                       UNITED STATES, Appellee

                                    v.

                       Steven L. JONES, Airman
                      U.S. Air Force, Appellant

                              No. 09-0271

                         Crim. App. No. 36965

       United States Court of Appeals for the Armed Forces

                       Argued November 9, 2009

                        Decided April 19, 2010

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


                                 Counsel

For Appellant: Captain Reggie D. Yager (argued); Major Michael
A. Burnat (on brief); Major Lance J. Wood and Major Shannon A.
Bennett.

For Appellee: Captain Michael T. Rakowsi (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, and
Gerald R. Bruce, Esq. (on brief).


Military Judge:   Gordon R. Hammock


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Jones, No. 09-0271/AF


        Judge RYAN delivered the opinion of the Court.

        In this case, Appellant was charged with rape in violation

of Article 120, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 920 (2006).    The military judge sua sponte instructed

on, and the members convicted Appellant of, an uncharged

violation of Article 134, UCMJ, 10 U.S.C. § 934 (2006) --

indecent acts with another (indecent acts), presented as a

lesser included offense (LIO).    No one disagrees that the

elements of indecent acts and rape are not the same,1 and the MCM

does not list indecent acts as an LIO of rape.    However,

indecent acts is listed in the MCM as an LIO of indecent

assault, MCM, Punitive Articles Applicable to Sexual Assault

Offenses Committed Prior to 1 October 2007 app. 27 at A27-2

(2008 ed.); MCM pt. IV, para. 63.d(2) (2005 ed.), which in turn

is listed as an LIO of rape, MCM, Punitive Articles Applicable

to Sexual Assault Offenses Committed Prior to 1 October 2007

app. 27 at A27-2 (2008 ed.); MCM pt. IV, para. 45.d(1)(c) (2005

ed.).    Further, indecent acts was held to itself be an LIO of

1
  Compare Manual for Courts-Martial, United States pt. IV, para.
90(b) (2005 ed.) (MCM) (listing the elements of indecent acts
as: “(1) That the accused committed a certain wrongful act with
a certain person; (2) That the act was indecent; and (3) 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”), with
MCM pt. IV, para. 45.b(1) (2005 ed.) (listing the elements of
rape as: “(1) That the accused committed an act of sexual
intercourse; and (2) That the act of sexual intercourse was done
by force and without consent”).

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United States v. Jones, No. 09-0271/AF


rape in United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994),

on the grounds that the elements of the two offenses -- while

different -- were related, and that “although indecent acts

requires a service disorder or discrediting circumstances, such

an element is included by implication in Article 120.”   Id. at

137 (citing United States v. Foster, 40 M.J. 140, 143 (C.M.A.

1994), overruled in part by United States v. Miller, 67 M.J.

385, 388-89 (C.A.A.F. 2009)).

       This case, then, presents the question, not expressly

answered in our recent cases, whether an offense is “necessarily

included” in, a subset of, or an LIO of a charged “greater”

offense when it has no elements in common with the elements of

the charged offense but is nonetheless either listed as an LIO

in the MCM or has been held by this Court to be an LIO on some

other ground.    See United States v. McCracken, 67 M.J. 467, 468

n.2 (C.A.A.F. 2009).    We answer this question in the negative

and reverse that portion of the decision of the United States

Air Force Court of Criminal Appeals (CCA).2


2
    We granted the following issue:

       WHETHER APPELLANT’S CONVICTION FOR INDECENT ACTS WITH
       ANOTHER MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ISSUED
       ERRONEOUS AND MISLEADING INSTRUCTIONS SUPPORTING INDECENT
       ACTS AS AN AVAILABLE LESSER-INCLUDED OFFENSE TO THE
       ORIGINAL RAPE CHARGE AND THE RESULTING CONVICTION UNDER
       CHARGE I AND ITS SPECIFICATION AMOUNTED TO A FATAL
       VARIANCE.


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United States v. Jones, No. 09-0271/AF


                              I.   Facts

     While stationed at Incirlik Air Base, Turkey, Appellant

engaged in various activities that resulted in him being charged

with failure to go to his place of duty, rape, forcible sodomy,

purchasing alcohol for minors, and dishonorably failing to

maintain sufficient funds in his checking account, in violation

of Articles 86, 120, 125, and 134, UCMJ, 10 U.S.C. §§ 886, 920,

925, 934 (2006).    When instructing on the rape charge (Charge

I), the military judge also instructed the members on the

offense of indecent acts:   “When you vote, if you find the

accused not guilty of the offense charged, that is, rape, then

you should next consider the lesser included offense of indecent

acts with another in violation of Article 134.”   After listing

the elements of indecent acts, the military judge defined the

term “indecent act” and explained the circumstances under which

an accused could be convicted of the offense.   Before reading

the instructions to the members, the military judge gave the

defense the opportunity to object to this instruction.   The

defense did so, but its objection focused only on whether the

facts of the case were “r[aised] to that level”; defense counsel

explicitly agreed that indecent acts “[a]s a general concept”

could be an LIO of rape.    The military judge never formally

ruled on the objection, but he did ultimately give the indecent

acts instruction.   After the military judge read the


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United States v. Jones, No. 09-0271/AF


instructions to the members, he asked both parties whether they

objected to the instructions given or requested any additional

instructions.   Both parties responded in the negative.

     The members convicted Appellant of all the charges and

specifications under consideration but one:3   Instead of rape,

Appellant was convicted of indecent acts, as instructed upon by

the military judge as an LIO.   Appellant was sentenced to a

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

allowances for eighteen months, confinement for eighteen months,

and a bad-conduct discharge.    The convening authority reduced

the forfeitures and confinement to fifteen months but otherwise

approved the adjudged sentence.   The CCA affirmed the findings

and sentence.   United States v. Jones, No. ACM 36965, 2008 CCA

LEXIS 484, at *25, 2008 WL 4898569, at *8 (A.F. Ct. Crim. App.

Oct. 22, 2008).

                          II.   Discussion

     The question presented in this case implicates

constitutional due process imperatives of notice, see United

States v. Medina, 66 M.J. 21, 26-27 (C.A.A.F. 2008), the text of

Article 79, UCMJ, 10 U.S.C. § 879 (2006), and the legislative

prerogative to delineate the parameters of federal criminal

offenses, see Liparota v. United States, 471 U.S. 419, 424

3
  One specification of dishonorably failing to maintain
sufficient funds in his checking account was thrown out post-
arraignment pursuant to Rule for Courts-Martial (R.C.M.) 917.

