Petition for Writ of Certiorari — Contreras v. United States

me C US.

tt IL ah

‘al @ 19-413 SEP 24 2010

No OFFICE OF THE CLERK

In the Supreme Court of the United States

GABRIEL R. CONTRERAS,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari To The

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Philip T. Korman

Captain, U.S. Air Force

Counsel of Record

Air Force Appellate

Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20032

(202) 767-1562

l

QUESTION PRESENTED

Is a violation of Article 134, Uniform Code of

Military Justice, the General Article, which

prohibits, among other things, conduct “to the

prejudice of good order and discipline in the

armed forces” or “of a nature to bring discredit

upon the armed forces,” a “purely military

a vias

otfense:

PABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION.

REGULATORY PROVISIONS INVOLVED

STATEMENT OF THE CASI

REASONS FOR GRANTING THE WRI

\. Certioari 1s necessary t ettl thre

important federal law question of whethe

an offense arising under Article

UCMJ, is “purely military’ where its tern

require prool of uniques military

concepts

“<

The CAAF's analysis prejudiced Petition

by not properly considering the uniquely

military elements of Article 134, UCM,

and upholding the Article 130

housebreaking convictio!

CONCLUSION

APPENDIX

APPENDIX

Court of Appeals for the Armed Forces

Decision.. PPO VES TOE O Pee la

Court of Appeals for the Armed Forces

Order a ete eee l8a

pm

\ir Foree Court of Criminal Appeals

Decision ure reac ieta teen 20a

lO U.S.¢ § SOB, Articie 2, UCM. iba

LO U.S.C. § 884, Article 84, UCM. 09a

QO U.S.C. § 892, Article 92, UCM. 10

910, Article 110, UCMJ......4la

4S,

lO U.S.C. § 915, Article 115, UCM...... Za

O U.S.C. § 930, Article 180, UCMd...... 13a

O U.S.C. § 933, Article 183, UCMd...... 14a

934, Article 184, UCMJ......45a

4

LP

Artcle L, American Articles of War of

Bee ere ee ee 16a

MANUAL FOR COURTS-MARTIAL, UNITED

STATES pt. IV, para. 56.c(3) (2005

MANUAL FOR COURTS-MARTIAL, UNITED

STATES pt [V, para. 90.b. (2005 ed.).......48a

MANUAL FOR COURTS-MARTIAL. UNITED

STATES pt. IV, para. 91.b. (2005 ed.)......49a

MANUAL FOR COURTS-MARTIAL. UNITED

STATES pt. IV, para. 107.b. (2005 ed.)....50a

V

TABLE OF AUTHORITIES

Cases

Supreme Court of the United States

Grisham v. Hagan, 361 U.S. 278 (1960).......... 9

Kinsella v. United States ex. rel. Singleton,

BE is ake Co oki cc tencickscseseieraacnavant 9

Parker v. Levy, 417 U.S. 733 (1974)...............3

United States ex. rel. Toth v. Quarles,

ee se 8k TR os se nsceieesciisnsaeiaesoieeeene re)

United States Court of Appeals

United States v. Conliffe.

67 M.J. 127 (C.A.A.F. 2009)... .ccccccccsccesccceccs: 8

Statutes and Rules

Act of Aug. 29, 1916, c. 418, 39 Stat. 619, 666.....3

Article L, American Articles of War of 1775........3

National Defense Authorization Act for Fiscal

Year 2006,-Pub.L. No. 109-163, § 552(a)(2)(f), 119

ik. VO OR UO og kc duocucvewsseucoucecuaamen 7

Vi

Uniform Code of Military Justice, 10 U.S.C. § 801

et seq.:

10 U.S.C. § 802 (Article 2)..................5°6,8,10

10 U.S.C. § BB4 (Article 84).......cccccccsseccccsses 9

10 U.S.C. § 892 (Article 92)...........ccccecee eee ee. 9

10 0.G.C, § GIG CArticlo 110) ....ccceiecccesscersse 9

10 U.S.C. § 916 (Article 118)............cccccceee 9

10'U.S.C. § 920 (Article 120).............ssseec0 4,7

10 U:S.C. § 930 (Article 130)...... incieeaes passim

10 U.S.C. § 933 (Article 133)..........cecceeceeeeee. s

10 U.S.C. § 934 (Article 134)................ passim

ee ee ci cu deakavs bie decnsessauedones l

RULE FOR COURTS-MARTIAL (R.C.M.) 201............ 7

Miscellaneous Authorities

MANUAL FOR COURTS-MARTIAL, UNITED STATES pt.

IV, para. 56.c(3) (2005 ed.)........cccccscccessssscsencees 6

MANUAL FOR COURTS-MARTIAL, UNITED STATES pt.

Or, Me, WN. Ce ios nv cases sccassccssecvesssaeens 3

MANUAL FOR COURTS-MARTIAL, UNITED STATES pt.

CY, Ws TU Cire Bio occ os c0ksicncsavceciccessacs ae

MANUAL FOR COURTS-MARTIAL, UNITED STATES*pt.

Fas PO; Dire Same WF ow ngs bc eeicccnacececducdexeesees 9

CHARLES L. DECKER ET AL, LEGAL AND

LEGISLATIVE BASIS, MANUAL FOR COURTS

MARTIAL, UNITED STATES 14 (1951)................. 6-7

W. WINTHROP, MILITARY LAW AND PRECEDENTS

946 (rev.2d ed. 1920)... ccc cc ccc ccc ccc ccc ucccvaccucee ae.

|

PETITION FOR WRIT OF CERTIORARI

Senior Airman Gabriel R. Contreras,

respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Armed Forces entered in this case.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Armed Forces is reported at 69 M..J.

120 (C.A.A.F. 2010). App., infra, at la-17a. The

opinion of the United States Air Force Court of

Criminal Appeals, United States v. Contreras,

ACM 37233, 2009 WL 1508120 (A.F. Ct. Crim. App.

May 28, 2009) (unpub. op.), is located at App., infra,

at 20a-35a.

