U.S. v. Nealy, 71 M.J. 73

First Principles: Jurisdiction: Generally

1. where the convening authority properly referred the offense of communicating a threat under Article 134, UCMJ, to trial by court-martial, and appellant pleaded guilty to the offense of provoking speech, an offense that at the time of the referral was listed in the MCM as an LIO of communicating a threat, the court-martial still had jurisdiction to accept appellant’s guilty plea to the LIO even though later, in light of US v. Jones, 68 MJ 465 (2010), the offense of provoking speech was not in fact an LIO of communicating a threat; at the time of the referral, the convening authority had intended to, and did, refer the Article 134, UCMJ, offense, and any listed LIOs of that offense to trial
2. jurisdiction is the power of a court to try and determine a case and to render a valid judgment
3. generally, there are three prerequisites that must be met for courts-martial jurisdiction to vest: (1) jurisdiction over the offense, (2) personal jurisdiction over the accused, and (3) a properly convened and composed court-martial
4. when a convening authority refers a charge to a court-martial, any LIOs of that charge are referred with it, and need not be separately charged and referred

Core Criminal Law Subjects: Crimes: Article 117 - Provoking Speeches or Gestures Pre-2019 offenses

1. Article 117, UCMJ, provoking speech, is not in fact an LIO of Article 134, UCMJ, communicating a threat

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

1. although it was error to fail to allege, expressly or by necessary implication, the terminal element of the offense of communicating a threat charged under Article 134, UCMJ, nonetheless, there was no prejudice to appellant’s substantial rights where he pleaded guilty to a specification that was legally sufficient at the time of trial, where during the providence inquiry, the military judge described and defined clauses 1 and 2 of the terminal element, and where appellant did in fact admit that his actions were prejudicial to good order and discipline in violation of clause 1

Trial Stages: Pretrial: Charges and Specifications

1. when a convening authority refers a charge to a court-martial, any LIOs of that charge are referred with it, and need not be separately charged and referred

Trial Stages: Appeals: Harmless / Prejudicial Error

1. although it was error to fail to allege, expressly or by necessary implication, the terminal element of the offense of communicating a threat charged under Article 134, UCMJ, nonetheless, there was no prejudice to appellant’s substantial rights where he pleaded guilty to a specification that was legally sufficient at the time of trial, where during the providence inquiry, the military judge described and defined clauses 1 and 2 of the terminal element, and where appellant did in fact admit that his actions were prejudicial to good order and discipline in violation of clause 1

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

1. jurisdiction is a legal question that an appellate court reviews de novo