                       UNITED STATES, Appellee

                                    v.

                   Robert M. PAYNE, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 13-0345

                         Crim. App. No. 37594

       United States Court of Appeals for the Armed Forces

                        Argued October 8, 2013

                       Decided January 6, 2014

ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., STUCKY and RYAN, JJ., and EFFRON, S.J., joined.

                                 Counsel


For Appellant:   Captain Nicholas D. Carter (argued).

For Appellee: Captain Thomas J. Alford (argued); Colonel Don
Christensen and Gerald R. Bruce, Esq. (on brief).

Military Judges:    Katherine E. Oler and Dawn R. Eflein


       This opinion is subject to revision before final publication.
United States v. Payne, No. 13-0345/AF


     Judge ERDMANN delivered the opinion of the court.

     Contrary to his pleas, Staff Sergeant (SSgt) Robert Payne

was convicted by a general court-martial with members of one

specification of attempting to communicate indecent language to

a child under the age of sixteen, one specification of

attempting to transfer obscene material to a minor, and one

specification of attempting to persuade a minor to create child

pornography, all in violation of Article 80, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 880 (2006).   He was also

convicted of three specifications of failure to obey a lawful

general regulation by misusing his Government computer in

committing the above-mentioned offenses, in violation of Article

92, UCMJ, 10 U.S.C. § 892 (2006).    Payne was sentenced to three

years of confinement, a dishonorable discharge, forfeiture of

all pay and allowances, and reduction to the lowest enlisted

grade.   The convening authority approved the adjudged sentence

except for the forfeitures, and the United States Air Force

Court of Criminal Appeals (CCA) affirmed the findings and the

sentence in an unpublished opinion.   United States v. Payne, No.

ACM 37594, 2013 CCA LEXIS 18, at *38, 2013 WL 375777 at *18.

(A.F. Ct. Crim. App. Jan. 17, 2013) (unpublished).

     Both Article 51(c) UCMJ, 10 U.S.C. § 851(c) (2006), and

Rule for Courts-Martial (R.C.M.) 920(e)(1), require a military

judge to instruct the members on the elements of each offense

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United States v. Payne, No. 13-0345/AF


charged.    We granted review to determine whether the military

judge properly instructed the members on the elements of Charge

I, Specification 4, which alleged an attempt to persuade a minor

to create child pornography in violation of Article 134, UCMJ

clauses 1 and 2.1    We conclude that she did not properly instruct

the members as to Specification 4, but that the error was

harmless beyond a reasonable doubt.    We therefore affirm the

CCA.

                             Background

       SSgt Payne engaged in a series of sexually explicit

Internet chats and phone calls with an undercover civilian

sheriff’s deputy who Payne believed to be a fourteen-year-old

girl named “Marley.”    The communications took place over a

period of about a month and a half.    As a part of those chats,

Payne repeatedly asked “Marley” to send him pictures of herself.

Some of these requests were for “nude” pictures, while others

were more general.    Payne also promised nude pictures of himself

in exchange for nude pictures of “Marley.”    While Payne sent

“Marley” nude pictures of himself, as well as a video of himself


1
    Specifically, we granted review of the following issue:

       Whether the military judge improperly instructed the
       members of the elements for creation of child
       pornography.

United States v. Payne, 72 M.J. 407 (C.A.A.F. 2013) (order
granting review).
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United States v. Payne, No. 13-0345/AF


masturbating, “Marley” did not respond in kind.   Eventually,

Payne traveled from Philadelphia to upstate New York to meet

“Marley,” where he was arrested by local law enforcement

authorities.

     At trial, Payne’s defense to the Charge I specifications

focused almost exclusively on the defense of entrapment.   While

the defense did not contest his underlying conduct, Payne did

object to the military judge’s proposed instructions on the

Charge I offenses.   He argued that:

     [F]or all four specifications under Charge I, we
     object to your instructions because we do not believe
     that the government in its pleadings identified the
     offenses to which you are listing elements. We
     believe that based on what trial counsel stated when
     she read the identity of the elements to us and later
     to the members in their initial discussion about these
     findings instructions as you’ve memorialized on the
     record, and even at present, we believe that these
     elements are not necessarily a fair parsing of what
     was pled in each of the four specifications in Charge
     I.

