varsity sports team, concealed his video camera, and secretly filmed undressed women entering and exiting the shower. Similarly, he unlawfully entered the barracks room of one of the female cadets he previously filmed in the locker room, hid the video camera in her barracks room, and secretly filmed her changing clothes. Finally, while on leave at his parents’ home in Kentucky, appellant had consensual sexual activity with a civilian woman in his bedroom, but filmed her performing oral sex on him without her knowledge or consent.
During the providence inquiry concerning the housebreaking offenses, appellant told the military judge that he accomplished his intended goal in each instance by successfully and secretly filming the women undressed or undressing. Each of the three housebreaking specifications [to Charge II] alleged the underlying offense was “uti-liz[ing] an imaging device to surreptitiously record the image[s] of [the various victims in the various locations] by hiding a digital video camera in the room, such acts constituting conduct unbecoming an officer and gentleman, therein.”
Conliffe,
During the plea inquiry, the military judge provided Appellant with the elements of both housebreaking and of conduct unbecoming an officer and a gentleman:
*130 In order to plead guilty to these offenses, you must admit and agree, without reservation, that your conduct constituted the following elements:
One, that on 3 May 2003, at or near West Point, New York, you unlawfully entered the barracks room of Cadet [LB]; and on two separate occasions, on 29 and 31 July 2003, you unlawfully entered the U.S. Military Academy women’s’ [sic] basketball team dressing room, the property of the United States Army; and
Two, that the unlawful entry was made with the intent to commit therein the criminal offense of using a digital imaging device to surreptitiously record images of Cadet [LB] in her barracks room in the first instance, and the members of the U.S. Military Academy [women’s] basketball team in their locker room, a crime constituting conduct unbecoming an officer and gentleman under Article 133, UCMJ.
These elements of conduct unbecoming an officer and gentleman are:
That you did certain acts; that is, you used an imaging device to surreptitiously record the image of Cadet [LB], or members of the United States Military Academy basketball team in their locker room, by hiding a digital video camera in the rooms; and
Two, that under the circumstances, these acts constituted conducted [sic] unbecoming an officer and gentleman.
“Conduct unbecoming an officer and gentleman” means behavior in an official capacity which is dishonoring or disgracing an individual as a cadet, which seriously detracts from your character as a gentleman, or behavior in an unofficial or private capacity which dishonors or disgraces you personally, or seriously detracts from your standing as a cadet.
“Unbecoming conduct” means behavior more serious than slight, and of a material and pronounced character. It means conduct morally unfitting and unworthy, rather than inappropriate or unsuitable. It is misbehavior which is more than opposed to good taste or propriety.
The military judge also advised Appellant that he should plead guilty only to the lesser included offense of unlawful entry if he did not enter with the intent to commit a crime within:
If you admit that you unlawfully entered the barracks room, or the locker rooms, on these occasions, but did not do so with the specific intent of hiding a digital video camera to surreptitiously record the images of these females, but perhaps later developed the intent once inside, you would not be guilty of housebreaking, but instead, only of the lesser-ineluded offense of unlawful entry, which is a much less serious offense, amounting to a criminal trespass. In contrast to housebreaking, which has a maximum punishment including 5 years’ confinement, unlawful entry permits only a maximum punishment of 6 months’ confinement. So if you do not freely and readily admit that you had the intent to commit the crime alleged when you entered these rooms, you should not plead guilty to housebreaking, but instead, plead guilty to unlawful entry.
The military judge then engaged in a colloquy with Appellant regarding the three specifications of Charge II. When discussing Specification 1, the military judges dialogue with Appellant consisted of the following:
MJ: Do you believe that under the circumstances, that your actions that you intended inside this room would be conduct unbecoming an officer and gentleman?
ACC: Yes, sir.
MJ: Why do you believe that?
ACC: Well, actions such as this completely destroys [sic] the trust between two people; it is morally reprehensible, to say the least. It’s not the type of behavior that an officer would do.
MJ: So you agree that this would detract from your status as a cadet, an officer candidate, essentially?
ACC: Yes, sir.
*131 MJ: And as a gentleman, as it is traditionally defined — a person of character?
ACC: Yes, sir.
