                          UNITED STATES, Appellee

                                         v.

             David J. VON BERGEN, Airman First Class
                    U.S. Air Force, Appellant

                                No. 03-0629/AF

                           Crim. App. No. 34817

       United States Court of Appeals for the Armed Forces

                        Argued November 17, 2008

                          Decided April 2, 2009

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


                                     Counsel

For Appellant: Captain Phillip T. Korman (argued); Major Lance
J. Wood and Captain Vicki A. Belleau (on brief); Lieutenant
Colonel Mark R. Strickland and Major Shannon A. Bennett.

For Appellee: Major Brendon K. Tukey (argued); Colonel Gerald
R. Bruce and Major Jeremy S. Weber (on brief); Major Matthew S.
Ward and Major Nicole P. Wishart.


Military Judge:    Gary M. Jackson




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Von Bergen, No. 03-0629/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant pleaded guilty in 2001 to violating a provision

of the Child Pornography Prevention Act of 1996 (CPPA), codified

at 18 U.S.C. § 2252A(a)(5)(A) (2000).   Pursuant to his pretrial

agreement, he waived his right to a hearing under Article 32,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (2000).

However, this Court reversed his conviction on the basis of

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

States v. Von Bergen, 62 M.J. 370 (C.A.A.F. 2005) (order).      On

remand from this Court, Appellant received a rehearing in 2006

on an amended specification of possessing child pornography

charged as a violation of clauses 1 and 2 of Article 134, UCMJ,

10 U.S.C. § 934 (2000).   Appellant pleaded not guilty, withdrew

from his 2001 pretrial agreement, and moved for an Article 32,

UCMJ, investigation on the ground that his previous Article 32,

UCMJ, waiver was conditioned on the pretrial agreement from

which he had withdrawn.   The military judge denied the motion on

the grounds that Appellant’s earlier Article 32, UCMJ, waiver

remained in effect and Appellant had not shown good cause for

relief from his waiver.   The United States Air Force Court of

Criminal Appeals affirmed the findings and sentence.   United

States v. Von Bergen, No. ACM 34817 (f rev), 2008 CCA LEXIS 17,

at *13, 2008 WL 179271, at *5 (A.F. Ct. Crim. App. Jan. 9, 2008)

(unpublished).


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United States v. Von Bergen, No. 03-0629/AF


     We granted review of the following issue:

     WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD
     APPELLANT’S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20
     SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER
     2006 REHEARING.

We hold that the military judge erred in denying Appellant an

Article 32, UCMJ, investigation.       Finding no material prejudice

to Appellant’s substantial rights, however, we affirm the

findings and approve the sentence.

                           BACKGROUND

     At his first court-martial, consistent with his pretrial

agreement of September 10, 2001, and his pleas, Appellant was

convicted of one specification of knowingly possessing a

computer disk containing images of child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(A) and one specification of

knowingly and wrongfully distributing child pornography in

interstate or foreign commerce by means of a computer in

violation of Article 134, UCMJ.1       Appellant’s pretrial agreement

included an offer to “waive a hearing under Article 32.”       It

also included a withdrawal provision stating, among other

things, that:

     This agreement will also be canceled and of no effect,
     if any of the following occurs:



1
  According to the specifications, Appellant committed the
charged acts “at or near Building 210, Royal Air Force Base
Mildenhall, United Kingdom.”

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United States v. Von Bergen, No. 03-0629/AF


          a. Refusal of the court to accept my plea of
          guilty, as set forth above, or modification of the
          plea by anyone during the trial to not guilty or to
          a lesser degree of guilt.

          b. Withdrawal by either party to the agreement
          before the trial.

     The military judge engaged in the following colloquy with

Appellant and his counsel regarding the waiver:

     MJ: Defense counsel, if the accused’s plea of guilty
     is determined to be improvident will the accused be
     afforded an Article 32 investigation or is it
     permanently waived?

     DC:    It’s not permanently waived, ma’am.

     MJ: So it was contingent on the Offer for Pretrial
     Agreement as well?

     DC:    Yes, ma’am.

     MJ:    And trial counsel, do you agree?

     ATC:    Yes, ma’am.

     MJ: So you understand Airman Von Bergen, that, again,
     if for any reason I’m not able to accept your plea or
     you’re not able to complete your Offer for Pretrial
     Agreement and the convening authority’s not bound by
     it for some reason, that you would then be afforded
     you [sic] right to an Article 32?

     ACC:    Yes, ma’am.

     The military judge subsequently accepted Appellant’s guilty

pleas and sentenced Appellant to a dishonorable discharge,

confinement for twenty-eight months, and reduction to the grade

of E-1.    The convening authority approved the sentence as

adjudged.



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United States v. Von Bergen, No. 03-0629/AF


        On appeal, this Court affirmed the finding of guilty on the

specification of distributing child pornography, but reversed

the finding on the specification of possessing child pornography

and set aside the sentence.    Von Bergen, 62 M.J. at 370.   This

Court returned the record of trial to the Judge Advocate General

of the Air Force for further action consistent with Martinelli,

62 M.J. at 52.    Von Bergen, 62 M.J. at 370.   Accordingly, the

convening authority authorized a rehearing and amended the

specification related to possession of child pornography,

eliminating reference to 18 U.S.C. § 2252A(a)(5)(A) and

inserting language derived from clauses 1 and 2 of Article 134,

UCMJ:    “which conduct was prejudicial to good order and

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

upon the armed forces.”

        At his rehearing in 2006, Appellant pleaded not guilty to

the amended specification.    Appellant withdrew from the pretrial

agreement that he had entered at the original court–martial and

moved for an Article 32, UCMJ, investigation.    Appellant argued

that he was entitled to relief from his earlier Article 32,

UCMJ, waiver because it was conditioned on the pretrial

agreement from which he had since withdrawn.    In response, the

Government argued that no remedy was required because “the

accused clearly waived his right to an Article 32 hearing” and




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United States v. Von Bergen, No. 03-0629/AF


“the Defense has offered no evidence of ‘good cause’ for relief

of the accused’s waiver of an Article 32 hearing.”

     At the rehearing, the military judge denied the motion for

relief, concluding that Appellant “had made a knowing and

voluntary waiver of his Article 32 hearing” and Appellant failed

to show good cause for relief from the waiver.   The military

judge found Appellant guilty under the amended specification and

sentenced Appellant to a dishonorable discharge, confinement for

three years, reduction to grade E-1, and forfeiture of all pay

and allowances.   Consistent with Rule for Court-Martial (R.C.M.)

810(d)(1), the convening authority approved a sentence of a

dishonorable discharge, confinement for twenty-eight months, and

reduction to grade E-1.

     The United States Air Force Court of Criminal Appeals

affirmed the approved findings and sentence.   Von Bergen, 2008

CCA LEXIS 17, at *13, 2008 WL 179271, at *5.   The Court of

Criminal Appeals found that “[o]nce a pretrial investigation has

been waived, relief from that waiver can be obtained only for

good cause shown.”   Id. at *4, 2008 WL 179271, at *2 (quotation

marks omitted).   The Court of Criminal Appeals rejected

Appellant’s argument that “under Nickerson, if the decision to

waive the Article 32 investigation was in some way connected to

the appellant’s decision to plead guilty, good cause to receive

relief from the waiver exists.”   Id. at *5, 2008 WL 179271, at


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United States v. Von Bergen, No. 03-0629/AF


*2 (citing United States v. Nickerson, 27 M.J. 30, 31-32 (C.M.A.

1988)).    As withdrawal from a pretrial agreement does not

“automatically establish[] good cause” and “[A]ppellant

presented no other reason as a basis,” the Court of Criminal

Appeals concluded that “he did not show good cause.”    Id.

     Appellant also argued on appeal that good cause for relief

existed under R.C.M. 405(k) because the Government destroyed

certain evidence before the rehearing and the specification was

changed.   Id. at *5-*6, 2008 WL 179271, at *2.    The Court of

Criminal Appeals found that “[t]hese arguments were waived by

the trial defense counsel’s failure to raise them at trial, and

the appellant is entitled to relief only if his case at trial

was harmed by this waiver.”   Id. at *6, 2008 WL 179271, at *2.