JURISDICTION

The Court of Appeals for the Armed Forces

(CAAF) granted Petitioner’s petition for review. on

January 15, 2010. App., infra, at 18a-19a. The

CAAF’s judgment was entered on June 29, 2010.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1259(3) (2006).

STATUTES AND REGULATORY

PROVISIONS INVOLVED

10 U.S.C. § 930, Article 130, UCMJ, and the

MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. IV,

para. 56.c(3) (2005 ed.). App., infra, at 43a and 47a,

respectively.

10 U.S.C. § 934, Article 184, UCMJ, and MANUAL

FOR COURTS-MARTIAL, UNITED STATES pt IV, para.

90.b. (2005 ed.). App., infra, at 45a and 48a,

respectively.

Article L, American Articles of War of 1775. App.

infra, at 46a.

10 U.S.C. § 802, Article 2, UCMJ. App., infra, at

36a-38a.

10 U.S.C. § 884, Article 84, UCMJ. Anp., infra, a

39a.

10 U.S.C. § 892, Article 92, ICMJ. App., infra, at

AQa.

10 U.S.C. § 910, Article 110, UCMJ. App., znfra,

at 4la.

10 U.S.C. § 915, Article 115, UCMJ. App., :nfra,

at 42a.

10 U.S.C. § 933, Article 133, UCMJ. App., infra,

at 44a.

MANUAL FOR COURTS-MARTIAL, UNITED STATES pt

[V, para. 91.b. (2005 ed.). App., infra, at 49a.

MANUAL FOR COURTS-MARTIAL, UNITED STATES pt

IV, para. 107.b. (2005 ed.). App., :nfra, at 50a.

RULE FOR COURTS-MARTIAL (R.C.M.) 2014(d)Q)

provides that “Courts-martial have _ exclusive

jurisdiction of purely military offenses.”

STATEMENT OF THE CASE

This case involves deciding whether an offense

arising under the General Article, Article 134,

UCM4J,' constitutes a “purely military offense.” Here

the CAAF specifically addressed whether the offense

of indecent acts with another, an offense arising

under Article 134, UCMJ, (General Article), is a

“purely military offense” for purposes of Article 130,

UCMJ, Housebreaking. See MANUAL FOR COURTS

MARTIAL, UNITED STATES pt. IV, para. 90.b. (2005

ed.) (UMCM). More broadly speaking, this case

involves the appropriate analysis to determine

whether any offense under the UCMd is “purely

' The General Article, Article 134, culminated a long line of

American military jurisprudence On June 30, 1775, the

Continental Congress first enacted a_ provision’ which

prohibited “all disorders and neglects to the prejudice of

good order and military discipline "Article L of the

American Articles of War of 1775; W. WINTHROP, MILITARY LAW

AND PRECEDENTS 946, 957 (2d ed. 1920). Language prohibiting

“all conduct of a nature to bring discredit upon the military

service,” was added to later versions in 1916 and substantially

retained in Article 134 with the enactment of the Uniform Code

of Military Justice in 1951. Act of Aug. 29, 1916, c. 418, 39

Stat. 619, 666; see Parker v. Levy, 417 U.S. 733, 746 (1974)

military hi OpimMion below addre ed these

important federal questions

l. On January 8°12, 2008, Petitioner, a senior

airman in the United States Air Force, was tried at a

general court-martial Contrary to his plea

Petitioner was found guilty of conspiring to commit

indecent acts with another, with rape under the law

of principals, and with housebreaking with the

intent to commit indecent acts with another, in

violation of *9 U.S.C. §§ 881, 920, and 930 In

accordance with his plea, Petitioner was found guilty

of committing an indecent act with Airman First

Class (A1C) HS in violation of 10 U.S.C. § 934 and

acquitted of indecent assault against AIC HS. The

court-martial panel sentenced Petitioner to be

confined for one year, to forfeit all of his pay and

allowances, to be reduced to the lowest enlisted

rank, and to be dishonorably discharged from the Ai

force. The commander of the Seventh Air Force

later dismissed the rape conviction and approved

only so much of the adjudged sentence as provided

for a had-conduct discharge, confinement for five

months, forfeiture of all pay and allowance ind a

reduction to the lowest enlisted rank

2. During his guilty plea for indecent acts with

another, Petitioner testified that he engaged in a

consensual sex act with AlC HS in her dormitory

room in the presence of Senior Airman JA, who

watched in enjoyment. Tr. at 30, 34°35, 39

3. Petitioner appealed Line CONVICLtIO! rnd

entence on multiple ground

a. The Air Force Court of Criminal Appeal!

(AFCCA) affirmed the findings and sentence \pp

infra at 20a-35a The AFCCA held that indecent

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6

better approach when determining whether an

offense is “purely military” for purposes of Manua/

for Courts-Martial, United States pt. IV, para.

56.c(3) (2005 ed.) (UCM) entails an “examination of

the gravamen of the offense, and not just the

elements.” App., infra at 14a-15a. He asserted that

the CAAF analysis either incorrectly suggests that

“a slew of purely military offenses apply to civilians”

or confuses by indicating that a review of the

statutory elements and Article 2, UCMJ, determines

purely military offenses. App., infra at 17a. He

states that “practitioners are really intended to look

to the nature of the offense in context” to determine

whether it is purely military in nature. /d.

REASONS FOR GRANTING THE PETITION

This CAAF decision addresses an important

question of federal law—deciding the appropriate

formula for determining whether an offense invoked

under Article 134, the General Article, constitutes a

“purely military offense.” This determination and its

application has significance to members of the

United States Armed Forces both as a matter of

substantive law and in the jurisdictional context.

Substantively, the MCM prevents a “purely

military offense” from serving as an underlying

criminal offense intended by an Accused for purposes

of the Article 130, UCMJ, housebreaking offense.

MCM pt. IV, para. 56.c(3) (2005 ed.). The President

does not define “purely military offense” in that

section of the /CM, but a discussion on jurisdiction

defines the phrase as “those offenses which are not

7

generally denounced by a civil system of justice.”

CHARLES L. DECKER ET AL., LEGAL AND LEGISLATIVE

BASIS, MANUAL FOR COURTS-MARTIAL, UNITED

STATES 14 (1951). Rule for Courts-Martial (R.C.M.)

