U.S. v. Contreras, 69 M.J. 120

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

1. Article 130, UCMJ, outlaws unlawful entry into the building or structure of another with intent to commit a criminal offense therein; the President, however, has narrowed this language, stating that the definition of criminal offense does not extend to an act or omission constituting a purely military offense
2. whether a particular Article 130, UCMJ, criminal offense is a purely military offense is determined by considering its elements, not by a survey of, or making other reference to, state and federal law; and whether something is a purely military offense depends on whether the UCMJ limits prosecution for the offense to servicemembers or contemplates the prosecution of a non-servicemember
3. indecent acts with another, a violation of Article 134, UCMJ, is not a purely military offense, where by the terms of Article 134, UCMJ, that article might be violated by persons who are not and never have been in the military, and the MCM has not limited the application of indecent acts with another to military members only, as it has done with some other offenses listed under that article
4. the MCM limits the application of some offenses listed under Article 134, UCMJ, to military members only; these offenses, such as fraternization and gambling with a subordinate, are purely military offenses; other crimes, however, such as bribery, graft, kidnapping, pandering, and prostitution are not so limited, nor would anyone otherwise consider them to be purely military offenses despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline
5. the President’s analysis of the punitive articles is persuasive authority and may potentially further limit the application of some punitive articles to military members only, just as he limited the application of the housebreaking statute to cases where the underlying offense was something other than a purely military offense
6. the application of Article 134, UCMJ, to punish indecent acts with another is not limited to military members, either expressly or by necessary implication; consequently, appellant’s housebreaking specification stated a viable offense when it alleged that he unlawfully entered a fellow airman’s room with the intent to commit indecent acts, despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline

Core Criminal Law Subjects: Crimes: Article 134 -- Bribery and Graft Pre-2019 offenses

1. bribery and graft are not purely military offenses, where the MCM does not limit the application of those offenses to military members only, nor would anyone otherwise consider them to be purely military offenses despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline

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

1. fraternization is a purely military offense, where the MCM limits the application of this offense to military members only

Core Criminal Law Subjects: Crimes: Article 134 -- Gambling with Subordinate Pre-2019 offenses

1. gambling with a subordinate is a purely military offense, where the MCM limits the application of this offense to military members only

Core Criminal Law Subjects: Crimes: Article 134 -- Indecent Acts with Another Pre-2019 offenses

1. indecent acts with another, a violation of Article 134, UCMJ, is not a purely military offense, where by the terms of Article 134, UCMJ, that article might be violated by persons who are not and never have been in the military, and the MCM has not limited the application of indecent acts with another to military members only, as it has done with some other offenses listed under that article
2. the application of Article 134, UCMJ, to punish indecent acts with another is not limited to military members, either expressly or by necessary implication; consequently, appellant’s housebreaking specification stated a viable offense when it alleged that he unlawfully entered a fellow airman’s room with the intent to commit indecent acts, despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline

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

1. kidnapping is not a purely military offense, where the MCM does not limit the application of that offense to military members only, nor would anyone otherwise consider it to be a purely military offense despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline

Core Criminal Law Subjects: Crimes: Art. 134 - Pandering and Prostitution Pre-2019 offenses

1. pandering and prostitution are not purely military offenses, where the MCM does not limit the application of those offenses to military members only, nor would anyone otherwise consider them to be purely military offenses despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline

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

1. whether a particular Article 130, UCMJ, criminal offense is a purely military offense is a question of law, which an appellate court reviews de novo

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. the President’s analysis of the punitive articles is persuasive, but not binding, authority; moreover, where the President’s narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, an appellate court will not disturb the President’s narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution
2. the President’s analysis of the punitive articles is persuasive authority and may potentially further limit the application of some punitive articles to military members only, just as he limited the application of the housebreaking statute to cases where the underlying offense was something other than a purely military offense