There were two issues before the court in United States v. Parker, No. 20080579 (A. Ct. Crim. App. Aug. 31, 2009) (unpublished). (a) Is the evidence legally and factually sufficient to support the conviction for indecent liberties with a child? (b) If not, are any lesser included offenses available for indecent liberties with a child? The ACCA determined that the evidence was insufficient for indecent liberties with a child under Art. 134. Citing Miller, the Court held that the requirement for physical presence under indecent liberties cannot be satisfied by electronic means. But, the ACCA affirmed the lesser included offense of indecent acts with another under Art. 134. The Court determined that indecent acts with another is “necessarily included” in indecent acts or liberties with a child. Applying Schmuck and Teters, the ACCA used “a pure elements test” to find that the elements of indecent acts with another are “subsumed within” the elements of indecent acts with a child. As a final factual matter, indecent acts with another requires “affirmative interaction between the [accused] and the victim” (internal quotations and citation omitted). That is, “the victim must be more than an inadvertent passive observer.” Reviewing the record of trial, the court concluded that the victim in this case was indeed an “active participant.” The ACCA affirmed the lesser included offense of indecent acts with another for all four specifications involving indecent liberties with a child.

In United States v. Purdy, 67 M.J. 780 (N-M. Ct. Crim. App. 2009), the Court had to determine whether the accused’s guilty pleas to Clauses 1 and 2 were improvident because Clauses 1 and 2 are not lesser included offenses to Clause 3? The N-MCCA determined that his plea was provident. In Medina, the court ruled that “Clauses 1 and 2 are not necessarily lesser included offenses under Clause 3, although they may be, depending on the drafting of the specification.” However, in this case, the issue is not whether his conduct and the wording of the specification make Clauses 1 and 2 lesser included offenses of Clause 3. Rather, the issue after Medina is “whether he had fair notice he was pleading guilty to a distinct theory of liability as compared to that which appeared on the charge sheet.” After the court made clear in Medina that Clauses 1, 2, and 3 of Art. 134 are “distinct theories of liability,” the accused must know whether he is pleading guilty to a disorder or neglect under Clause 1, service discrediting conduct under Clause 2, or a crime or offense not capital under Clause 3. In Medina, the court noted that this could be accomplished either through the charge sheet or through the military judge’s plea inquiry. In this case, the N-MCCA was satisfied that the accused’s plea was knowing and voluntary. First, he entered into a stipulation of fact where he admitted that his conduct was both prejudicial to good order and discipline and service discrediting. Next, in his pretrial agreement, he agreed to plead not guilty to the Clause 3 offense, but guilty to offenses under Clauses 1 and 2. Lastly, the military judge explained all three theories of liability to him at the providence inquiry and explained that Clauses 1 and 2 have additional elements that Clause 3 does not have. The “underlying criminal conduct was accurately portrayed in the specification” and the trial judge made him “aware . . . that he was pleading guilty under a theory of liability distinct from that in alleged on the charge sheet.”

In United States v. McCracken, 67 M.J. 467 (C.A.A.F. 2009) the CAAF had to determine whether the N-MCCA erred by affirming a lesser included offense based on a theory of criminality not presented by the Government at trial? The Court set aside the findings and dismissed the charge and the specification. The CAAF concluded that “as a matter of law . . . under the circumstances of this case, open and notorious indecent acts . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120 . . . .” According to United States v. Riley, 50 M.J. 410 (C.A.A.F. 1999) and United States v. Chiarella, 445 U.S. 222 (1980), an appellate court may not affirm an included offense on a theory not presented to the trier of fact. Furthermore, according to United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009), supra, an appellate court may not affirm an Article 134 offense based solely on the charging of an enumerated offense at trial. In a concurring opinion, Judge Baker outlines the uncertainty that Miller and McCracken caused in the military lesser included offenses doctrine, and articulates four vital questions that remain in the court’s jurisprudence that starts with United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), and continues through Conliffe, Miller, and McCracken, supra.

The issue before the CAAF in United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) was whether after disapproving a finding of guilt to a resisting apprehension charge, can an appellate court affirm a conviction for a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles? The Court concluded that “Article 134, UCMJ, is not an offense necessarily included under Article 79, UCMJ, of the enumerated articles” and an appellate court may not affirm an Article 134 offense under Article 59, UCMJ, as a lesser included offense of an enumerated offense (internal quotations omitted). The case expressly overrules the principle from Foster that Clauses 1 and 2 of Art. 134 are per se included in every enumerated offense. The Court framed the question as whether a simple disorder or discredit under either Clauses 1 or 2 are lesser included offenses of Art. 95. Under Art. 79, an accused may be found guilty of an offense necessarily included in the offense charged. According to the explanation of Art. 79, “[a] lesser offense is included in a charged offense when the specification contains allegations which either expressly or by fair implication put the accused on notice to be prepared to defend against it in addition to the offense specifically charged.” See 2008 MCM, pt. IV, ¶ 3b(1). Under both Schmuck and Weymouth, an offense is necessarily included in another offense “when the elements of the lesser offense are a subset of the elements of the charged offense.” Citing Medina, the CAAF reiterated that “[a]n accused is by definition on notice of a lesser included offense because it is a subset of the greater offense alleged.” As per Medina, the due process principle of fair notice requires that the accused know to what offense and under what legal theory he will be convicted and a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged. The CAAF ruled that offenses under Clauses 1 and 2 of Art. 134 contain an element not found in Art. 95: “that under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces.” Hence, “Article 134, UCMJ, is not an offense necessarily included in Article 95, UCMJ.” In a footnote, the CAAF reminds practitioners that if the offense is not necessarily included in another offense, the Government may satisfy the notice requirement when the charge sheet “make[s] the accused aware of any alternative theory of guilt.” In this case, the charge sheet did not reference the elements of prejudice to good order and discipline or service discrediting conduct. The finding was set aside and the charge and specification were dismissed.

