                       UNITED STATES, Appellee

                                    v.

            Patrick M. LEONARD Jr., Airman First Class
                     U.S. Air Force, Appellant

                              No. 06-0615
                         Crim. App. No. 35740

       United States Court of Appeals for the Armed Forces

                        Argued January 9, 2007

                        Decided March 20, 2007

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ., joined. BAKER, J., filed a
separate opinion concurring in part and in the result.


                                 Counsel


For Appellant: Frank J. Spinner, Esq. (argued); Lieutenant
Colonel Mark R. Strickland and Major Anniece Barber (on brief).


For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce and Lieutenant Colonel Robert V. Combs (on
brief).


Military Judge:   R. Scott Howard



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Leonard Jr., No. 06-0615/AF


    Judge RYAN delivered the opinion of the Court.

    This case presents the question whether the maximum

punishment for an offense charged under Article 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), clauses

1 and 2, and not otherwise listed in the Manual for Courts-

Martial, United States pt. IV, paras. 60-113 (2005 ed.) (MCM),

may be determined by reference to the maximum punishment for

violation of a federal statute that proscribes and criminalizes

the same criminal conduct and mental state included in the

specification.   Answering that question in the affirmative, we

hold that the military judge’s calculation of the maximum

punishment in this case was correct and affirm the decision of

the court below.

                            A.   Background

    A general court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his plea, of wrongfully

and knowingly receiving visual depictions of minors engaging in

sexually explicit conduct, which conduct was prejudicial to good

order and discipline or of a nature to bring discredit upon the

armed forces in violation of Article 134, UCMJ.   During the

providence inquiry, Appellant admitted that he wrongfully and

knowingly received from the Internet, and downloaded onto his

home computer in South Dakota, visual depictions of actual

minors engaging in sexually explicit conduct.   Prior to


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sentencing, the military judge, trial counsel, and defense

counsel agreed that the maximum term of imprisonment for

Appellant’s offense was fifteen years.    In determining the

maximum sentence for Appellant’s offense, the trial counsel

referenced the maximum sentence for the analogous federal

statute, 18 U.S.C. § 2252(a)(2) (2000).   This statute prohibits,

inter alia, the knowing receipt of any visual depiction,

transported in interstate or foreign commerce by any means, of a

minor engaging in sexually explicit conduct.   At the time of the

offense, the maximum term of imprisonment for a violation of 18

U.S.C. § 2252(a)(2) was fifteen years.    18 U.S.C. § 2252(b)(1)

(amended Apr. 30, 2003).

    The sentence adjudged by the court-martial included a

dishonorable discharge, confinement for forty-five months, and

reduction to E-1.   The convening authority approved the findings

and the sentence.   The United States Air Force Court of Criminal

Appeals affirmed.   United States v. Leonard, No. ACM 35740, 2006

CCA LEXIS 74, at *5, 2006 WL 888157, at *1 (A.F. Ct. Crim. App.

Mar. 21, 2006) (unpublished).

     We granted review of the following specified issues:

    I. WHETHER THE MILITARY JUDGE ERRED IN CALCULATING THE
       MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT’S PLEA
       WAS IMPROVIDENT BECAUSE IT WAS BASED UPON A SUBSTANTIAL
       MISUNDERSTANDING OF THE MAXIMUM PUNISHMENT.




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      II.   WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL
            MISAPPREHENDED THE MAXIMUM PUNISHMENT AND, IF SO,
            WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO
            EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE
            COUNSEL’S ADVICE WAS BASED UPON AN ERRONEOUS
            CALCULATION OF THE MAXIMUM PUNISHMENT.

United States v. Leonard, 64 M.J. 184 (C.A.A.F. 2006).

                           B.   Discussion

                                  1.

      “Article 134 makes punishable acts in three categories of

offenses not specifically covered in any other article of the

code.”   MCM pt. IV, para. 60.c.(1).   Those categories are

separated into three clauses.    Clause 1 prohibits conduct “to

the prejudice of good order and discipline in the armed forces.”

Id.   Clause 2 prohibits “conduct of a nature to bring discredit

upon the armed forces.”   Id.   Clause 3 covers “noncapital crimes

or offenses which violate Federal law.”      Id.   When the decision

is made to charge the offense under clause 3, “the proof must

establish every element of the crime or offense as required by

the applicable law.”   Id. at para. 60.b.     But when the offense

is charged under clauses 1 or 2, the specification need only

allege “[t]hat the accused did or failed to do certain acts[,]”

id. at para. 60.b.(1), and “[t]hat, under the circumstances, the

accused’s conduct was to the prejudice of good order and

discipline in the armed forces or was of a nature to bring

discredit upon the armed forces” respectively.      Id. at para.



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60.b.(2).   The MCM states no preference as to which clause of

Article 134, UCMJ, must be used in a particular case.   In this

case, the Government elected to charge the wrongful and knowing

receipt of visual depictions of minors engaged in sexually

explicit activity as violations of clauses 1 or 2.

