UNITED STATES, Appellee v. Robert M. PAYNE, Staff Sergeant, U.S. Air Force, Appellant.
No. 13-0345. Crim.App. No. 37594.
U.S. Court of Appeals for the Armed Forces.
Argued Oct. 8, 2013. Decided Jan. 6, 2014.
73 M.J. 19
For Appellant: Captain Nicholas D. Carter (argued).
For Appellee: Captain Thomas J. Alford (argued); Colonel Don Christensen and Gerald R. Bruce (on brief).
Judge ERDMANN delivered the opinion of the court.
Contrary to his pleas, Staff Sergeant (SSgt) Robert Payne was convicted by a general court-martial with members of one
Both
Background
SSgt Payne engaged in a series of sexually explicit Internet chats and phone calls with an undercover civilian sheriff‘s deputy who Payne believed to be a fourtеen-year-old girl named “Marley.” The communications took place over a period of about a month and a half. As a part of those chats, Payne repeatedly asked “Marley” to send him pictures of herself. Some of these requests were for “nude” pictures, while others were more general. Payne also promised nude pictures of himself in exchange for nude pictures of “Mаrley.” While Payne sent “Marley” nude pictures of himself, as well as a video of himself masturbating, “Marley” did not respond in kind. Eventually, Payne traveled from Philadelphia to upstate New York to meet “Marley,” where he was arrested by local law enforcement authorities.
At trial, Payne‘s defense to the Charge I specifications focused almost exclusively on the defense of entrapment. While the defense did not contest his underlying conduct, Payne did object to the military judge‘s proposed instructions on the Charge I offenses. He argued that:
[F]or all four specifications under Charge I, we object to your instructions because we do not believe that the government in its pleadings identified the offenses to which you are listing elements. We believe that based on what trial counsel stated when she read the idеntity of the elements to us and later to the members in their initial discussion about these findings instructions as you‘ve memorialized on the record, and even at present, we believe that these elements are not necessarily a fair parsing of what was pled in each of the four specifications in Charge I.
As I said in the 802 conference, our challenge is this, we have a duty to candor towards a tribunal and to identify any errors and give you a forthright answer, but we also have a competing duty to Staff Sergeant Payne and not to assist the government or even the bench in perfecting elements in charges against him if we think that there‘s, perhaps, a right way to do this. And therefore, we simply say that we don‘t believe that the court has been
able, due to the nature of the pleadings, to properly identify if these are offenses and if so, what those elements would be.
The military judge did not specifically rule on the objection and she gave the members her proposed instructions concerning Charge I. As to Specification 4, the military judge described the specification as “the offense of soliciting a minor to create child pornography” and subsequently provided the following instruction:
First, that, within the continental United States, on divers occasions from on or about 1 June 2008 to on or about 1 August 2008, the accused attempted to persuade, induce, entice, or coerce “Marley,” someone he believed was a female 14 years of age, to commit the offense of creating child pornography by requesting that she send nude photos of herself to the accused;
Second, that the accused intеnded that the person he thought was “Marley” actually produce one or more visual depictions of her nude body to send to him electronically or through the mail;
Third, 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.
The military judge also instructed the members that they must find that “the accused‘s statements constituted a serious request that the offense be committed.” In addition, she instructed that “‘[c]hild pornography’ means any visual depiction of a minor engaging in sexually explicit conduct,” and that “‘[s]exually explicit conduct’ includes masturbation or lascivious exhibition of the genitals or pubic area of any person,” and also properly defined the term “lascivious exhibition.” Following these definitions, the military judge instructed the members that to convict on this specification, the panel must be convinced beyond a reasonable doubt that Payne “specifically intended that ‘Marley’ produce visual depictions of a minor engaged in sexually explicit conduct.”
The members convicted Payne of Specifications 2, 3, and 4 under Charge I. Before the CCA, in regard to Specification 4, Payne argued that the military judge erred by failing to properly instruct the members on the elements of attempt. Payne, 2013 CCA LEXIS 18, at *14, 2013 WL 375777 at *5. While the CCA concluded that the instructions given by the military judge “lacked some specificity,” it ultimately held that “they included all the required elements and adequately instructed the members to find the necessary predicate facts beyond a reasonable dоubt.” Id. at *21, 2013 WL 375777, at *7.
Before this court, Payne renews his argument that the military judge erred by omitting the elements of attempt when instructing on Specification 4. The government concedes that “the military judge did not read the statutory elements of
Discussion
Standard of Review and Preservation of Error
The question of whether the members were properly instructed is a question of law and thus review is de nоvo. United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010) (citations omitted). Where there is no objection to an instruction at trial, we review for plain error. United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013); see also
We have had occasion to address the adequacy of evidentiаry objections and have held that the law “does not require the moving party to present every argument in support of an objection, but does require argument sufficient to make the military judge aware of the specific ground for objection, ‘if the specific ground was not apparent from the context.‘” United States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005) (quoting
No party may assign as error any portion of the charge or omission therefrom unless [that party] objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which [that party objects] and the grounds of [the] objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.