When discussing Specification 2, the military judge asked Appellant:
MJ: Again, do you believe your intended conduct in this instance would be conduct unbecoming to an officer and gentleman?
ACC: Yes, sir, I do.
MJ: Why is that?
ACC: Again, it breaks the trust, and it brings discredit upon myself as a cadet, as well as the Army that I represent.
Finally, the military judge questioned Appellant about Specification 3:
MJ: [D]o you believe that under the circumstances here, on the 31st of July 2003, your conduct was unbecoming an officer and gentleman?
ACC: Yes, sir. Again, this conduct brings discredit upon myself as a cadet.
MJ: And it detracts from your status as a future officer, is that right?
ACC: Yes, sir.
DISCUSSION
A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion. United States v. Inabinette,
I. Housebreaking
An accused “who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking.” Article 130, UCMJ. It follows that the second element of housebreaking, the element at issue here, “requires a specific intent to enter with the intent to commit [a criminal] offense.” United States v. Peterson,
The three specifications of Charge II describe specific acts Appellant engaged in to surreptitiously capture images of women without their knowledge. However, in addition to this descriptive conduct, the specifications link each act directly to Appellant’s compromising his status as an officer and a gentleman. The charge sheet describes the surreptitious videotaping as “acts constituting conduct unbecoming an officer and gentleman.”
The military judge made the same link during his plea inquiry. First, the military judge described the elements of housebreaking to Appellant, indicating that Appellant must admit and agree that he unlawfully entered with the intent to surreptitiously record images, “a crime constituting conduct unbecoming an officer and gentleman under Article 133, UCMJ.” Second, the military judge explained the two elements necessary to prove conduct unbecoming an officer and a gentleman. Finally, in concluding his inquiry on this charge, the military judge asked Ap
In United States v. Webb, this Court held that to satisfy the underlying criminal offense element of housebreaking an accused must possess the “intent to commit the crime stated in the specification.”
II. Purely Military Offense
In light of the military judge’s acceptance of Appellant’s guilty plea to housebreaking based on the underlying offense of conduct unbecoming an officer and a gentleman, the question becomes whether a violation of Article 133, UCMJ, constitutes a purely military offense for the purposes of Article 130, UCMJ.
“Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.” Article 133, UCMJ. The elements of Article 133 are:
(1) That the accused did or omitted to do certain acts; and
(2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.
United States v. Boyett,
[T]he essence of an Article 133 offense is not whether an accused officer’s conduct otherwise amounts to an offense ... but simply whether the acts meet the standard of conduct unbecoming an officer....
[T]he appropriate standard for assessing criminality under Article 133 is whether the conduct or act charged is dishonorable and compromising ... this notwithstanding whether or not the act otherwise amounts to a crime.
United States v. Giordano,
III. Lesser Included Offense of Unlawful Entry
The question now presented is whether we may nonetheless affirm the lesser included offense of unlawful entry in this case. “Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.” Article 59(b), UCMJ, 10 U.S.C. 859(b) (2000); United States v. Medina,
Where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged. However, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty.
Medina,
The elements of an unlawful entry offense are:
(1) That the accused entered the real property of another or certain personal property of another which amounts to a structure usually used for habitation or storage;
(2) That such entry was unlawful; and
(3) 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.
United States v. Davis,
As mentioned above, housebreaking requires that the accused entered with the intent to commit a “criminal offense” therein. MCM pt. IV, para. 56.b(2). Article 134, UCMJ, punishes, inter alia, conduct “which is or generally has been recognized as
The question we have to answer is whether Appellant understood that, in pleading guilty to the housebreaking offenses, he was also voluntarily and knowingly pleading guilty to the lesser included offense of unlawful entry, and in so doing, relinquishing his constitutional right to contest that offense. Medina,
The closer question is whether Appellant knowingly provided sufficient factual admissions to affirm the lesser included offense. Appellant’s admissions clearly satisfy the first and second elements of unlawful entry. He admitted to entering the personal barracks room of a fellow cadet and the public women’s locker room without permission or authorization.
