                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                      Wesley B. NEGRON, Corporal
                     U.S. Marine Corps, Appellant

                               No. 03-0651

                        Crim. App. No. 200100844


       United States Court of Appeals for the Armed Forces

                         Argued April 21, 2004

                         Decided July 29, 2004

    GIERKE, J., delivered the opinion of the Court, in which
     CRAWFORD, C.J., EFFRON, BAKER and ERDMANN, JJ., joined.

                                  Counsel

For Appellant: Commander Michael J. Wentworth, JAGC, USNR
(argued); Lieutenant Colonel Eric B. Stone, USMC (on brief);
Lieutenant Commander E. J. McDonald, JAGC, USN.

For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR
(argued); Commander R. P. Taishoff, JAGC, USN, (on brief);
Lieutenant Frank L. Gatto, JAGC, USNR.

Military Judge:    T. L. Miller




  This opinion is subject to editorial correction before final publication.
United States v. Negron, No. 03-0651/MC

     Judge GIERKE delivered the opinion of the Court.

     Our review of this case relates only to Appellant’s guilty

plea to depositing obscene matter in the mail.   In the

providency inquiry, the military judge erroneously gave the

definition of “obscene” relating to indecent acts to define the

“obscene” language that renders this offense punishable.    The

principal issue before this Court is whether the military

judge’s use of this erroneous definition of “obscene” and his

questioning of the Appellant using primarily leading questions

about this offense were deficient, thereby rendering Appellant’s

plea improvident.

           A military judge sitting as a general court-martial

convicted Appellant, pursuant to his pleas, of one specification

of wrongful appropriation, one specification of making and

uttering a worthless check, and one specification of the offense

at issue in this appeal, in violation of Articles 121 and 134,

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.

§§ 921 and 934 (2000), respectively.   The adjudged sentence

provides for a bad-conduct discharge, reduction to the lowest

enlisted grade, total forfeitures, and confinement for 18

months.   The convening authority approved the sentence, but

suspended confinement in excess of 12 months in accordance with

the pretrial agreement.




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United States v. Negron, No. 03-0651/MC

     In its original decision, the Court of Criminal Appeals set

aside the conviction of depositing obscene matter in the mail,

reassessed and modified the sentence.    United States v. Negron,

NMCM No. 200100844, slip op. (N-M. Ct. Crim. App. March 14,

2002).    On reconsideration, en banc, the court vacated the

original decision and affirmed the findings and sentence. United

States v. Negron, 58 M.J. 834 (N-M. Ct. Crim. App. 2003).      But

the lower court was divided.   In addition to the lead opinion,

there were three separate opinions reflecting various concurring

or dissenting views of several other judges.

     This Court granted review of the following issues:

     I.     WHETHER THE LOWER COURT ERRED IN AFFIRMING
            APPELLANT’S PLEA OF GUILTY TO DEPOSITING OBSCENE
            MATTERS IN THE MAIL WHERE THE RECORD DISCLOSES A
            SUBSTANTIAL BASIS FOR QUESTIONING THAT PLEA.

     II.    WHETHER THE LOWER COURT ERRED IN HOLDING THAT
            APPELLANT’S PLEA OF GUILTY TO DEPOSITING OBSCENE
            MATTERS IN THE MAIL WOULD SUSTAIN A CONVICTION FOR
            SERVICE DISCREDITING CONDUCT UNDER ARTICLE 134(2),
            UCMJ.

     For the reasons set forth below we reverse the decision of

the Court of Criminal Appeals.    We hold Appellant’s guilty plea

improvident to the offense of depositing obscene matter in the

mail and set aside Appellant’s conviction of this offense.

                                 FACTS

     Working overseas as a postal clerk, Appellant wrongfully

took $1,540.00 cash from the postal safe and used it for

personal spending.   On another occasion, Appellant wrote a check


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United States v. Negron, No. 03-0651/MC

for $500.00 on his account at the Marine Federal Credit Union

(Credit Union), but later withdrew funds from that account

thereby causing the prior check to be dishonored when it was

presented for payment.

       In an attempt to obtain funds to replenish his checking

account, Appellant applied for a loan from the same Credit

Union, but his request was denied.       After reading the letter

informing him that his loan application was rejected, Appellant

immediately wrote a letter to the Credit Union and placed it in

the United States mail system.       Appellant’s letter contained

this language:

            Oh, yeah, by the way y’all can kiss my ass too!!
       Worthless bastards! I hope y’all rot in hell you
       scumbags. Maybe when I get back to the states, I’ll
       walk in your bank and apply for a blowjob, a nice dick
       sucking, I bet y’all are good at that, right?

       Facing   several   charges   arising   from     his    offenses,

Appellant negotiated a pretrial agreement.           Consistent with

this    agreement,   Appellant      pleaded   guilty     to    several

offenses including the offense of depositing obscene matter

in the mail.     For purposes of this appeal, we focus on the

providency inquiry relating to this single offense.

       Initially, the judge advised Appellant of the elements

of this offense including: that Appellant deposited in the

United States mail a letter with the previously identified

language, that he did this wrongfully and knowingly, that



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United States v. Negron, No. 03-0651/MC

the matter deposited was obscene, and that his conduct was

to the prejudice of good order and discipline in the armed

forces or was of such a nature to bring discredit upon the

armed forces.     As to the definition of obscene, the

military judge stated:

        The term "obscene" as referred to in the specification
        refers to that form of immorality relating to sexual
        impurity with (sic) is not only grossly vulgar and
        repugnant to common society, but which tends to excite lust
        and deprave the morals with respect to sexual relations.

        The matter must violate community standards of decency or
        obscenity and must go beyond customary limits of
        expression. The [community’s] standards of decency or
        obscenity are to be judged according to the average person
        in the military community as a whole rather than the most
        prudish or [tolerant].

        Proof that you believe the matter to be obscene is not
        required. It is sufficient, however, if you knew the
        contents of the matter at the time of the depositing.

        Later during the providency inquiry, the judge engaged

Appellant in a dialogue as to the factual basis for the guilty

plea.    The relevant discussion of this offense follows:

        MJ: Let's look at this last Additional Charge, supporting
        specification of Additional Charge II. On 10 April 2000 in
        Okinawa, Japan, did you deposit or cause to be deposited a
        letter in the United States mail?

        ACC: Yes, sir.

        MJ:   Now, who wrote that letter?




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United States v. Negron, No. 03-0651/MC


     ACC: I did, sir.

     . . . .
     MJ: Now, did you deposit the letter for mailing in the
     United States mails and for mailing and delivery to the
     Marine Corps Federal Credit Union?

     ACC: Yes, sir.

     MJ: Did the letter you deposited on 10 April, year 2000,
     contain language to this effect: "Oh yeah, by the way y’all
     can kiss my ass too!! Worthless bastards! I hope y’all
     rot in hell, you scumbags. Maybe when I get back to the
     states, I'll walk in your bank and apply for a blowjob. A
     nice dick sucking. I bet y'all are good at that; right,"
     or words to that effect?

     ACC: Yes, sir.

     MJ:   Now, did you write that language on the letter?

     ACC: Yes, sir.
     MJ: Did you know the letter contained that language when
     you deposited it in the mail?

     ACC: Yes, sir.
     MJ: Did anyone force you to write that letter or deposit
     it in the mail?

     ACC: No, sir.
     MJ: Was the writing and depositing -- was [writing] and
     depositing that letter in the mail the result of a
     freely-made decision on your part?

     ACC: Yes, sir.

     MJ: Do you believe you knowingly and wrongfully
     deposited that letter in the mail?

     ACC: [No response].