In United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009), the CAAF upheld unlawful entry as a lesser included offense under Article 59(b), UCMJ. Under Art. 59(b), “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.” Interpreting Art. 79 and Medina, the CAAF held that unlawful entry is a lesser included offense of housebreaking. The Court observed that unlawful entry is listed as a lesser included offense of housebreaking. See 2008 MCM, pt. IV, ¶ 56.d.(1). Next, the Court analyzed the elements. The first two elements of unlawful entry (entry of the property of another and that the entry was unlawful) are “subsumed within” the first element of housebreaking (that the accused “unlawfully entered a certain location”). The Court then ruled that the third element of unlawful entry (conduct prejudicial to good order and discipline or service discrediting conduct) was “inherently included” in the second element (“with intent to commit a criminal offense therein”). By entering without authority and possessing the intent to commit an offense punishable by the UCMJ, the accused engaged in service discrediting conduct or conduct prejudicial to good order and discipline. Also, the CAAF held that the accused knew that, in pleading guilty to the housebreaking charge, he was knowingly and voluntarily pleading guilty to the LIO of unlawful entry and was waiving his right to contest that offense. He was “by definition on notice” since unlawful entry is a subset of the elements of housebreaking. Additionally, the military judge defined unlawful entry and advised the accused that he had the option of pleading guilty to unlawful entry if he did not possess the criminal intent needed for housebreaking. Further, by admitting to “discrediting conduct” when explaining why his conduct was unbecoming, he admitted that his conduct was service discrediting. A service discredit or disorder is a lesser included offense for conduct unbecoming when the underlying conduct is the same. See United States v. Cherukuri, 53 M.J. 68 (C.A.A.F. 2000). So, when the accused pled guilty to housebreaking, “he was also on fair constructive notice” that he was pleading guilty to the lesser included offense of unlawful entry.” The Court affirmed the lesser included offense of unlawful entry for the three specifications of housebreaking.

The issue before the Court in United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009), was whether the N-MCCA erred in substituting a finding of guilt as to reckless endangerment for the court-martial’s finding of guilt as to kidnapping? The Court determined that the N-MCCA erred in affirming a conviction for reckless endangerment when the kidnapping conviction was legally and factually insufficient. The CAAF compared the elements of both kidnapping and reckless endangerment and ruled that reckless endangerment needed proof of elements not included in a kidnapping specification. Hence, according to Art. 79, “[r]eckless endangerment is not an offense necessarily included in the offense of kidnapping.”
The case highlights the distinction between a “closely related offense” and a “lesser included offense.” See United States v. Epps, 25 M.J. 319 (C.M.A. 1987) (citing United States v. Wright, 22 M.J. 25 (C.M.A. 1986), “[I]n dealing with guilty pleas, we have not hesitated to uphold a conviction when the providence inquiry clearly establishes guilt of an offense different from but closely related to the crime to which the accused has pleaded guilty.”); United States v. Felty, 12 M.J. 438 (C.M.A. 1982) (“[T]he technical variance between the offense alleged and that which is established from an accused’s own lips does not require setting aside the plea of guilty”). Under Art. 79, a lesser included offense is “an offense necessarily included in the offense charged” and may be affirmed under Art. 59(b) irrespective of whether the case is a guilty plea or a contest.