201(d)(1) signifies the jurisdictional significance of

this phrase by providing that “Courts-martial have

exclusive jurisdiction of ‘purely military offenses.”

R.C.M. 201(d)(1).

Although this case involved the former Article

134, indecent act offense, which was replaced by

changes to Article 120, UCMJ, effective October 1,

2007,2 the CAAF’s “eclements test” for determining a

“purely military offense” extends past Article 134,

UCMJ, to ail the offenses under the UCM4J.

Moreover, the CAAF’s analysis is not merely limited

tc Article 130, UCMJ, housebreaking purposes but

has jurisdictional implications.

To settle the appropriate calculus for determining

what constitutes a “purely mulitary offense” for

potentially millions of members of the United States

Armed Forces and civilians subject to the UCM,

this Honorable Court should grant this petition.

A. Certioari is necessary to settle the important

federal law question of whether an offense arising

under Article 154, UCMJ, is “purely military”

where its terms require proof of uniquely military

concepts.

* For incidents arising after October 1, 2007, indecent acts is

criminalized under Article 120(k), UCMJ. National Defense

Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, §

55a(2)(, 119 Stat. 3136, 3263 (2006).

1. The appropriate elements-based test to

determine if an offense under the UCMJ is “purely

military” involves examining its text for elements

requiring proof of uniquely military concepts. In

Conliffe, the CAAF followed an elements-based

approach and determined that since Article 1338,

conduct unbecoming an officer and a gentleman, by

its terms necessarily applied to only comissioned

officers, cadets, or midshipmen, it constituted a

purely military offense. United States v. Conliffe, 67

M.J. 127, 132 (C.A.A.F. 2009). Since the text of

Article 134, UCMJ, requires proof that an

underlying neglect or disorder was “to the prejudice

of good order and discipline in the armed forces’ or

“of a nature to bring discredit upon the armed

forces,’ unique military concepts, from its terms,

Article 134 is a “purely military offense.” (emphasis

added). Based on these unique military concepts,

the President likely conceived Article 134 offenses as

being “purely military” when he precluded “purely

military offenses” from serving as the underlying

basis for an Article 130 housebreaking offense.

2. The CAAF, however, misapplied the elements

test in this case by placing greater emphasis on

language subjecting categories of civilians’ to

potential courts-martial jurisdiction than on this

element requiring proof that the underlying act

prejudiced good order and discipline in the armed

forces or was discrediting to the armed forces,

leading to some irrational outcomes. Article 2(a),

UCM, limits the class of civilians subject to possible

courts-martial jurisdiction to only certain categories

which share some connection to the military. 10

U.S.C. § 802(a). These narrow categories of civilians

should not be equated to the general civilian

population. Second, this Court has long-disapproved

of extending courts-martial jurisdiction over non-

servicemembers. United States ex rel. Toth vy.

Quarles, 350 U.S. 11 (1955); Ainsella v. United

States ex rel. Singleton, 361 U.S. 234 (1960):

Grisham v. Hagan, 361 U.S. 278 (1960). This Court

has asserted “that military tribunals have not been

and probably never can be constituted in such lal

way that they can have the same _ kind of

qualifications that the Constitution has deemed

essential to fair trials of civilians in federal courts.”

Toth v. Quarles, 350 U.S. at 17. Since numerous

offenses in the punitive articles of the UCMd,

including Article 134, UCM, contain language

potentially subjecting certain categories of civilians

to court-martial jurisdiction,? in one fell swoop, the

CAAF’s reasoning precludes a vast number of

offenses from consideration as “purely military.” In

his concurring opinion, Judge Baker cites several

examples of seeming military offenses which would

not be considered “purely military” under the

CAAF’s reasoning, including effecting an unlawful

enlistment, failing to obey a general regulation,

hazarding a vessel, malingering, jumping from a

vessel into the water, and straggling. App., fra, at

15a; 10 U.S.C. §§ 884, 892, 910, 915, 934 (2006):

Articles 84, 92, 110, 115, 134, UCMJ: MANUAL FOR

COURTS-MARTIAL, UNITED STATES pt. IV, paras. 91,

and 107 (2005). The better approach, therefore, is to

find an offense “purely military” when it contains

elements requiring proof of uniquely military

* See, e.g., 10 U.S.C. §§ 884, 892, 910, 915 (2006).

10

concepts regardless of whether the offense could

potentially apply to civilians under Article 2, UCM.

B. The CAAF's analysis prejudiced Petitioner by

not properly considering the uniquely military

elements of Article 134, UCMJ, and upholding

the Article 130 housebreaking conviction.

1. By not properly weighing the uniquely

military element in Article 134, UCMJ, the CAAF

erroneously determined that indecent acts with

another was not a purely military offense. As a

result, the CAAF erroneously determined that

Article 134, UCMJ, served as an_ underlying

“criminal offense” for Article 130, UCM,

housebreaking, and upheld that conviction. Under a

proper application of the elements test, the CAAF

should have found that Article 134 indecent acts

with another constituted a “purely military offense”

which cannot serve as the underlying basis for an

Article 130 housebreaking conviction. Since the

housebreaking specification is no longer a viable

offense, the finding should be set aside, and the case

remanded for a rehearing on the sentence.

CONCLUSION

The CAAF erred when it misapplied the elements

test and relied more on Article 134’s_ potential

application to civilians rather than on its uniquely

military element when considering whether the

offense was “purely military.” Asa result, the CAAF

erred in its determination that indecent acts with

another was not purely military and in upholding

1]

Petitioners improper conviction for Article 130

housebreaking. For the foregoing reasons, Petitioner

respectfully requests that this Honorable Court

grant his petition for a writ of certiorari.

Respectfully submitted,

PHILLIP T. KORMAN

Captain, U.S. Air Force

Counsel of Record

AF Legal Operations Agency

Appellate Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20332-8000

(202) 767-1562

Counsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

UNITED STATES, Appellee

Gabriel R. CONTRERAS, Senior Airman,

U.S. Air Force, Appellant

No. 09-0754

69 M.J. 120

April 7, 2010, Argued

June 29, 2010, Decided

RYAN, J., delivered the opinion of the Court, in

which EFFRON, C.J.,. and ERDMANN and

STUCKY, JJ., joined. BAKER, J., filed a separate

opinion concurring in part and in the result.