          As I said in the 802 conference, our challenge is
     this, we have a duty to candor towards a tribunal and
     to identify any errors and give you a forthright
     answer, but we also have a competing duty to Staff
     Sergeant Payne and not to assist the government or
     even the bench in perfecting elements in charges
     against him if we think that there’s, perhaps, a right
     way to do this. And therefore, we simply say that we
     don’t believe that the court has been able, due to the
     nature of the pleadings, to properly identify if these
     are offenses and if so, what those elements would be.

The military judge did not specifically rule on the objection

and she gave the members her proposed instructions concerning


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United States v. Payne, No. 13-0345/AF


Charge I.   As to Specification 4, the military judge described

the specification as “the offense of soliciting a minor to

create child pornography” and subsequently provided the

following instruction:

     First, that, within the continental United States, on
     divers occasions from on or about 1 June 2008 to on or
     about 1 August 2008, the accused attempted to
     persuade, induce, entice, or coerce “Marley,” someone
     he believed was a female 14 years of age, to commit
     the offense of creating child pornography by
     requesting that she send nude photos of herself to the
     accused;

          Second, that the accused intended that the person
     he thought was “Marley” actually produce one or more
     visual depictions of her nude body to send to him
     electronically or through the mail;

          Third, that, under the circumstances, the conduct
     of the accused 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.

The military judge also instructed the members that they must

find that “the accused’s statements constituted a serious

request that the offense be committed.”   In addition, she

instructed that “‘[c]hild pornography’ means any visual

depiction of a minor engaging in sexually explicit conduct,” and

that “‘[s]exually explicit conduct’ includes masturbation or

lascivious exhibition of the genitals or pubic area of any

person,” and also properly defined the term “lascivious

exhibition.”   Following these definitions, the military judge

instructed the members that to convict on this specification,



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United States v. Payne, No. 13-0345/AF


the panel must be convinced beyond a reasonable doubt that Payne

“specifically intended that ‘Marley’ produce visual depictions

of a minor engaged in sexually explicit conduct.”

     The members convicted Payne of Specifications 2, 3, and 4

under Charge I.   Before the CCA, in regard to Specification 4,

Payne argued that the military judge erred by failing to

properly instruct the members on the elements of attempt.

Payne, 2013 CCA LEXIS 18, at *14, 2013 WL 375777 at *5.     While

the CCA concluded that the instructions given by the military

judge “lacked some specificity,” it ultimately held that “they

included all the required elements and adequately instructed the

members to find the necessary predicate facts beyond a

reasonable doubt.”   Id. at *21, 2013 WL 375777, at *7.

     Before this court, Payne renews his argument that the

military judge erred by omitting the elements of attempt when

instructing on Specification 4.   The government concedes that

“the military judge did not read the statutory elements of

Article 80 [Attempts]” but argues that for this “unique charge

of attempting to entice a minor to create child pornography, the

military judge was permitted to, and appropriately did, tailor

her instructions to cover . . . the required elements . . . .”

The government further argues that “[t]he combination of an

attempt offense, a federal crime, and the UCMJ article applying

that federal crime to the military simply cannot be overlooked

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United States v. Payne, No. 13-0345/AF


when determining what instructions the military judge needed to

provide the members.”2

                              Discussion

Standard of Review and Preservation of Error

     The question of whether the members were properly

instructed is a question of law and thus review is de novo.

United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010)

(citations omitted).     Where there is no objection to an

instruction at trial, we review for plain error.    United States

v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013); see also R.C.M.

920(f).   As Payne did offer a general objection to all of the

military judge’s proposed Charge I instructions, we must

determine whether that objection adequately preserved the error

he now raises on appeal.