In United States v. Redd, 67 M.J. 581 (A. Ct. Crim. App. 2008) the Court had to decide if the requirement to read the appellant his Article 31 rights is triggered when a CID Special Agent was present at a civilian law enforcement interrogation, and asked the appellant questions? If so, did the Miranda warnings given include the offenses that the appellant was originally under investigation for meet the requirements of Article 31(b)? For both issues, the ACCA determined in the affirmative. The Court cited United States v. Rodriguez, 60 M.J. 239 (C.A.A.F. 2004), for the proposition that civilian investigators should comply with Article 31 when: 1) the two investigations have merged into an indivisible entity, and 2) when the civilian investigator acts in furtherance of any military investigation or as an instrument of the military. In this case, the Court observed that the Special Agent participated heavily in the questioning of the appellant. The actions of the two investigators proved a merger before questioning even started. The Miranda rights given by the civilian detective met the requirements of Article 31. While the Miranda warnings given stated that the accused was only entitled to counsel if he was indigent, in contravention of Mil. R. Evid. 305(d)(2), the ACCA ruled this to be adequate. The accused was intelligent and at no point invoked the right to counsel. Even during appeal he did not assert that he waived his right to counsel based upon a misunderstanding of the indigency requirement. Also, the appellant was notified of the original charges he was under investigation for (sexual intercourse with a minor). Neither the civilian detective nor the CID Special Agent knew about the child pornography until the appellant mentioned it. The ACCA further concluded that the original offenses were sufficiently connected to the allegation of child pornography because the computer was used to facilitate the child sex crimes.

In United States v. Chatfield, 67 M.J. 432 (C.A.A.F. 2009), the CAAF had to determine whether the Appellant was in custody and if yes, was the detective required to give Miranda warnings as a consequence? The Court held that the accused was not in custody, hence Miranda warnings were not needed to be give. The CAAF cites Thompson v. Keohane, 516 U.S. 99 (1995), for the proposition that two inquiries are required to determine custody: 1) the circumstances surrounding the interrogation; and 2) would a reasonable person in those circumstances have felt that he or she was not at liberty to terminate the interrogation. Despite the fact that questioning happened in the station house, the Court held that appellant appeared there voluntarily, that the interrogation occurred in the detective’s office instead of an interrogation room, and that the duration of the interrogation all point to the fact that a reasonable person would not find that the appellant was in custody. Although the appellant’s three escorts outranked him, they did not compel the appellant to go to the police station. They did not order him to go, and the appellant’s characteristics (thirty-six year-old officer; twelve years of experience) show that the statement was freely and voluntarily provided.

In United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009), the issue before the Court was whether the Appellant was subject to cruel and unusual post-trial punishment in violation of the Eighth Amendment and Article 55 during confinement at the Naval Brig Charleston. The Appellant made a personal declaration that a confinement NCO “slapped [the appellant] on the back of the head with the back of his hand,” and began “yelling and cursing” at him. Navy corrections regulations prevent correctional staff from physically or verbally abusing prisoners and “striking or laying hands” on prisoners. Appellant argues violation of these rules indicates wrongfulness. The Appellant made a complaint to the Brig, and in the resulting investigation, the confinement NCO admitted using profanity and touching the back of the Appellant’s head, however he claimed it was an accident. The Court observed that physical contact was de minimis and did not violate the Eighth Amendment or Article 55. The Court used de novo review for this claim of cruel and unusual punishment. As there was not a violation of one of the prohibited acts in Article 55, UCMJ, the Court looked at the excessive force claim under Eighth Amendment precedent. Violation of a regulation by itself is not enough to result in an Eighth Amendment claim. The applicable test is whether the Appellant could establish that the corrections official acted “maliciously and sadistically to cause harm.” The official must have a “sufficiently culpable state of mind,” and the alleged misconduct must be “objectively ‘harmful enough’ to prove a constitutional violation.” Considering all of the facts, and accepting every allegation “at face value,” the AFCCA observed no violation since “there is no claim, much less evidence, that [the Appellant] suffered any injury, or even pain, of any sort from the contact.” The contact was de minimis, and while “unpleasant for the appellant,” not sufficient to satisfy the “malicious and sadistic” requirement.

In United States v. Nerad, 67 M.J. 748 (A.F. Ct. Crim. App. 2009), the Appellant filed a personal affidavit about his 23-day post-trial stay at a civilian confinement facility while awaiting transfer to a military facility. He identified seven specific issues: (1) he was in a two-person cell with two other inmates; (2) he had to sleep on mat in front of, and touching, the toilet; (3) he did not receive personal toiletries for 14 days; (4) he was exposed to second hand marijuana smoke; (5) he had no blanket for four days because another inmate stole it and sold it for cookies; (6) he was denied medical assistance after being hit by pepper spray used to break up a fight between other inmates; and (7) he was denied medical care for diagnosed back problem. The Court ruled that there was no no cruel and unusual punishment. The Court immediately dismissed complaints (1) through (5), ruling that being uncomfortable does not translate into an Eighth Amendment or an Article 55 violation. Cruel and unusual punishment needs “‘objectively, sufficiently serious act[s] or omission[s]’ that resulted in ‘an excessive risk to inmate health or safety’ knowingly disregarded by prison officials.” Regarding the medical complaints, the Appellant did not satisfy “his burden of establishing that he was denied reasonable medical care.” Medical care for inmates should only be “reasonable.” In the pepper spray incident, the Appellant “provided no evidence, or even asserted, that he was physically injured by the spray or required medical treatment.” In the back pain complaint, the Appellant provides no evidence that he had a prescription for back pain that was not filled. He also did not show that the prison medical staff’s decisions about treatment for his back were “unreasonable,” only that they were “objectionable” to him.