United States v. Conliffe

STATES, Appellee, UNITED CONLIFFE, Cadet,

Mark R. Army, Appellant.

U.S.

No. 08-0158.

Crim.App. No. 20040721. Appeals

U.S. Court of

the Armed Forces.

Argued Sept. 2008.

Decided Jan. 2009.

BAKER, J., opinion delivered EFFRON, C.J., Court, J., ERDMANN, J., STUCKY, joined. filed a concurring part and dis- separate opinion RYAN, J., joined. senting part, in which RYAN, J., separate opinion con- also filed curring part dissenting part. Appellant: Captain For Melissa Goforth Christopher J. Koenig (argued); Colonel O’Brien, Steven C. Hen- Lieutenant Colonel (on ricks, Raymond L. Major Teresa Tellitocci, brief); Lieutenant Colonel Mark Grant, Captain B. Captain Patrick Sean lawful for each of the offenses under F. Mangan. Charge II. Appellee: Captain

For Adam S. Kazin (on (argued); Major Elizabeth G. Marotta BACKGROUND brief); Lind, Major Denise R. Colonel Dana The opinion provides lower court’s the Leavitt, Captain E. and ToddW. Kuchen- facts at in issue this case: thal. (a senior) Appellant awas first class cadet Judge opinion BAKER delivered the the Military Academy Court. (the Academy), graduation scheduled for commissioning and as a second lieutenant Appellant guilty pleas entered before a May, in 2003.... military judge sitting general aas court- Point, martial at West New York. Follow 2003], appellant unlawfully [In twice en- ing providence inquiry, the the tered Academy the locker room of an wom- judge accepted Appellant’s pleas and found team, sports en’s varsity concealed his vid- Appellant guilty specifications of three of camera, eo secretly and filmed undressed housebreaking, specifications five of conduct entering exiting women and the shower. an officer and a and Similarly, unlawfully he entered the bar- “intentionally us[ing] image an recording de racks room one of the female he cadets purpose vice for the the videotaping sexu previously room, filmed in the locker hid al consent,” of [another] conduct without her room, the video camera her barracks violation of Articles and secretly filmed changing her clothes. (UCMJ), Military Uniform Code of Justice Finally, parents’ while on leave at his home 930, 933, (2000), §§ and 934 res in Kentucky, appellant had sex- consensual pectively.1 adjudged approved ual with a activity civilian woman in his eigh sentence consisted of confinement for bedroom, filmed but her oral performing months, teen pay forfeiture of all and allow sex on knowledge him without her or con- months, eighteen ances for and dismissal sent. Army. from the Army The United States Appeals Court of Criminal affirmed. United During providence inquiry concerning (A.Ct. Conliffe, offenses, housebreaking appellant told Crim.App.2007). granted We review of the the military accomplished that he his following issue: goal intended each instance success- WHETHER APPELLANT’S PLEAS OF fully secretly filming un- women THE GUILTY TO THREE SPECIFICA- dressed or undressing. Each of the three II, TIONS OF CHARGE HOUSE- housebreaking specifications Charge [to II] BREAKING, ARE IMPROVIDENT alleged offense was “uti- THE WHERE INTENDED CRIMINAL liz[ing] imaging surreptitiously device to ENTRY, OFFENSE UPON CONDUCT image[s] record the various [the victims UNBECOMING AN OFFICER AND by hiding digital the various locations] GENTLEMAN, AIS PURELY MILI- room, video camera such acts consti- TARY OFFENSE. tuting conduct officer and We that “conduct unbecoming hold an offi- gentleman, therein.” gentleman” cer purely military is a of- (alterations Conliffe, 65 M.J. at 820-21 fense purposes of an original). UCMJ, housebreaking charge. therefore We reverse the lower courts During plea decision with re- inquiry, military judge spect Appellant’s guilty pleas Charge provided Appellant with the elements of both However, below, II. for the reasons stated and of conduct we gentleman: affirm the lesser included of un- officer and a 2002), specification charged 1. The Article Nexis assimilated under Clause 3 Arti- (Lexis- Ky.Rev.Stat. violation Ann. 531.090 cle Appellant advised also these plead guilty to In order to guilty only to the lesser plead agree, without reser- that he should you must admit entry if he did of unlawful vation, your constituted the included offense a crime the intent to commit following not enter with elements: within: One, May at or near West that on 3 York,