Counsel

For Appellant: Captain Phillip T. Korman (argued);

Major Shannon A. Bennett, Major Michael A. Burnat

(on brief); Colonel James B. Roan.

2a

pers

For Appellee: Captain Naomi N. Porterfield

(argued); Colonel Douglas P. Cordova, Lieutenant

Colonel Jeremy S. Weber, and Gerald R. Bruce (on

brief).

Military Judge: Mark L. Allred

Judge RYAN delivered the opinion of the Court.

The charges in this case stem from an evening of

drinking that culminated in Appellant and another

male airman entering the room of a female airman

and each performing sexual acts with her in the

presence of the other. A general court-martial

convicted Appellant, in accordance with his pleas, of

one specification of indecent acts (a violation of

Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2006)) and, contrary to his

pleas, of one specification each of conspiracy, rape,

and housebreaking (violations of Articles 81, 120,

and 130, UCMJ, 10 U.S.C. §§ 881, 920, 930 (2006),

respectiveiy).! A panel composed of officer and

enlisted members sentenced Appellant to a

dishonorable discharge, one year of confinement,

forfeiture of all pay and allowances, and reduction to

the grade of E-1. The convening authority

disapproved the rape conviction and altered the

sentence to a bad-conduct discharge, five months of

confinement, forfeitures of all pay and allowances,

and reduction to E-1. The United States Air Force

Court of Criminal Appeals (CCA) affirmed the

1 Appellant was also charged with, but found not guilty of, one

specification of indecent assault under Article 134, UCMJ.

3a

altered findings and sentence. United States v.

Contreras, No. ACM 37233, 2009 WL 1508120, at *6

(A.F.Ct.Crim.App. May 28, 2009).

We granted review of the following issue:

WHETHER THE HOUSEBREAKING CHARGE

SHOULD BE SET ASIDE BECAUSE THE

UNDERLYING CRIMINAL OFFENSE,

INDECENT ACTS WITH ANOTHER UNDER

ARTICLE 134, UCMJ, IS A PURELY MILITARY

OFFENSE.

As detailed below, we conclude that indecent acts

with another, a violation of Article 134, UCM, is not

a purely military offense.

DISCUSSION

Article 130, UCMJ, outlaws unlawful entry into

“the building or structure of another with intent to

commit a criminal offense therein.” ‘The President.

however, has narrowed this language, stating that

the definition of “criminal offense” does not extend to

“an act or omission constituting a purely military

offense.” Manual for Courts-Martial, United States

pt IV, para. 56.c(3) (2005) ed.) (WCM).2. Appellant

2 The President’s analysis of the punitive articles is persuasive,

but not binding, authority. United States v. Miller, 67 M.J. 87,

89 (C.A.A.F. 2008) (citing United States v. Miller, 47 M.J. 352,

356 (C.A.A.F.1997)). However, the Government expressly

stated at oral argument that it was not challenging this

limitation on the language of Article 130, UCMJ. Moreover,

4a

argues that the housebreaking specification failed to

state an offense because indecent acts (at the time a

violation of Article 134, UCMJ)* is a purely military

offense and thus cannot serve as the underlying

criminal offense he allegedly had the intent to

commit. This appeal thus continues our inquiry,

begun last term in United States v. Conliffe, 67 M.dJ.

127 (C.A.A.F.2009), into what constitutes a “purely

military offense.”

A.

Whether a_ particular Article 130, UCM,

“criminal offense” is a “purely military offense” 1s a

question of law, which we review de novo. See

United States v. Rendon, 58 MJ. 221, 224

(C.A.A.F.2003). Although the concept of a purely

military offense predates the UCMJ by several

decades, the MC'M has never defined the phrase,‘

“[w]here the President’s narrowing construction is favorable to

an accused and is not inconsistent with the language of a

statute, ‘we will not disturb the President’s narrowing

construction, which is an appropriate Executive branch

limitation on the conduct subject to prosecution. ” United

States v. Guess, 48 M.J. 69, 71 (C.A.A.F.1998) (quoting United

States v. Davis, 47 M.J. 484, 486-87 (C.A.A.F.1998).

3 For crimes committed after October 1, 2007, indecent acts

falls under Article 120(k), UCMdJ. National Defense

Authorization Act for Fiscal Year 2006, Pub.L. No. 109-163, §

552(a)(2)(D, 119 Stat. 3136, 3263 (2006).

4 The closest we have to an early MCM definition is in a

separately compiled drafters’ history of the 1951 MCM that—

while discussing the jurisdictional rules that eventually became

Rule for Courts-Martial (R.C.M.) 201, regarding exclusive and

non-exclusive jurisdiction—defines purely military offenses as

“those offenses which are not generally denounced by a civil

and neither party here has been able to explain

either the genesis or purpose of this limit on Article

130, UCMJ, prosecutions. Almost every case

referring to purely military offenses is focused on

jurisdictional issues, see, e.g., Woodrick v. Divich, 24

M.J. 147, 150 (C.M.A.1987); United States v.