The Court of Criminal Appeals concluded that the destroyed

evidence did not entitle Appellant to relief because

“appellant’s confession, which was corroborated by eyewitness

testimony, was more than sufficient to sustain a conviction at

trial.”    Id. at *6-*7, 2008 WL 179271, at *2.   The Court of

Criminal Appeals further concluded that the amendment to the

specification did not entitle Appellant to relief because

“[c]hanging the allegation from an Article 134, UCMJ, Clause 3

specification to one containing elements under Clauses 1 and 2

does not amount to a significant change to the specification.”

Id. at *7, 2008 WL 179271, at *3 (quotation marks omitted).


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United States v. Von Bergen, No. 03-0629/AF


        Additionally, the Court of Criminal Appeals noted that, “in

a sense, appellant has already received the benefit of his

[pretrial agreement] from the first trial” because the convening

authority fulfilled his obligation of approving a reduced

sentence, and “the sentence of that trial forms the basis of the

maximum sentence that the convening authority can approve in

this trial.”    Id. at *8, 2008 WL 179271, at *3.   The Court of

Criminal Appeals thus decided that “the military judge did not

err when he determined the appellant failed to establish good

cause, and the appellant was not harmed by trial defense

counsel’s failure to raise any of the matters the appellant

raises on appeal.”    Id.

        Appellant renews his arguments before this Court.    He

argues that he was entitled to an Article 32, UCMJ,

investigation because the 2006 specification was a “major”

change from the 2001 specification.    See R.C.M. 603.      The

Government responds, inter alia, that the pretrial agreement was

conditioned on the military judge accepting Appellant’s 2001

plea.    The military judge having done so and the convening

authority having fulfilled its sentencing commitment, the

Government argues that the terms of the pretrial agreement were

met and Appellant remains bound on rehearing by his 2001 waiver.




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United States v. Von Bergen, No. 03-0629/AF


                             DISCUSSION

     This Court reviews a military judge’s decision whether to

order relief from a waiver of an Article 32, UCMJ,

investigation for an abuse of discretion.   See United States v.

Siroky, 44 M.J. 394, 398 n.1 (C.A.A.F. 1996) (“On discretionary

decisions, [the reviewing court] usually asks whether the

decision is legal in the sense of being within the prescribed

boundaries which define the area of discretion.”) (quoting

Martha S. Davis, A Basic Guide to Standards of Judicial Review,

33 S.D. L. Rev. 468, 472-73 (1988) (footnote omitted)).     “We

review a military judge’s conclusions of law under the de novo

standard.    If a military judge’s ruling is based on an

erroneous view of the law, he has abused his discretion.”

United States v. Mobley, 44 M.J. 453, 454 (C.A.A.F. 1996)

(quotation marks omitted).   Based on the following analysis, we

conclude that the military judge abused his discretion in

denying Appellant an Article 32, UCMJ, investigation on

rehearing.   Two related arguments are persuasive.   First and

foremost, Appellant’s 2001 plea was improvident as a matter of

law, which had the effect of canceling the pretrial agreement

according to its terms.   Alternatively, whether the 2006

Article 134(1) and (2), UCMJ, specification represented a major

change to the 2001 Article 134(3), UCMJ, specification or not,

the effect of the rehearing and Appellant’s subsequent


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United States v. Von Bergen, No. 03-0629/AF

withdrawal from the agreement was to place the parties in their

pretrial status quo ante.   See R.C.M. 705(d)(4).

     As noted above, when this case came before this Court the

first time, we reversed the finding on the specification of

possessing child pornography based on Martinelli.    Von Bergen,

62 M.J. at 370; see Martinelli, 62 M.J. at 62 (concluding that

the CPPA does not apply extraterritorially, thus the CPPA as

incorporated into Article 134(3), UCMJ, does not apply

extraterritorially).   As in Martinelli itself, Appellant’s plea

was improvident with respect to the Article 134(3), UCMJ,

specification.   Further, and also as in Martinelli, the

specification did not reference prejudice to good order and

discipline or service discredit, and the military judge during

the providence inquiry did not sufficiently inquire into whether

Appellant was willing to admit that his conduct was prejudicial

to good order and discipline or service discrediting.

