U.S. v. Moon, 73 M.J. 382

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea
2. when a charge against a servicemember may implicate both criminal and constitutionally protected conduct, the distinction between what is permitted and what is prohibited constitutes a matter of critical significance, and the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior

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

1. appellant’s plea of guilty to possessing images of “nude minors and persons appearing to be nude minors,” in violation of Article 134, UCMJ, was improvident where (1) the military judge provided oscillating, inconsistent, and conflicting explanations of the conduct that he believed constituted the offense of possessing images of nude minors, appellant affirmed contradictory descriptions of the images at issue, and the confusion was never resolved, and (2) the military judge failed adequately to elicit from appellant that he clearly understood the critical distinction between criminal and constitutionally protected conduct
2. under appropriate circumstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces
3. where an Article 134 charge implicates constitutionally protected conduct, the heightened plea inquiry requirements of Hartman (69 MJ 467 (CAAF 2011)) apply: the colloquy must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior

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

1. appellant’s plea of guilty to possessing images of “nude minors and persons appearing to be nude minors,” in violation of Article 134, UCMJ, was improvident where (1) the military judge provided oscillating, inconsistent, and conflicting explanations of the conduct that he believed constituted the offense of possessing images of nude minors, appellant affirmed contradictory descriptions of the images at issue, and the confusion was never resolved, and (2) the military judge failed adequately to elicit from appellant that he clearly understood the critical distinction between criminal and constitutionally protected conduct
2. under appropriate circumstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces
3. where an Article 134 charge implicates constitutionally protected conduct, the heightened plea inquiry requirements of Hartman (69 MJ 467 (CAAF 2011)) apply: the colloquy must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior

Trial Stages: Merits: Guilty Pleas

1. if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea
2. the providence of a guilty 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
3. when a charge against a servicemember may implicate both criminal and constitutionally protected conduct, the distinction between what is permitted and what is prohibited constitutes a matter of critical significance, and the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior
4. appellant’s plea of guilty to possessing images of “nude minors and persons appearing to be nude minors,” in violation of Article 134, UCMJ, was improvident where (1) the military judge provided oscillating, inconsistent, and conflicting explanations of the conduct that he believed constituted the offense of possessing images of nude minors, appellant affirmed contradictory descriptions of the images at issue, and the confusion was never resolved, and (2) the military judge failed adequately to elicit from appellant that he clearly understood the critical distinction between criminal and constitutionally protected conduct
5. a discussion between trial counsel and the military judge provides no substitute for the requisite interchange in a guilty plea between the military judge and the accused; accordingly, a trial counsel’s understanding of his or her own case theory does not render a plea provident

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

1. an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion; the test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea; an appellate court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient