                          UNITED STATES, Appellee

                                         v.

                  Robert J. MEDINA, Staff Sergeant
                        U.S. Army, Appellant

                                  No. 07-0096

                         Crim. App. No. 20040327

       United States Court of Appeals for the Armed Forces

                          Argued October 1, 2007

                       Decided February 14, 2008

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

                                     Counsel

For Appellant: Captain Teresa L. Raymond (argued); Lieutenant
Colonel Steven C. Henricks and Major Sean F. Mangan (on brief);
Colonel John T. Phelps II, Major Billy B. Ruhling II, and
Captain Tyesha E. Lowery.

For Appellee: Captain Adam S. Kazin (argued); Colonel John W.
Miller II, Major Tami L. Dillahunt, Major Elizabeth G. Marotta
(on brief); Captain Mason S. Weiss.


Military Judge:    Robert L. Swann




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Medina, No. 07-0096/AR


     Judge BAKER delivered the opinion of the Court.

     Pursuant to his pleas, Appellant was convicted by general

court-martial before a military judge of three specifications of

possessing and transporting child pornography and coercing a

minor to produce child pornography in violation of Article 134,

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

four specifications of indecent acts with a minor also in

violation of Article 134, UCMJ; and disobeying a noncommissioned

officer, in violation of Article 91, UCMJ, 10 U.S.C. § 891

(2000).   The child pornography offenses alleged violations of

the Child Pornography Prevention Act (CPPA), 18 U.S.C. §§

2251(a), 2252A(a)(1), 2252A(a)(5)(A) (2000), as crimes and

offenses not capital under clause 3 of Article 134, UCMJ.    The

adjudged sentence included a dishonorable discharge, confinement

for twenty-five years, forfeiture of all pay and allowances, and

reduction to E-1.    Pursuant to a pretrial agreement, the

convening authority approved only so much of the sentence

providing for a dishonorable discharge, confinement for fifteen

years, and reduction to E-1.   The United States Army Court of

Criminal Appeals amended the findings of two of the CPPA

offenses and affirmed lesser included offenses under clause 2 of

Article 134, UCMJ.   It then affirmed the remaining findings and

the sentence as approved.   United States v. Medina, No. ARMY

20040327, slip op. at 6 (A. Ct. Crim App. Aug 31, 2006).


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United States v. Medina, No. 07-0096/AR


Appellant’s petition was granted on the following issue

specified by the Court:

     WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN
     AMENDING SPECIFICATIONS 2 AND 3 OF CHARGE I FROM
     VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND
     OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134,
     UCMJ, CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDS AN
     ELEMENT TO THE OFFENSES IN CONTRAVENTION OF APPRENDI
     V. NEW JERSEY, 530 U.S. 466 (2000), JONES V. UNITED
     STATES, 526 U.S. 227 (1999), AND SCHMUCK V. UNITED
     STATES, 489 U.S. 705 (1989).

                            BACKGROUND

     Appellant was charged, among other things, with three

violations of the CPPA as offenses under clause 3 of Article

134, UCMJ.   Specifically, it was alleged that he did “knowingly

mail, transport, or ship in interstate or foreign commerce child

pornography, in violation of Title 18, U.S. Code Section

2252A(a)(1)” and that he did “coerce [BM], a minor, to engage in

sexually explicit conduct for the purpose of producing visual

depictions of such conduct for the purpose of transporting said

visual depictions in interstate or foreign commerce, in

violation of Title 18, U.S. Code Section 2251(a).”1


1
  The two specifications at issue in the case, Specifications 2
and 3 of Charge I, are set out in relevant part as follows:

     Specification 2: In that [Appellant] did, at or near
     Vilseck, Germany, and Fort Knox, Kentucky, on divers
     occasions between on or about 1 October 2002 and on or
     about 30 September 2003, knowingly mail, transport or
     ship in interstate or foreign commerce child
     pornography, in violation of Title 18, U.S. Code
     Section 2252A(a)(1).