     We have had occasion to address the adequacy of evidentiary

objections and have held that the law “does not require the

moving party to present every argument in support of an

objection, but does require argument sufficient to make the

military judge aware of the specific ground for objection, ‘if


2
  Contrary to both parties’ positions, Specification 4 does not
allege an offense under 18 U.S.C. § 2251(a) as incorporated by
clause three of Article 134, UCMJ. See Manual for Courts-
Martial, United States pt. IV, para. 60.c.(6)(b) (2012 ed.)
(MCM) (“When alleging a clause 3 violation, each element of the
federal or assimilated statute must be alleged expressly or by
necessary implication. In addition, the federal or assimilated
statute should be identified.”).
                                   7
United States v. Payne, No. 13-0345/AF


the specific ground was not apparent from the context.’”    United

States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005) (quoting Military

Rule of Evidence (M.R.E.) 103(a)(1)).    We have not, however,

addressed the specificity required to preserve an error in the

context of an objection to proposed instructions.   R.C.M. 920

deals with “Instructions on Findings” and subsection (f)

specifically addresses waiver of an objection under that

section.3   The Analysis to R.C.M. 920(f) notes that this

subsection was based on the last two sentences of Fed. R. Crim.

P. 30, “Jury Instructions.”   MCM, Analysis of the Rules for

Courts-Martial app. 21 at A21-70.4   At the time R.C.M. 920(f) was

adopted, the last two sentences of Fed. R. Crim. P. 30 provided:5

     No party may assign as error any portion of the charge
     or omission therefrom unless [that party] objects
     thereto before the jury retires to consider its
     verdict, stating distinctly the matter to which [that
     party objects] and the grounds of [the] objection.
     Opportunity shall be given to make the objection out


3
  The text of R.C.M. 920(f) states that “Failure to object to an
instruction or to omission of an instruction before the members
close to deliberate constitutes waiver of the objection in the
absence of plain error.”
4
  The Analysis of the Rules for Courts-Martial notes that there
were four basic goals for the 1984 revision to the MCM, the
first of which “was to conform to federal practice to the extent
possible, except where the Uniform Code of Military Justice
requires otherwise or where specific military requirements
render such conformity impracticable.” MCM, Analysis of the
Rules for Courts-Martial app. 21 at A21-1; see also Article 36,
UCMJ, 10 U.S.C. § 836 (2006).
5
  R.C.M. 920(f) was enacted with initial adoption of the Rules
for Courts-Martial in 1984. At that time the version of Fed. R.
Crim. P. 30 adopted in 1944 (as amended in 1966) was in effect.
                                 8
United States v. Payne, No. 13-0345/AF


     of the hearing of the jury and, on request of any
     party, out of the presence of the jury.

Fed. R. Crim. P. 30, 18 U.S.C. app. at 622 (1982) (emphasis

added).   Given the similarity of purpose between R.C.M. 920(f)

and M.R.E. 103(a)(1), as well as the requirements of Fed. R.

Crim. P. 30, we see no reason not to require the same level of

specificity for objections to instructions as we do for

evidentiary objections.

     Payne’s defense counsel objected to all of the military

judge’s instructions to Charge I on the grounds that “the

government in its pleadings [did not] identif[y] the offenses to

which [the military judge was] listing elements.”   However,

defense counsel did not identify which specification or

specifications he was referring to or which elements he felt the

military judge should have instructed on because he did not want

“to assist the government or even the bench in perfecting

elements in charges against [Payne].”    (Emphasis added.)   In

taking this position, it appears that defense counsel was trying

to preserve any instructional error for appeal while

simultaneously refusing to assist the military judge in

correcting any alleged instructional error at the trial level.6




6
  “The purpose of [Fed. R. Crim. P.] 30 is to alert the district
court to potential problems in jury instructions and thereby
avert any error in the first place.” United States v. O’Neill,
116 F.3d 245, 247 (7th Cir. 1997) (citation omitted).
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United States v. Payne, No. 13-0345/AF


Under these circumstances we believe that the issue is most

appropriately treated as waived in absence of plain error.     See

United States v. Zapata, 546 F.3d 1179, 1190 (10th Cir. 2008).7

“Under a plain error analysis, the accused ‘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 the accused.’”   Tunstall, 72 M.J. at 193-94

(quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F.

2011)).

Elements of Charge I, Specification 4

     We next turn to the elements of the charged offense.