Point, unlawfully entered you New unlawfully you entered you If admit that [LB]; and on Cadet barracks room of rooms, room, or the locker the barracks occasions, July on 29 and 31 separate two occasions, so but did not do with these the U.S. Mili- you unlawfully entered hiding digital video specific intent of Academy basketball tary [sic] women’s’ the im- surreptitiously record camera to room, dressing property team females, perhaps later ages these but Army; and States United inside, you once developed the intent Two, housebreaking, was made but that the unlawful would be instead, therein the crim- only the intent to commit with of the lesser-ineluded digital imaging de- using a entry, inal offense which is a much less of unlawful images of surreptitiously offense, record amounting vice to a criminal serious room the in her barracks housebreaking, [LB] Cadet trespass. In contrast instance, members of the U.S. and first includ- punishment a maximum which has Military Academy basketball confinement, [women’s] years’ ing 5 room, a crime consti- in their locker team punishment a maximum of 6 permits unbecoming an officer and tuting conduct you if do not months’ confinement. So gentleman under readily you had the freely and admit that alleged the crime when

intent to commit rooms, you should not you entered these unbecoming an of conduct These elements instead, housebreaking, but plead guilty to are: officer plead guilty to unlawful acts; is, you you certain used That did engaged record in a collo- imaging surreptitiously then device [LB], spec- members of image quy Appellant regarding of Cadet the three with Military Academy discussing bas- Charge the United States ifications of II. When room, by hid- military judges dialogue team in their locker Specification ketball rooms; camera in the ing digital following: video Appellant consisted of the with the cir- you Do believe that under MJ: cumstances, your circumstances, actions Two, these that under the you intended inside this room unbecom- [sic] acts constituted conducted would gentleman. ing an officer and gentleman? officer gen- unbecoming an officer and “Conduct ca- official tleman” means behavior Yes, ACC: sir. dishonoring disgracing pacity which is Why you that? MJ: do believe cadet, seriously as a which an individual your gentle- as a from character detracts Well, as this com- ACC: actions such man, private an unofficial or or behavior in pletely destroys the trust be- [sic] disgraces you capacity which dishonors morally people; tween two it is your seriously from personally, or detracts reprehensible, say the least. standing a cadet. as type not the of behavior that It’s an officer would do. “Unbecoming means behavior conduct” a material slight, than and of more serious de- you agree So that this would MJ: con- pronounced character. It means cadet, your tract from status as unfitting unworthy, rath- morally duct candidate, essentially? an officer It is inappropriate than or unsuitable. er opposed more than misbehavior which is Yes, sir. ACC: propriety. good taste or MJ: And as a itas is tradi- Prater, (C.M.A.1991)(quota- 32 M.J. tionally person defined —a of char- omitted)), tion marks acter? Yes, ACC: sir. Housebreaking I. discussing Specification When mili- An unlawfully accused “who enters

tary Appellant: asked building or structure of with another intent to commit a criminal offense therein is Again, you MJ: your do believe intend- guilty of housebreaking.” ed conduct in this instance would be conduct to an offi- UCMJ. It that the follows second element gentleman? cer and housebreaking, here, the element at issue “requires specific intent to enter with the Yes, sir, ACC: I do. intent to commit [a criminal] offense.” Unit Peterson, ed Why MJ: is that? (C.A.A.F.1997). The Manual Courts- Martial defines a “criminal “[a]ny offense” as Again, trust, ACC: it breaks the and it brings upon myself act or punishable by omission cadet, as Army well as the that I courts-martial, except an act or omission con represent. stituting purely military a offense.” Manual Courts-Martial, IV, pt. United States military the Finally, judge questioned Ap- for 56.c(3) (2002 ed.) (MCM). para. such, As an pellant Specification about 3: act or omission purely military identified as a you MJ: [D]o believe that the under offense cannot form the basis for the under here, circumstances on the 31st of lying criminal offense in a house July your conduct was unbe- coming breaking charge. an officer and We must gentleman? therefore decide Appellant pleaded whether guilty to an act or Yes, ACC: sir. Again, this conduct constituting omission purely military a of brings upon myself as a fense. cadet. specifications The three Charge II de- MJ: And it your detracts from status specific Appellant scribe engaged acts in to officer, as a future right? is that surreptitiously capture images of women However, without knowledge. their in addi- Yes, ACC: sir. conduct, tion to descriptive this specifica- DISCUSSION tions link directly act Appellant’s each compromising his status as an officer and a A military judge’s decision to ac gentleman. The sheet describes the cept guilty plea a for reviewed an abuse of surreptitious videotaping as “acts constitut- Inabinette, discretion. United States v. ing unbecoming conduct gen- an officer and It anis abuse tleman.” military if the discretion fails to obtain from the adequate accused an factual military judge made the link same support basis to plea. Id. at 321-22. In plea inquiry. First, his addition, it is an abuse of if the discretion judge described the elements of housebreak- military judge’s ruling is based on an errone ing Appellant, indicating that Appellant ous view law. Id. at 322. an While must admit unlawfully that he appellate questions court reviews of law de entered with the intent to surreptitiously rec- novo, military judges are afforded broad dis images, ord constituting “a crime conduct cretion in accept plea. whether or not to a unbecoming an officer and under Id. discretion appellate This is reflected in Second, Article UCMJ.” application of the substantial basis test: judge explained necessary the two elements “Does the record as a whole show ‘a substan prove unbecoming an officer a conduct tial questioning law or fact for gentleman. basis Finally, concluding inquiry his ” guilty plea.’ (quoting United States v. on this charge, Ap- asked 59.b.). Article The focus of consti- if that his conduct