                                  5
United States v. Jones, No. 09-0271/AF


(1985).

     The due process principle of fair notice mandates that “an

accused has a right to know what offense and under what legal

theory” he will be convicted; an LIO meets this notice

requirement if “it is a subset of the greater offense alleged.”

Medina, 66 M.J. at 26-27.    If indeed an LIO is a subset of the

greater charged offense, the constituent parts of the greater

and lesser offenses should be transparent, discernible ex ante,

and extant in every instance.   While people are presumed to know

the law, e.g., Atkins v. Parker, 472 U.S. 115, 130 (1985), they

can hardly be presumed to know that which is a moving target and

dependent on the facts of a particular case.

     And it is for Congress to define criminal offenses and

their constituent parts.    Liparota, 471 U.S. at 424.   One

offense either is or is not an LIO, necessarily included in

another offense.

     While it has been said that “[t]he question of what

constitutes a lesser-included offense [in the military justice

system] . . . is a Hydra,” United States v. Weymouth, 43 M.J.

329, 342 (C.A.A.F. 1995) (Crawford, J., concurring in the

result), rather than embracing a “Hydra” we return to the

elements test, which is eminently straightforward and has the

added appeal of being fully consonant with the Constitution,

precedent of the Supreme Court, and another line of our own


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United States v. Jones, No. 09-0271/AF


cases.   See infra Part II.A.

                                  A.

     “The Constitution requires that an accused be on notice as

to the offense that must be defended against, and that only

lesser included offenses that meet these notice requirements may

be affirmed by an appellate court.”    Miller, 67 M.J. at 388

(citing Jackson v. Virginia, 443 U.S. 307, 314 (1979); In re

Winship, 397 U.S. 358, 364 (1970); Cole v. Arkansas, 333 U.S.

196, 201 (1948)).   The importance of defining LIOs in this

context cannot be understated, as an accused may be convicted of

uncharged LIOs precisely because they are deemed to have notice,

Medina, 66 M.J. at 27, and military judges must instruct the

members on LIOs reasonably raised by the evidence, United States

v. Miergrimado, 66 M.J. 34, 36 (C.A.A.F. 2008).

     The statutory authority for affirming an LIO rather than

the facially charged offense derives from Article 79, UCMJ:     “An

accused may be found guilty of an offense necessarily included

in the offense charged or of an attempt to commit either the

offense charged or an offense necessarily included therein.”

Earlier in this Court’s history, this Court -- relying on its

own precedent and the commentary to Article 79, UCMJ4 --


4
  See MCM ch. XXVIII, para. 158   (1968 ed.) (Discussion to Article
79, UCMJ) (“An included offense   exists when a specification
contains allegations, which are   sufficient, either expressly or
by fair implication, to put the   accused on notice that he must

                                  7
United States v. Jones, No. 09-0271/AF


interpreted the “necessarily included” language in Article 79,

UCMJ, out of the statute.   Thus, while Article 79, UCMJ,

unquestionably contains the words “necessarily included,” this

Court in United States v. Virgilito, 22 C.M.A. 394, 47 C.M.R.

331 (1973), stated:

          This Court has applied a liberal standard in
     determining whether an offense is lesser included in one
     that is charged. It has rejected the notion that the
     lesser offense must necessarily be included in the greater.
     The basic test to determine whether the court-martial may
     properly find the accused guilty of an offense other than
     that charged is whether the specification of the offense on
     which the accused was arraigned alleges fairly, and the
     proof raises reasonably, all elements of both crimes so
     that they stand in the relationship of greater and lesser
     offenses.

          . . . .

     The question respecting the allegations is whether they
     fairly embrace the elements of the lesser offense and thus
     give adequate notice to the accused of the
     offenses against which he must defend.

Id. at 395-96, 47 C.M.R. at 332-33 (emphasis added) (quotation

marks and citation omitted) (citing and quoting United States v.

Thacker, 16 C.M.A. 408, 410, 37 C.M.R. 28, 30 (1966); citing



be prepared to defend against it in addition to the offense
specifically charged. This requirement of notice is met when
the elements of the included offense are necessary elements of
the offenses charged . . . . Also, this requirement of notice,
depending on the allegations in the specification of the offense
charged, may be met although an included offense requires proof
of an element not required in the offense specifically charged,
for example, assault in which grievous bodily harm is
intentionally inflicted may be included in assault with intent
to murder, although the actual intentional infliction of bodily
harm required in the former is not an element of the latter.”).

                                 8
United States v. Jones, No. 09-0271/AF


United States v. McVey, 4 C.M.A. 167, 15 C.M.R. 167 (1954));

accord McVey, 4 C.M.A. at 175, 15 C.M.R. at 175 (Brosman, J.,

concurring in the result) (“Traditionally this Court has worn an

outsize pair of spectacles in viewing the problem of lesser

included offenses, and has applied an extremely generous

standard in determining whether a related offense is included

within the principal one.   I am sure of the overall soundness of

this policy.”).   Under these loose theories -- whose

difficulties of application did not escape criticism5 -- whether

and when offense X was an LIO of offense Y depended on

subjective judgments as to whether the elements of one offense

were “close enough” to altogether different elements of another

offense.

     Later, in Schmuck v. United States, 489 U.S. 705 (1989),

the Supreme Court analyzed Fed. R. Crim. P. 31(c)6 -- whose



5
  See, e.g., United States v. Zupancic, 18 M.J. 387, 391-93
(C.M.A. 1984) (Cook, S.J., concurring in part and dissenting in
part) (criticizing the majority’s expansion of the “traditional
notion” of LIOs -- where “each element of one offense fits
either directly or by reasonable implication into some element
of another offense” -- to include offenses “which, in their
estimation, are ‘fairly embraced’ by the allegations relating to
another charge”; cataloging inconsistencies found in the Court’s
caselaw resulting from “the myriad, fickle rules propounded by
this Court, in light of my Brothers’ failure to follow even
their own dictates”) (footnotes omitted).
6
  “The defendant may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit
either the offense charged or an offense necessarily included
therein if the attempt is an offense.” The current version --

                                 9
United States v. Jones, No. 09-0271/AF

language at that time was almost identical to Article 79, UCMJ

-- and adopted the “elements” test, holding that “one offense is

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

lesser offense are a subset of the elements of the charged

offense.   Where the lesser offense requires an element not

required for the greater offense, no instruction is to be given

under Rule 31(c).”   Id. at 716.    Analyzing the requirement of

“necessary inclusion of lesser offense in the greater,” the

Supreme Court noted:

