U.S. v. Negron, 60 M.J. 136

Core Criminal Law Subjects: Crimes: Article 134 - Mails --Depositing or Causing to be Deposited Obscene Matters in Pre-2019 offenses

1. depositing obscene matter in the mail is not specifically enumerated in the UCMJ as a criminal offense, but it is punishable under Article 134, UCMJ; it is clear that the focus of this offense is on “obscene” words; whether something is obscene is a question of fact; obscene is synonymous with “indecent” as that word is defined for indecent language under Article 134, UCMJ, in MCM, Part IV, para. 89.c; the matter must violate community standards of decency or obscenity and must go beyond customary limits of expression
2. in the providence inquiry into the obscene mail offense in this case, the military judge erroneously used the definition of “indecent” from the offense of indecent acts with another rather than from the offense of indecent language; this fundamental definitional error rendered the plea improvident; moreover, the military judge’s questioning of appellant using primarily leading questions about this offense rendered the providence inquiry fatally deficient
3. the test for obscene language at the time of appellant’s court-martial, set forth in French and applied in Brinson, was whether the particular language was calculated (i.e., intended or planned) to corrupt the morals or excite libidinous thoughts; in fact, the clear and unequivocal holding of Brinson was that only language calculated to corrupt morals or excite libidinous thoughts was obscene; in the providence inquiry in this case, the language used by appellant was clearly calculated or intended to express his rage, not any sexual desire or moral dissolution; thus, under the narrow definition of indecent language applied in Brinson, appellant’s language was not obscene
4. regarding the definition of “indecent” applicable to a charge of indecent language and synonymous with “obscene,” MCM, Part IV, para. 89.c presents two different definitions to measure speech that may be a crime, dependent on the context in which it is spoken; we adopt and will apply this plain language of the Manual prospectively to cases tried after the date of this decision
5. to render language punishable for the offenses of indecent language and depositing obscene matter in the mail, the President has required that the language and conduct of the accused be to the prejudice of good order and discipline in the armed forces or be of a nature to bring discredit upon the armed forces; in part, it is this element of these offenses that filters out from punishment language that is colloquial vocabulary and may be routinely used by service members; as these offenses touch on First Amendment free speech issues, the Government must always exercise care in both charging and proving these offenses to establish that the factual predicate for these offenses is within the ambit of the narrowly limited classes of punishable speech

Trial Stages: Merits: Guilty Pleas

1. in the providence inquiry into the obscene mail offense in this case, the military judge erroneously used the definition of “indecent” from the offense of indecent acts with another rather than from the offense of indecent language; this fundamental definitional error rendered the plea improvident; moreover, the military judge’s questioning of appellant using primarily leading questions about this offense rendered the providence inquiry fatally deficient
2. in a guilty plea, the military judge has the duty to accurately inform appellant of the nature of his offense and elicit from him a factual basis to support his plea; an essential aspect of informing appellant of the nature of the offense is a correct definition of legal concepts; the judge’s failure to do so may render the plea improvident unless the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle
3. we advise against and caution judges regarding the use of conclusions and leading questions that merely extract from appellant “yes” and “no” responses during the providence inquiry; it is especially important that the accused speak freely so that a factual basis will be clearly established in the record; we find little benefit in establishing a factual record where appellant merely is “parroting” responses to leading questions asked by the military judge

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in evaluating the providence of a plea, the entire record should be considered; to prevail on a challenge to the providence of a plea, appellant has the burden to demonstrate a substantial basis in law and fact for questioning the guilty plea