U.S. v. Rocha, 84 M.J. 346

First Principles: Constitutional Matters: Due Process

1. the Fifth Amendment prohibits the deprivation of life, liberty, or property without due process, and due process requires a statute to provide a person of ordinary intelligence fair notice of prohibited conduct; the touchstone of fair notice is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the accused's conduct was criminal
2. as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice may be found in the Manual for Courts-Martial
3. presidentially enumerated elements in Part IV of the MCM standing alone can provide fair notice to servicemembers that certain conduct is criminal
4. the touchstone of the due process analysis as to whether a criminal statute provided fair notice of prohibited conduct must simply be to determine whether the statute made it reasonably clear at the relevant time that the accused's conduct was criminal; in other words, absolute precision is not the standard; rather, statutes must strike the fine balance of being sufficiently definite to give notice of the required conduct to one who would avoid its penalties with the requisite broadness to adequately deal with untold and unforeseen variations in factual situations

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

1. presidentially enumerated elements in Part IV of the MCM standing alone can provide fair notice to servicemembers that certain conduct is criminal

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

1. Article 134, among other things, criminalizes service discrediting conduct by servicemembers
2. as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice may be found in the Manual for Courts-Martial
3. presidential narrowing of the general article through examples in the MCM of how it may be violated is part of why Article 134, UCMJ is not considered unconstitutionally void for vagueness; importantly, it is this narrowing of the breadth of Article 134 through these presidential enumerations that provides servicemembers with fair notice of what conduct is subject to criminal sanction under the statute
4. the President is not creating new offenses with his enumeration of examples of Article 134 offenses; there is a distinction between the ability to create offenses—thus adding new articles to the UCMJ—and the ability to enumerate elements that narrow the construction of an existing criminal statute; the former is not within the President's power while the latter is, through his constitutional authority as commander-in-chief
5. presidentially enumerated elements in Part IV of the MCM standing alone can provide fair notice to servicemembers that certain conduct is criminal

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

1. the elements of indecent conduct enumerated in the Manual for Courts-Martial are (1) that the accused engaged in certain conduct; (2) that the conduct was indecent; and that under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces; (ii) was of a nature to bring discredit upon the armed forces; or (iii) both; indecent is defined as that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations; indecent conduct includes offenses previously proscribed by indecent acts with another except that the presence of another person is no longer required
2. the presidentially-enumerated Article 134, UCMJ, offense of indecent conduct provided the accused with constitutionally-required fair notice that committing sexual acts with a sex doll with the physical characteristics of a female child to simulate sexual acts with a minor was subject to criminal sanction; simply stated, the elements and accompanying definition of "indecent" provide servicemembers with fair notice that the specific act of penetrating with one's penis the anal and vaginal orifices of a lifelike sex doll with the physical characteristics of a prepubescent child is, indeed, prohibited under Article 134

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

1. Article 134, among other things, criminalizes service discrediting conduct by servicemembers
2. as a matter of due process, a service member must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense; such notice may be found in the Manual for Courts-Martial

Trial Stages: Appeals: Preservation of Error / Plain Error

1. under plain error review, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of appellant; however, in those instances where a clear or obvious error rises to the level of a constitutional violation, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt

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

1. in this case, the correct standard of review is plain error where the issue of fair notice that appellant's sexual conduct with a child sex doll was criminal was not raised at trial, thus forfeiting the issue on appeal
2. under plain error review, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of appellant; however, in those instances where a clear or obvious error rises to the level of a constitutional violation, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. in the MCM, the President does not have the power to create an offense under the UCMJ
2. presidentially enumerated elements in Part IV of the MCM standing alone can provide fair notice to servicemembers that certain conduct is criminal

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. in the MCM, the President's enumerations and explanations of the offenses are not binding; they are generally treated as persuasive authority