     While the elements test is true to this requirement, the
     inherent relationship approach[7] dispenses with the
     required relationship of necessary inclusion: the inherent
     relationship approach permits a lesser included offense
     instruction even if the proof of one offense does not
     invariably require proof of the other as long as the two


which in 2002 was reworded in a stylistic, non-substantive way,
see Fed. R. Crim. P. 31(c) advisory committee’s note -- reads:

     A defendant may be found guilty of any of the following:

     (1) an offense necessarily included in the offense charged;
     (2) an attempt to commit the offense charged; or
     (3) an attempt to commit an offense necessarily included in
     the offense charged, if the attempt is an offense in its
     own right.
7
  This approach was formulated in United States v. Whitaker, 447
F.2d 314 (D.C. Cir. 1971):

     There must also be an “inherent” relationship between the
     greater and lesser offenses, i.e., they must relate to the
     protection of the same interests, and must be so related
     that in the general nature of these crimes, though not
     necessarily invariably, proof of the lesser offense is
     necessarily presented as part of the showing of the
     commission of the greater offense.

Id. at 319.

                                   10
United States v. Jones, No. 09-0271/AF

     offenses serve the same legislative goals.

Id. at 717.    With the elements test adopted in Schmuck, however,

the lesser offense is literally, and hence “necessarily,”

included in the greater.

     After Schmuck, this Court in United States v. Teters, 37

M.J. 370, 375-76 (C.A.A.F. 1993), changed course by expressly

abandoning the “inherent relationship” and “fairly embraced”

tests for LIOs.   Noting that the language of Article 79, UCMJ,

is virtually identical to Fed. R. Crim. P. 31(c) and that the

former was patterned on the latter, this Court embraced the

elements test for identifying LIOs within the military justice

system.   See Teters, 37 M.J. at 376.8   Under the elements test,

one compares the elements of each offense.    If all of the

elements of offense X are also elements of offense Y, then X is

an LIO of Y.   Offense Y is called the greater offense because it

contains all of the elements of offense X along with one or more

additional elements.

     Although this Court drifted significantly from the Teters

application of Schmuck with respect to LIOs, see, e.g., United

States v. Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004) (“Rather than

adopting a literal application of the elements test,” resolving


8
  Although the commentary of the 1968 MCM and each one thereafter
has included the vague “or by fair implication” language, that
language predates and was effectively if not formally superseded
by Schmuck and Teters.

                                 11
United States v. Jones, No. 09-0271/AF

LIO issues “‘by lining up elements realistically and determining

whether each element of the supposed “lesser” offense is

rationally derivative of one or more elements of the other

offense -- and vice versa.’” (quoting Foster, 40 M.J. at 146)),

that modified position is no longer seriously supportable in

light of our more recent focus -- consonant with the

Constitution, precedent of the Supreme Court, and the Teters

line of cases9 -- on the significance of notice and elements in

determining whether an offense is a subset (and thus an LIO) of

the greater offense.   See Miller, 67 M.J. at 388-89 (overruling

language from Foster suggesting that an accused is on notice of

an Article 134, UCMJ, LIO because every enumerated offense under

the UCMJ is per se prejudicial to good order and discipline or

service discrediting, and rejecting the notion of implied

elements); Medina, 66 M.J. at 26-27 (recognizing that the due

process principle of fair notice is met by an LIO if “it is a

subset of the greater offense alleged”).

                               B.

     The Government suggests that none of the above matters,

because the elements test is merely a means to the end of

fulfilling the notice requirement of the Due Process Clause, and

9
  For cases reiterating the Teters adoption of the elements test
and applying it in the context of multiplicity, see, for
example, United States v. Wheeler, 40 M.J. 242 (C.M.A. 1994);
United States v. Ramsey, 52 M.J. 322 (C.A.A.F. 2000); and United
States v. Dillon, 61 M.J. 221 (C.A.A.F. 2005).

                               12
United States v. Jones, No. 09-0271/AF

the notice function of the elements test can be accommodated in

this case by either case law or LIOs listed within the

explanation sections of MCM pt. IV.

     It is true that this Court in Schoolfield expressly held

that indecent acts was an LIO of rape.       40 M.J. at 137.   But in

so holding, the Court reasoned that the service discrediting or

prejudicial to good order and discipline element of indecent

acts was implied in the offense of rape.      Id.   That reasoning

was based on the logic of Foster and was expressly overruled in

Miller.     See Miller, 67 M.J. at 388-89.    Therefore, to the

extent that Schoolfield holds that indecent acts is an LIO of

rape, it is no longer good law.

     But, more directly, the Government’s suggestion that this

is merely a matter of due process fails in the face of Article

79, UCMJ.    This case implicates not only the question whether

this Appellant was on notice that he would need to defend

against indecent acts, but also the interpretation and

application of Article 79, UCMJ, a provision enacted under the

constitutional authority of Congress to provide rules for the

government and regulation of the armed forces, U.S. Const. art.

I, § 8, cl. 14.    As we noted in Teters, the language of this

article is substantially identical to language the Supreme Court

has interpreted to require the elements test in the civilian




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United States v. Jones, No. 09-0271/AF

context, 37 M.J. at 375-76, and the same interpretation was

applied in the military justice context, id. at 376.

       Moreover, suggesting that listing a criminal offense as an

LIO within the MCM automatically makes it one, irrespective of

its elements, ignores the very definition of a crime.   Crimes

are composed of elements, and they include both a required act

(actus reus) and a mental state (mens rea).    See United States

v. Apfelbaum, 445 U.S. 115, 131 (1980); 1 Wayne R. LaFave,

Substantive Criminal Law § 1.2, at 11 (2d ed. 2003).    Save a few

minor exceptions, federal crimes are solely creatures of

statute.   See Liparota, 471 U.S. at 424; LaFave, § 2.1(c), at

107.   Determinations as to what constitutes a federal crime, and

the delineation of the elements of such criminal offenses --

including those found in the UCMJ -- are entrusted to Congress.

See Liparota, 471 U.S. at 424; 1 Charles E. Torcia, Wharton’s

Criminal Law § 10, at 37-38 (15th ed. 1993).