pellant he believed and a conduct on his unbecoming an officer of the accused’s the effect tuted military judge’s officer, cadet, focus on midshipman: gentleman. status as his under- demonstrates offense is of an Article 133 essence [T]he compromise of his standing Appellant’s officer’s conduct an accused not whether a rather an officer and status as ... but amounts to an offense otherwise surreptitious act video- Appellant’s than the standard simply whether the acts meet underlying offense taping, formed the officer.... of conduct charge. assessing appropriate standard [T]he Webb, held v. this Court In United States criminality Article 133 is whether satisfy underlying criminal of- or act is dishonorable the conduct housebreaking an accused fense element compromising ... this notwithstand- the “intent to commit the crime possess must the act otherwise ing whether or not 62, 68- specification.” stated amounts to a crime. (C.M.A.1993). case, plain lan- Giordano, v. 15 C.M.A. United States specifications, as well as guage of the A violation 35 C.M.R. military judge’s colloquy Appellant, with 133, UCMJ, necessarily requires underlying offense in that the demonstrates engaging accused is a “commissioned proof the offense of Appellant’s case was gen- officer, cadet, an officer and midshipman” in conduct because the tleman, violation. As an Article disgraced or dishonored conduct must have result, inquiry the essential is not whether capacity. or her official the accused his coun- surreptitious videotaping has civilian UCMJ; pt. see also MCM See Article “purely military terpart, and thus is not 59.c(2); IV, Taylor, para. offense,” but whether conduct (“The (C.M.A.1987) 314, test [for M.J. military gentleman purely is a officer and a 133, whether the conduct UCMJ] Article is \ below the standards established has fallen Marsh, officers.”); Military Purely II. Offense (C.M.A.1983) (finding that 253-54 M.J. mili- “peculiarly is a unauthorized absence military judge’s acceptance light offense, disput- which tary” or an offense “to guilty plea to Appellant’s the accused’s status ed factual issues about underlying the offense of conduct based on must be decided the and a as a servicemember an officer Arti- question part a violation of becomes whether of fact as of the determination trier purely military a cle constitutes and as to which the Gov- guilt or innocence purposes offense for beyond proof ernment bears the burden UCMJ. “by express doubt” and which its reasonable only terms, statutory prohibition applies officer, cadet, “Any commissioned forces”) (quotation of the armed to a member midshipman who is convicted of conduct or omitted). ineluctably It follows that marks and a shall officer military purely a of- Article is may punished as a court-martial direct.” when it constitutes the fense Article The elements of Article Only housebreaking. a criminal offense for are: officer, cadet, or mid- commissioned (1) omitted to do That the accused did or it the offense and shipman can commit acts; certain jurisdiction that has a court-martial (2) circumstances, That, these under Giordano, 15 prosecute such an offense. or constituted conduct acts omissions (“Conduct 35 C.M.R. at 140 C.M.A. gentleman.

unbecoming an officer and long recog- unbecoming an officer has been offense_”). 150, 152 nized as a Boyett, 42 n. M.J. United (C.A.A.F.1995) IV, serve as the pt. para. therefore cannot (quoting MCM underlying criminal in a offense housebreak- also on an understanding of how the law ing charge.2 relates to those facts.” Id. The elements of an entry unlawful offense