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United States v. Medina, No. 07-0096/AR


     During the plea inquiry into these offenses, the military

judge described the elements of the two Title 18 offenses.    For

the first offense he advised Appellant of the following elements

of 18 U.S.C. § 2252A(a)(1):

     (1) that at Vilseck, Germany and Fort Knox the accused
     knowingly mailed or transported or shipped child
     pornography in interstate or foreign commerce by some
     means;

     (2) that at the time the accused knew the material [he was]
     mailing, transporting or shipping was, in fact, child
     pornography;

     (3) that the accused’s acts were wrongful; and

     (4) that at the time, Title 18 U.S.C. § 2252A(a)(1) was in
     existence;

The military judge also gratuitously added an additional fifth

element of service discrediting conduct and conduct prejudicial

to good order and discipline for each offense:

     (5) that the accused’s conduct was conduct prejudicial to
     good order and discipline or of a nature to bring discredit
     upon the armed forces.




     Specification 3: In that [Appellant] did, at or near
     Vilseck, Germany, and Fort Knox, Kentucky, on divers
     occasions between on or about 1 October 2002 and on or
     about 30 September 2003, coerce [BM], a minor, to
     engage in sexually explicit conduct for the purpose of
     producing visual depictions of such conduct for the
     purpose [of] transporting said visual depictions in
     interstate or foreign commerce, in violation of Title
     18, U.S. Code Section 2251(a).

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United States v. Medina, No. 07-0096/AR


     With regard to the clause 1 and 2 aspect of the offense the

colloquy between the military judge and Appellant went as

follows:

     MJ:   Do you agree that your mailing and transporting and
           shipping in interstate or foreign commerce the
           photographs of your daughter on divers occasions at
           Vilseck, Germany and Fort Knox, Kentucky between on or
           about 1 October 2002 and on or about 30 September 2003
           was conduct prejudicial to good order and discipline
           or service discrediting conduct?

     ACC: Yes, your Honor.

     MJ:   Service discrediting conduct, again?

     ACC: Yes, your Honor.

     MJ:   Why do you believe that?

     ACC: It’s not something that professional soldiers should
          do, Your Honor.

Regarding Specification 3, the military judge advised Appellant

as follows, again gratuitously adding the service discrediting

element:

     (1)   that the accused coerced BM to engage in sexually
           explicit conduct;

     (2)   that the accused’s purpose in coercing BM to engage in
           this behavior was to produce a visual depiction of
           that conduct;

     (3)   that at the time, the accused knew that by taking
           these pictures, these photographs constituted child
           pornography;

     (4)   that the accused intended to transport these visual
           depictions in interstate or foreign commerce;

     (5)   that the accused’s actions were wrongful;



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United States v. Medina, No. 07-0096/AR


     (6)   that the accused knew that BM was under the age of
           eighteen; and

     (7)   that the accused’s conduct was prejudicial to good
           order and discipline or of a nature to bring discredit
           upon the armed forces.

The colloquy between the military judge and Appellant on the

last element was as follows:

     MJ:   Now, do you believe that your activities here were
           prejudicial to good order and discipline or service
           discrediting conduct?

     ACC: Yes, your Honor.

     MJ:   Why do you believe that?

     ACC: It makes the Army look bad in front of the eyes of the
          public, Your Honor.

The final element as given by the military judge for each of the

offenses was not an essential element of either of the statutory

offenses charged under Title 18.

     On appeal, the lower court, citing our decision in United

States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005), declined to

affirm the findings as crimes and offenses not capital in

violation of clause 3 of Article 134, UCMJ, on the ground that

the CPPA provisions violated did not have extraterritorial

application to Appellant’s actions in Germany.   Medina, No. ARMY

20040327, slip op. at 4 n.4.   However, the lower court

“conform[ed] the findings to the evidence adduced during the

plea inquiry,” and affirmed the findings of guilty of

Specifications 2 and 3 of Charge I, as amended, as lesser


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United States v. Medina, No. 07-0096/AR


included offenses under clause 2 of Article 134, UCMJ.    Medina,

No. ARMY 20040327, slip op. at 5-6.2

      The question implicitly raised by the specified issue is

whether Appellant’s guilty pleas to violations of Article 134,

UCMJ, clause 2 were knowing and voluntary where Appellant

admitted the service discrediting nature of his conduct in

pleading guilty to the offenses alleged under clause 3.

                            DISCUSSION

A.   Lesser Included Offenses

      A lesser included offense is defined in Article 79, UCMJ,

10 U.S.C. § 879 (2000), as “an offense necessarily included in

the offense charged.”   “[A]ny reviewing authority with the power

to approve or affirm a finding of guilty may approve or affirm,

2
  The Army court amended the findings of guilt to Specification 2
as follows:

      In that [Appellant] did, at or near Vilseck, Germany
      and Fort Knox, Kentucky, . . . knowingly mail
      transport, or ship child pornography in interstate or
      foreign commerce, which conduct was of a nature to
      bring discredit upon the armed forces in violation of
      Article 134, UCMJ.

And Specification 3 as follows:

      In that [Appellant] did, at or near Vilseck, Germany,
      and Fort Knox, Kentucky, . . . coerce BM, a minor, to
      engage in sexually explicit conduct for the purpose of
      producing visual depictions of such conduct and
      transporting said visual depictions in interstate or
      foreign commerce, which conduct was of a nature to
      bring discredit upon the armed forces in violation of
      Article 134, UCMJ.



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United States v. Medina, No. 07-0096/AR


instead, so much of the finding as includes a lesser included

offense.”   Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2000).

     The Government argues, as the lower court concluded, that

Article 134(2), UCMJ, is inherently a lesser included offense of

Article 134(3), UCMJ.   Thus, Appellant was on notice that a plea

to an offense alleged under Article 134(3), UCMJ, was, by

operation of law, a voluntary and knowing plea to the lesser

included offenses within the scope of the plea inquiry.

Appellant argues that the military judge erred in adding an

additional element of discrediting conduct to the clause 3

offense and then failing to advise the Appellant as to the

significance of the additional element with respect to a

potential clause 2 offense.

     To determine whether a lesser offense is necessarily

included in the offense charged this Court applies the “elements

test” derived from United States v. Schmuck, 489 U.S. 705, 716

(1989).   United States v. Teters, 37 M.J. 370, 376 (C.M.A.

1993).    “[T]he comparison to be drawn is between offenses.

Since offenses are statutorily defined, that comparison is

appropriately conducted by reference to the statutory elements

of the offenses in question, and not, as the inherent

relationship approach would mandate, by reference to conduct

proved at trial regardless of the statutory definitions.”

Schmuck, 489 U.S. at 716-17 (emphasis omitted).    “One offense is


                                  8
United States v. Medina, No. 07-0096/AR


not ‘necessarily included’ in another unless the elements of the

lesser offense are a subset of the elements of the charged

offense.”   Id. at 716.

     This case tests whether an offense arising under clauses 1

and/or 2 of Article 134, UCMJ, depending on the facts,

necessarily stands as an included offense to an offense arising

under clause 3 of Article 134, UCMJ.3

     If, as the Government argues, a clause 1 or 2 offense is

always a lesser included offense of every federal offense

charged under clause 3, then the situation is no different than

the typical situation when a lesser offense is ultimately

affirmed when the plea colloquy fails to sustain the greater

offense.    However, if clauses 1 and 2 are not lesser included

offenses under clause 3, but rather alternative means or

theories of violating Article 134, UCMJ, then the accused must

be so advised and must agree to admit his conduct satisfies the

alternate legal theory of guilt under Article 134, UCMJ.

     Clauses 1 and 2 of Article 134, UCMJ, require two elements

of proof:

     If the conduct is punished as a disorder or neglect to
     the prejudice of good order and discipline in the
     armed forces, or of a nature to bring discredit upon

3
  Thus, our conclusions and analysis are limited in their reach
to this question. Whether, and if so, how this analysis applies
to Article 134, UCMJ, offenses as lesser included offenses to
the enumerated offenses of the UCMJ (Articles 80-132, UCMJ,
U.S.C. §§ 880-932 (2000)) are not issues before this Court.

