U.S. v. Busch, 75 M.J. 87

First Principles: Constitutional Matters: Generally

1. the Constitution forbids the passage of ex post facto laws, a category that includes every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed

Core Criminal Law Subjects: Crimes: Article 120b - Rape and Sexual Assault of a Child Pre-2019 offenses

1. in June 2012, as part of a comprehensive revision of Article 120, Congress created Article 120b, to consolidate the previous offenses of aggravated sexual abuse of a child, aggravated sexual contact with a child, abusive sexual contact with a child, and indecent liberties with a child, into the single offense of sexual abuse of a child; the amendments to Article 120, took effect on June 28, 2012; however, the President did not exercise his Article 56, UCMJ, authority to establish the maximum punishment for the revised offenses until May 15, 2013, when Executive Order No 13,643 (2013), 78 Fed Reg 29559 (May 21, 2013), was signed and published

Core Criminal Law Subjects: Crimes: Article 120b - Rape and Sexual Assault of a Child Pre-2019 offenses › (c) Sexual Abuse of a Child

1. in this case, where the accused’s offense of sexual abuse of a child took place after the effective date of the 2012 amendments to Article 120, but before Executive Order No 13,643 was promulgated, Part IV of the MCM did not include sentence maximums for Article 120 offenses; the military judge determined the maximum punishment for the Article 120b(c), UCMJ, offense of sexual abuse of a child that was not listed in the MCM by holding that the charged offense was “closely related” to the offense of indecent liberties with a child under RCM 1003(c)(1)(B)(i) for purposes of determining the maximum sentence of sexual abuse of a child; this was error because when the UCMJ was amended in 2012, the offense of indecent liberties with a child, which was in the 2008 edition of the MCM, was repealed and was no longer a listed offense for the comparison purposes of RCM 1003(c)(1)(B)(i); the proper analysis for this case is found in RCM 1003(c)(1)(B)(ii); that subsection addresses charged offenses which are not closely related to any offenses listed in Part IV and directs a comparison to offenses in the United States Code, or as authorized by the custom of the service; because there are no comparable offenses in the United States Code, the custom of the service is the correct comparison; the custom of the service, as used in RCM 1003(c)(1)(B)(ii), simply means the penalty authorized for those offenses which have traditionally been used in the military justice system to charge service members under the same or similar factual circumstances; in this case, the military justice system has traditionally charged the factual circumstance of exposing one’s genitals in the presence of minors with the offense of indecent liberties with a child; prior to 2008, the maximum period of confinement that could be imposed for indecent liberties with a child was seven years; however, in 2008, when the offense was moved from Article 134 to Article 120, the maximum sentence was increased to fifteen years of confinement; accordingly, the use of this fifteen-year maximum sentence for the past seven years is sufficient to create a custom of the service under RCM 1003(c)(1)(B)(ii)

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. where there is no punishment listed for an offense in Part IV of the MCM, RCM 1003(c)(1)(B) establishes the procedures for determining the appropriate maximum sentence

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

1. an appellate court reviews questions of constitutional law de novo; if a constitutional error is found, whether it is harmless beyond a reasonable doubt is also reviewed de novo
2. the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo; while the court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. where there is no punishment listed for an offense in Part IV of the MCM, RCM 1003(c)(1)(B) establishes the procedures for determining the appropriate maximum sentence

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. an increase in the maximum sentence to confinement authorized for a crime would clearly be ex post facto legislation; an ex post facto law has been defined as one that aggravates a crime, or makes it greater than it was, when committed
2. because in this case, the military judge did not rely on Executive Order No 13,643 that was promulgated after the accused’s offense, the ex post facto clause was not implicated