U.S. v. Hiser, 82 M.J. 60

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. under RCM 910(e), a military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea

Core Criminal Law Subjects: Crimes: Generally Offenses on/after 1 Jan 2019

1. evidence sometimes may satisfy two elements of an offense

Core Criminal Law Subjects: Crimes: Article 117a - Wrongful Broadcast or Distribution of Intimate Visual Images Offenses on/after 1 Jan 2019

1. Congress enacted Article 117a, UCMJ, in 2017 to address the wrongful broadcast or distribution of intimate visual images; this prolix provision is complicated; Article 117a(a), UCMJ, describes the prohibited offense in a single sentence of more than 300 words
2. Article 117a(a)(1)(B), UCMJ, requires the victim of a wrongful broadcast to be identifiable from the visual image or from information displayed in connection with the visual image; in this case, based on the stipulation of fact and the providence inquiry, the military judge had a substantial basis in law and fact for concluding that the victim was identifiable where (1) the victim actually recognized herself when she saw the postings and videos, and (2) even putting the victim’s self-recognition aside, the victim was identifiable from a combination of the visual images in the videos and the information displayed in connection with the videos
3. the text of Article 117a(a)(1)(B) requires that the person depicted in an image be “identifiable” without further qualification and provides no basis for requiring a person to be identifiable by somebody of the general public
4. Article 117a(a)(4), UCMJ, requires that the accused’s conduct, under the circumstances, have a reasonably direct and palpable connection to a military environment; in ordinary language, the word “connection” means “a coming into or being put in contact; based on this ordinary meaning, a “connection” may be established if the broadcasted images actually do reach a servicemember—that is, a servicemember is “put in contact” with the images—regardless of whether the accused specifically directed the images at the military and regardless of how likely the images were to reach the military; in this case, the parties stipulated that the victim was a member of the military and that the images reached her; as such, the connection requirement was therefore met, and this connection could hardly have been more “direct and palpable” because appellant posted sexually explicit videos of the victim on a pornographic website, the victim soon thereafter found the videos on the same website, and the victim was likely to suffer emotional distress because of the broadcasting of the videos; under the plain language of Article 117a(a)(4), UCMJ, nothing more is needed to establish a direct and palpable connection to a military environment
5. Article 117a(a)(1), UCMJ, unlike Article 134, UCMJ, does not include an element that the conduct be prejudicial to good order and discipline or that it discredit the military

Core Criminal Law Subjects: Evidence: Generally

1. evidence sometimes may satisfy two elements of an offense

Core Criminal Law Subjects: Evidence: Stipulations

1. unless properly withdrawn or ordered stricken from the record, a stipulation of fact that has been accepted is binding on the court-martial and may not be contradicted by the parties thereto

Trial Stages: Merits: Guilty Pleas

1. under RCM 910(e), a military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea

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

1. where a stipulation of fact has not been withdrawn or stricken, an appellate court accepts the assertions within it as true
2. an appellate court reviews a military judge’s acceptance of a guilty plea for abuse of discretion; and applying this standard, it must uphold a guilty plea unless there is a substantial basis in law and fact for questioning the plea
3. the meaning of terms in a statute is a question of statutory interpretation, and an appellate court reviews matters of statutory interpretation de novo
4. when an accused has pleaded guilty, an appellate court does not review the “evidence” for legal sufficiency for the simple reason that there is no evidence when there is no trial; rather, the appellate court’s task on review is only to determine from any stipulated facts and from the providence inquiry whether the military judge abused his or her discretion in complying with this rule; and in so doing, that court simply must determine whether appellant’s guilty plea has a substantial basis in law and fact