                                  9
United States v. Medina, No. 07-0096/AR

     the armed forces, then the following proof is
     required:

         (1)    That the accused did or failed to do certain
                acts; and
         (2)    That, 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.

Manual for Courts-Martial, United States pt. IV, para. 60.b

(2005 ed.).    A clause 3 offense, of course, incorporates the

elements of the federal offense in question.

     As a starting point, it is evident that the elements of

clauses 1 and 2 are not textually contained within the clause 3

offenses charged in this case.   This leaves open the possibility

that the elements of disorder and discredit are in some manner

implicitly included in any offense arising under clause 3.     The

UCMJ does not answer the question and our case law provides

arguments on both sides of this issue.

     On the one hand, in United States v. Sapp, 53 M.J. 90, 92

n.2 (C.A.A.F. 2000), this Court suggested that the elements of

prejudice to good order and discipline and discredit to the

armed forces were as implicit under an offense under clause 3 as

United States v. Foster, 40 M.J. 140, 143 (C.M.A. 1994), stated

they were under the enumerated offenses.   In Sapp, the accused

pleaded guilty to an offense of possession of child pornography

charged under clause three of Article 134, UCMJ, incorporating



                                 10
United States v. Medina, No. 07-0096/AR

18 U.S.C. § 2252(a)(4)(A) (2000).    The accused admitted all the

elements satisfying the requirements of the Title 18 offense.

He also admitted that his conduct was service discrediting.

Sapp, 53 M.J. at 91.   On appeal, the Court of Criminal Appeals

concluded that the military judge had improperly explained the

elements of the federal statute and affirmed instead the “lesser

included offense” of service discrediting conduct.   Id.   This

Court affirmed on the ground that the offense of service

discrediting conduct was an offense “closely related” to a

violation of the federal statute under the facts of that case.

Id. at 92-93.   However, this Court also seemed to embrace the

lower court’s reasoning, stating:

      Article 59(b), UCMJ, 10 U.S.C. § 859(b), provides: “Any
      reviewing authority with the power to approve or affirm a
      finding of guilty may approve or affirm, instead, so much
      of the finding as includes a lesser included offense.”
      That is exactly what the Court of Criminal Appeals did in
      this case, and properly so.

Id.   The analysis in Sapp has been endorsed in subsequent cases

as well.   See United States v. Martinelli, 62 M.J. 52, 66-67

(C.A.A.F. 2005); United States v. Hays, 62 M.J. 158, 168

(C.A.A.F. 2005); United States v. Reeves, 62 M.J. 88, 95

(C.A.A.F. 2005); United States v. Mason, 60 M.J. 15, 18-19

(C.A.A.F. 2004); United States v. O’Connor, 58 M.J. 450, 454

(C.A.A.F. 2003); United States v. Augustine, 53 M.J. 95, 96

(C.A.A.F. 2000).   Therefore, it might follow from Sapp that if



                                11
United States v. Medina, No. 07-0096/AR

service discrediting conduct is an implicit element to a

violation of an enumerated offense under the UCMJ, as stated in

Foster, 40 M.J. at 143, then arguably an offense “incorporated”

into the UCMJ through operation of clause 3 necessarily bears

the same implicit element.

      On the other hand, Sapp can be read to support an

alternative reading of Article 134, UCMJ.   For example, in Sapp,

the Court stated, “The three clauses do not create separate

offenses.   Instead, they provide alternative ways of proving the

criminal nature of the charged misconduct.”4   Sapp, 53 M.J. at

92.   This view is consistent with the view first stated in

United States v. Herndon, 1 C.M.A. 461, 463, 4 C.M.R. 53, 55

(1952), and confirmed later in O’Connor.5   58 M.J. at 452.