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United States v. Negron, No. 03-0651/MC

     MJ: I'll repeat that question for you. Do you believe
     that you knowingly and wrongfully deposited that letter in
     the mail?

     ACC: Yes, sir.
     MJ: Now, was the letter deposited on 10 April to the
     Marine Corps Federal Credit Union?

     ACC: Yes, sir.

     MJ: Did you write that letter in response to a problem you
     were having with the Marine Corps Federal Credit Union?

     ACC: Yes, sir.

     MJ:   What was the problem?

     ACC: Well, sir, I was trying to solve this problem, sir, by
     getting a loan from them, and I felt like that was my last
     way out of the situation that I was in, sir. And when they
     denied it, that's when I -- that frustrated me, sir, and
     that's what caused me the write the letter, sir.

     . . . .

     MJ:   Did you know anyone there that you sent it to?

     ACC: No, sir.    I didn't attention it to anybody.

     MJ:   Do you feel that this was a joke?

     ACC: No, sir.

     MJ:   Did you feel that this was funny or obscene?

     ACC: No, sir.    It was obscene, sir, but it wasn't funny.

     MJ: Do you think that this letter would probably offend
     the people there at the Marine Corps Federal Credit Union?

     ACC: Yes, sir.

     MJ: Now, I -- these words that I'm going to use. Corporal
     Negron, are not intended to embarrass you. They are just -
     - I have to make clear in my mind that you are, in fact,
     guilty of this offense. Now, the words, "kiss my ass"



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United States v. Negron, No. 03-0651/MC

     might mean that you wanted someone at the Marine Corps
     Federal Credit Union to kiss your rear end. Is that what
     you intended to convey to the reader?

     ACC: No, sir.   I was just angry and I intended to offend
     them and get back at them for denying me.

     MJ: Okay. Did you intend to convey to them the message
     though that somebody there at the Marine Corps Federal
     Credit Union could kiss your rear end?

     ACC: Yes, sir.
     MJ: Now, a "bastard" might define someone of illegitimate
     birth. Were you describing someone of illegitimate birth
     in your letter?

     ACC: No, sir.

     MJ:   What did you mean by the word "bastard"?     You might
     want to discuss that with Major Woodworth.

     The accused conferred, with his defense counsel.

     ACC: I wasn't paying so much attention to the technical
     definition of what it was, sir, I just threw the word out
     to offend them.

     MJ: All right. Well, a "bastard" might be somebody of
     illegitimate birth or it might mean somebody that is just a
     mean or despicable person.

     ACC: Yes, sir.

     MJ: Were you just trying to describe somebody that was a
     mean or despicable person?

     ACC: Yes, sir.

     MJ: All right. Now, a “blowjob” and “dick sucking" as
     referred to in the language are slang terms for sodomy.   Do
     you understand that?

     ACC: Yes, sir.



                                8
United States v. Negron, No. 03-0651/MC

     MJ: Now, "sodomy" means for a person to take into that
     person's mouth the sexual organ of another person. Now, is
     that the message that you were trying to convey?

     ACC: Yes, sir.

     MJ: Okay. So was the message that you were trying to
     convey to the Marine Corps Federal Credit Union that they
     were mean people who could kiss your rear end and commit
     sodomy on you?

     ACC: Yes, sir.
     MJ: Do you believe and admit that the depositing of the
     letter referred to in the specification was done
     wrongfully and knowingly?

     ACC: Yes, sir.
     MJ: Now, let me define for you again the term “obscene”.
     [The judge repeats the definition he stated earlier.]

     . . . .

     Do you believe and admit, Corporal Negron, that the
     language you used in this letter was obscene?

     ACC: Yes, sir.

     MJ: Do you believe and admit that this language used in
     your letter was calculated to corrupt morals or excite
     lustful thoughts?

     ACC: Yes, sir.

     MJ: Now, on 10 April when you deposited that letter, was
     your conduct substantially prejudicial to the good order
     and discipline in the armed forces?