Martinelli, 62 M.J. at 670.   Thus, we cannot uphold an offense

under Article 134(1) or (2), UCMJ, which, as explained in United

States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008), do not

necessarily constitute lesser included offenses of Article

134(3), UCMJ.    As a result, Appellant’s plea was improvident.

     Although improvidence of the plea upon appellate review was

not an express basis for cancellation in the pretrial agreement,

this Court’s decision had the same effect as if the military


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United States v. Von Bergen, No. 03-0629/AF

judge had not accepted Appellant’s plea, which was an express

basis for cancellation.   As a matter of law, the plea could not

have been accepted by the military judge.    As the military judge

could not have accepted an improvident plea, the pretrial

agreement was subject to the first cancellation term.

     Thus, a condition precedent to the Article 32, UCMJ,

waiver, acceptance of the pleas, never occurred.    Therefore, the

waiver was not in effect at the rehearing.    This point is

reinforced by the military judge’s explanation to Appellant at

the 2001 court-martial that Appellant would be afforded an

Article 32, UCMJ, investigation should the military judge not

accept Appellant’s pleas for any reason.    Moreover, during the

same colloquy, the parties agreed that the Article 32, UCMJ,

waiver would not apply if Appellant’s pleas were “determined to

be improvident.”

     Even if the pretrial agreement were still in effect -- and

we are convinced that it was not -- when this Court set aside

Appellant’s plea and the amended specification was referred for

rehearing, Appellant’s subsequent withdrawal from the agreement

meant that the court-martial process should have begun anew.

R.C.M. 810(a)(1) provides that:    “[rehearing] procedure shall be

the same as in an original trial.”     Therefore, “the effect of

ordering a rehearing is . . . to place the United States and the

accused in the same position as they were at the beginning of


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United States v. Von Bergen, No. 03-0629/AF

the original trial.”   United States v. Staten, 21 C.M.A. 493,

495, 45 C.M.R. 267, 269 (1972).    As one of the first steps in a

general court-martial proceeding is an Article 32, UCMJ,

investigation, unless the accused waives it, one of the first

steps at the rehearing in this general court-martial proceeding

should likewise have been an Article 32, UCMJ, investigation if

not previously afforded to the accused.    See Article 32, UCMJ;

see generally United States v. Beatty, 25 M.J. 311, 315 (C.M.A.

1987) (asserting that “there is no necessity for conducting a

new Article 32, UCMJ, 10 U.S.C. § 832, investigation”) (emphasis

added).   Accordingly, when this Court reversed and remanded this

case, Appellant should have been afforded an Article 32, UCMJ,

investigation prior to the rehearing, unless Appellant waived it

at that time.

     As a result, the military judge erred by relying on an

Article 32, UCMJ, waiver that was no longer effective at the

rehearing.   Because Appellant did not knowingly and voluntarily

waive his Article 32, UCMJ, rights at the rehearing, we do not

need to inquire further into whether Appellant has shown good

cause for relief.   See R.C.M. 405(k).    It is enough that

Appellant’s Article 32, UCMJ, waiver was conditioned on a

pretrial agreement that was not in effect at the rehearing, or,

in the alternative, that referring the amended specification for




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United States v. Von Bergen, No. 03-0629/AF

rehearing started the court-martial process anew.   However, our

analysis does not stop with a finding of error.

     Prejudice

     Article 32, UCMJ, errors are tested on direct review for

prejudice as defined by Article 59(a), UCMJ, 10 U.S.C. § 859(a)

(2000).   United States v. Davis, 64 M.J. 445, 449 (C.A.A.F.

