U.S. v. Grijalva, 84 M.J. 433

First Principles: Constitutional Matters: First Amendment

1. the act of distributing nonobscene visual images is a form of speech subject to First Amendment protection
2. while the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections
3. the government is required to prove a direct and palpable connection to the military mission or environment not only when it is clear that the First Amendment would protect speech in a civilian context, but also in cases where a court cannot determine whether the speech would be protected

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

1. the preemption doctrine generally prohibits using Articles 133 and 134, UCMJ, to charge conduct covered by Articles 80 through 132, UCMJ
2. the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ

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

1. a specification alleging that appellant violated the service discrediting clause of Article 134, UCMJ, by broadcasting intimate visual images of a civilian without her explicit consent was preempted by Article 117a, UCMJ, where the elements of both are virtually the same; Article 117a, UCMJ, covers the offense of broadcasting intimate images without the consent of the person depicted and the same conduct cannot be charged under Article 134, UCMJ; any differences between the specification alleged under Article 134, UCMJ, and Article 117a, UCMJ, were illusory where (1) the use of the words without her explicit consent implied that the victim was at least 18 years of age and old enough to consent and (2) the government was required to prove a military connection because it alleged conduct implicating the First Amendment in the civilian context
2. the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ; in this case, there was no congressional intent to allow conduct already punishable by Article 117a, UCMJ, to also be punishable by Article 134, UCMJ

Core Criminal Law Subjects: Crimes: Article 133: Conduct Unbecoming an Officer Offenses on/after 1 Jan 2019

1. the preemption doctrine generally prohibits using Articles 133 and 134, UCMJ, to charge conduct covered by Articles 80 through 132, UCMJ
2. the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ

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

1. the preemption doctrine generally prohibits using Articles 133 and 134, UCMJ, to charge conduct covered by Articles 80 through 132, UCMJ
2. the scope of Article 134, UCMJ, is not unlimited; the initial phrase of the article expressly restricts its reach only to conduct not specifically mentioned in the chapter; this phrase prohibits the charging of conduct as an offense under Article 134, UCMJ, if Congress has already codified the conduct as an offense in Articles 80 through 132, UCMJ
3. the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ

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

1. the first clause of Article 134, UCMJ, which addresses conduct that is contrary to good order and discipline, is not void for vagueness and that the government can use the first clause of Article 134, UCMJ, to punish some speech that might otherwise be protected in civilian life; however, the very broad reach of the literal language of the first clause of Article 134, UCMJ, has been narrowed such that it only applies to conduct that is directly and palpable - as distinguished from indirectly and remotely - prejudicial to good order and discipline
2. if the government attempts to use the second clause of Article 134, UCMJ, to punish speech that would be impervious to criminal sanction in the civilian world, the government must prove a direct and palpable connection between the speech and the military mission or military environment; his requirement exists to strike the proper balance between the essential needs of the armed services and the right to speak out as a free American
3. a specification alleging that appellant violated the service discrediting clause of Article 134, UCMJ, by broadcasting intimate visual images of a civilian without her explicit consent was preempted by Article 117a, UCMJ, where the elements of both are virtually the same; Article 117a, UCMJ, covers the offense of broadcasting intimate images without the consent of the person depicted and the same conduct cannot be charged under Article 134, UCMJ; any differences between the specification alleged under Article 134, UCMJ, and Article 117a, UCMJ, were illusory where (1) the use of the words without her explicit consent implied that the victim was at least 18 years of age and old enough to consent and (2) the government was required to prove a military connection because it alleged conduct implicating the First Amendment in the civilian context
4. the primary question in applying the preemption doctrine is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the UCMJ; in this case, there was no congressional intent to allow conduct already punishable by Article 117a, UCMJ, to also be punishable by Article 134, UCMJ

Trial Stages: Pretrial: Charges and Specifications

1. the essential elements of a crime need not be expressly alleged in a specification so long as they may be found by reasonable construction of other language in the specification; a specification may allege elements of a charged offense expressly or by necessary implication

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

1. whether Articles 80 through 132, UCMJ, preempt a specification alleging a violation of Article 134, UCMJ, is a question of law that an appellate court reviews de novo
2. an appellate court determines whether a particular article in the UCMJ has covered the entire field, and thus preempts charging similar conduct under Article 134, UCMJ, by considering two questions: the primary question is whether Congress intended to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the Code; the secondary question is whether the offense charged is composed of a residuum of elements of a specific offense; and the intent of Congress may be discerned through direct legislative language or express legislative history