     ACC: Yes, sir.

     MJ: Do you believe also that your conduct was of a nature
     to bring discredit upon the armed forces?

     ACC: Yes, sir.

     MJ: Do you believe that members of the Marine Corps
     Federal Credit Union who read your letter would look down


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United States v. Negron, No. 03-0651/MC

     on the United States Marine Corps for writing this grossly
     vulgar and obscene matter?

     ACC: Yes, sir.
     MJ: Do you believe they were grossly offended by your
     letters?

     ACC: Yes, sir.
     Based on his questions and Appellant’s responses, the

military judge found Appellant’s guilty plea to this offense

provident, with a factual basis, and accepted it as well as

Appellant’s guilty pleas to other offenses.

     On appeal at the lower court and before this Court,

Appellant argues that the language in the letter he sent to the

Credit Union was not obscene.   Appellant claims that he was

angry that his loan application was denied and that the letter

“was not calculated to corrupt morals or excite libidinous

thoughts.”   Appellant also claims that his answers throughout

the providency inquiry were in response to leading questions

posed by the military judge and failed to establish a factual

basis to support the guilty plea to this offense.

     The Government argues, in general, that Appellant’s plea is

provident because Appellant admitted facts to establish every

element of the offense and, in particular, that Appellant’s

responses establish his language was obscene as the purpose of

Appellant’s letter to the Credit Union was to offend its

employees “by means of a graphic description of a deviant sexual




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United States v. Negron, No. 03-0651/MC

act.”    Before this Court, the Government acknowledges the test

of obscene language stated by this Court in United States v.

French, 31 M.J. 57 (C.M.A. 1990), and applied in United States

v. Brinson, 49 M.J. 360 (C.A.A.F. 1998).     However, the

Government claims that these cases do not present the complete

test for obscene and indecent language. And the Government joins

the lower court in requesting this court to reevaluate Brinson

and to overrule its definition of “obscene” as it is

inconsistent with the definition stated by the President in

Manual for Courts-Martial, United States (2002 ed.) [hereinafter

MCM], Part IV, para. 89.c.

        In its original decision, a divided lower court found that

Appellant’s plea was improvident because the language used in

the letter was not “calculated to corrupt morals or excite

libidinous thoughts” as required by French and Brinson.     Almost

16 months later a divided en banc court vacated its earlier

decision.    Six of the judges affirmed Appellant’s conviction for

depositing obscene matter in the mail, two of the judges voted

to affirm a lesser-included offense of service discrediting

conduct under Article 134(2), UCMJ, and one judge would neither

affirm the conviction for depositing obscene matter in the mail

nor the lesser-included offense.




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United States v. Negron, No. 03-0651/MC

                                  DISCUSSION

        Depositing obscene matter in the mail is not specifically

enumerated in the Code as a criminal offense, but it is

punishable under Article 134, UCMJ; See MCM, Part IV, para.

94.b.    This provision of the MCM states that the elements for

this offense are:

             (1)   That the accused deposited or caused to be
                   deposited in the mails certain matter for mailing
                   and delivery;
             (2)   That the act was done wrongfully and knowingly;
             (3)   That the matter was obscene; and
             (4)   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.

        From this provision and its explanation, it is clear that

the focus of this offense is on “obscene” words.     The

explanation states:     “Whether something is obscene is a question

of fact.    ‘Obscene’ is synonymous with ‘indecent’ as the latter

is defined in paragraph 89.c.     The matter must violate community

standards of decency or obscenity and must go beyond customary

limits of expression.”

        Paragraph 89.b of Part IV of the MCM states the elements

for the charge of orally or in writing communicating to another

person indecent language.     Because its definition of “indecent”

is synonymous with “obscene” in paragraph 94.c, it is this

precise language that is the focus of our attention.       Paragraph

89.c states:



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United States v. Negron, No. 03-0651/MC

                 “Indecent” language is that which is grossly
            offensive to modesty, decency, or propriety, or
            shocks the moral sense because of its vulgar,
            filthy, or disgusting nature, or its tendency to
            incite lustful thought. Language is indecent if
            it tends reasonably to corrupt morals or incite
            libidinous thoughts. The language must violate
            community standards.