Viewing the clauses of Article 134, UCMJ, as alternative

theories of prosecution is consistent with the elements test of

Teters, for as noted above, the elements of an offense under


4
  The common law moves in small and necessary steps, with courts
tending to address only the issue immediately before them. In
fairness to the parties, cases of the lower courts as well as
this Court have not previously focused on the particular
distinctions identified here between closely related offenses,
lesser included offenses, and alternative theories of proof.
The Sapp opinion, for example, appears to conflate the concepts
by suggesting that since the clause three offense and the clause
two offense are “closely related,” they are lesser included
offenses.
5
  The clauses of Article 134, UCMJ, have also been described as
“three classes of offenses.” United States v. Long, 2 C.M.A.
60, 65, 6 C.M.R. 60, 65 (1952).

                                12
United States v. Medina, No. 07-0096/AR

clauses 1 or 2 are not textually included as “subsets” of an

offense charged as a crime or offense not capital.   Moreover,

there is no indication that Congress codified any of the

numerous offenses contained in the United States Code with the

concepts of service discrediting conduct or good order in the

military in mind.   Obviously, in the case of a civilian

prosecution the government need not prove the elements of

service disorder or discrediting conduct.   Nor are such elements

implied.   This conclusion is also consistent with the manner in

which state crimes are assimilated under clause 3 of Article

134, UCMJ.   “Not every violation of a state statute is

discrediting conduct.”   United States v. Rowe, 13 C.M.A. 302,

308, 32 C.M.R. 302, 308 (1962); United States v. Grosso, 7 C.M.A

566, 571, 23 C.M.R. 30, 35 (1957).

      Based on the foregoing, we conclude that clauses 1 and 2

are not necessarily lesser included offenses of offenses alleged

under clause 3, although they may be, depending on the drafting

of the specification.    This reasoning is further buttressed by

the principle of fair notice when pleading.

B.   Fair Notice

      The providence of a plea is based not only on the accused’s

understanding and recitation of the factual history of the

crime, but also on an understanding of how the law relates to

those facts.   United States v. Care, 18 C.M.A. 535, 538-39, 40


                                 13
United States v. Medina, No. 07-0096/AR

C.M.R. 247, 250-51 (1969).   A voluntary and knowing

relinquishment of the constitutional rights an accused waives in

pleading guilty is not possible without knowledge of the nature

of the charges brought against him or her, including by

implication any applicable lesser included offenses.    Id.;

Johnson v. Zerbst, 304 U.S. 458, 464 (1938).     Thus, for the

purposes of Article 134, UCMJ, it is important for the accused

to know whether he or she is pleading only to a crime or offense

not capital under clause 3, a “disorder or neglect” under clause

1, conduct proscribed under clause 2, or all three.     As a

result, while it is appropriate for an appellate court to affirm

a lesser included offense, an accused has a right to know to

what offense and under what legal theory he or she is pleading

guilty.    This fair notice resides at the heart of the plea

inquiry.

     Where an offense is a lesser included offense of the

charged offense, an accused is by definition on notice because

it is a subset of the greater offense alleged.    However, where a

distinct offense is not inherently a lesser included offense,

during the guilty plea inquiry the military judge or the charge

sheet must make the accused aware of any alternative theory of

guilt to which he is by implication pleading guilty.6


6
  While we remain satisfied with the plea inquiries in the Sapp
line of cases, we take this opportunity to clarify what the

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United States v. Medina, No. 07-0096/AR


