U.S. v. Warner, 73 M.J. 1

First Principles: Constitutional Matters: Due Process

1. it is settled that a servicemember may be prosecuted for service-discrediting conduct under the general article, Article 134, UCMJ, even if the conduct is not specifically listed in the MCM; however, due process requires that a servicemember have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations
2. in this case, a due process error - charging appellant with conduct that he lacked fair notice was subject to criminal sanction - was obvious under current law where it was well settled at the time of his court-martial that a servicemember must have fair notice that an act was criminal before being prosecuted; appellant further suffered material prejudice to his substantial rights because he stands convicted of conduct as to which he lacked notice

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

1. the first and second clauses of Article 134, UCMJ, permit the criminalization of certain conduct not otherwise prohibited that is either prejudicial to good order and discipline or service discrediting
2. it is settled that a servicemember may be prosecuted for service-discrediting conduct under the general article, Article 134, UCMJ, even if the conduct is not specifically listed in the MCM; however, due process requires that a servicemember have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; potential sources of fair notice may include federal law, state law, military case law, military custom and usage, and military regulations
3. neither federal law, state law, military case law, military custom and usage, or military regulations provided appellant notice that possession of images that depict minors as sexual objects or in a sexually suggestive way, without involving nudity or sexually explicit conduct, was subject to sanction under Article 134; simply put, although child pornography is a highly regulated area of criminal law, no prohibition against possession of images of minors that are sexually suggestive but do not depict nudity or otherwise reach the federal definition of child pornography exists in any of the potential sources of fair notice; thus, charging appellant under the general article for possessing such images violated due process

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when not objected to at trial, defects in an indictment are reviewed for plain error
2. under plain error review, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
3. at a minimum, an error is plain when it is obvious or clear under current law

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

1. when not objected to at trial, defects in an indictment are reviewed for plain error
2. under plain error review, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
3. the test for constitutional notice that conduct is subject to criminal sanction is one of law; it does not turn on whether an appellate court approves or disapproves of the conduct in question