       Addressing the scope of this provision in Brinson, this

Court stated that “[w]hen the Government makes speech a crime,

the judges on appeal must use an exacting ruler.”    49 M.J. at

361.   This Court also embraced the narrow French test to

determine if language is indecent, that is, “whether the

particular language is calculated to corrupt the morals or

excite libidinous thoughts.”    Id. at 364 (quoting French, 31

M.J. at 60).    That opinion further explained that calculated

means “intended” or “planned.”    Id.   Finally, the Court

reaffirmed that language must be evaluated in the “precise

circumstances under which the charged language was

communicated.”   Id.

       In Brinson, this Court applied this test to circumstances

where Appellant had used gross, vulgar, and profane language in

an outrageous reaction to police officers performing their

legitimate duties.     This Court found that the evidence did not

support a conviction of communicating indecent language because

the language Appellant used “was clearly calculated or intended

to express his rage, not any sexual desire or moral

dissolution.”    Id.


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United States v. Negron, No. 03-0651/MC

      There was a dissent in Brinson pointing out that MCM, Part

IV, paragraph 89.c, “provides for at least two definitions of

‘indecent language,’ either of which can be the basis for a

conviction.”   Brinson, 49 M.J. at 368 (Crawford, J., joined by

Gierke, J., dissenting in part and concurring in the result).

The dissent stated the second definition of ‘indecent language’

found in paragraph 89.c    “provides that indecent language

includes language that is ‘grossly offensive to modesty,

decency, or propriety, or shocks the moral sense, because of its

vulgar, filthy, or disgusting nature, or its tendency to incite

lustful thought.’”   Id.   Accordingly, the dissent would have

found that Appellant’s language in Brinson would fit within this

second definition of “indecent language.”

      Notwithstanding the disagreement in Brinson, the majority

view stated the law defining obscene matter at the time of

Appellant’s court-marital.   The clear and unequivocal holding of

Brinson was that only language “calculated to corrupt morals or

excite libidinous thoughts” was obscene.    See French, 31 M.J. at

60.

      As Appellant proferred a guilty plea, the military judge

had the duty to apply this precedent, that is, to accurately

inform Appellant of the nature of his offense and elicit from

him a factual basis to support his plea.    See United States v.

Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). An essential aspect



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United States v. Negron, No. 03-0651/MC

of informing Appellant of the nature of the offense is a correct

definition of legal concepts.   The judge’s failure to do so may

render the plea improvident.    See United States v. O’Connor, 58

M.J. 450, 453 (C.A.A.F. 2003)(holding plea improvident due to

erroneous definition of child pornography); United States v.

Pretlow, 13 M.J. 85, 88-89 (C.M.A. 1982)(holding plea

improvident where a military judge failed to define the

substantive elements of conspiracy to commit robbery, a complex

offense).

     But such an error in advising an accused does not always

render a guilty plea improvident.     Where the record contains

“factual circumstances” that “objectively support” the guilty

plea to a more narrowly construed statute or legal principle,

the guilty plea may be accepted.      See United States v. James, 55

M.J. 297, 300 (C.A.A.F. 2001); United States v. Shearer, 44 M.J.

330, 334 (C.A.A.F. 1996).   We have stated that in evaluating the

providency of a plea, the entire record should be considered.

See United States v. Jordan, 57 M.J. 236, 238-39 (C.A.A.F.

2002).   To prevail, Appellant has the burden to demonstrate a

“substantial basis in law and fact for questioning the guilty

plea.”   United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).