2007); see also United States v. Mickel, 9 C.M.A. 324, 327, 26

C.M.R. 104, 107 (1958) (“Once the case comes to trial on the

merits, the pretrial proceedings are superseded by the

procedures at the trial; the rights accorded to the accused in

the pretrial stage merge into his rights at trial.”).

     Appellant argues that he was prejudiced by the absence of

an Article 32, UCMJ, hearing due to the passage of time between

his first and second courts-martial, during which time witness

memories may have faded and original documentary evidence was

destroyed.   Appellant also argues that an Article 32, UCMJ,

investigation would have afforded him the opportunity to prepare

his defense to the changed specification and test the strength

of the Government’s case based on the evidence available at the

rehearing.

     We disagree.

     First, while the specification was indeed amended to change

the underlying offense from a violation of the CPPA to a

violation of Article 134(1) and (2), UCMJ, Appellant was on fair


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United States v. Von Bergen, No. 03-0629/AF

notice regarding how the specification would be amended after

remand from this Court based on this Court’s precedents in

Martinelli and other cases that have addressed the CPPA.     See,

e.g., United States v. O’Connor, 58 M.J. 450, 454-55 (C.A.A.F.

2003); United States v. Mason, 60 M.J. 15, 18, 20 (C.A.A.F.

2004).   Second, the new specification addressed the same conduct

as the original specification.   Third, the Government relied on

much of the same evidence as at Appellant’s original court-

martial, such as Appellant’s statement and testimony of

witnesses who had statements or stipulations of expected

testimony admitted as evidence at the 2001 court-martial.

Finally, the witnesses testified about the destroyed evidence,

including what the images portrayed, how they were found, and

how they were traced to Appellant.    In a different context, the

destruction of the original evidence and passage of time might

well be prejudicial; however, under these circumstances,

Appellant was not prejudiced by the military judge’s error in

not ordering an Article 32, UCMJ, investigation.

                             DECISION

     Accordingly, subject to the foregoing discussion, the

decision of the United States Air Force Court of Criminal

Appeals is affirmed.




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United States v. Von Bergen, No. 03-0629/AF


              RYAN, J. (concurring in the judgment):

              I concur in the judgment because I agree with the

majority’s conclusion that the pretrial agreement (PTA) in this

case did not waive Appellant’s right to a pretrial

investigation, pursuant to Article 32, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 832 (2000), on the amended and

rereferred charge.                                        I also agree that while Appellant was

entitled to an Article 32, UCMJ, investigation on the amended

charge, he was not prejudiced by the lack of such an

investigation.                                 United States v. Von Bergen, __ M.J. __ (13-14)

(C.A.A.F. 2009).

              The granted issue can be resolved on a simple basis:

Whether or not Appellant’s original waiver via the PTA in this

case was canceled by our order of the rehearing, Von Bergen, __

M.J. at __ (10-11), and whether or not the rehearing itself

permitted Appellant to withdraw from the PTA,1 id.  at __ (11),


                                                            
1
  Although the majority opinion finds that the PTA was not in
effect at the rehearing, a portion of the opinion assumes,
arguendo, that the PTA did remain in effect. Von Bergen, __
M.J. at __ (9, 11-12). Even so, the majority holds that
Appellant subsequently withdrew from the PTA and was therefore
entitled to an Article 32, UCMJ, investigation. Despite the
Government’s argument that Appellant’s right to withdraw from
the PTA no longer existed, the majority posits, without
explanation, a connection between the order of rehearing and
Appellant’s right to withdraw. Brief of Appellee at 7, United
States v. Von Bergen, No. 03-0629 (C.A.A.F. Sept. 5, 2008). We
have previously stated that the effect of a rehearing is
generally to “place the United States and the accused in the

 
United States v. Von Bergen, No. 03-0629/AF


it is certain that the agreement between Appellant and the

Government to waive Appellant’s right to an Article 32, UCMJ,

investigation referred only to the original charges and

specifications, and not to the new charge and specification

referred at the rehearing.                                                       Offer for Pretrial Agreement, at 1,

United States v. Von Bergen, No. FR358-76-6491 (USAF Trial

Judiciary Sept. 10, 2001) (“I have read the charges and

specifications alleged against me and they have been explained

to me . . . .                              Understanding the above and under the conditions

set forth below, . . . I offer . . . to waive a hearing under

Article 32, UCMJ.”).

