U.S. v. Conliffe, 67 M.J. 127

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged; however, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry, the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty

Military Justice Personnel: Military Judge: Discretion

1. it is an abuse of discretion if a military judge fails to obtain from the accused an adequate factual basis to support the plea; in addition, it is an abuse of discretion if a military judge’s ruling is based on an erroneous view of the law
2. while an appellate court reviews questions of law de novo, military judges are afforded broad discretion in whether or not to accept a plea; this discretion is reflected in appellate application of the substantial basis test: does the record as a whole show a substantial basis in law or fact for questioning the guilty plea

Core Criminal Law Subjects: Crimes: Article 130 - Housebreaking Pre-2019 offenses

1. an accused who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking; it follows that the second element of housebreaking requires a specific intent to enter with the intent to commit a criminal offense; the MCM defines a criminal offense as any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense; as such, an act or omission identified as a purely military offense cannot form the basis for the underlying criminal offense required in a housebreaking charge
2. to satisfy the underlying criminal offense element of housebreaking an accused must possess the intent to commit the crime stated in the specification
3. the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, is a purely military offense when it constitutes the underlying criminal offense for housebreaking under Article 130, UCMJ; only a commissioned military officer, cadet, or midshipman can commit the offense, and it is only a court-martial that has jurisdiction to prosecute such an offense; therefore, because it is a purely military offense, the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, cannot serve as the underlying criminal offense for the purposes of an Article 130, UCMJ, housebreaking charge
4. the MCM expressly states that an unlawful entry violation under Article 134, UCMJ, is a lesser included offense to a housebreaking charge under Article 130, UCMJ; the first two elements of unlawful entry are subsumed within the first element of housebreaking, which expressly requires that the accused “unlawfully entered” a certain location; the third element required for unlawful entry is inherently included within the second element of housebreaking

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. the elements of Article 133 are (1) that the accused did or omitted to do certain acts, and (2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman; the focus of Article 133, UCMJ, is the effect of the accused’s conduct on his status as an officer, cadet, or midshipman; the essence of an Article 133 offense is not whether an accused officer’s conduct otherwise amounts to an offense, but simply whether the acts meet the standard of conduct unbecoming an officer; the appropriate standard for assessing criminality under Article 133 is whether the conduct or act charged is dishonorable and compromising, this notwithstanding whether or not the act otherwise amounts to a crime
2. a violation of Article 133, UCMJ, necessarily requires proof that the accused is a commissioned officer, cadet, or midshipman because the conduct must have disgraced or dishonored the accused in his or her official capacity
3. the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, is a purely military offense when it constitutes the underlying criminal offense for housebreaking under Article 130, UCMJ; only a commissioned military officer, cadet, or midshipman can commit the offense, and it is only a court-martial that has jurisdiction to prosecute such an offense; therefore, because it is a purely military offense, the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, cannot serve as the underlying criminal offense for the purposes of an Article 130, UCMJ, housebreaking charge
4. whereas the military preemption doctrine bars the government from charging an accused under Article 134(1), UCMJ, and Article 134(2), UCMJ, for conduct that is appropriately charged under an enumerated article, this same doctrine does not apply to conduct unbecoming an officer and a gentleman charged under Article 133, UCMJ
5. an accused can be charged with either an Article 133, UCMJ, offense or the enumerated punitive article based on the same underlying conduct, provided the conduct is, in fact, unbecoming an officer and a gentleman; Article 133, UCMJ, addresses the purely military nature of the conduct in question
6. as a matter of law, it is well-established that, when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133
7. conduct unbecoming an officer rationally entails a higher level of dishonor or discredit than simple prejudice to good order and discipline; thus, when a servicemember engages in conduct unbecoming an officer and a gentleman, he or she also necessarily engages in service discrediting conduct or conduct prejudicial to good order and discipline

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. whereas the military preemption doctrine bars the government from charging an accused under Article 134(1), UCMJ, and Article 134(2), UCMJ, for conduct that is appropriately charged under an enumerated article, this same doctrine does not apply to conduct unbecoming an officer and a gentleman charged under Article 133, UCMJ
2. Article 134, UCMJ, punishes, among other things, conduct which is or generally has been recognized as illegal under the common law or under most statutory criminal codes; such activity, by its unlawful nature, tends to prejudice good order or to discredit the service
3. as a matter of law, it is well-established that, when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133
4. conduct unbecoming an officer rationally entails a higher level of dishonor or discredit than simple prejudice to good order and discipline; thus, when a servicemember engages in conduct unbecoming an officer and a gentleman, he or she also necessarily engages in service discrediting conduct or conduct prejudicial to good order and discipline

Core Criminal Law Subjects: Crimes: Article 134 - Unlawful Entry Pre-2019 offenses