       [There is no] basis for the proposition that the
       President may create an offense under the Code. To
       the contrary, our fore-fathers reposed in the Congress
       alone the power “To make Rules for the Government and
       Regulation of the land and naval Forces.” [U.S.
       Const. art. I, § 8.] The President’s power as
       Commander-in-Chief does not embody legislative
       authority to provide crimes and offenses.

United States v. McCormick, 12 C.M.A. 26, 28, 30 C.M.R. 26, 28

(1960) (citations omitted).

       It stands to reason, then, that an LIO -- the “subset”



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United States v. Jones, No. 09-0271/AF

“necessarily included” in the greater offense -- must be

determined with reference to the elements defined by Congress

for the greater offense.   And that is indeed how courts have

proceeded.    See, e.g., Carter v. United States, 530 U.S. 255,

259 (2000) (“[Section] 2113(b) requires an element not required

by § 2113(a) -- three in fact -- and therefore is not a lesser

included offense of § 2113(a).”); United States v. Browner, 937

F.2d 165, 168 (5th Cir. 1991) (applying elements test to find

“assault with a dangerous weapon” under 18 U.S.C. § 113(c) not

an LIO of “voluntary manslaughter”).

     In short, the case before us involves an analysis of the

substantive law promulgated by Congress with respect to lesser

included offenses and does not call on us to address the full

contours of presidential power, including the power of the

President as commander in chief.      But see United States v.

Jones, __ M.J. __ (4, 7-18) (C.A.A.F. 2010) (Baker, J.,

dissenting).   In particular, this opinion does not -- and should

not be read to -- question the President’s ability to list

examples of offenses with which one could be charged under

Article 134, UCMJ.   See generally MCM pt. IV, paras. 61-113

(2008 ed.).    The President in those instances is not defining

offenses but merely indicating various circumstances in which

the elements of Article 134, UCMJ, could be met.     The

President’s listing of offenses under Article 134, UCMJ, is


                                 15
United States v. Jones, No. 09-0271/AF

persuasive authority to the courts, see Miller, 67 M.J. at 388

n.5 (citation omitted) (noting that “MCM explanations of

offenses are not binding on this Court” and are instead

“generally treated as persuasive authority, to be evaluated in

light of this Court’s precedent”); United States v. Gonzalez, 42

M.J. 469, 474 (C.A.A.F. 1995) (citing United States v.

Hemingway, 36 M.J. 349, 351 (C.M.A. 1993)), and offers guidance

to judge advocates under his command regarding potential

violations of the article.

     To be perfectly clear, this case concerns lesser included

offenses, not the constitutionality of Article 134, UCMJ.    For

although the terms Congress chose for the article are broad, see

generally Parker v. Levy, 417 U.S. 733, 756 (1974) (“For the

reasons which differentiate military society from civilian

society, we think Congress is permitted to legislate both with

greater breadth and with greater flexibility when prescribing

the rules by which the former shall be governed than it is when

prescribing rules for the latter.”), what is general is made

specific through the language of a given specification.    The

charge sheet itself gives content to that general language, thus

providing the required notice of what an accused must defend

against.   Presidential narrowing of the “general” article

through examples of how it may be violated is part of why




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United States v. Jones, No. 09-0271/AF

Article 134, UCMJ, is not unconstitutionally vague.    Id. at 753-

56.

        Moreover, we must take care to avoid the conflation of two

unrelated propositions:    the President’s ability to suggest ways

in which Article 134, UCMJ, might be charged, which we do not

take issue with, and the ability of the President to declare

that a particular example of an Article 134, UCMJ, offense is a

lesser included offense of something Congress defined as a

criminal offense in a separate section of the UCMJ, and which is

defined by elements that have no common ground with Article 134,

UCMJ.    This case addresses only the latter proposition.

        Nor does this case either decide or foreclose the ability

of Congress to consider whether authority to define LIOs should

or could be delegated to the executive, and, if so, what

standards and limitations should apply to any such delegation.

Cf. Solorio v. United States, 483 U.S. 435, 446 (1987) (noting

that “Congress, and not the Executive, was given the authority

to make rules for the regulation of the Armed Forces”).

Congress has delegated specific authority to the President with

respect to designated areas of court-martial practice.      See,

e.g., Article 36, UCMJ, 10 U.S.C. § 836 (2006) (authorizing the

President to prescribe rules of pretrial, trial, and post-trial

procedure and evidence); Article 56, UCMJ, 10 U.S.C. § 856

(2006) (authorizing the President to prescribe maximum limits of


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United States v. Jones, No. 09-0271/AF

punishment).   But Congress has not delegated to the President a

general authority to determine whether an offense is

“necessarily included” in the charged offense under Article 79,

UCMJ.10   Cf. Ellis v. Jacob, 26 M.J. 90, 92 (C.M.A. 1988) (“[T]he

President’s rule-making authority does not extend to matters of

substantive military criminal law.”).

                                      C.

     Interpreting Article 79, UCMJ, to require the elements test

for LIOs has the constitutionally sound consequence of ensuring

that one can determine ex ante -- solely from what one is

charged with -- all that one may need to defend against.     This

practice is surely preferable and more sound than judges at the

trial and appellate levels making subjective judgments as to

whether elements line up “‘realistically.’”     Hudson, 59 M.J. at

359 (quoting Foster, 40 M.J. at 146).      To the extent any of our

post-Teters cases have deviated from the elements test, they are

overruled.

     Requiring this notice places no constraints on the

viability of Article 134, UCMJ, offenses, or the flexibility of

Article 134, UCMJ, for commanders.     Nothing here prevented the


10
  The absence of reference to either the President or
presidential authority within the text of Articles 79 or 134,
UCMJ, stands in stark contrast to the specific and reticulated
grant of authority to the President, 50 U.S.C. § 1702, within
the International Emergency Economic Powers Act (IEEPA), 50
U.S.C. §§ 1701-1707 (2006).

                                 18
United States v. Jones, No. 09-0271/AF

Government from charging indecent acts in addition to rape --

the government is always free to plead in the alternative.      See

United States v. Medley, 33 M.J. 75, 76 (C.M.A. 1991) (quoting

United States v. Heyward, 22 M.J. 35, 37 (C.M.A. 1986)).     Nor is

there anything to prevent the government, with the accused’s

consent, from amending the charge sheet in the course of trial

to allege a less serious or different offense than the one

originally charged.   See R.C.M. 603(d).   Finally, the accused is

always free to plead “not guilty to an offense as charged, but

guilty of a named lesser included offense; [or] guilty with

exceptions, with or without substitutions, not guilty of the

exceptions, but guilty of the substitutions, if any.”   R.C.M.