Ornelas, 2 C.M.A. 96, 97, 6 C.M.R. 96, 97, 1952 WL

2283 (1952), and among those cases there is

disagreement as to how the test for determining

whether something is a purely military offense is

formulated.®

Given the absence of guidance, we are left with a

number of possible approaches, of which the parties

urge two: Appellant believes that we should

determine whether indecent acts is a purely military

offense by reference to the elements of the offense

system of justice. They are such offenses as absence without

leave, desertion, disrespect towards officers .. . and similar

offenses of a military character.” Charles L. Decker et al.,

Legal and Legislative Basis, Manual for Courts-Martial, United

States 14 (1951); accord MCM, Analysis of Rules for Courts

Martial app. 21 at A21-8 (2008 ed.) [hereinafter Drafter's

Analysis] (“Military offenses are those, such as unauthorized

absence, disrespect, and disobedience, which have no analog in

civilian criminal law.”),

5 See, e.g. United States v. Marsh, 15 MJ. 252, 254

(C.M.A.1983) (limiting purely military offenses to those

offenses where the accused's status as a servicemember is an

element of an offense); United States v. Bailey, 6 M.J. 965, 968

(N.C.M.R.1979) (en banc) (“In a purely military offense the

accused’s status las a member of the military] is always a par’

of, or fundamentally underlies, one of the elements, but it is

not, itself, a separate element.”); United States v. Rubenstein,

19 C.M.R. 709, 788 (A.F.B.R. 1955) (citing numerous cases and

treatises for definition of purely military offense as “an offense

denounced only by military law”),

itself} the Government believes that we should do so

by looking at the gravamen of the act comprising the

criminal offense and asking whether it is an act that

is, or could be, a criminal offense under the law of

any state or under federal law

The CCA in this case adopted the latter

approach. Although it recognized that Article 134,

UCMJ, requires proof of one of two “military

elementis]” (that the act or omission was “prejudicial

to good order and _ <discipline” or “service

discrediting’), the CCA reasoned that because a

Minnesota statute, Minn. Stat. § 617.23 (2009),

criminalized conduct similar to the military

definition of indecent acts, indecent acts was not a

purely military offense. 2009 WL 1508120, at *3

The Government ask us to adopt the CCA

approach and consider state laws that arguably

prohibit the conduct that constituted the “indecent

acts” in this case. But this approach 1s inconsistent

with Con/iffe, our only published opinion analyzing

purely military offenses in the context of the

housebreaking statute, Article 130, UCM]

In Conliffe, a United States Military Academy

cadet unlawfully entered both the barracks room of a

fellow cadet and an Academy sports team’s locket

room, where he set up cameras to record women

changing clothes and showering. 67 M.J. at 130. He

was charged with, and pleaded guilty to, three

specifications of housebreaking, with the intended

criminal offense upon entry for each specification

being conduct unbecoming an office and

ventleman (an Article 133, UCMJ, 10 U.S.C. § 933

(2000), offense). 67 M..J. at 129-30. We held that th

housebreaking convictions could not stand becausi

Article 133, UCM, is a purely military offense. 67

M.J. at 132-33 The Government invited us in

Conliffe to engage in a survey of state law similar t

what the CCA did here, and to reference state law

criminalizing voyeurism (the conduct that was thi

basis for the Article 133, UCMJ, charge) to

determine that the Article 133, UCM, offense wa

not a purely military offense 67 M.J. at 133 n

but we expressly declined that mnviltation 1d

focusing instead on the fact that Article 133, UCM.)

nece arily require proo! that the accused

a commissioned officer, cadet, or mid-shipman

because the conduct must have di sraced oO}

dishonored the accused in his, or her officia!

capacity OQnly a commissioned” militar

officer, cadet, or midshipman can commit the

olfense and ‘t 1 only a court-martial that ha

jurisdiction to prosecute such an offense

67 M.J. at 132 (citation ind quotation mar!

omitted)

Mur analysis focused on thi tatus of the

offender under the statute itsell Could Articl

133, UCM, be violated by a person who is not a

member of the military? ‘The answer was clearly

no, By it own term Article 133, UCM

require that tne accu ed be i) oOmmi imoned

fficer, cadet, or mid-shipman,” and “|t}he focus of

Article 143, UCM.J. is the effect of the accused

conduct on his status as an officer, cadet, on

midshipman.’ ld This focus on status was

consistent with Marsh where we determined, in

another context, that unauthorized absence

Article 86, UCM, 10 U.S.C. §& BR6 OL9ORY). was a

peculharly military’ offense, for by its expre

terms the statutory prohibition applieldl only to a

‘member of the armed forces.’ ” 15 M.J. at 254

Neither the CCA nor the parties to his cass

have given us a yvood reason to depart from thi

elements-based approach, which determine

whether an offense is a “purely military offense

by reference to whether the elements of the

underlying crime, either directly or by necessary

implication, require that the accused be a member

Nor is the Court aware of any

of the military

important development in the short time. sinc

Conlitfe was decided that would lead u to

reconsider this analytic framework

Moreover, this approach has the benefit. of

beige consistent with the historical context in

which the MCM was created. Part of the genes

behind the modern AJC'M was the understanding

that military justice may be administered by non

lawyers, see United State Army The Army

Lawver | Histor of the Judge Idvocate

Generals Corps, 775-1975 206 (1975)

sometimes ip distant locations with only a MC'M

to guide them We are not convinced that the

President expected these non-specialist Lo

conduct a filty-state urvey before deciding

whether LO charge i ervicemember with

Sa

housebreaking.® It is equally as consistent with

the stated purpose and historical context of the

MCM that the President intended a_ simple,

bright-line test that could be easily applied and

determined by reference to the MCM itself. See

MCM, Drafters’ Analysis app. 21 at A21-1 (“II]t

was determined that the Manual for Courts-

Martial should be sufficiently comprehensive,

accessible, and understandable so it could be

reliably used to dispose of matters in the military

justice system properly, without the necessity to

consult other sources, as much as reasonably

possible.”) (emphasis added).

Therefore, consistent with our decision in

Conliffe, we decline to determine whether an

offense is a purely military offense by conducting

a survey of, or making other reference to, state

ind federal law. We devolve instead _ to

consideration of the elements of the underlying

offense.

c.

In this case, the underlying offense in the

housebreaking specification is indecent acts. At the

time Appellant committed his crimes, indecent acts

with another was prohibited under Article 134,

6 Even if one were to conduct such a survey, it would only lead

to more questions: Do the jurisdictions that prohibit the

conduct need to actually enforce the statute? How many

jurisdictions must outlaw similar conduct before a crime loses

its purely military character?

10a

UCMJ. The statutory text of Article 134, UCM,

provides that:

Though not specifically mentioned in this

chapter, all disorders and neglects to the

prejudice of good order and discipline in the

armed forces, all conduct of a nature to bring

discredit upon the armed forces, and crimes

and offenses not capital, of which persons

subject to this chapter may be guilty, shall be

taken cognizance of by a general, special, or

summary court-martial, according to the

nature and degree of the offense, and shall be

punished at the discretion of the court.