The third element of service discrediting conduct presents a marginally closer call. On the one hand, Appellant admitted during the providence inquiry that his intended conduct brought “discredit on [himself] as a cadet, as well as the Army that [he] represent[s].” On the other hand, Appellant was not apprised at this point that his use of the word “discredit” to describe his conduct as an officer and a gentleman was also an admission to service discrediting conduct for the purposes of Article 134(2), UCMJ.
In our view, in the context of this case, Appellant was on fair notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of unlawful entry. First, the military judge placed him on explicit notice that unlawful entry was a lesser included offense to housebreaking. Second, as a matter of law and logic, discredit is encompassed within the concept of conduct unbecoming an officer and a gentleman, to which Appellant readily pleaded. “‘As a matter of law, it is well-established that, when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133.’” United States v. Cherukuri,
DECISION
The decision of the United States Army Court of Criminal Appeals is reversed with respect to Charge II and the specifications thereunder and the sentence. We affirm only so much of Charge II and its specifications that extend to findings of guilty to the lesser included offense of unlawful entry in violation of Article 134, UCMJ, 10 U.S.C. 934 (2000). The remaining findings are affirmed. However, the record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for reassessment of the sentence in light of our action on the findings.
Notes
. The Article 134, UCMJ, specification charged a violation of Ky.Rev.Stat. Ann. § 531.090 (Lexis-Nexis 2002), assimilated under Clause 3 of Article 134, UCMJ.
. The Government argues that an Article 133, UCMJ, violation cannot be a purely military offense because while both Articles 133 and 134, UCMJ, require proof of unique military concepts, i.e., conduct unbecoming an officer and a gentleman and either service discrediting conduct or conduct prejudicial to good order and discipline, the underlying conduct proscribed in these articles could have a civilian analog. There are two problems with this argument. First, in this case, Appellant was expressly charged with conduct unbecoming an officer and a gentleman as the underlying offense and not just voyeurism. It was on that basis that his plea was taken. Second, whereas the military "preemption doctrine” bars the government from charging an accused under Article 134(1), UCMJ, and Article 134(2), UCMJ, for conduct that is appropriately charged under an enumerated article, this same doctrine does not apply to Article 133, UCMJ. See United States v. Erickson,
Concurrence Opinion
joins (concurring in part and dissenting in part):
I agree with the majority that the offense of conduct unbecoming an officer and a gentleman under Article 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933 (2000), is a purely military offense and cannot serve as the underlying criminal offense for a housebreaking charge under Article 130, UCMJ, 10 U.S.C. § 930 (2000). See Manual for Courts-Martial, United States pt. IV, para. 56.e(3) (2002 ed.) (MCM). I do not agree that unlawful entry under Article 134(1) or (2), UCMJ, 10 U.S.C. § 934(1), (2) (2000), may be affirmed as a lesser included offense under the circumstances of this case. To do so is to retreat from our recent decision in United States v. Medina,
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), empowers a military appellate court “to approve or affirm ... so much of the finding as includes a lesser included offense.” The test for determining whether one offense is a lesser included offense of another is the “elements test” which is “ ‘conducted by reference to the statutory elements of the offenses in question, and not, as the inherent relationship approach would mandate, by reference to conduct proved at trial regardless of the statutory definitions.’” Id. at 24-25 (emphasis omitted in original) (quoting Schmuck v. United States,
Since the unique elements of clauses 1 and 2 of Article 134, UCMJ, are not a subset of the elements of housebreaking, under our p:re-Medina precedent the inquiry would turn to whether those clause 1 and 2 elements are “implicit” in the offense of housebreaking. See United States v. Foster,
The second element of housebreaking is fulfilled by “any act or omission punishable by courts-martial, except an act or omission constituting a purely military offense.” Id. at para. 56.c(3) (emphasis added). The scope of this element includes, inter alia, offenses punishable under clause 3 of Article 134, UCMJ. As we concluded in Medina, “[Clauses 1 and 2 are not necessarily lesser included offenses of offenses alleged under clause 3.”
The majority also finds that Conliffe “was also on fair constructive notice that he was pleading guilty to the lesser included offense of unlawful entry” and therefore the dictates of Medina that “an accused has a right to know to what offense and under what legal theory he or she is pleading guilty” were satisfied. Conliffe,
The only reference to unlawful entry in this case was when the military judge stated that absent a contemporaneous specific intent to commit a criminal offense when Con-liffe unlawfully entered the barracks and locker room, he would be guilty of only the lesser included offense of unlawful entry. However, the military judge did not further discuss or explain the elements of unlawful entry, nor did he create a record upon which this court could base a conclusion that Con-liffe knew and understood that his plea encompassed the unique clause 1 or 2 elements of unlawful entry.