      Similarly, in a contested case, a reviewing court must

consider whether or not the prosecution proceeded on the premise

or theory that the conduct alleged under clause 3 was also

prejudicial to good order or service discrediting in order to

affirm under clauses 1 or 2 in the event the clause 3 theory is

invalidated.   United States v. Smith, 21 C.M.A. 264, 267, 45

C.M.R. 38, 41 (1972); United States v. Mayo, 12 M.J. 286, 292

(C.M.A. 1982).   In such a case the members will normally have

been instructed as to the alternative theory.   This is

consistent with the principle that an appellate court may not

affirm on a theory not presented to the trier of fact and

adjudicated beyond a reasonable doubt.    United States v. Riley,

50 M.J. 410, 415 (C.A.A.F. 1999).

C.   Applying the Analysis to This Case

      In this case, Appellant was not advised during the plea

inquiry that in addition to pleading guilty to the incorporated

offenses under 18 U.S.C. §§ 2251 and 2552A, he was by

implication also pleading guilty to Article 134(2) UCMJ,

offenses not charged or otherwise included in the specification

as drafted.    Moreover, while we know that Appellant admitted to

service discrediting conduct in the context of pleading guilty

standard should be in these types of cases and that in the
future, we will review these cases under this standard to ensure
that the plea is knowing and voluntary to any alternate theories
under Article 134, UCMJ, before a conviction will be affirmed
under that theory.

                                 15
United States v. Medina, No. 07-0096/AR

to the violations of Title 18, we do not know whether he would

have done so with the knowledge that he was not required to

admit his conduct satisfied the alternate theory under Article

134(2).7   It bears emphasis that this is a question about the

knowing and voluntary nature of the plea and not the adequacy of

the factual basis supporting the plea.

     It is intuitive that the viewing of child pornography

discredits those who do it, as well as the institutions with

which those persons are identified.    It is also clear that

Appellant admitted to conduct that is discrediting.   However, it

is less intuitive that he knowingly and voluntarily pled guilty

to an Article 134(2), UCMJ, offense standing alone.   That is

because Appellant’s admission of discrediting conduct was in the

context of admitting guilt to a violation of Title 18.   In other

words, there is no indication in the record that Appellant was

apprised or understood that he was not required to admit that

his conduct charged under clause 3 was also service

discrediting.

     The point is better illustrated in a somewhat different and

less visceral criminal context.    For example, the Endangered

Species Act, 16 U.S.C. § 1531-1544 (2000), authorizes criminal


7
  Of course, the parties may agree pursuant to a pretrial
agreement that during the plea inquiry the accused will admit
his conduct satisfies the requirements of clauses 1 and 2 of
Article 134, UCMJ.

                                  16
United States v. Medina, No. 07-0096/AR

sanctions for taking or possessing, among other things, a

variety of wildlife species listed by the Secretary of the

Interior as endangered.   Presumably, an accused could be charged

and could plead guilty to violations of this act under the

“crimes or offenses not capital” clause of Article 134, UCMJ.

As in this case, he might even agree that his conduct was

service discrediting.   If, however, on appeal it is discovered

that the particular species was, for instance, removed from the

list before the date of the alleged offense, then the accused

would only stand convicted of conduct that without the express

proscription under federal law would not otherwise be criminal

under the United States Code.

     The approach we take today builds on Mason and Martinelli,

which were both decided after Sapp.   In Martinelli we said:

     the record must conspicuously reflect that the accused
     “clearly understood the nature of the prohibited conduct”
     as being in violation of clause 1 and clause 2, Article
     134, apart from how it may or may not have met the elements
     of the separate criminal statute underlying the clause 3
     charge.

62 M.J. at 67.   In Mason we concluded:

     The record here thus contains what was missing in O’Connor
     and was present in both Sapp and Augustine. The plea
     colloquy between the military judge and Mason demonstrates
     that he ‘clearly understood the nature of the prohibited
     conduct’ in terms of that conduct being service-
     discrediting and prejudicial to good order and discipline.
     Those clause 1 and clause 2 elements were explained to him
     as a basis for finding his conduct criminal apart from
     clause 3 and his discussions with and admissions to the
     military judge were made in that context.


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United States v. Medina, No. 07-0096/AR



60 M.J. at 19 (citation omitted).     For sure these cases involve

particular constitutional considerations arising out of Ashcroft

v. Free Speech Coalition, 535 U.S. 234 (2002), pertaining to the

relationship between conduct that might be protected by the

First Amendment in civilian life, but in the military context is

criminally sanctioned under Article 134(1) and (2), UCMJ.