     In the present case, the providency inquiry was deficient

because the military judge used an erroneous definition of

“obscene.”   The judge’s definition of obscene is in large part



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United States v. Negron, No. 03-0651/MC

taken from the definition of “indecent” in the Article 134

offense of indecent actions with another.   The explanation of

this offense states, “‘Indecent’ signifies that form of

immorality relating to sexual impurity which is not only grossly

vulgar, obscene, and repugnant to common propriety, but tends to

excite lust and deprave the morals with respect to sexual

relations.”   MCM, Part IV, para. 90.c.   The military judge

possibly attempted to blend the language from this paragraph

with the language from MCM, Part IV, para. 94.c as he added the

requirement that the language “must violate community

standards.”   Regarding this blended definition of obscene

language, six of the judges agreed in noting the following:

     In providing this definition, the military judge gave the
     definition of “obscene” contained in the then current
     Military Judges’ Bench book for use with the offense of
     depositing obscene matter in the mail. . . . [T]he shadow
     of this pronouncement of what is “obscene” adequately
     covers both the definition provided in MCM, Part IV, ¶89.c
     and the test for obscenity adopted by our superior Court in
     French and reaffirmed and expanded somewhat in Brinson.

58 M.J. at 840-41 (footnotes omitted).

     We reject the lower court’s reasoning that the “shadow” of

the definition of indecent acts “adequately covers” the

definition of what is “obscene” language.   Where speech is an

alleged crime, judges must evaluate the speech using the

definition provided by the President and not a “shadow.”     See

Brinson, 49 M.J. at 261.   Many of the same root words appear in

both the definition of “indecent language” and “indecent acts,”


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United States v. Negron, No. 03-0651/MC

such as, “grossly,” “propriety,” “vulgar,” and “lust.”    But

sharing common words does not render the definitions fungible.

        The President elected to punish under Article 134, UCMJ,

the separate offenses of indecent acts and indecent language.

The President also used different definitions of “indecent” as

to each offense.    Compare MCM, Part IV, para. 89.c with para.

90.c.    We will use the definition the President has provided for

each offense and scrutinize any attempt to substitute one for

the other.

        The linchpin of this case is the judge’s erroneous use of

the definition of “indecent acts” to evaluate Appellant’s

alleged “indecent language.”    In light of this fundamental

definitional error, had the military judge conducted an

otherwise perfect providency colloquy with Appellant,

Appellant’s plea to the charged offense would still have been

improvident.    Appellant simply could not have providently

pleaded guilty to a charged offense of placing obscene material

in the mail when the military judge used the substantively

different definition of indecent found in MCM, Part IV, para.

90.c.

        Moreover, this definitional error by the military judge

tainted the entire providency inquiry pertaining to the charge

at issue.    It induced him to focus the providency inquiry on the

indecent nature of the acts that were the subject of Appellant’s



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United States v. Negron, No. 03-0651/MC

language rather than Appellant’s “planned” and “intended” result

from use of his language.   Id. at 364.    Because of this error,

the military judge failed to establish a factual basis for

Appellant’s guilty plea.    Often unable to get narrative

responses from Appellant that would establish the facts

supporting Appellant’s guilty plea, the military judge almost

exclusively resorted to leading questions and elicited merely a

“yes” or “no” response from the Appellant.

     In the providency inquiry Appellant stated that he wrote

the letter because he was “frustrated” and “angry.”    Appellant

repeatedly stated that his intention was to “offend” the reader

of his letter. But Appellant never stated that he planned or

intended to engage in or to solicit sexual acts.    Similarly,

Appellant never stated that he intended to excite libidinous

thoughts in the reader of his letter.     To the contrary, when the

military judge asked what he intended in using the words “kiss

my ass,” Appellant denied that he wanted someone to actually

“kiss [his] rear end.”   Appellant also admitted using slang

words for sodomy, but again he never stated that he sought to

engage in these sexual acts or intended to invite the reader of

his letter to actually perform them.    Appellant explained his

choice of words by informing the judge, “I wasn't paying so much

attention to the technical definition of what it was, sir, I

just threw the word out to offend them.”    These statements by



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United States v. Negron, No. 03-0651/MC

Appellant belie any assertion that Appellant “planned” or

“intended” his language to incite lustful or libidinous thought.