910(a).

     Regardless of what could have been done here, applying the

elements test to the case as it is before us, the elements of

rape do not include all (or indeed any) of the elements of

indecent acts, and the instruction on the latter in this case --

which included the element 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” -- was in error.11   And the


11
  In the context of a plain error analysis, Appellant 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. See United States v. Powell, 49

                                19
United States v. Jones, No. 09-0271/AF

variance between what Appellant was charged with and what he was

convicted of was fatal:   Appellant was charged with rape, and

nothing in that charge put Appellant on notice that he also

needed to defend against indecent acts.     The Specification of

Charge I must therefore be set aside.

                          III.   Decision

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to the finding of indecent acts

under Charge I and the sentence.      The findings of guilty to

Charge I and its Specification are set aside, and that Charge

and Specification are dismissed.      The remaining findings of

guilty are affirmed.   The record is returned to the Judge

Advocate General of the Air Force for remand to the Court of

Criminal Appeals for reassessment of the sentence or, if it

determines appropriate, for the ordering of a rehearing on

sentence.




M.J. 460, 463-65 (C.A.A.F. 1998). Under the first prong, the
military judge erred in giving the instruction for the reasons
set forth above. With respect to the second prong, the error
was “plain and obvious,” at least in the sense that those words
are legal terms of art, because Schoolfield was no longer good
law after Miller and McCracken. Cf. United States v. Harcrow,
66 M.J. 154, 159 (C.A.A.F. 2008). Regarding the third prong,
conviction of an offense not charged was clearly prejudicial in
the context of plain error analysis where, as here, the case was
not tried on a theory of indecent acts and the military judge
did not introduce the subject of indecent acts into the case
until after the parties had completed their presentation of the
evidence.

                                 20
United States v. Jones, No. 09-0271/AF


     BAKER, Judge (dissenting):

     I agree with the majority opinion that “[t]he due process

principle of fair notice mandates that ‘an accused has a right

to know what offense and under what legal theory’ he will be

convicted; an LIO [lesser included offense] meets this notice

requirement if ‘it is a subset of the greater offense alleged.’”

United States v. Jones, __ M.J. __ (6) (C.A.A.F. 2010) (quoting

United States v. Medina, 66 M.J. 21, 26-27 (C.A.A.F. 2008)).      I

also agree that “‘[t]he Constitution requires that an accused be

on notice as to the offense that must be defended against, and

that only lesser included offenses that meet these notice

requirements may be affirmed by an appellate court.’”   Id. at __

(7) (quoting United States v. Miller, 67 M.J. 385, 388 (C.A.A.F.

2009)).

     The dispute in this case is threefold.   First, is whether

the elements test from Schmuck v. United States, 489 U.S. 705,

716-18 (1989), is the exclusive means by which fair notice may

be provided in the military context where offenses charged under

clauses 1 or 2 of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2006), serve as lesser included

offenses.   Heretofore, notice has been provided by reference to

elements promulgated in the Manual for Courts-Martial (MCM) by

the President and through case law.   See e.g., United States v.

Carr, 65 M.J. 39, 40 (C.A.A.F. 2007) (concluding that assault
United States v. Jones, No. 09-0271/AF


consummated by a battery is a lesser included offense to

indecent assault under the MCM); United States v. McKeel, 63

M.J. 81, 82 (C.A.A.F. 2006) (upholding conviction for indecent

assault as a lesser included offense for rape under the MCM).

     Going forward, however, the majority has concluded that in

the military “an LIO . . . must be determined with reference to

the elements defined by Congress for the greater offense.”

__ M.J. at __ (14-15).   Specifically, the exclusive means of

notice regarding lesser included offenses is pursuant to the

Schmuck elements test in which:     “one offense is not

‘necessarily included’ in another unless the elements of the

lesser offense are a subset of the elements of the charged

offense.”   Schmuck, 489 U.S. at 716.    As a result, because the

statutory elements of clauses 1 and 2 of Article 134, UCMJ, of

course, do not and cannot line up with any of the enumerated

offenses, the majority’s decision means that offenses charged

under clauses 1 and 2 of Article 134, UCMJ, can never be lesser

included offenses to any other punitive article in the UCMJ, or

with respect to clause 3 of Article 134, UCMJ.    Additionally,

the eighteen enumerated offenses for which the President in the

MCM has expressly promulgated lesser included offenses under

Article 134, UCMJ,1 are invalid.2


1
 MCM pt. IV, paras. 18.d(1)(f), 18.d(2)(d), 18.d(3)(c)
19.d(2)(a), 30a.d, 32.d(1)(b), 35.d(2)(c), 36.d, 38.d(1)(d),

                                  2
United States v. Jones, No. 09-0271/AF


     Second, if the statutory elements are the only basis by

which an accused may receive fair notice of any lesser included

offense, and the statutory elements of Article 134, UCMJ, do not

adequately describe any lesser offense within the UCMJ, the

majority does not explain how those same elements can provide

fair notice of a charged offense under clauses 1 and 2 of

Article 134, UCMJ, without resorting to information derived from

outside the statutory elements.   In other words, by implication

the majority’s analysis also challenges clauses 1 and 2 of

Article 134, UCMJ, themselves.    Nonetheless, the majority does

not address this issue, nor does it follow the implications of

its analysis to their logical conclusion.   However, given the

role Article 134, UCMJ, has heretofore played in the structure

of military justice and in providing commanders a flexible tool

to uphold good order and discipline, this issue should not be

left unresolved.




38.d(2)(b), 40.d(1), 41.d(1)(b), 41.d(2)(a), 43.d(2)(c),
43.d(3)(c)-(d), 44.d(1)(c)-(d), 44.d(2)(b), 45(d)(1)(b),
47.d(6), 49.d(1), 51.d(2)(b), 53.d(1), 55.d(2), 56.d(1) (2008
ed.).
2
   By the same reasoning, the majority has also eliminated the
issue of multiplicity and claims of preemption for clauses 1 and
2 of Article 134, UCMJ, without comment. Further, if clauses 1
and 2 of Article 134, UCMJ, are no longer lesser included
offenses for any enumerated offense, the government may well
address evidentiary contingencies by charging a violation of
clauses 1 and 2 of Article 134, UCMJ, in every case in which it
charges a violation of an enumerated offense.

