U.S. v. Richard, 82 M.J. 473

First Principles: Constitutional Matters: Due Process

1. to satisfy the due process requirements of the Fifth Amendment, the government must prove beyond a reasonable doubt every element of the charged offense

Core Criminal Law Subjects: Crimes: Article 134: General Article Offenses on/after 1 Jan 2019

1. every element of a criminal offense, including the terminal element of Article 134, UCMJ, must be proven beyond a reasonable doubt and cannot be conclusively presumed based on the accused’s conduct
2. it is well established that the terminal element of the general article is an essential element of the offense
3. Article 134, UCMJ, only applies to conduct that is directly and palpably, as distinguished from indirectly and remotely, prejudicial to good order and discipline
4. the three clauses of the terminal element of Article 134, UCMJ, are separate and distinct, and disorders and neglects to the prejudice of good order and discipline is not synonymous with conduct of a nature to bring discredit upon the armed forces
5. no misconduct can be considered per se prejudicial to good order and discipline under Article 134, UCMJ
6. with respect to misconduct that is prejudicial to good order and discipline under Article 134, the misconduct must be activity against good order that affects the condition of tranquility, security, and good government of the military service
7. prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused

Core Criminal Law Subjects: Crimes: Article 134: Child Pornography Offenses on/after 1 Jan 2019

1. prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused
2. to obtain a conviction for producing, possessing, and distributing child pornography charged under Article 134, UCMJ, the government is required to prove beyond a reasonable doubt both that appellant engaged in the alleged conduct and that the general article’s “terminal element” was satisfied, meaning that the conduct either: (1) prejudiced good order and discipline in the armed forces; (2) was of a nature to bring discredit upon the armed forces; or (3) was otherwise a noncapital crime or offense
3. in this case, where the government charged appellant with producing, possessing, and distributing child pornography under Article 134, UCMJ, and elected to charge only that appellant’s conduct was prejudicial to good order and discipline as the terminal element, appellant’s child pornography-related convictions under the general article were not legally sufficient where the government failed to proffer any evidence at appellant’s court-martial that demonstrated how appellant’s behavior prejudiced good order and discipline, and instead focused on proving the solely that appellant had engaged in the alleged misconduct

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Offenses on/after 1 Jan 2019

1. to obtain a conviction for producing, possessing, and distributing child pornography charged under Article 134, UCMJ, the government is required to prove beyond a reasonable doubt both that appellant engaged in the alleged conduct and that the general article’s “terminal element” was satisfied, meaning that the conduct either: (1) prejudiced good order and discipline in the armed forces; (2) was of a nature to bring discredit upon the armed forces; or (3) was otherwise a noncapital crime or offense
2. it is well established that the terminal element of the general article is an essential element of the offense
3. Article 134, UCMJ, only applies to conduct that is directly and palpably, as distinguished from indirectly and remotely, prejudicial to good order and discipline
4. the three clauses of the terminal element of Article 134, UCMJ, are separate and distinct, and disorders and neglects to the prejudice of good order and discipline is not synonymous with conduct of a nature to bring discredit upon the armed forces
5. no misconduct can be considered per se prejudicial to good order and discipline under Article 134, UCMJ
6. with respect to misconduct that is prejudicial to good order and discipline under Article 134, the misconduct must be activity against good order that affects the condition of tranquility, security, and good government of the military service
7. prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused
8. in this case, where the government charged appellant with producing, possessing, and distributing child pornography under Article 134, UCMJ, and elected to charge only that appellant’s conduct was prejudicial to good order and discipline as the terminal element, appellant’s child pornography-related convictions under the general article were not legally sufficient where the government failed to proffer any evidence at appellant’s court-martial that demonstrated how appellant’s behavior prejudiced good order and discipline, and instead focused on proving the solely that appellant had engaged in the alleged misconduct

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

1. an appellate court reviews issues of legal sufficiency de novo, and in determining whether a conviction is legally sufficient, it asks whether, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt