U.S. v. Leonard, 64 M.J. 381

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code; those categories are separated into three clauses; clause 1 prohibits conduct to the prejudice of good order and discipline in the armed forces; clause 2 prohibits conduct of a nature to bring discredit upon the armed forces; and clause 3 covers noncapital crimes or offenses which violate federal law; when the decision is made to charge the offense under clause 3, the proof must establish every element of the crime or offense as required by the applicable law; but when the offense is charged under clauses 1 or 2, the specification need only allege that the accused did or failed to do certain acts, and that, under the circumstances, the accused’s conduct 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 respectively; the MCM states no preference as to which clause of Article 134, UCMJ, must be used in a particular case
2. the maximum punishment for an offense charged under Article 134, UCMJ, clauses 1 and 2, barring conduct prejudicial to good order and discipline or conduct of a nature to bring discredit upon the armed forces, and not otherwise listed in the MCM, may be determined by reference to the maximum punishment for a violation of a federal statute that proscribes and criminalizes the same criminal conduct and mental state included in the specification

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. the maximum punishment for an offense charged under Article 134, UCMJ, clauses 1 and 2, barring conduct prejudicial to good order and discipline or conduct of a nature to bring discredit upon the armed forces, and not otherwise listed in the MCM, may be determined by reference to the maximum punishment for a violation of a federal statute that proscribes and criminalizes the same criminal conduct and mental state included in the specification
2. Article 134, UCMJ, which applies only to conduct not specifically mentioned under the UCMJ, specifically provides that an accused shall be punished at the discretion of the court; however, a court’s discretion is bounded both where specific direction is given under RCM 1003(c) and by the limitations established by the President pursuant to Article 56, UCMJ
3. in sentencing an accused for receiving visual depictions of children engaged in sexually explicit activity under the Article 134, UCMJ, provisions barring conduct prejudicial to good order and discipline or conduct of a nature to bring discredit upon the armed forces, the military judge did not err by referencing a directly analogous federal statute, 18 USC 2252(a)(2), to identify the maximum punishment in the case, when every element of the federal crime, except the “interstate or foreign commerce” jurisdictional element, was included in the specification
4. in determining the maximum sentence for offenses charged under clauses 1 or 2 of Article 134, UCMJ, that include the conduct and mens rea proscribed by a directly analogous federal criminal statutes, and that do not have a listed maximum punishment in the MCM and are not closely related to an offense listed therein, an appellate court focuses on whether the offense as charged is “essentially the same” as that proscribed by the federal statute; if so, the maximum sentence is the federal statutory maximum; a military judge does not err by referencing a directly analogous federal statute to identify the maximum punishment, when every element of the federal crime, except the jurisdictional element, is included in the specification; the government, however, may not avoid charging and proving elements setting forth the gravamen of the offense under federal law, yet still avail itself of the federal statutory maximum; the criminal conduct and mens rea set forth in the specification must satisfy the requirements of clauses 1 and 2 of Article 134, UCMJ, and describe the gravamen of the offense proscribed by the federal criminal statute