U.S. v. Brown, 84 M.J. 124

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

1. an appellate court is not bound by the President's interpretation of the elements of substantive offenses; nonetheless, when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and the court will not normally disturb that construction

Core Criminal Law Subjects: Crimes: Article 91 - Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer Offenses on/after 1 Jan 2019

1. the relevant text of Article 91(3), UCMJ, states that any warrant officer or enlisted member who treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his or her office shall be punished as a court-martial may direct; the language of Article 91(3), UCMJ, is quite broad; however, the elements supplied by the President narrow the scope of the offense; in pertinent part, the elements make it a crime for a warrant or enlisted member to use disrespectful language or behavior toward and within sight or hearing of a victim warrant officer, noncommissioned, or petty officer; because the President had the authority to constrict the scope of the statute in this manner, it is the President's language contained within the elements of the MCM that guides an appellate court's analysis
2. an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim; that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media
3. under Article 91(3), UCMJ, servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior, the victim was then in the execution of his or her office
4. in this case, the government failed to introduce evidence demonstrating that two of the petty officer victims were on duty when appellant sent them disrespectful texts; accordingly, these two convictions cannot withstand appellate scrutiny and the findings are set aside; however, there is sufficient evidence that the third petty officer victim was in the execution of his office at the time appellant engaged in the disrespectful conduct, and accordingly, that conviction is affirmed

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Article 69(e), UCMJ, precludes the CCA from factfinding

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

1. an appellate court reviews questions of legal sufficiency de novo; in reviewing for legal sufficiency, the court considers whether, after viewing the evidence 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
2. an appellate court reviews questions of statutory construction de novo; it is axiomatic that in determining the scope of a statute, the court looks first to its language; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; of note, the court is not bound by the President's interpretation of the elements of substantive offenses; nonetheless, when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and the court will not normally disturb that construction

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

1. an appellate court reviews questions of statutory construction de novo; it is axiomatic that in determining the scope of a statute, the court looks first to its language; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; of note, the court is not bound by the President's interpretation of the elements of substantive offenses; nonetheless, when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and the court will not normally disturb that construction

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

1. an appellate court is not bound by the President's interpretation of the elements of substantive offenses; nonetheless, when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and the court will not normally disturb that construction