Payne‘s defense counsel objected to all of the military judge‘s instructions to Charge I on the grounds that “the government in its pleadings [did not] identif[y] the offenses to which [the military judge was] listing elements.” However, defense counsel did not identify which specification or specifications he was referring to or which elements he felt the military judge should have instructed on because he did not want “to assist the government or even the bench in perfecting elements in charges against [Payne].” (Emphasis added.) In taking this position, it appears that defense counsel was trying to preserve any instructional error for appeal while simultaneously refusing to assist the military judge in correcting any alleged instructional error at the triаl level.6 Under these circumstances we believe that the issue is most appropriately treated as waived in absence of plain error. See United States v. Zapata, 546 F.3d 1179, 1190 (10th Cir. 2008).7 “Under a plain error analysis, the accused ‘has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.‘”
Elements of Charge I, Specification 4
We next turn to the elements of the chargеd offense. Charge I alleged violations of
[Did] wrongfully and knowingly attempt to persuade, induce, entice, or coerce “Marley,” someone he believed was a female 14 years of age, who was, in fact, Lillian Vedder, an Ulster County New York Sheriff‘s Office undercover detective, to create child pornography by requesting that “Marley” send nude photos of herself to the said STAFF SERGEANT ROBERT M. PAYNE, which conduct wаs prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces.
There are four elements of attempt: (1) that the accused did a certain overt act; (2) that the act was done with the specific intent to commit a certain offense under the code; (3) that the act amounted to more than mere preparation; and (4) that the act aрparently tended to effect the commission of the intended offense. MCM pt. IV, para. 4.b. Although this specification is not a model of clarity, we find that it alleged all of the elements of attempt and it provided Payne with notice that he was charged with an attempt to commit an
The Military Judge‘s Instructions
A military judge has a sua sponte duty to instruct on the elements of every offense.
While Payne argues that the military judge failed to instruct on any of the elements of attempt, we are satisfied that the instructions adequately covered the first two elements of attempt.8 The third element of attempt requires “[t]hat the act amounted to more than mere preparation[.]” MCM pt. IV, para. 4.b.(3). We have interpreted this element as requiring that the accused take a “substantial step” toward cоmmission of the crime. United States v. Jones, 37 M.J. 459, 461 (C.M.A. 1993) (citing
Despite the fact that the military judge did not instruct on the “substantial step” requirement, the government argues that the members were adequately informed of the third element when the military judge instructed that the members needed to find that “the accused‘s statements constituted a serious request that the offense be committed.” The government argues that since the overt act in this attempt offense was the actual request transmitted to the recipient, the “serious request” referenced by the military judge constituted a “substantial step” and the members were therefore aware that they needed to find that “the act amounted to more than mere preparation.”
With respect to the fourth element of attempt, “[t]hat the act apparently tended to effect the commission of the intendеd offense,” MCM pt. IV, para. 4.b.(4), the government merely argues that the evidence on the element presented at trial was legally sufficient to support that element. The government does not point to any portion of the military judge‘s instructions which would cover the fourth element of attempt, and indeed there are none. An element cannot be considered to be properly instructed upоn simply because legally sufficient evidence had previously been admitted at trial. We therefore hold that the military judge‘s failure to instruct on the fourth element of attempt also constituted plain and obvious error.
Prejudice
Having found plain and obvious error, Payne points us to our holding in United States v. Mance, 26 M.J. 244 (C.M.A. 1988), and argues that failure to instruct on an element of an offense is structural error which is per se prejudicial. In Mance, we held that “when a judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because, thereby, the court members are prevented from considering that element at all.” Id. at 255. As the military judge failed to instruct on two elements of the charged offense, we agree that under the rationale of Mance, Payne would appear to be entitled to relief.
However, since we decided Mance in 1988, the Supreme Court addressed this issue in Neder v. United States, 527 U.S. 1 (1999), and it held that the failure to instruct on an element does not cоnstitute structural error.9 Less than a month after Neder was decided, this court issued United States v. Glover, 50 M.J. 476 (C.A.A.F. 1999), which, while holding that there was no plain error in the context of the military judge‘s instructions, cited but did not rely on Mance.
Other than Glover, we have since applied Neder rather than Mance in examining instructional errors and have tested for prejudice. See United States v. Upham, 66 M.J. 83, 86-87 (C.A.A.F. 2008). We have not cited or relied upon Mance to find structural error resulting from the omission of an element from instructions since Neder was decided. To alleviate further confusion on this issue, today we overrule Mance to the extent it conflicts with the holding in Neder that omission of an instruction regarding an element may be testеd for harmless error.
We conclude that the omission of instructions on the third and fourth elements of attempt did not materially prejudice Payne‘s substantial rights. Payne did not contest those elements at trial as he relied primarily upon the defense of entrapment. Furthermore, the evidence on those elements, which includes the logs of the explicit chats between Payne and “Marley,” was overwhelming. Wе are therefore satisfied beyond a reasonable doubt that the omitted
Decision
The decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.