                                  3
United States v. Jones, No. 09-0271/AF


     Finally, the majority’s analysis fails to account for the

constitutional distinctions between civilian law and practice

and military law and practice.   In particular, the majority does

not address the unique role and place of Article 134, UCMJ, in

military discipline, command, and justice and in the context of

the President’s independent authority as commander in chief.

Whatever one might think of Article 134, UCMJ, the Supreme Court

has upheld its use, but only because fair notice of what is

criminal is derived from custom, practice, and presidential

directive, and not with reference to the legislatively defined

elements of the article.   See Parker v. Levy, 417 U.S. 733, 751-

53 (1974).   It might be better legal policy were the Congress to

use its Article I authority to define the elements to each

Article 134, UCMJ, offense and each Article 134, UCMJ, lesser

included offense, but that is not the same as saying the

President does not have the authority to do so as commander in

chief.   In fact, he has exercised this authority for sixty years

under the UCMJ and before that under the Articles of War.

Congress has remained silent in the face of such historic

practice.




                                 4
United States v. Jones, No. 09-0271/AF


                             Discussion

     The majority concludes that because “[d]eterminations as to

what constitutes a federal crime, and the delineation of the

elements of such criminal offenses -- including those found in

the UCMJ -- are entrusted to Congress,” the only means by which

an accused may be placed on fair notice of a lesser included

offense (and presumably the greater offense) is through

reference to statutorily defined elements.   __ M.J. at __ (14)

(C.A.A.F. 2010).   I am skeptical this is a required legal result

in the military constitutional context, rather than a legal

policy preference for a formulaic test, such as the test set out

in Schmuck, over the less certain standard of “fair notice”.

     Article 134, UCMJ, does not fit neatly, if at all, into the

ordinary framework for construing criminal statutes.   First,

Article 134, UCMJ, is unique to the military justice system.

This is evident with reference to the statutory elements, which

address service discrediting conduct and prejudice to good order

and discipline.    The point is driven home in case law.   Parker,

417 U.S. at 748-49 (recognizing that Article 134, UCMJ, must be

gauged by “an actual knowledge and experience of military life,

its usages and duties”); United States v. Mason, 60 M.J. 15, 20

(C.A.A.F. 2004) (“[The appellant’s] conduct in receiving those

images [of child pornography] on his government computer can

constitutionally be subjected to criminal sanction under the


                                  5
United States v. Jones, No. 09-0271/AF


uniquely military offenses embodied in clauses 1 and 2 of

Article 134.”).

     Second, Article 134, UCMJ, is intended to provide the

commander with the flexibility to provide for the good order and

discipline of the armed forces and thus is not just directed

toward the punishment of traditional criminal offenses defined

by traditional statutory elements.   See Parker, 417 U.S. at 745

(“And to maintain the discipline essential to perform its

mission effectively, the military has developed what ‘may not

unfitly be called the customary military law’ or ‘general usage

of the military service.’”) (quoting Martin v. Mott, 12 Wheat.

19, 35 (1827)); MCM pt. IV, para. 60.c(2)(a) (2008 ed.)

(“[Clause 1] refers only to acts directly prejudicial to good

order and discipline and not to acts which are prejudicial only

in a remote or indirect sense.”).    For these reasons, Article

134, UCMJ, reaches conduct that would not necessarily be

criminal if committed by a civilian.   E.g., Parker, 417 U.S. at

739, 760-61 (holding that making defamatory and provoking

statements to enlisted personnel in the hope of convincing them

to disobey orders can be criminalized under Article 134, UCMJ);

United States v. Rogers, 54 M.J. 244, 256-57 (C.A.A.F. 2000)

(holding that the prohibition on fraternization with

subordinates within appellant’s command was not vague under

Articles 133 and 134, UCMJ).   It is also intentionally broad so


                                 6
United States v. Jones, No. 09-0271/AF


as to address the myriad of actions in the military context that

cannot be foreseen, but would nonetheless undermine good order

and discipline or bring discredit to the armed forces, like

jumping from a vessel or impersonating an officer.   This is a

critical point.

     Congress intended clauses 1 and 2 to be read broadly.

Indeed, the two clauses, and their antecedent clauses in the

Articles of War, have been read that way throughout more than

two hundred years of U.S. military practice.   See William

Winthrop, Military Law and Precedents 720 (2d ed. Government

Printing Office 1920) (1886); Parker, 417 U.S. at 745-56.      In

light of the broad language of Article 134, UCMJ, this Court and

ultimately the Supreme Court have long held that custom and

constructions by military authorities must narrow, and have

narrowed, the reach of that language.    Parker, 417 U.S. 753; see

also United States v. Ashby, 68 M.J. 108, 118 (C.A.A.F. 2009).

Heretofore, the narrowing of the language was usually provided

by the President’s promulgation of Article 134, UCMJ, delineated

offenses and lesser included offenses.   Moreover, where the

President, as commander in chief, or his subordinates have

reached too far, this Court has not hesitated to say so,

consistent with the cautionary injunction of Parker.    See, e.g.,

United States v. Jordan, 57 M.J. 236, 239-40 (C.A.A.F. 2002)




                                7
United States v. Jones, No. 09-0271/AF


(concluding that the accused could not be charged with violating

Article 134, UCMJ, for leaning on a civilian boat in a marina).

        The dilemma, of course, is that because Article 134, UCMJ,

is unique to military justice and discipline and was drafted in

an intentionally broad manner to give the commander flexibility,

it uses generalized statutory elements.    The Article 134, UCMJ,

elements do not and cannot line up in a literal sense with the

statutory elements of the enumerated offenses, which were

codified in specific criminal element language.3    Congress did

not intend to do the same with clauses 1 and 2 of Article 134,

UCMJ.    The general nature of the article’s elements makes it

more difficult for servicemembers to ascertain what is and is

not criminal under Article 134, UCMJ.    Thus, where Article 134,

UCMJ, is concerned it is the commander as convening authority,

and ultimately the President as commander in chief, who gives

meaning to these elements and essentially defines their meaning

in context.    As a result, Article 79, UCMJ, 10 U.S.C. § 879

(2006), does not address the question as to how the enumerated

articles and Article 134, UCMJ, as a lesser included offense

relate.

3
 “[U]nlike federal offenses, military offenses are not
exclusively the product of statutes. Countless military
offenses derive their elemental essence from regulations or
orders, from customs of service, or from traditional military
crimes that have emerged from a military common law-like
process.” United States v. Weymouth, 43 M.J. 329, 335 (C.A.A.F.
1995) (citing Article 134, UCMJ).