III. Lesser Offense of Unlawful Included are: Entry (1) That entered accused the real question property presented personal now of another or certain may property whether we nonetheless affirm the less another amounts to entry er included offense of usually unlawful structure used for habitation “Any reviewing authority storage; case. with the or power approve finding or guilty (2) affirm entry unlawful; That such was may approve affirm, instead, so much of (3) That, circumstances, finding as includes a lesser included of conduct of the prej- accused was to the 59(b), UCMJ, fense.” Article 10 U.S.C. good udice of discipline order and 859(b) (2000); Medina, United States v. the armed forces was of a nature M.J. “An accused bring upon the armed forces. may be found necessarily Davis, United States v. 302 n. charged....” included the offense (C.A.A.F.2002) (quoting IV, pt. para, MCM UCMJ, 10 U.S.C. 879 111.b.). expressly The MCM that an states Where an offense ais lesser included of- violation under Article offense, fense of the an accused is UCMJ, is a lesser included offense to a by definition on notice because it is a sub- housebreaking charge greater set of the alleged. Howev- IV, 56.d(l). pt. para. UCMJ. MCM er, where a distinct offense is not inherent- two first elements of unlawful are sub ly offense, a lesser sumed within the first element of house guilty plea inquiry breaking, which expressly requires that the sheet must make the accused “unlawfully accused entered” certain loca any aware of guilt alternative IV, 56.b(l). pt. tion. para. MCM The third by implication which he is pleading guilty. element for unlawful is inher ently included within the second element of However, 66 M.J. at 27. “an ac- housebreaking. cused has to know to what offense legal theory under what above, he or she is As mentioned housebreak pleading guilty. This fair ing requires notice resides at that the accused entered with plea the heart of inquiry.” the Id. at 26. the intent to commit a “criminal offense” providence plea 56.b(2). “The of a IV, is based not pt. para. therein. MCM Article 134, UCMJ, the accused’s understanding and recita- punishes, alia, inter conduct crime, history tion of the factual of the but generally “which is or recognized has been as 133, argues 2. The apply Government that an Article does not to Article UCMJ. See United UCMJ, Erickson, purely military (C.A.A.F. violation cannot abe of 233 M.J. 2005) (“For fense because while both Articles 133 and an offense to be excluded from Arti UCMJ, require proof unique military concepts, cle preemption 134 based on it must be shown i.e., unbecoming gentle conduct Congress an officer and a punitive intended other the article discrediting man and either service conduct complete way.”). to cover a class of offenses in a prejudicial good discipline, conduct to order and today While we decline to whether decide an underlying proscribed the these arti Article can serve as the offense un analog. cles could have a derlying civilian There are two housebreaking criminal in a First, case, problems argument. charge, with this in this we note that Articles 133 and Appellant UCMJ, expressly charged was significant with conduct contain at least one difference. gentleman an officer and a as the An accused can be with either an Article underlying just voyeurism. offense and not It punitive offense or the enumerated conduct, plea was on that basis that his was taken. Sec article based on the same ond, fact, military "preemption is, provided whereas the doctrine” the conduct government charging bars the gentleman. from accused officer and a United States v. Pala 134(1), UCMJ, 134(2), short, gar, under Article UCMJ, and Article 56 M.J. In appropriately charged for conduct purely military that is the addresses article, under an question. enumerated this same doctrine nature of the conduct in repre- cadet, Army that [he] as the as well or under most the law illegal common hand, Appellant was the other sent[s].” v. On United States statutory criminal codes.” (C.M.A.1988). point at this that his use apprised Davis, not M.J. nature, to describe his conduct tends “discredit” activity, by its unlawful word “[S]uch an ad- gentleman the was also good or to discredit and prejudice an officer order Therefore, by entering with- discrediting conduct Id. to service service.” mission 134(2), intent authority possessing the out purposes the the punishable under an offense commit view, engaged in service of this