Charge I alleged violations of Article 80 (Attempts) and

Specification 4 specifically alleged that Payne:

     [Did] wrongfully and knowingly attempt to persuade,
     induce, entice, . . . or coerce “Marley,” someone he
     believed was a female 14 years of age, who was, in
     fact, Lillian Vedder, an Ulster County New York
     Sheriff’s Office undercover detective, to create child
     pornography by requesting that “Marley” send nude
     photos of herself to the said STAFF SERGEANT ROBERT M.
     PAYNE, which conduct was prejudicial to good order and
     discipline or of a nature to bring discredit upon the
     armed forces.

     There are four elements of attempt:   (1) that the accused

did a certain overt act; (2) that the act was done with the

specific intent to commit a certain offense under the code; (3)

7
  “[W]e have held that a generalized objection to an instruction
is insufficient to preserve a specific objection on appeal.”
Zapata, 546 F.3d at 1190; United States v. Bornfield, 184 F.3d
1144, 1146 n.2 (10th Cir. 1999).
                                10
United States v. Payne, No. 13-0345/AF


that the act amounted to more than mere preparation; and (4)

that the act apparently tended to effect the commission of the

intended offense.    MCM pt. IV, para. 4.b.   Although this

specification is not a model of clarity, we find that it alleged

all of the elements of attempt and it provided Payne with notice

that he was charged with an attempt to commit an Article 134,

UCMJ, offense.    The offense charged was the persuasion of a

minor to create child pornography, which was alleged to be both

prejudicial to good order and discipline and service

discrediting.

The Military Judge’s Instructions

        A military judge has a sua sponte duty to instruct on the

elements of every offense.    R.C.M. 920(e)(1); Article 51(c),

UCMJ.    Having held that the alleged instructional error was not

preserved at trial and having identified the elements of

Specification 4, we must now examine whether the military

judge’s instructions on those elements amounted to plain error.

        While Payne argues that the military judge failed to

instruct on any of the elements of attempt, we are satisfied

that the instructions adequately covered the first two elements

of attempt.8    The third element of attempt requires “[t]hat the


8
  The first element of attempt is that “the accused did a certain
overt act.” MCM pt. IV, para. 4.b.(1). This element was
covered by the military judge’s instruction that the members
must find that Payne “attempted to persuade . . . ‘Marley,’
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United States v. Payne, No. 13-0345/AF


act amounted to more than mere preparation[.]”   MCM pt. IV,

para. 4.b.(3).   We have interpreted this element as requiring

that the accused take a “substantial step” toward commission of

the crime.   United States v. Jones, 37 M.J. 459, 461 (C.M.A.

1993) (citing Article 80, UCMJ, 10 U.S.C. § 880; United States

v. Schoof, 37 M.J. 96, 102 (C.M.A. 1993)).

     Despite the fact that the military judge did not instruct

on the “substantial step” requirement, the government argues

that the members were adequately informed of the third element

when the military judge instructed that the members needed to

find that “the accused’s statements constituted a serious

request that the offense be committed.”   The government argues

that since the overt act in this attempt offense was the actual

request transmitted to the recipient, the “serious request”

referenced by the military judge constituted a “substantial

step” and the members were therefore aware that they needed to

find that “the act amounted to more than mere preparation.”




someone he believed was a female 14 years of age, to commit the
offense of creating child pornography, by requesting that she
send nude photos of herself to the accused.” The second element
of attempt is that “the act was done with the specific intent to
commit a certain offense under the code.” MCM pt. IV, para.
4.b.(2). This element was covered by the military judge’s
instruction that Payne must have “intended that the person he
thought was ‘Marley’ actually produce one or more visual
depictions of her nude body to send him electronically or
through the mail.”
                                12
United States v. Payne, No. 13-0345/AF


     We do not agree that an instruction which requires a

“serious request that the offense be committed” is the

equivalent of an instruction that an accused must take a

substantial step toward the commission of the substantive

offense.    The “serious request” instruction focused the finder

of fact upon Payne’s mental state at the time of the act in

question.   By contrast, a “substantial step” instruction would

focus on the extent to which Payne actually acted in furtherance

of his attempted crime.   See United States v. Winckelmann, 70

M.J. 403, 407 (C.A.A.F. 2011) (“[T]he substantial step must

unequivocally demonstrat[e] that the crime will take place

unless interrupted by independent circumstances.”) (second set

of brackets in original) (question marks and citation omitted).