The President, in the discussion section of the

MC™M, provides turther limitations to this broad

statutory language, stating that in order to

punish indecent acts with another under Article

134, UCMJ, the Government must prove:

(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.

MCM pt IV, para. 90.b.

lla

Article 134, UCMJ, by its terms, applies to

anyone “subject to this chapter.” Under the UCM,

that phrase includes a variety of individuals who are

not in the military. See Article 2(a), UCMdJ, 10

U.S.C. § 802(a) (2006). Appellant’s contention that

any crime charged under clause 1 or 2 of Article 134,

UCMJ, must be a purely military offense is therefore

incorrect—the text of the UCMJ provides that Article

134, UCMJ, might be violated by persons who are

not and never have been in the military.?

Of course, the 4CM further limits the application

of some offenses listed under Article 134, UCMJ, to

military members only. See, e.g., MCM pt IV, paras.

83.b (fraternization); 84.b (gambling ~~ with

‘ Referencing Article 2(a), UCMJ, in the context of determining

what constitutes a purely military offense does not answer or

prejudice the altogether different question of whether non-

servicemembers may be prosecuted under the UCMJ. Whether

something is a “purely military offense” depends on whether

the UCMJ limits prosecution for the offense to servicemembers

or contemplates the prosecution of a non-servicemember, not on

whether a non-servicemember may in fact be prosecuted in a

particular case. See, e.g., United States v. Stebbins, 61 M.J.

366, 369 (C.A.A.F.2005) (holding that in determining whether

death was the maximum authorized punishment for rape a

court “need not answer the question of whether [the accused]

may actually be sentenced to death”); Willenbring v.

Neurauter, 48 M.J. 152, 180 (C.A.A.F.1998) (holding that rape

was a capital crime for statute of limitation purposes

regardless of whether the necessary factors were present to

sentence the accused to death in that case); United States v.

taly, 363 F.3d 292, 296-97 (4th Cir.2004) (holding that the

statutory question of whether to apply the limitation period for

capital or for non-capital offenses did not depend on whether

the death penalty could be constitutionally imposed for the

offense in question); United States v. Manning, 56 F.3d 1188,

1195-96 (9th Cir.1995) (same).

12a

subordinate). These are purely military offenses.

Other crimes, however, are not so limited, nor would

anyone otherwise consider them to be purely military

offenses despite the necessity of proving and

pleading that the conduct was service discrediting or

prejudicial to good order and discipline. See, e.g., id.

paras. 66.b (bribery and graft); 92.b (kidnapping):

97.b (pandering and prostitution).§

The application of Article 134, UCMJ, to punish

indecent acts with another is not limited to military

members, either expressly or by necessary

implication. Consequently, Appellant’s

housebreaking specification stated a viable offense

when it alleged he unlawfully entered a_ fellow

airman’s room with the intent to commit indecent

acts.

8 Of course, as always, the President’s analysis of the punitive

articles is persuasive authority and may potentially further

limit the application of some punitive articles to military

members only, just as he lmited the application of the

housebreaking statute to cases where the underlying offense

was something other than a purely military offense. See supra

note 2 and accompanying text. This Court can consider such a

Presidential limitation while applying an elements-based

approach. Contra Contreras, 69 M.J. at 126 (Baker, J.,

concurring in result). And in the unlikely event that we are

presented with a case where a person unlawfully entered the

building or structure of another with the intent to jump from a

vessel, wrongfully cohabitate therein, or any of the other

examples described by the concurring opinion, see id. at 125 &

n.2, 126, we are confident that we can fairly address those

situations under the framework set forth in Conliffe and

further explained here.

L3a

DECISION

The decision of the United States Air Force Court

of Criminal Appeals is affirmed.

BAKER, Judge (concurring in the result):

I agree with the conclusion in this case: the

offense of indecent acts as charged under clause 1 or

2 of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2006), is not a purely

military offense. However, I disagree with the

Court’s analysis in reaching this conclusion.

in particular, the majority adopts an “elements

test” to determine whether an offense is “purely

military” in nature:

Therefore, consistent with our decision in

Conliffe, we decline to determine whether an

offense is a purely military offense by

conducting a survey of, or making other

reference to, state and federal law. We

devolve instead to consideration of the

elements of the underlying offense.

Article 134, UCMJ, by its terms, applies to

anyone “subject to this chapter.” Under the

UCMJ, that phrase includes a variety of

individuals who are not in the military. See

Article 2(a), UCMJ, 10 U.S.C. § 802(a) (2006).

l4a

Appellant’s contention that any crime charged

under clause 1 or 2 of Article 134, UCMJ, must

be a purely military offense is therefore

incorrect—the text of the UCMJ provides that

Article 134 might be violated by persons who

are not and never have been in the military.

United States v. Contreras, 69 M.J. at 123-24

(C.A.A.F.2010).! In short, because the text of clause

1 of Article 134, UCMJ, refers to “persons subject to

this chapter,” and Article 2, UCMJ, 10 U.S.C. § 802

(2006), potentially reaches civilians, the majority

concludes that the offense of indecent acts is not a

purely military offense. Of course, by the same

“elements” reasoning, effecting an unlawful

enlistment, failing to obey a general regulation,

! The majority cites United States v. Conliffe, 67 M.Jd. 127

(C_A.A.F.2009), in support of its “elements-based” approach,

suggesting that Conliffe was based on the statutory status of a

commissioned officer, i.e., that the element of the offense

includes one’s status as a commissioned officer. ‘To the

contrary, the Con/iffe analysis was contextual. The analysis

was not exclusive, but rather focused on the nature of the

offense: “The focus of Article 133, UCMJ, is the effect of that

accused’s conduct on his status as an officer, cadet, or

midshipmen ....” /d. at 132. This reference to status is not

statutory, but rather directed to an officer’s status as a leader.