However, the underlying principle is the same.    An accused must

know to what offenses he is pleading guilty.    Today we conclude

with respect to Article 134, UCMJ, given its structure and

elements, an accused must also know under what clause he is

pleading guilty.    This is accomplished either through advice by

the military judge or through operation of the lesser included

offense doctrine.

     Here, Appellant admitted conduct that was service

discrediting, but he did so without knowledge that in pleading

guilty to the Article 134(3), UCMJ, offenses, he was not

required to plead guilty to service discrediting conduct under

Article 134(2), UCMJ.   However, it is unclear why the lower

court felt compelled to resort to clause 2 in the first place.

As the court itself observed, “the record contains ample

evidence to find that appellant committed CPPA violations as

alleged on divers occasions within the United States,” i.e.,

Fort Knox, Kentucky.    Medina, No. ARMY 20040327, slip op. at 4.



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United States v. Medina, No. 07-0096/AR


                            DECISION

     The decision of the United States Army Court of Criminal

Appeals is set aside as to the sentence and the findings of

guilty to Specifications 2 and 3 of Charge I.    The decision with

respect to the remaining findings is affirmed.   The record of

trial is returned to the Judge Advocate General of the Army for

remand to that court to determine, in light of our decision,

whether any part of Specifications 2 and 3 of Charge I can be

affirmed and whether in any event, reassessment of the sentence

is necessary.




                               19
United States v. Medina, No. 07-0096/AR


     STUCKY, Judge (dissenting):

     I agree with the majority that the Army Court of Criminal

Appeals erred by amending the specification that was referred

against Appellant.   But I dissent from the analysis of Article

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

(2000), and the majority’s conclusion that Appellant’s guilty

plea was improvident.

                                I.

     Article 134, UCMJ, provides as follows:

     Though not specifically mentioned in this chapter, [1]
     all disorders and neglects to the prejudice of good
     order and discipline in the armed forces, [2] all
     conduct of a nature to bring discredit upon the armed
     forces, and [3] crimes and offenses not capital, of
     which persons subject to this chapter may be guilty,
     shall be taken cognizance of by a general, special, or
     summary court-martial, according to the nature and
     degree of the offense, and shall be punished at the
     discretion of that court.

The majority concludes that “clauses 1 and 2 are not necessarily

lesser included offenses of offenses alleged under clause 3,

although they may be depending on the drafting of the

specification.”   I disagree.

     In Schmuck v. United States, 489 U.S. 705 (1989), the

Supreme Court announced that one offense is not a lesser

included offense of another “unless the elements of the lesser

offense are a subset of the elements of the charged offense.”

Id. at 716.   And “[s]ince offenses are statutorily defined, that
United States v. Medina, No. 07-0096/AR


comparison is appropriately conducted by reference to the

statutory elements of the offenses in question.”    Id.    The plain

language of Article 134, UCMJ, makes evident that the statute

does not describe three separate offenses or theories of

prosecution.    Instead, it describes three distinct classes of

offenses not otherwise described in the punitive articles of the

UCMJ.    Clause 1 makes criminal conduct that is prejudicial to

good order and discipline in the armed forces, while clause 2

makes criminal conduct that is service discrediting.      That the

conduct was prejudicial to good order and discipline or was

service discrediting is an element of the offense.    Clause 3

offenses do not require either of those elements; rather, they

require that the accused’s conduct be a non-capital offense that

is either (1) a violation of the United States Code that is

applicable to servicemembers regardless of where the wrongful

conduct occurred, or (2) a violation of federal law applicable

at the place of the offense or of state criminal statute

applicable to an accused under the Federal Assimilative Crimes

Act.    Manual for Courts-Martial, United States (MCM) pt. IV,

para. 60.c.(4) (2005 ed.).

        A particular act or omission may be a crime or offense not

capital under clause 3 and still be prejudicial to good order

and discipline or service discrediting.    The three clauses may

overlap in their coverage, but they are not coextensive, and one


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is not a lesser element of either of the others.   As each of the

three classes of offenses under Article 134, UCMJ, requires a

different element, a clause 1 or clause 2 offense is not a

lesser included offense of a clause 3 offense.