UCMJ, has the context the accused our See that his discrediting prejudicial case, conduct. on fair notice Appellant was IV, Davis, 301; para. pt. MCM 56 M.J. in the context to discredit admission 56.d(l). unbecoming an guilty to conduct to an ad amounted officer and answer is question we have to pur for the discrediting conduct mission to that, plead Appellant understood whether First, poses of unlawful he ing guilty to the that un explicit him on notice judge placed voluntarily knowingly pleading was also entry included offense was a lesser lawful unlaw included offense of guilty to the lesser Second, as a matter of law housebreaking. doing, relinquishing his entry, and in so ful encompassed within logic, to contest that constitutional unbecoming an officer concept of conduct (“It empha at 26-27 bears 66 M.J. readily Appellant to which and a knowing question is a about the sis law, it is well- “‘As a matter of pleaded. plea and not the voluntary nature of the that, underlying con when the established supporting basis adequacy of factual same, or disor a service discredit duct is case, “by Appellant defi In this was plea.”). a lesser-included der under Article 134 is unlawful on notice” that nition un officer offense of conduct housebreaking “be included offense lesser States v. Cheru der 133.’” United greater is a subset of cause it (C.A.A.F.2000) kuri, (quoting Further, alleged.” at 27. Harwood, v. United States op that he had the Appellant advised (C.A.A.F.1997)); also see only pleading guilty to unlawful tion of (C.M.A. n. 4 Rodriquez, 18 M.J. 368-69 possess criminal Appellant if did not 1984) Winthrop, Military (citing William housebreaking. required for While intent (2d 383-85, ed., Law and Precedents specif provide did (1895))). Printing Office 1920 Government Appellant, ic elements held that conduct unbe repeatedly have “We entry and military judge defined unlawful rationally higher entails a coming an officer alternative notice of this put Appellant on simple than or discredit level dishonor guilt. discipline.” prejudice good order Appellant question closer is whether Thus, Cherukuri, when a 53 M.J. at 71. admis- provided sufficient knowingly factual in engages conduct unbecom servicemember affirm the lesser included sions to or she ing and a he an officer clearly satisfy the Appellant’s admissions necessarily engages in service discredit also entry. elements of unlawful first and second prejudicial good ing or conduct conduct entering personal bar- He admitted Rodriquez, 18 M.J. at discipline. order and public a fellow cadet racks room of and (“[T]he of disorder or discredit element permission or locker room without women’s necessarily included is [Article UCMJ] authorization. by disgrace required the element of within UCMJ].”). reason, our For this [Article discrediting element of service The third today inconsistent is not with decision closer call. presents marginally conduct Medina-, “an accused has a in hand, admonition Appellant one admitted On the under to what offense and to know con- providence inquiry that his intended pleading theory he or she is a what as brought [himself] “discredit duct Medina, guilty.” Moreover, 66 M.J. at 26. To do so is to retreat from our recent deci- while Medina sion United in interplay, if addressed 21M.J. read Medina any, separate between I differently clauses of 134, UCMJ, majority than does the generally, and believe analysis today our that case is represents departure narrowly from question: pri- this court’s focused on one rela- practice assuming of that clauses 1 tion between the second element of house- and/or 134, UCMJ, 2 of Article inherently, are breaking nec- and the third element of the lesser essarily, implicitly constructively lesser included entry presented offense of unlawful concepts included of other including in Appellant’s Appellant plead- case. While the enumerated offenses. The effect of the guilty housebreaking, ed he was also on majority opinion is concepts to revive those fair constructive notice that he was as a finding basis for lesser included of- guilty to the lesser of unlaw- fenses. Further, ful at 27. in law conduct unbecoming an officer and a 59(a), UCMJ, 859(a) § 10 U.S.C. gentleman necessarily encompasses (2000), service empowers military appellate court discrediting conduct. approve We therefore affirm “to ... so affirm much of the the lesser finding included offense of unlawful includes a lesser included offense.” specifications for the three The test for Charge determining II. whether one offense is a lesser included offense of another is the “ “elements test” which ‘conducted ref- DECISION statutory erence to the elements of the of- The decision of Army the United States question, not, fenses as the inherent of Appeals Court Criminal is reversed with relationship approach mandate, by would ref- respect Charge specifications II and the erence to proved conduct regardless trial thereunder and the sentence. affirm We statutory definitions.’” Id. at 24-25 so much Charge specifica- II and its (emphasis original) omitted in (quoting findings tions extend to to the States, Schmuck v. United 489 U.S. 716- lesser included offense of unlawful (1989)). 109 S.Ct. 103 L.Ed.2d 734 violation of Article 10 U.S.C. 934 comparison A of the textual elements of (2000). The remaining findings are affirmed. under Article However, the record is Judge returned those of Army General Advocate for remand to UCMJ, reveals that prejudice conduct “to the the Court of Criminal Appeals for reassess- good discipline order and in the armed ment of the sentence light our action on forces” and “conduct of a bring nature to findings. upon the armed forces” are not subsets of the textual elements of Article ERDMANN, Judge, RYAN, whom with UCMJ, housebreaking. Judge, joins (concurring part unique Since the elements clauses dissenting part): 2 of Article are not a subset of I majority with the that the offense of housebreaking, elements under our gen- an officer and a p:re-Medina precedent inquiry would tleman under Article Uniform Code of turn to whether clause 1 those ele- Military (UCMJ), Justice “implicit” ments are in the offense of house- (2000), purely offense and can- breaking. Foster, See United States v. serve as the criminal offense (C.M.A.1994). question a housebreaking charge under Article whether, Medina, concept after of “im- 130, UCMJ, § 10 U.S.C. See plicit” 930 continuing elements has validity in Courts-Martial, Manual United States jurisprudence. this court’s If it does have for IV, 56.e(3) (2002 ed.) (MCM). pt. para. I do continuing validity, I disagree with the ma- entry that unlawful under Article jority’s conclusion “[t]he that third element 134(1) (2), (2) UCMJ, 934(1), inherently unlawful is in- (2000), may be affirmed a lesser included cluded within the second element of house- offense under the Conliffe, United States v. breaking.” of this case. circumstances 67 M.J.