As a result, only a commissioned military officer, cadet, or

midshipman could commit the offense, because only such

persons could undermine their leadership status in the same

roles. That Con/iffe offered a contextual perspective, rather

than an elements-based rule, was reinforced in note 2 stating:

“[We] decline to decide today whether an Article 134, UCMJ,

offense can serve as the underlying criminal offense in a

housebreaking charge, we note that Articles 133 and 134,

UCM4J, contain at least one significant difference.” /d. at 133.

L5a

hazarding a vessel, and malinge ing would not be

purely military offenses.2, Such a conclusion, as a

practical matter, largely may be irrelevant in the

context of Article 130, UCMJ, 10 U.S.C. § 930 (2006);

however, the term has jurisdictional implications as

well. The President has employed the term in Rule

for Courts-Martial 201(d)(1) in the jurisdictional

context stating, “Courts-Martial have _ exclusive

jurisdiction of purely military offenses.” Moreover,

the majority seems to prejudge both the

jurisdictional issues and substantive law issues that

might arise were a civilian charged with a violation

of the UCMJ.

The better approach when determining whether

an offense is “purely military” for the purposes of

Manual for Courts-Martial, United States pt. IV,

para. 56.c(3) (2005 ed.) (W4CM), is that taken by this

Court prior to this case, which entails examination of

the gravamen of the offense, and not just the

elements. In this regard, civilian practice with

reference to federal and state law is not dispositive,

as the Government seems to suggest, but it may

offer relevant context, just as the absence of any

“persons subject to this chapter” other than military

members being charged with an offense, might help

to inform a judgment as to whether an offense was

purely military in nature.

An “elements test” is superficially appealing for a

number of reasons. First, it appears to offer

2 Articles 84, 92, 110, and 115, UCMJ, 10 U.S.C. §§ 884, 892,

910, 915 (2006). Under Article 134, UCMgd, the following

offenses would also not be considered purely military ones:

disloyal statements, jumping from a vessel into the water, and

straggling.

l6a

certitude, in lieu of the case-by-case analysis

required from contextual analysis. Second, in some

cases the “purely military” nature of the offense may

be easily ascertained from the statutory elements

language. Likewise, the WCM further limits some

offenses under Article 134, UCMJ, through elements

that expressly confine the offense to military

members. However, the fact that an “elements test”

gets to the right result in some cases (including this

one) does not make it an appropriate substitute for

the contextual analysis heretofore required an

applied in this area of law.

A quick review of the punitive articles set forth in

the MCM reveals why. Consider the offense of

malingering under Article 115, UCMJ, 10 U.S.C. §

915 (2006). Under the UCM, the offense applies to

“lalny person subject to this chapter.” The elements

of this offense do not appear to limit the offense to

military members. It is not until one resorts to

contextual analysis beyond the statutory elements of

the offense read with Article 2(a), UCMJ, that one

learns in the explanation section in the MCM for this

offense that we see the limitation to “work, duty, or

service .. . expected of one in the military service.”

MCM, pt. IV, para. 40.-(c)(1). Thus, notwithstanding

the statutory language and the absence of a

limitation in the statutory elements, one would

otherwise consider this a purely military offense.

Consider also the offense of wrongful cohabitation

under clause 1 or 2 of Article 134, UCMJ, where “the

accused and another person openly and publicly

lived together as husband and wife” when they were

not in fact married. MCM, pt. IV, para. 69.b(1).

Again, the elements do not appear to limit the

offense to military members and under the

majority's paradigm, one would not otherwise

consider this a purely military offense. However, in

the wake of United States Supreme Court cases

about individual privacy rights, 1t would seem that

no one other than perhaps a military member would

be subject to prosecution for this offense.

In short, while the expedience of the “elements-

based” approach may possess some _ superficial]

appeal, where we are implicating the application of

military law to civilians, as the majority does here,

we should paint with a fine contextual brush rather

than a broad one of black letter law. Moreover, if

applied literally the majority’s analysis will result in

absurd results. More likely, the Court will revert. to

contextual analysis, in which case it is not adopting

an “elements test” at all, but rather adding a layer of

confusion to the law, by in fact applying a contextual

approach, while purporting to apply a black letter

and predictable rule. This is suggested by the

opinion’s language stating: “Other crimes, however,

are not so limited, nor would anyone otherwise

consider them to be purely military offenses é

Contreras, 69 M.J. at 124. In short, the majority’s

analysis is either incorrect—suggesting that a slew

of purely military offenses apply to civilians—or it is

confusing—suggesting that a review of statutory

elements and Article 2, UCMJ, will determine which

offenses are purely military when in fact this Court

and practitioners are really intended to look to the

nature of the offense in context to determine

whether it is purely military in nature.

L&a

APPENDIX B

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

USCA Dkt. No. 09-0754/AF

Crim. App. No. 37233

United States, Appellee

Gabriel R. CONTRERAS, Appellant

ORDER GRANTING REVIEW

On consideration of the petition for grant of

review of the decision of the United States Air Force

Court of Criminal Appeals, it is, by the Court, this

15th day of January, 2010,

ORDERED:

That said petition is hereby granted on the

following issue:

LYWa

WHETHER THE HOUSE BREAKING

CHARG I SHOULD BE SET ASIDE

BECAUSE THE UNDERLYING CRIMINAL

OFFENSE, INDECENT ACTS WITH

ANOTHER UNDER ARTICLE 134, UCM, IS

A PURELY MILITARY OFFENSE

sriefs will be filed under Rule 25

Kor the Court

William A. DeCicco

Clerk of the Court

APPENDIX C

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNPTED STATES

Semor Airman GABRIEL R. CONTRERAS

LJnited States Air Force

ACM 37233

2009 WL 1508120 (A.F. Ct. Crim. App.)

28 May 2009. Decided

NOTICE: NOT FOR PUBLICATION

DISPOSITION: AFFIRMED.

GCM convened at Osan Air Base, Republic of Korea.