                                II.

     The specifications at issue alleged that at Vilseck,

Germany, and Fort Knox, Kentucky, Appellant (1) knowingly

mailed, transported, or shipped in interstate or foreign

commerce child pornography, in violation of 18 U.S.C. §

2252A(a)(1) (2000) (Specification 2), and (2) coerced a minor to

engage in sexually explicitly conduct for the purpose of

transporting a visual depiction of such conduct in interstate or

foreign commerce in violation of 18 U.S.C. § 2251(a) (2000)

(Specification 3).1

     Neither specification alleged that such conduct was

prejudicial to good order and discipline or service

discrediting.   That is not surprising in light of the MCM’s

direction that “[a] specification alleging a violation of

Article 134 need not expressly allege that the conduct was ‘a

disorder or neglect,’ that it was ‘of a nature to bring




_____________________
1
  It is a mystery to me why, after this Court’s ten-year history
of invalidating convictions for child pornography offenses under
clause 3, and of upholding convictions for such offenses under
clause 2, we continue to see cases charged under clause 3.

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United States v. Medina, No. 07-0096/AR


discredit upon the armed forces,’ or that it constituted ‘a

crime or offense not capital.’”   MCM pt. IV, para. 60.c.(6)(a).

     “A specification is sufficient if it alleges every element

of the charged offense expressly or by necessary implication.”

Rule for Courts-Martial (R.C.M.) 307(c)(3).   By citation to the

federal statutes, the specifications at issue in this case

allege, by necessary implication, in crimes or offenses not

capital, in violation of clause 3.    The language of the two

specifications does not state or necessarily imply that the

conduct was also prejudicial to good order and discipline or

service discrediting.

     Nevertheless, this was a guilty plea, not a contested case.

During the providence inquiry, the military judge advised

Appellant of the elements of child pornography specifications as

clause 3 offenses but added two additional elements -- that

Appellant’s conduct was prejudicial to good order and discipline

or service discrediting.   Without reservation, Appellant

admitted to these elements.   He told the military judge that his

conduct was “not something professional soldiers should do”

(Specification 2) and “[i]t makes the Army look bad in front of

the eyes of the public” (Specification 3).    By doing so,

Appellant admitted his conduct established violations of clause

1 or clause 2 under Article 134, UCMJ.    Even though he was not

charged with violating either clause 1 or clause 2, his


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admissions are sufficient to sustain the military judge’s

conclusion that the plea was provident.   See United States v.

Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000) (concluding that the

appellant’s plea inquiry established his guilt to clause 2 of

Article 134, UCMJ, when he was charged under clause 3); United

States v. Felty, 12 M.J. 438, 441-42 (C.M.A. 1982) (holding that

when the appellant’s guilty plea to escape from custody in

violation of Article 95(4), UCMJ, 10 U.S.C. § 895(4), could not

be sustained but his answers during the providence inquiry

established his guilt of escape from confinement in violation of

Article 95(4), UCMJ, “the technical variance between the offense

alleged and that which is established from an accused’s own lips

does not require setting aside the plea of guilty”).

     The majority states that an accused cannot knowingly

relinquish the constitutional rights he waives in pleading

guilty without full knowledge of the nature of the charges

brought against him.   I disagree.   An accused need only have

full knowledge of the nature of the charges to which he pled

guilty.   The military judge’s inquiry was sufficient for

Appellant to fully understand that he was pleading guilty under

Article 134, UCMJ, to (1) knowingly mailing, transporting, or

shipping child pornography, and (2) coercing a minor to engage

in sexually explicitly conduct for the purpose of transporting

visual depictions of conduct, and (3) that such conduct was


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prejudicial to good order and discipline or service

discrediting.   Therefore, I would affirm the convictions of

Specification 2 under clause 1 and Specification 3 under

clause 2.




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