136 retreat significant is from separate offense “preju- find I do not at in Medina. position our “of a discipline” or good order and dicial the armed upon entry in bring to unlawful nature reference The military judge stated housebreaking’s re- was when this case inherent within forces” in- specific contemporaneous that absent a unlawful was that “the quirement offense when Con- a criminal tent to commit a criminal intent to commit with the made unlawfully the barracks liffe entered 56.b(2). IV, pt. para. therein.” MCM offense only the room, he would locker housebreaking is element of The second entry. unlawful included lesser punishable by “any act or omission fulfilled However, not further did courts-martial, except an act or omission by unlawful explain elements of discuss or upon he a record entry, offense.” nor did create constituting purely that added). could base conclusion Con- this court 56.c(3) scope The (emphasis para. at plea his that en- liffe knew and understood alia, includes, offenses inter this element 2 elements compassed unique clause or of Article under clause 3 punishable of unlawful Medina, in As we concluded UCMJ. that was Finally, I would not find Conliffe necessarily lesser 1 and 2 are not “[Clauses clause 1 or elements given fair notice of the alleged under offenses of offenses included by virtue of the “conduct 26. This conclusion 66 M.J. 3.” at clause language speci- gentleman” officer and that not all of- makes clear Medina from clause of Article fication. inherently by punishable fenses court-martial UCMJ, encompasses a form each Article 2 lesser included offenses. clause or contain substantively injury different. that Therefore, element of while the second unbecoming” as used Article “Conduct appropriate cir- housebreaking may, under personal to the accused—the cumstances, encompassing allege an offense person disgraces conduct “dishonors those 1 and clauses officer”; “compromises it as an officer’s inherently in house- are not clauses it gentleman”; “dishonors] as a character breaking itself. or it disgrace[es] personally”; the officer standing person’s “seriously compromises majority that Conliffe “was The also finds 59.c(2) IV, pt. para. as an officer.” MCM was fair notice he constructive also added). (emphasis guilty to the lesser included pleading contrast, used “discredit” as entry” the dictates and therefore UCMJ, meaning: 134(2), much different has a has a Medina that “an accused “ reputation injure the ‘Discredit’ means to and under what to what offense know punish- 134 makes of. This clause of Article guilty” were or she is pleading he tendency bring has a able conduct which (citing Conliffe, at 134-35 67 M.J. satisfied. disrepute or which tends into service 27) Medina, (quotation marks at 66 M.J. para. public it in esteem.” Id. to lower omitted). disagree the nature of the 60.c(3) added). nothing I find (emphasis gave fair in this Conliffe specification case or in the record to specification itself pleading guilty to the enumer- notice on notice of this that Conliffe was indicate housebreaking he was also offense of ated to what “[knew] and therefore distinction encompassed guilty to conduct pleading legal theory he ... offense and what 1 or clause clause either permit order guilty” was [was] specification on the the offense of unlawful this court to affirm notice. “Constructive provided no such sheet as a lesser included at 27.1 pleading guilty to a that Conliffe notice” was Conliffe, 67 MJ. at majority of this court's cer 133.” nature of to the distinct an offi- addition included offense

m entry housebreaking I do not find unlawful to be a “sub- element of and the third ele- housebreaking inherently set” offense of entry,” Conliffe, ment of ... unlawful 67 housebreaking. Conliffe was not (majority opinion). M.J. at 135 But I see no given specification fair notice either the majority’s difference between conclusion providence inquiry plea that his to house- that “[t]he third element for unlaw- breaking guilty plea would also constitute a inherently ful included within the to all the elements of unlawful I second element housebreaking,” id. at portion therefore dissent from that of the application “implicit and an of the elements” majority opinion that affirms unlawful concept any comparison greater between a as a lesser included offense. I would set enumerated offense and a lesser offense un- findings housebreaking aside the and the 134, UCMJ, der Article clause 1 or 2. sentence, remaining findings, affirm the elements, concept implicit rehearing often at- authorize on the sentence. Foster, tributed to United States v. (C.M.A.1994), permits 143 appellate RYAN, Judge (concurring in part and military court to affirm a conviction to a dissenting part): lesser included offense under Article I majority’s concur with the conclusion UCMJ, if the conviction greater of the enu- that conduct an officer and a disapproved merated offense is relieves —and in violation of Article Uni- government plead prove need to Military (UCMJ), form Code of Justice 10 134, UCMJ, elements of the Article (2000), § purely U.S.C. 933 is a of- theory they on the “implicitly” are there. and, such, fense cannot in- serve as the correct, If ever it was concept ap- now criminal tended pears See, wholly unsupportable. e.g., Jones under Article States, 227, 251-52, v. United 526 U.S. § United States v. (1999) (holding S.Ct. 143 L.Ed.2d 311 Conliffe, 67 M.J. at 132-33 the Fifth Amendment’s Due Process join Judge opinion Erdmann’s because I Clause and the Sixth Amendment’s notice Appellant’s may conviction not be jury guarantees trial require that all affirmed to a lesser included offense of un- indictment, charged elements must be in an UCMJ, lawful jury, submitted to a proved beyond (2000), U.S.C. where the elements of doubt); reasonable Schmuck v. United the lesser included offense were neither States, 705, 718, 489 U.S. 109 S.Ct. specification explained nor (1989) (allowing L.Ed.2d 734 lesser included providence inqui- admitted to ry, running without “only afoul of this Court’s deci- offense instructions those cases Medina, sion last term in United States v. 66 where the indictment contains the elements (C.A.A.F.2008). Conliffe, 21M.J. atM.J. thereby gives both offenses and notice to (Erdmann, J., concurring in part and may the defendant that he be convicted on dissenting part). separately I write charge”). either While Medina did not ex- my express dismay majority’s appar- at the Foster, plicitly prior overrule to this ease I concept “implicit ent resuscitation of the believed Medina had cast serious doubt elements,” “inherently recast as included” el- continuing viability. Fosters See ements. (emphasizing “right an accused’s to know to majority what offense and under what analysis states that its limited to the “relation pleading guilty”). between the second he or she is a, se, per general discredit involved in the two Medina is not premise