     In response to one leading question, Appellant merely

stated, “Yes” when the military judge asked him if he was trying

to convey the message that “they [unidentified Credit Union

employees who denied his loan] were mean people who could kiss

your rear end and commit sodomy on you[.]”   Appellant also

merely answered “Yes” to the leading question whether his

language “was calculated to corrupt morals or excite lustful

thoughts[.]”   We view the military judge’s inquiry as

establishing only that Appellant used certain words that related

to sexual acts.   The military judge failed to have Appellant

present any facts that explain how the Appellant’s language “was

calculated to corrupt morals or excite lustful thoughts.”     Here,

just as in Brinson, the facts establish only that an angry and

frustrated servicemember resorted to using improper language to

express his feelings.   Under the narrow definition of indecent

language applied in Brinson, Appellant’s language was not

obscene.

     We have repeatedly advised against and cautioned judges

regarding the use of conclusions and leading questions that

merely extract from the Appellant “yes” and “no” responses

during the providency inquiry.   See Jordan, 57 M.J. at 238;

United States v. Sweet, 42 M.J. 183, 185 (C.M.A. 1995); United



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United States v. Negron, No. 03-0651/MC

States v. Lee, 16 M.J. 278, 282 (C.M.A. 1983).    We have stated,

“[I]t is especially important that the accused speak freely so

that a factual basis will be clearly established in the record.”

United States v. Holt, 27 M.J. 57, 58 (C.M.A. 1988).      But here

the military judge did not follow this direction.   The

questioning method of the military judge in the present case led

the lower court to comment that Appellant’s answers “consist

primarily of: ‘Yes, sir[.]’”   58 M.J. at 839.   We agree but come

to a different conclusion as to the impact of this form of

leading questioning.   We find this providency inquiry fatally

deficient as a classic example of questioning that extracts

little relevant factual information from an accused to establish

his offense and to support the guilty plea.   We find little

benefit in establishing a factual record where as here Appellant

merely is "parroting" responses to leading questions asked by

the military judge.    Here we find Appellant’s guilty plea to the

Article 134 offense of depositing obscene mail matter

improvident.

     Our consideration of this case does not terminate here.     We

return to Brinson to ensure that justice is done both in this

case and in the future.

     Although this Court in Brinson found that “coarse language”

and the “scurrilous public denunciation” of a law enforcement

officer was not indecent language, we also observed that the



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United States v. Negron, No. 03-0651/MC

charged offense “necessarily includes an allegation of a simple

military disorder.”    49 M.J. at 364.    So the Court concluded

that the evidence was sufficient to establish the offense of

disorderly conduct.    Id. at 365.     Consistent with this

reasoning, we must consider if Appellant’s conduct of depositing

this particular matter also “necessarily includes an allegation

of a simple military disorder.”      See United States v. Felty, 12

M.J. 438, 442 (C.M.A. 1982); United States v. Epps, 25 M.J. 319

(C.M.A. 1987).    The elements of a simple military disorder are

that the accused was disorderly at some place and 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.”      MCM, Part IV, para.

73.b.

        We eschew the opportunity to resolve the issue of whether

there was disorderly conduct or any other lesser included

offense for four reasons.    First, we observe that state courts

are divided on the issue of whether the mailing of a vile,

profane, or offensive letter is disorderly conduct.      Cf. State

v. Schwebke, 644 N.W.2d 666 (Wis. 2002)(holding that an

anonymous private harassment mailing is punishable under a

disorderly conduct statute) with People v. Ohneth, 89 N.E.2d 433

(Ill. App. Ct. 1949)(concluding that the writing of a vile

letter and mailing it without other evidence of violent,



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United States v. Negron, No. 03-0651/MC

boisterous, turbulent or other act of a public nature was not

disorderly conduct).    Second, the President in the MCM has

explicitly defined the term “disorderly.”     MCM, Part IV, para.