The military judge’s instructions did not include the third

element of attempt -- an error which we find to be plain and

obvious.

     With respect to the fourth element of attempt, “[t]hat the

act apparently tended to effect the commission of the intended

offense,” MCM pt. IV, para. 4.b.(4), the government merely

argues that the evidence on the element presented at trial was

legally sufficient to support that element.   The government does

not point to any portion of the military judge’s instructions

which would cover the fourth element of attempt, and indeed

there are none.   An element cannot be considered to be properly

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United States v. Payne, No. 13-0345/AF


instructed upon simply because legally sufficient evidence had

previously been admitted at trial.    We therefore hold that the

military judge’s failure to instruct on the fourth element of

attempt also constituted plain and obvious error.

Prejudice

       Having found plain and obvious error, Payne points us to

our holding in United States v. Mance, 26 M.J. 244 (C.M.A.

1988), and argues that failure to instruct on an element of an

offense is structural error which is per se prejudicial.   In

Mance, we held that “when a judge omits entirely any instruction

on an element of the charged offense, this error may not be

tested for harmlessness because, thereby, the court members are

prevented from considering that element at all.”    26 M.J. at

255.   As the military judge failed to instruct on two elements

of the charged offense, we agree that under the rationale of

Mance, Payne would appear to be entitled to relief.

       However, since we decided Mance in 1988, the Supreme Court

addressed this issue in Neder v. United States, 527 U.S. 1, 8

(1999), and it held that the failure to instruct on an element

does not constitute structural error.9   Less than a month after

Neder was decided, this court issued United States v. Glover, 50

M.J. 476, 478 (C.A.A.F. 1999), which, while holding that there


9
  In Neder, the Supreme Court reviewed under a “harmless error”
standard as Neder had objected at trial. 527 U.S. at 15.
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United States v. Payne, No. 13-0345/AF


was no plain error in the context of the military judge’s

instructions, cited but did not rely on Mance.

     Other than Glover, we have since applied Neder rather than

Mance in examining instructional errors and have tested for

prejudice.    See United States v. Upham, 66 M.J. 83, 86-87

(C.A.A.F. 2008).   We have not cited or relied upon Mance to find

structural error resulting from the omission of an element from

instructions since Neder was decided.    To alleviate further

confusion on this issue, today we overrule Mance to the extent

it conflicts with the holding in Neder that omission of an

instruction regarding an element may be tested for harmless

error.

     We conclude that the omission of instructions on the third

and fourth elements of attempt did not materially prejudice

Payne’s substantial rights.   Payne did not contest those

elements at trial as he relied primarily upon the defense of

entrapment.   Furthermore, the evidence on those elements, which

includes the logs of the explicit chats between Payne and

“Marley,” was overwhelming.   We are therefore satisfied beyond a

reasonable doubt that the omitted elements were both

“uncontested and supported by overwhelming evidence, such that




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United States v. Payne, No. 13-0345/AF


the jury verdict would have been the same absent the error.”

Neder, 527 U.S. at 17.10

                            Decision

     The decision of the United States Air Force Court of

Criminal Appeals is hereby affirmed.




10
  Payne’s additional arguments, that the military judge failed
to define “create” in “creation of child pornography” and that
she improperly instructed the members that nude pictures
constituted child pornography, have no merit and we need not
address them in detail. “‘Words generally known and in
universal use do not need judicial definition.’” United States
v. Nelson, 53 M.J. 319, 321 (C.A.A.F. 2000) (quoting United
States v. Shepard, 1 C.M.A. 487, 492, 4 C.M.R. 79, 84 (1952)).
The word “create” -- as used in a specification for an attempted
general disorder under Article 134 -- is such a word. We are
also satisfied that the military judge properly instructed the
panel as to what constitutes child pornography. She defined
that term and then provided proper definitions of “sexually
explicit conduct” and “lascivious exhibition.” The military
judge concluded by instructing the members that “[u]nless you
are satisfied beyond a reasonable doubt . . . that the accused
specifically intended that ‘Marley’ produce visual depictions of
a minor engaged in sexually explicit conduct, as I have defined
that term for you, you may not convict the accused . . . .”
                               16