     On appeal, Appellant argues that the military judge erred

in referencing the term of imprisonment authorized for a

violation of 18 U.S.C. § 2252(a)(2).1   Appellant correctly notes

that an element of the offense set forth in 18 U.S.C. §

2252(a)(2) is that the visual depictions of children engaged in

sexually explicit activity were received through a medium of

interstate or foreign commerce.   See United States v. Corp, 236

F.3d 325, 333 (6th Cir. 2001) (reversing the appellant’s

conviction under 18 U.S.C. § 2252 due to an insufficient nexus

with interstate commerce).   Appellant asserts that, because this

interstate or foreign commerce element was missing from the

specification in this case, it was improper for the military

judge to look to 18 U.S.C. § 2252(a)(2) to establish the maximum

punishment for Appellant’s offense.


1
  Appellant also argues that the military judge should have
advised him that the maximum punishment for his offense was that
established under federal law for a violation of 18 U.S.C. §
2252(a)(4), which was five years at the time of his offense. 18
U.S.C. § 2252(b)(2) (amended Apr. 30, 2003). But that
subsection of the statute, which criminalizes the knowing
possession of child pornography, requires the same
jurisdictional element as a violation of 18 U.S.C. § 2252(a)(2).

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United States v. Leonard Jr., No. 06-0615/AF


     While this federal jurisdictional element was not charged

in the specification, neither clause 1 nor clause 2 requires

that a specification exactly match the elements of conduct

proscribed by federal law.   United States v. Jones, 20 M.J. 38,

40 (C.M.A. 1985) (“‘[f]ederal [crimes] may be properly tried as

offenses under clause (3) of Article 134, but . . . if the facts

do not prove every element of the crime set out in the criminal

statutes, yet meet the requirements of clause (1) or (2), they

may be alleged, prosecuted and established under one of those

[clauses]’” (quoting United States v. Long, 2 C.M.A. 60, 65, 6

C.M.R. 60, 65 (1952))).

     Exercising his Article 56, UCMJ, 10 U.S.C. § 856 (2000)

responsibilities, the President has published the maximum

punishment for some offenses punishable under Article 134, UCMJ.

The question remains what the maximum permissible punishment is

for the offense of knowing receipt of visual depictions of

minors engaged in sexually explicit activity, which conduct is

prejudicial to good order and discipline or of a nature to bring

discredit on the armed forces.   While the President has

published the maximum punishment for some offenses punishable

under Article 134, UCMJ, see MCM pt. IV, paras. 61-113, the MCM

itself does not list Appellant’s offense, nor is it included in

or closely related to any offense therein.   See Rule for Courts-

Martial (R.C.M.) 1003(c)(1)(B)(ii).


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United States v. Leonard Jr., No. 06-0615/AF


     We observe that the “closely related” language in R.C.M.

1003(c)(1)(B)(ii) refers to offenses that are closely related to

offenses listed in the MCM.   And, while R.C.M. 1003(c)(1)(B)(ii)

provides that an offense “is punishable as authorized by the

United States Code, or as authorized by the custom of the

service,” there is at least a question whether the United States

Code could authorize punishment absent the jurisdictional

element, which provides the clear textual nexus to interstate

commerce.   See, e.g., United States v. Morrison, 529 U.S. 598,

613 (2000); United States v. Lopez, 514 U.S. 549, 567 (1995).

Similarly, how Appellant’s offense would be punished “as

authorized by the custom of the service,” R.C.M.

1003(c)(1)(B)(ii), is at best an open question:    the

proliferation of the receipt of visual depictions of minors

engaged in sexually explicit conduct by military members is a

relatively recent, albeit pernicious, development.

     But we need not grapple with these points in order to

decide the question in this case, because clear direction is

provided by the UCMJ.   Article 134, UCMJ, which applies only to

conduct “not specifically mentioned” under the UCMJ,

specifically provides that an accused “shall be punished at the

discretion of [the] court.”   While a court’s discretion is

bounded both where specific direction is given under R.C.M.

1003(c) and by the limitations established by the President


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United States v. Leonard Jr., No. 06-0615/AF


pursuant to Article 56, UCMJ, R.C.M. 1003(c) does not give

specific direction here, and no maximum punishment has been set

by the President for the offense set forth in the specification.

                                2.

     We have looked before at the maximum sentence for offenses

charged under clauses 1 or 2 of Article 134, UCMJ, that include

the conduct and mens rea proscribed by directly analogous

federal criminal statutes.   In doing so, we focused on whether

the offense as charged is “essentially the same,” as that

proscribed by the federal statute.   United States v. Jackson, 17

C.M.A. 580, 583, 38 C.M.R. 378, 381 (1968); see also United

States v. Williams, 17 M.J. 207, 216-17 (C.M.A. 1984) (upholding

sentence for kidnapping under clauses 1 or 2 by referencing the

maximum sentence for a violation of the federal kidnapping

statute).   The military judge did not err by referencing a

directly analogous federal statute to identify the maximum

punishment in this case, when every element of the federal

crime, except the jurisdictional element, was included in the

specification.