                                   8
United States v. Jones, No. 09-0271/AF


     The Congress has left it to the President to define clauses

1 and 2 of Article 134, UCMJ, and heretofore he has done so in a

manner that necessarily includes certain conduct under Article

134, UCMJ, as lesser included offenses to enumerated offenses.

Binding or not, the commander in chief’s view as to how conduct

listed under Article 134, UCMJ, necessarily also implicates

service discredit and good order and discipline should be

persuasive.   It also can provide fair notice as to how clauses 1

and 2 of Article 134 relate to the enumerated articles with

regard to lesser included offenses.

     Thus, while it is a constitutional truism that only

Congress can define crimes, and the elements of crimes, it does

not necessarily follow that the President is precluded from

giving those elements meaning in the military context where the

President acts as commander in chief and Congress has not

otherwise expressly precluded such exercise of authority.4    Nor

has the Supreme Court ruled otherwise.   Since the UCMJ’s

inception, the President has done just that by delineating

4
  In United States v. Foster, this Court read into the enumerated
offenses legislative text that was not there, namely implied
elements for good order and discipline. 40 M.J. 140, 143
(C.M.A. 1994), overruled in part by United States v. Miller, 67
M.J. 385, 389 (C.A.A.F. 2009). An Article 134, UCMJ, lesser
included offense is different. The President as commander in
chief gives meaning to Article 134, UCMJ, as the Supreme Court
and Congress intended, and indicates where an offense under
Article 134, UCMJ, might serve as a lesser included offense to
an enumerated offense.


                                 9
United States v. Jones, No. 09-0271/AF


offenses within Article 134, UCMJ.5     In defining Article 134,

UCMJ, he has also delineated offenses as lesser included

offenses for enumerated offenses.      That is what Congress

intended with respect to Article 134, UCMJ.     Schmuck, a 1989

case occurring in a civilian context, did not abrogate this

authority either expressly or by implication.

      Indeed, the Supreme Court has recognized the President’s

authority to narrow the meaning of Article 134, UCMJ, and has

validated this practice.    Parker, 417 U.S. at 753, 760-61

(upholding a conviction for making defamatory and provoking

statements, which was a sub-offense under Article 134, UCMJ,

described in the MCM).     Moreover, the Court has insisted upon

such practice as a constitutional requirement given the broad

statutory elements contained in Article 134, UCMJ.     Id. at 752-

53.   And, of course, the Constitution in a specified context and

the courts more generally recognize that while the Constitution

most certainly applies to members of the military it may apply

differently depending on the context.     Id. at 758 (“The

fundamental necessity for obedience, and the consequent

necessity for imposition of discipline, may render permissible

within the military that which would be constitutionally

5
 Arguably, the President’s duty to “take care that the Laws be
faithfully executed” is also implicated, for in the absence of
congressional enumeration, there is no other way to give meaning
to the Article 134, UCMJ, elements without executive
implementation. U.S. Const. art. II, §3.

                                  10
United States v. Jones, No. 09-0271/AF


impermissible outside it.”); U.S. Const. amend. V (“No person

shall be held to answer for a capital . . . crime, unless on a

presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces . . . .”).   Is not the

application of Article 134, UCMJ, as a delineated offense or a

lesser included offense one of those circumstances?

     Recognition of this distinction is particularly compelling

in an area where the President and the Congress possess specific

and additional constitutional authority over the military

instrument that extends beyond the legislative authority to

define crimes.   Among other things, the Congress has the power

“[t]o make Rules for the Government and Regulation of the land

and naval Forces.”   U.S. Const. art. I, § 8.   The President is,

of course, the “Commander in Chief of the Army and Navy of the

United States,” granting him some measure of authority to

maintain good order and discipline within the military.   U.S.

Const. art. II, § 2.   The President’s authority is not limited

to Article 36, UCMJ, 10 U.S.C. § 836 (2006), granting the

President the power to prescribe “[p]retrial, trial, and post-

trial procedures.”   If the President’s power were so limited,

then he could hardly promulgate the Article 134, UCMJ, offenses

listed in the MCM, and Congress would hardly have tolerated and

acquiesced to such a practice for sixty years.




                                11
United States v. Jones, No. 09-0271/AF


     To apply the paradigm from Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring), the

President’s authority is at its zenith when he acts pursuant to

Article 36, UCMJ, because he operates with his own authority as

well as that expressly delegated by the Congress.   But Article

36, UCMJ, does not purport to extinguish authority the President

as commander in chief might otherwise assert over military

discipline through operation of Article 134, UCMJ, and the

delineation of Article 134, UCMJ, elements in the MCM.    Military

discipline is an area of concurrent authority between Congress

and the President, and therefore Congress’s acquiescence has

allowed the President to take on more responsibility in

clarifying the meaning of Article 134.   Id. at 637.6   Such

acquiescence may be particularly instructive and valid where the

President is exercising a parallel constitutional authority.

     There is also parallel precedent for such constitutional

practice.   In the area of foreign affairs, for example, Congress

has delegated to the President the authority to define and

enforce the criminal sanctions generally authorized by Congress


6
  See United States v. Rorie, 58 M.J. 399, 411 (C.A.A.F. 2003)
(Effron, J., with whom Baker, J., joined, dissenting) (noting
that since Congress did not act when the Department of Defense
submitted comprehensive legislation that did not address
abatement, it “provide[d] additional grounds for concluding that
the proponents of changing our interpretation of the UCMJ have
not surmounted the hurdle imposed by the doctrine of stare
decisis”).

                                12
United States v. Jones, No. 09-0271/AF


in the International Emergency Economic Powers Act (IEEPA).     50

U.S.C. §§ 1701-1707 (2006).    In this foreign affairs context, it

is the President who determines to whom, to what, and to where

the criminal sanctions will apply.    See Dames & Moore v. Regan,

453 U.S. 654, 670-71 (1981).    Fair notice of these criminal

sanctions comes not in the form of statutory elements, but

through the vehicles of presidential executive orders and the

actions of the Office of Foreign Asset Control (OFAC), as posted

on its website.