73.c.2.    Whether Appellant’s conduct is “disorderly” under this

definition is an issue that the parties have not addressed

before this court.    Third, the deficiencies in the providency

inquiry previously discussed (including extracting little

relevant factual information and often mere conclusions) give us

pause in affirming any lesser included offense.     Finally, the

normal remedy for finding a plea improvident is to set aside the

finding based upon the improvident plea of guilty and to

authorize a rehearing at which the accused is permitted to plead

anew.    See United States v. Williams, 53 M.J. 293 (C.A.A.F.

2000); United States v. Marsh, 15 M.J. 252 (C.M.A. 1983).      This

remedy restores the appellant to his position before proferring

the guilty plea and permits the Government the opportunity to

prove the charged offense or any lesser included offense.      In

light of all these circumstances, we conclude that authorizing a

rehearing is appropriate here.

        Issue II in this case questions whether Appellant’s conduct

was service discrediting conduct.      In light of our disposition

of this case, we need not address this issue.

 One final matter invites further attention.      Because a

rehearing is authorized, it is necessary that we also address



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United States v. Negron, No. 03-0651/MC

the confusion, apparent in this case, perhaps arising from this

Court's decision in Brinson, regarding the definition of

"indecent" applicable to charges of indecent language.     The

President in Part IV of the MCM has provided that the use of

certain expressly defined language is punishable for the

offenses of indecent language and depositing obscene matter in

the mail.   MCM, Part IV, para. 89.c, provides two alternate

definitions of "indecent language."   The use of the disjunctive

in this paragraph makes clear that either definition of indecent

language may be the legal authority for a conviction.    In

addition to criminalizing language that is grossly offensive

because of “its tendency to incite lustful thought,” the

President made punishable indecent language that “is grossly

offensive to modesty, decency, or propriety, or shocks the moral

sense, because of its vulgar, filthy, or disgusting nature.”

Simply stated, paragraph 89.c presents two different definitions

to measure speech that may be a crime, dependent on the context

in which it is spoken.   We adopt and will apply this plain

language of the Manual prospectively to cases tried after the

date of this decision.   See United States v. Moore, 28 M.J. 366,

367 (C.M.A. 1989)(stating new per se rule against Government's

use of peremptory challenges to excuse members of accused's own

race applies prospectively only); United States v. Crowley, 7




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United States v. Negron, No. 03-0651/MC

M.J. 336 (C.M.A. 1979)(applying rule establishing standards for

plea bargain inquiries prospectively).

     To render language punishable for the offenses of indecent

language and depositing obscene matter in the mail, the

President has required that the language and 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.”   MCM, Part IV, paras. 89.b.3 and 94.b.4.   In

part, it is this element of these offenses that filters out from

punishment language that is colloquial vocabulary and may be

routinely used by service members.   As these offenses touch on

First Amendment free speech issues, the Government must always

exercise care in both charging and proving these offenses to

establish that the factual predicate for these offense is within

the ambit of the “narrowly limited classes of [punishable]

speech.”   See Chaplinsky v. New Hampshire, 315 U.S. 568, 571

(1942). See also O’Connor, 58 M.J. at 455.



                                DECISION

           The decision of the United States Navy-Marine Court of

Criminal Appeals as to Additional Charge II and its single

specification is reversed.   The decision as to the remaining

Charges and their specifications is affirmed.   The findings of

guilty to Additional Charge II and its single specification and



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the sentence are set aside.   The record is returned to the Judge

Advocate General of the Navy.   A rehearing is authorized.   If a

rehearing is deemed impracticable, the dismissal of Additional

Charge II and a reassessment as to sentence alone may be

ordered.




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