Finally, I would not find that Conliffe was given fair notice of the clause 1 or 2 elements by virtue of the “conduct unbecoming an officer and gentleman” language in the specification. Article 133, UCMJ, and clause 2 of Article 134, UCMJ, each encompasses a form of injury that is substantively different. “Conduct unbecoming” as used in Article 133, UCMJ, is personal to the accused — the conduct “dishonors or disgraces the person as an officer”; it “compromises the officer’s character as a gentleman”; it “dishonors] or disgrace[es] the officer personally”; or it “seriously compromises the person’s standing as an officer.” MCM pt. IV, para. 59.c(2) (emphasis added).
In contrast, “discredit” as used in Article 134(2), UCMJ, has a much different meaning: “ ‘Discredit’ means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem.” Id. at para. 60.c(3) (emphasis added). I find nothing in the specification itself or in the record to indicate that Conliffe was on notice of this distinction and therefore “[knew] to what offense and under what legal theory he ... [was] was pleading guilty” in order to permit this court to affirm the offense of unlawful entry as a lesser included offense. Medina,
. The majority notes a number of this court's earlier cases have concluded that "service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133.” Conliffe, 67 MJ. at 134 (quoting United States v. Cherukuri,
Concurrence Opinion
(concurring in part and dissenting in part):
I concur with the majority’s conclusion that conduct unbecoming an officer and a gentleman in violation of Article 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 933 (2000), is a purely military offense and, as such, cannot serve as the intended criminal offense underlying a charge of housebreaking under Article 130, UCMJ, 10 U.S.C. § 930 (2000). United States v. Conliffe,
The majority states that its analysis is limited to the “relation between the second element of housebreaking and the third element of ... unlawful entry,” Conliffe,
The concept of implicit elements, often attributed to United States v. Foster,
So far so good. But despite the apparent simplicity of applying the elements test, the Foster Court was confronted with the fact that all offenses charged under clauses 1 or 2 of Article 134, UCMJ, include one element that the enumerated offenses do not — that the conduct of the accused was either “to the prejudice of good order and discipline in the armed forces” or “of a nature to bring discredit upon the armed forces.” Rather than conclude, in conformity with Schmuck, that Article 134, UCMJ, is therefore not a lesser included offense of every enumerated offense, the Court “[held] simply that, in military jurisprudence, the term ‘necessarily included’ in Article 79 encompasses derivative offenses under Article 134.” Foster,
The Foster Court explained its holding as follows:
Our rationale is simple. 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. Although the Government is not required to prove these elements in an enumerated-article prosecution, they are certainly present.
Id.
In Mullaney, the Supreme Court considered instructions providing that although malice aforethought was an element of the crime of murder, its existence was to be “conclusively implied” unless the defendant could show otherwise. Id. at 686,
Finding that the prejudicial to good order and discipline and service discrediting elements are implicit or inherent in the enumerated offenses also intrudes upon an accused’s right to notice of the charges brought against him. Concern for this notice is at the heart of the elements test, for “a defendant cannot be held to answer a charge not contained in the indictment brought against him.” Schmuck,
The implicit elements concept as conceived by Foster and reinvigorated by the majority today, albeit recast as elements “inherently included,” suggests that prejudicial to good order and discipline and service discrediting elements exist in a penumbral cloud, not subject to pleading or proof beyond a reasonable doubt for conviction of an enumerated offense, but available to be summoned by the government if and when needed to affirm a lesser included offense. I agree that there is a necessity for commanders to retain flexibility under Article 134, UCMJ, to maintain good order and discipline, particularly in the area of military-specific offenses; as the Supreme Court has recognized, the military must “regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated.” Parker v. Levy,
. The Court was concerned that if those elements were not implicit iii the enumerated offenses, then every lesser Article 134, UCMJ, offense would have an element the greater enumerated offense did not, and vice versa. Foster,