     Of course, the predicate for Presidential action was

express in IEEPA; whereas here it is implied, derived as it is

from the President’s command authority and Congress’s

understanding of and acquiescence in the manner in which that

authority has been exercised.   That is the difference between

what is generally referred to as Category I and Category II of

the Youngstown paradigm.7   But that does not place the


7
  In Justice Jackson’s concurrence in Youngstown, he laid out
three categories of how presidential power may be viewed
depending on congressional action. Youngstown, 343 U.S. at 635-
38. In Category I, “[w]hen the President acts pursuant to an
express or implied authorization of Congress, his authority is
at its maximum, for it includes all that he possesses in his own
right plus all that Congress can delegate.” Id. In Category
II:

     [w]hen the President acts in absence of either   a
     congressional grant or denial of authority, he   can
     only rely upon his own independent powers, but   there
     is a zone of twilight in which he and Congress   may
     have concurrent authority, or in which its

                                 13
United States v. Jones, No. 09-0271/AF


President’s action into Category III of the paradigm as the

majority implies.    Thus, contrary to the majority’s assertion,

while Congress alone can legislate crimes and define the

elements, it is the President in certain contexts who gives

substantive meaning to the general elements of the offense in

military practice.   Given the nature and importance of the

constitutional interests at stake for all three branches, if

sixty years of law and practice are to change with regard to the

application of Article 134, UCMJ, it should be done on the basis

of an exercise of authority more contextually definitive than

Schmuck.

     In the military context, it would seem that Article 134,

UCMJ, might well be fleshed out in the same manner as the crimes

under IEEPA are given specific meaning and application, which is

to say by the President.   This is certainly what has happened to

date in both the promulgation of Article 134, UCMJ, delineated

offenses and Article 134, UCMJ, lesser included offenses for

enumerated offenses.   However, the majority has concluded as a


     distribution is uncertain. Therefore, congressional
     inertia, indifference or quiescence may sometimes, at
     least as a practical matter, enable, if not invite,
     measures on independent presidential responsibility.

Id. at 637. Finally, in Category III, “[w]hen the President
takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can
rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter.” Id.


                                 14
United States v. Jones, No. 09-0271/AF


matter of constitutional law that while the Congress could

delegate this authority to the President it has not done so and

Schmuck necessitates the conclusion that the only way to provide

fair notice of a criminal offense is through the promulgation of

legislative elements.   __ M.J. at __ 11, 17.     Moreover, in the

view of the majority, the President’s authority as commander in

chief is merely persuasive, or more accurately, unpersuasive,

notwithstanding the President’s exercise of this authority in

concert with Congress’s Article I authority since 1951.     Nor

does the majority explain what has happened between 1989, when

Schmuck was decided, and today that would change this Court’s

approach to Article 134, UCMJ, lesser included offenses.

     That is not to say that it would not be better for Congress

to define the elements of every Article 134, UCMJ, offense if it

were possible to do so.   Nor does it mean that it would not be

better for Congress to expressly delegate its authority to the

President to define criminal conduct as it has done with IEEPA

(or for that matter expressly precluding the President from

doing so).   Certainly, from the standpoint of authority, the

President acts with more certain strength when he acts with the

express will of the Congress and his own authority.     That is the

first category of the Youngstown paradigm.      Here the President

acts in the gray zone of Category II of Youngstown.




                                15
United States v. Jones, No. 09-0271/AF


        In either zone the President’s authority as commander in

chief is not unlimited and unchecked.    The President cannot make

rape a lesser included offense of forgery.    Clauses 1 and 2 of

Article 134, UCMJ, must be read, interpreted and applied in a

manner consistent with Congress’s exercise of its Article I

authority and this Court’s interpretation of the Constitution

and other law.    But the President’s authority does factor into

the analysis.    Clauses 1 and 2 of Article 134, UCMJ, are

meaningless without it.

        In short then, the majority has determined, based on

Schmuck alone, that the only manner in military practice by

which constitutional notice of a lesser included offense can be

provided is through application of a literal statutory elements

test.    As a result, all offenses in the military that were

heretofore predicated on Article 134, UCMJ, as lesser included

offenses to enumerated offenses are invalid and will remain so

unless Congress provides delineated Article 134, UCMJ, offenses

with statutory elements that align with the enumerated offenses.

This Congress cannot do if it intends for clauses 1 and 2 of

Article 134, UCMJ, to serve as a flexible commander’s tool

addressing good order and discipline and service discrediting

conduct as delimited by the commander in chief.

        Of course, for that same reason, the majority’s decision

puts in doubt the application of Article 134, UCMJ, itself.    If


                                  16
United States v. Jones, No. 09-0271/AF


statutory elements are the only means by which an accused might

receive fair notice of a lesser included offense; then why are

statutory elements not the only means by which an accused might

receive fair notice of any offense.    Article 134, UCMJ, does not

provide such notice.   Rather, the practice, custom, case law,

and the commander in chief’s directives provide notice of what

is criminal under Article 134, UCMJ.    Parker, 417 U.S. at 751-

53.   “Decisions of this Court during the last century have

recognized that the longstanding customs and usages of the

services impart accepted meaning to the seemingly imprecise

standards of [Articles] 133 and 134.”    Id. at 746-47.

      The effect of these constructions of Arts. 133 and 134
      by the Court of Military Appeals and by other military
      authorities has been twofold: It has narrowed the
      very broad reach of the literal language of the
      articles, and at the same time has supplied
      considerable specificity by way of examples of the
      conduct which they cover.

Id. at 754.   However, under the Court’s reasoning today, as a

matter of logic it appears that custom, practice, and case law

cannot provide fair notice; only the elements will do.    Thus,

unless one finds specific notice in the actual statutory text of

Article 134, UCMJ, that conduct is criminal it would seem to

falter for the same reason that Article 134, UCMJ, delineated

offenses cannot be lesser included offenses for enumerated

offenses.




                                17
United States v. Jones, No. 09-0271/AF


                            Conclusion

     In this case, Appellant was charged with rape, but found

guilty of indecent acts with another.    Given that I have

concluded the President has the authority to delineate offenses

under Article 134, UCMJ, as lesser included offenses to the

enumerated offenses, indecent assault was a lesser included

offense of rape.   At the time of Appellant’s court-martial,

committing an indecent act was a possible lesser included

offense of indecent assault, both of which were delineated under

Article 134, UCMJ.   In this case, the facts fit and Appellant,

by his own trial admission, was on fair notice that committing

an indecent act was a lesser included offense of rape through

operation of Article 134, UCMJ.    Therefore, I would affirm the

decision of the United States Air Force Court of Criminal

Appeals and respectfully dissent.




                                  18