undermines if not eliminates the of these disorder lesser included offense in all instances. disagree cases that discredit and disorder under Article I therefore that Conliffe "was also on "necessarily” are included within fair constructive notice that he was disgrace required the individual discredit or un- to the lesser included offense of unlawful entry.” der Article UCMJ. Medina clear that makes Id. at 135. per prejudicial to Foster, 142-43, se is either this Court such 40 M.J. at In n brings discipline or dis- good order and adopt the elements whether considered forces; these elements by Supreme credit to the armed that was established test articles. in the enumerated implicit offense is are whether one to determine Court is not Although a lesser offense of the Government “necessarily included” as 31(c). See these elements an enumerated- prove Fed.R.Crim.P. another under 716, Schmuck, they certainly pres- prosecution, at 109 S.Ct. article are 489 U.S. ‘necessarily offense is not (holding that “one ent. elements in another unless the

included’ the basic explanation contradicts Id.1 This are a subset the elements the lesser offense that all elements of an principle Process Due added). charged offense”) (emphasis government proven by the offense must be test, side-by- simple the Schmuck Under beyond doubt. See In re Win a reasonable reveals whether comparison of elements side 364, 1068, 90 S.Ct. ship, 397 U.S. id. at included another. See one offense is (1970) (holding that “the Due L.Ed.2d 368 (requiring “textual 109 S.Ct. against protects the accused Process Clause statutes,” which “is comparison of criminal except upon proof beyond a rea conviction to the conducted reference appropriately necessary every fact to con sonable doubt of ques- statutory of the offenses elements charged”); he is stitute the crime with which tion”). lesser Because Jones, at 526 U.S. S.Ct. see also statute, Article offense (“Much turns on the determination virtually to the federal identical given ... of an offense a fact is element rule, explicitly claimed to the Foster Court charged in the indict that elements must be test. 40 M.J. at adopt the Schmuck elements ment, jury, proven by the to a submitted 142-43. doubt.”); beyond a reasonable Government apparent good. despite But So far so 466, 510, Apprendi Jersey, New 530 U.S. test, the simplicity applying the elements (2000) 2348, 147 L.Ed.2d 435 120 S.Ct. with the fact Court was confronted Foster (“ (Thomas, J., concurring) indictment ‘[T]he charged under clauses or that all offenses allege must whatever is law essential ” UCMJ, include one element punishment sought to be inflicted.’ do not —that the enumerated offenses Bishop, Proce (quoting 1 J. Law Criminal “to the conduct of the accused was either ed.1872))). (2d I am aware of no dure 50 discipline in good order and prejudice of in which an element is other circumstance bring or “of a nature to dis- armed forces” offense, “certainly in an but need present” than upon the armed forces.” Rather credit proven “implicit” because it is not be Schmuck, conclude, conformity with fact, Supreme has “inherent.” In Court 134, UCMJ, is therefore not a lesser rejected previously a similar construct every of- included offense of enumerated Mullaney v. jury instructions. context that, fense, in mili- simply “[held] the Court Wilbur, 1881, 44 95 S.Ct. U.S. ‘necessarily in- tary jurisprudence, the term L.Ed.2d 508 encompasses in Article 79 derivative cluded’ Mullaney, Supreme Court consid- Foster, 40 M.J. under Article 134.” offenses although providing that ered instructions at 143. aforethought was an element of the malice explained holding its The Foster Court murder, was to be crime of its existence follows: “conclusively implied” unless the defendant 95 S.Ct. could show otherwise. Id. simple. rationale is The enumerated Our these instruc- principle that 1881. The Court invalidated rooted in the articles are deny and would also elements with both offenses Court was concerned that if those 1. The request a lesser included implicit them the chance to the enumerated were not iii UCMJ, Although appreciate instruction. every then lesser Article concern, creating justify greater it does not enumerated have an element the would Foster, not, very law the Court fiction that conflicts with and vice versa. offense did adopt. purporting was would allow servicemembers to at 143. This tions, on, they attempted prove, and the state law