              The specification at issue in this appeal was originally

charged and pleaded to as a violation of clause 3 of Article

134, UCMJ.                         A rehearing was ordered because that specification


                                                                                                                                                                                               
                                                                                                                                                                                               

same position as they were at the beginning of the original
trial.” United States v. Staten, 21 C.M.A. 493, 495, 45 C.M.R.
267, 269 (1972). But we have also acknowledged that rehearings
“have long been treated as a continuation of the first trial.”
Id. Rehearings are ordered for many different reasons, and our
prior treatment of this issue suggests that some agreements made
before or during the original trial may continue in effect
during a subsequent rehearing, while others may not. Id.
(“There are exceptions to the rule” that a “rehearing of the
case generally leaves the proceedings in the same position as
before trial.”) (quoting United States v. Cox, 12 C.M.A. 168,
169, 30 C.M.R. 168, 169 (1961)) (quotation marks omitted). The
issue granted did not cover this tension and the parties’
briefing did not seek to resolve it; I do not fault the majority
for declining to address the tension between these cases. But
it seems an imprudent path to proceed to decide the case, albeit
on an alternate ground, as if the tension does not exist.

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United States v. Von Bergen, No. 03-0629/AF


of the charge relied on extraterritorial application of the

Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. §

2252A (2000).   United States v. Von Bergen, 62 M.J. 370

(C.A.A.F. 2005) (summary disposition); United States v.

Martinelli, 62 M.J. 52, 62 (C.A.A.F. 2005) (holding that the

CPPA does not have exterritorial application).   On rehearing,

the convening authority amended the original specification from

alleging a violation of clause 3 of Article 134, UCMJ, to

alleging a violation of clauses 1 or 2 of Article 134, UCMJ, and

referred this new specification to a general court-martial.

     Absent specific pleadings and proof, clauses 1 and 2 of

Article 134, UCMJ, are not lesser included offenses of clause 3,

Article 134, UCMJ.   See, e.g., United States v. Medina, 66 M.J.

21, 26 (C.A.A.F. 2008) (holding that clauses 1 and 2 are not

necessarily lesser included offenses of clause 3).   Appellant’s

waiver of an Article 32, UCMJ, pretrial investigation pursuant

to the PTA could not constitute a waiver for an offense the PTA

did not address.   Appellant was entitled to a new Article 32,

UCMJ, pretrial investigation prior to referral of the new

specification to trial by general court-martial, and it was

error for the military judge to deny his request.    See R.C.M.

405(a) (“[N]o charge or specification may be referred to a

general court-martial for trial until a thorough and impartial

investigation . . . has been made . . . .”).

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United States v. Von Bergen, No. 03-0629/AF


        I also take exception to the majority’s statement that our

prior remand of this case was partially due to the fact that the

original providence inquiry did not reveal sufficient evidence

to affirm a conviction under clauses 1 or 2 of Article 134,

UCMJ.    Von Bergen, __ M.J. at __ (9-10).   I continue to doubt

that affirming a conviction to a failed charge and specification

of clause 3, Article 134, UCMJ, under clauses 1 or 2 of Article

134, UCMJ, as a lesser included offense based on the contents of

the providency inquiry alone passes constitutional muster.    See

Schmuck v. United States, 489 U.S. 705, 718 (1989) (allowing

lesser included offense instructions “only in those cases where

the indictment contains the elements of both offenses and

thereby gives notice to the defendant that he may be convicted

on either charge”); Medina, 66 M.J. at 26 (emphasizing an

accused’s “right to know to what offense and under what legal

theory he or she is pleading guilty”); Jones v. United States,

526 U.S. 227, 232 (1999) (“Much turns on the determination that

a fact is an element of an offense . . . given that elements

must be charged in the indictment, submitted to a jury, and

proven by the Government beyond a reasonable doubt.”).

        I concur in the judgment.




                                    4