1. the elements of an unlawful entry offense are (1) that the accused entered the real property of another or certain personal property of another which amounts to a structure usually used for habitation or storage, (2) that such entry was unlawful, and (3) 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
2. the MCM expressly states that an unlawful entry violation under Article 134, UCMJ, is a lesser included offense to a housebreaking charge under Article 130, UCMJ; the first two elements of unlawful entry are subsumed within the first element of housebreaking, which expressly requires that the accused “unlawfully entered” a certain location; the third element required for unlawful entry is inherently included within the second element of housebreaking
3. housebreaking requires that the accused entered with the intent to commit a criminal offense therein; Article 134, UCMJ, punishes, among other things, conduct which is or generally has been recognized as illegal under the common law or under most statutory criminal codes; such activity, by its unlawful nature, tends to prejudice good order or to discredit the service; therefore, by entering without authority and possessing the intent to commit an offense punishable under the UCMJ, the accused has engaged in service discrediting or prejudicial conduct
4. appellant, who pleaded guilty to housebreaking, was by definition on notice that unlawful entry was a lesser included offense of housebreaking because it is a subset of the greater offense alleged; further, the military judge advised appellant that he had the option of only pleading guilty to unlawful entry if appellant did not possess the criminal intent required for housebreaking; while the military judge did not provide the specific elements of unlawful entry to appellant, the military judge defined unlawful entry and put appellant on notice of this alternative theory of guilt
5. in the context of this case, appellant, who pleaded guilty to housebreaking and conduct unbecoming an officer and a gentleman, was on fair constructive notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of the offense of unlawful entry, a lesser included offense of housebreaking; first, the military judge placed him on explicit notice that unlawful entry was a lesser included offense to housebreaking; second, as a matter of law and logic, discredit is encompassed within the concept of conduct unbecoming an officer and a gentleman, to which appellant readily pleaded

Trial Stages: Merits: Guilty Pleas

1. it is an abuse of discretion if a military judge fails to obtain from the accused an adequate factual basis to support the plea
2. where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged; however, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry, the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty
3. an accused has a right to know to what offense and under what legal theory he or she is pleading guilty; this fair notice resides at the heart of the plea inquiry; the providence of a plea is based not only on the accused’s understanding and recitation of the factual history of the crime, but also on an understanding of how the law relates to those facts
4. appellant, who pleaded guilty to housebreaking, was by definition on notice that unlawful entry was a lesser included offense of housebreaking because it is a subset of the greater offense alleged; further, the military judge advised appellant that he had the option of only pleading guilty to unlawful entry if Appellant did not possess the criminal intent required for housebreaking; while the military judge did not provide the specific elements of unlawful entry to appellant, the military judge defined unlawful entry and put appellant on notice of this alternative theory of guilt
5. in the context of this case, appellant, who pleaded guilty to housebreaking and conduct unbecoming an officer and a gentleman, was on fair constructive notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of the offense of unlawful entry, a lesser included offense of housebreaking; first, the military judge placed him on explicit notice that unlawful entry was a lesser included offense to housebreaking; second, as a matter of law and logic, discredit is encompassed within the concept of conduct unbecoming an officer and a gentleman, to which appellant readily pleaded

Trial Stages: Appeals: Remedies › Generally

1. 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; an accused may be found guilty of an offense necessarily included in the offense charged

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

1. a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion
2. it is an abuse of discretion if a military judge fails to obtain from the accused an adequate factual basis to support the plea; in addition, it is an abuse of discretion if a military judge’s ruling is based on an erroneous view of the law
3. while an appellate court reviews questions of law de novo, military judges are afforded broad discretion in whether or not to accept a plea; this discretion is reflected in appellate application of the substantial basis test: does the record as a whole show a substantial basis in law or fact for questioning the guilty plea

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. 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; an accused may be found guilty of an offense necessarily included in the offense charged
2. where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged; however, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry, the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty
3. the MCM expressly states that an unlawful entry violation under Article 134, UCMJ, is a lesser included offense to a housebreaking charge under Article 130, UCMJ; the first two elements of unlawful entry are subsumed within the first element of housebreaking, which expressly requires that the accused “unlawfully entered” a certain location; the third element required for unlawful entry is inherently included within the second element of housebreaking
4. appellant, who pleaded guilty to housebreaking, was by definition on notice that unlawful entry was a lesser included offense of housebreaking because it is a subset of the greater offense alleged; further, the military judge advised appellant that he had the option of only pleading guilty to unlawful entry if appellant did not possess the criminal intent required for housebreaking; while the military judge did not provide the specific elements of unlawful entry to appellant, the military judge defined unlawful entry and put appellant on notice of this alternative theory of guilt
5. in the context of this case, appellant, who pleaded guilty to housebreaking and conduct unbecoming an officer and a gentleman, was on fair constructive notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of the offense of unlawful entry, a lesser included offense of housebreaking; first, the military judge placed him on explicit notice that unlawful entry was a lesser included offense to housebreaking; second, as a matter of law and logic, discredit is encompassed within the concept of conduct unbecoming an officer and a gentleman, to which appellant readily pleaded
6. as a matter of law, it is well-established that, when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133
7. conduct unbecoming an officer rationally entails a higher level of dishonor or discredit than simple prejudice to good order and discipline; thus, when a servicemember engages in conduct unbecoming an officer and a gentleman, he or she also necessarily engages in service discrediting conduct or conduct prejudicial to good order and discipline