were based the State had not to they government because relieved the of its ignored that it indeed had the course prove beyond burden to the intent element trial”). very pleading It was these 697-704, reasonable doubt. Id. at 95 S.Ct. rights I thought notice that Medina ad- 1881; Montana, see also v. Sandstrom present dressed and that are in the case 510, 512, 523, 2450, U.S. 99 S.Ct. 61 L.Ed.2d before us. (1979) (rejecting an instruction that “the implicit concept elements as conceived presumes person that law intends the ordi- by reinvigorated by majority Foster and nary consequences voluntary of his acts” be- today, “inherently albeit recast as elements jurors reasonably cause “could have conclud- included,” suggests prejudicial good to they against ed were directed to find discipline order and discrediting service intent,” thereby defendant on the element of cloud, penumbral elements exist in a not eliminating government’s proof burden of element). subject proof beyond Similarly, may as to that it to a reason- while intuitively prohibited seem true that conduct able doubt for conviction of an enumerated articles, by entering offense, the enumerated such as but available to be summoned a structure with the intent to commit an government if and when needed to affirm a therein, prejudicial good is also lesser included I that there is discipline order and discrediting, or service necessity for commanders to retain flexibil- justify intuition alone cannot conclu- ity to maintain “certainly sion that because the elements are good discipline, particularly order and in the “inherent,” present,” “implicit,” gov- offenses; military-specific area of as the Su- duty charge ernment is relieved of its preme recognized, Court has prove them. “regulate aspects must of the conduct of members of the which the civilian Finding prejudicial good that the order sphere unregulated.” are left Parker v. discipline discrediting and service ele- Levy, implicit 417 U.S. ments are or inherent in the S.Ct. enumer- upon ated offenses also intrudes an accused’s L.Ed.2d disagree But I right charges brought against to notice of the where its elements are him. Concern for this notice is at the heart charged proven, is or ever was intend- test, of the elements for “a defendant cannot option ed to serve as a fallback for the be held to answer a not contained in government uphold a conviction ato lesser brought against indictment him.” included offense whenever a conviction to the Schmuck, 489 U.S. at 109 S.Ct. 1443. greater charged offense ap- is overturned on Indeed, government if the were “able to re- peal. I peculiar military necessity see no quest an instruction on an offense whose requiring option, such an which is almost indictment, elements were not in the certainly prosecutors not available to federal placed to notice would in jeopar- See, e.g., in the federal district court. United dy.” Thus, Id. at 109 S.Ct. 1443. Vasquez-Chan, v. States 978 F.2d 553- alleged cases where the elements of the less- (9th Cir.1992) (refusing to affirm a convic- er offense are not a greater, subset of the misprision felony tion for of a because that principle of fair notice dictates that the ac- requires at least one element not may alleged cused not be convicted of that present appel- offenses for Reeves, Hopkins lesser offense. See v. convicted); originally lant was 88, 99, U.S. 118 S.Ct. 141 L.Ed.2d 76 (8th Cavanaugh, 948 F.2d 409-12 (1998) (finding “proceeded where the state Cir.1991) (refusing to affirm a conviction for against respondent only felony aon resulting bodily injury assault serious murder, a crime that under law state has no place aof murder conviction that was set offenses[,] lesser included homicide ... [t]o aside, because the assault offense had an respondent allow to be convicted of homicide proved additional ... element that was not jury offenses would be to allow his trial). beyond find a reasonable doubt elements that portion from the respectfully dissent holding affirming a majority’s conviction

to a violation notes number 1. Cherukuri, M.J. (quoting dis- that "service earlier cases have concluded omitted)). (C.A.A.F.2000) (quotation marks 134 is a lesser- 71 However, disorder under Article credit or

Case Details

Case Name: United States v. Conliffe

Court Name: Court of Appeals for the Armed Forces

Date Published: Jan 7, 2009

Citation: 2009 WL 48220

Docket Number: 08-0158/AR

Court Abbreviation: C.A.A.F.