                                3.

     At argument, Appellant suggested that allowing reference to

federal statutory maximums to determine the sentence for

analogous conduct charged under clauses 1 or 2 would permit too

much latitude, allowing the government to avoid charging and


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United States v. Leonard Jr., No. 06-0615/AF


proving critical elements necessary for conviction under clause

3.   We do not hold that the government may avoid charging and

proving elements setting forth the gravamen of the offense under

federal law, yet still avail itself of the federal statutory

maximum.   And that is not this case.   The criminal conduct and

mens rea set forth in the specification satisfy the requirements

of clauses 1 and 2 of Article 134, UCMJ, and describe the

gravamen of the offense proscribed by 18 U.S.C. 2252(a)(2), for

which the maximum sentence is fifteen years.

                          C.   Conclusion

      We hold that the military judge did not err in advising the

Appellant that the maximum sentence for the offense charged was

fifteen years.   Therefore, we answer the specified Issue I in

the negative, making Issue II moot.     The decision of the United

States Air Force Court of Criminal Appeals is affirmed.




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United States v. Leonard Jr., No. 06-0615/AF


     BAKER, Judge (concurring in part and in the result):

     The question presented is whether the military judge

referenced the appropriate offense “punishable as authorized by

the United States Code” under Rule for Courts-Martial (R.C.M.)

1003(c)(1)(B)(ii) to set Appellant’s maximum sentence.

Appellant asserts that the military judge used the wrong federal

statute, because his conduct was better described as possession

under 18 U.S.C. § 2252(a)(4) rather than receipt under 18 U.S.C.

§ 2252(a)(2).   Appellant also argues that § 2252(a)(2) is not an

analogous statute under the United States Code because the

statute includes an “interstate or foreign commerce” element.

This argument is made in the alternative, because § 2252(a)(4),

which Appellant argues the military judge should have applied,

also contains this same jurisdictional requirement.

     The predicate statutory language is found in Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000):

“Though not specifically mentioned in this chapter, all

disorders and neglects to the prejudice of good order and

discipline in the armed forces, all conduct of a nature to bring

discredit upon the armed forces . . . shall be punished at the

discretion of [the] court.”   However, this language must be read

in light of the President’s adoption of R.C.M. 1003(c)(1)(B).

This procedural rule is intended to delimit the exercise of

discretion by courts-martial in adjudicating punishment for
United States v. Leonard Jr., No. 06-0615/AF


offenses “not listed in Part IV” of the Manual for Courts-

Martial, United States (MCM) “and not included in or closely

related to any offense listed therein.”1    R.C.M.

1003(c)(i)(B)(ii).

        Thus, the applicable principle is not just “the discretion

of [the] court,” which is open-ended, but also R.C.M.

1003(c)(1)(B).    In this case, the offense of which Appellant

stands convicted is neither listed in the MCM nor is it included

in or closely related to an offense listed.    Thus, Appellant’s

offense “is punishable as authorized by the United States Code.”

This is consistent with military practice and this Court’s

precedent as well.    United States v. Williams, 17 M.J. 207, 216-

17 (C.M.A. 1984); United States v. Jackson, 17 C.M.A. 580, 583

38 C.M.R. 378, 381 (1968).

        As a result, where R.C.M. 1003(c)(1)(B) applies, military

judges are constrained to look for an analogous offense in the

United States Code, if any, in setting the maximum punishment.

The military judge did so in this case.    Appellant’s offense is

indeed analogous to the United States Code section used by the

military judge; the offenses in question are essentially the

same.    Appellant was convicted of “wrongfully and knowingly

1
  The majority relies alone on the “discretion of [the] court”
language of Article 134, UCMJ, in holding that the military
judge did not abuse his discretion in applying an analogous
federal statute. But it is not clear where this discretion
ultimately ends.

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United States v. Leonard Jr., No. 06-0615/AF


receiv[ing] visual depictions of minors engaging in sexually

explicit conduct.”   In downloading these images Appellant both

received and possessed child pornography.    See United States v.

Kuchinski, 469 F.3d 853, 861 (9th Cir. 2006); United States v.

MacEwan, 445 F.3d 237, 241 (3d Cir. 2006).     Thus, it was

appropriate for the military judge to look to 18 U.S.C. §

2522(a)(2) to determine the maximum penalty.    Further, the

requirement in § 2522(a)(2) that the activity occur in

“interstate or foreign commerce” is a jurisdictional rather than

a substantive requirement intended to reflect Congress’s

authority to legislate.   Therefore, it is inherently not an

applicable element of the analogous offense in the military

context.




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