Military Judge: Mark L. Allred. Approved Sentence:

Bad Conduct Discharge, confinement for 5 months,

forfeiture of all pay and allowances, and reduction to

K-]

Appellate Counsel for the Appellant: Major Shannon

A. Bennett and Captain Michael A. Burnat

Appellate Counsel for the United States: Colonel

Gerald R. Bruce, Major Jeremy S. Weber, Captain

Before WISI BRA! 1) md Hi Ke rye '

Military dudye

A veneral court martial COT PO ed QO] Ollice! eene

enlisted members convicted the appellant, contrat

to his pleas, of conspiring to commit indecent act

with another rape, and housebreaking in

violation of Articles 81 120, and 130, UCM; 10

U S.C. §& 881, 920, and 920 rie was convicted, in

accordance with his plea, of committing indecent

acts with another, in violation of Article 134, UCM

10 U.S.C. § 934. The adjudged sentence consisted of

a dishonorable discharge, confinement for one year

forfeiture of all pay and allowances, and reduction to

i-1. The convening authority disapproved the rape

specification and charge under Article 120, UCM

and only approved so much of the sentence a

provides for a bad-conduct discharge, confinement

for five month : forfeiture of all pay and allowance

and reduction to K-] The appellant asserts the

following five assignments of erro)

Phe appell inf W fi convicted of rape le] | bik |

principals as it was Semor Airman (SrA) JA wl iclually rape

Yirman First Cla (AiC) hi

WHICTHER TH HOUSHK BREAKING CHARG!

HOULD BESET ASIDI BECAUSE THh BASIS

THRE UNDERLYING CRIMINAL OFFENSE |

VPURELY MILITARY OFFIENS Ie

WHETHER THE EVIDENCKH IS LEGALLY AND

FACTUALLY INSUFFICIENT TO SUSTAIN /

RINDING OF GUILTY TO THe

HOUSE BREAKING CHARG I

11)

VHE THER THI MILITARY JUDG S FAILURE

TO PROPERLY INSTRUCT ON MISTAKE O}

KACT AS A DEFIENSE TO THe

HOUSE BREAKING CHARGE WAS HARMEU]

WROKR

sep claie ‘ bids MVIDIENCIH IS LEGALLY AND

‘ACTUALLY INSUFFICIENT TO SUSTAIN A

ae IG OF | PFUOTLTY TO THE CONSPIRACY

HARGIc

Ih l if ri cad p I Hit { f f (

~

~

WHETHER THE APPELLANT'S APPROVED

SENTENCE TO A BAD-CONDUCT DISCHARGE IS

INAPPROPRIATELY SEVERE.?

Background

This case involved Airman First Class (A1C) HS’

alleged consensual and nonconsensual conduct with

three airmen—the appellant, Senior Airman (SrA)

MJ, and SrA JA. On 8 February 2007, AlC HS

arrived at Osan AB, Republic of Korea. On 10

February 2007, she went out to a few bars with a

group of airmen from her squadron, including the

appellant. She testified’ that she had never met

the appellant prior to this night. She only

remembered going to two off-base bars and drinking

a variety of alcoholic drinks to the point where she

became “pretty intoxicated.”® She also’ only

This issue is raised pursuant to United States v. Grostefon,

12 M.J. 431 (C.M.A. 1982).

4 AIC HS testified pursuant to a grant of testimonial and

transactional immunity.

According to Major (Maj) MG, an expert in the field of

toxicology, she estimated AlC HS’s blood alcohol concentration

at 0330 on 11 Feb 2007—the time of the alleged rape—-to be

between .199 and .319, depending upon her metabolism. Maj

MG testified that most people who reach a level of .20 are

showing clear signs of intoxication and at a level of .30, many

people are medically comatose, which means unresponsive. Dr.

JY, an expert in forensic toxicology, testified that blackouts, a

period when individuals are still functioning but they will not

remember what happened, occur at a_ blood alcohol

concentration level of .20 and higher.

24a

remembered flirting with the appellant, but claimed

that she could not recall going anywhere else or

doing anything else over the course of the evening.

Other witnesses testified that Al1C HS went to two

other bars that night and into the early morning

hours of 11 February 2007. A1C HS was observed

sitting on the appellant’s lap, kissing him

throughout the night, and dancing with him

provocatively on the dance floor. She was also

observed swaying back and forth, stumbling, and her

eyes were red and half closed.

A1lC HS testified her first memory after

attending the first two bars was waking up in her

dorm room with SrA MJ digitally penetrating her

vagina.© She noticed that the appellant was in the

room at the same time, sitting at her computer desk.

The next thing she remembered was waking up

sometime later, but this time SrA JA was on top of

her engaged in sexual intercourse. She observed

that the appeilant was still in the room. She told

SrA JA to stop. SrA JA had a confused look on his

face but he comphed and immediately stopped. He

then left the room at her request. According to the

testimony of SrA JA,’ after he left, he heard her

yelling at the appellant saying that he was going to

feel sorry for what he had done. A short time later,

the appellant departed AlC HS’ room and went to

SrA JA’s room to report that A1C HS was very upset

but he, the appellant, had calmed her down.

After the appellant left her room, A1lC HS

proceeded to find a friend whom she knew from her

® A1C HS testified that this encounter was consensual.

SrA JA testified pursuant to a grant of testimonial

immunity.

25a

previous assignment. After talking to her friend, his

roommate and SrA MJ, she decided to go to the

hospital and report the sexual assault.

Government prosecutors called additional

witnesses to offer evidence of how SrA JA came to be

in AlC HS’ room having intercourse with her.

According to the testimony of SrA JP,® at

approximately 0300 on 11 February 2007, the

appellant came to her room and, referring to A1lC

HS, stated, “I just [engaged in sexual intercourse

with] that girl.”2 A few minutes later, SrA JA

knocked on the door and the appellant went with

SrA JA to have a cigarette. SrA JA testified that on

the way down to the dorm’s “smoke pit,” the

appellant informed SrA JA that he had just had sex

with AiC HS and SrA MJ was also present. The

appellant stated that AlC HS was a “squirter” and

asked SrA JA if he wanted to seek her squirt. They

proceeded to SrA JA’s room to obtain some condoms

and then went to AlC HS’s room. The appellant

knocked on the door, turned the handle and went in.

The appellant did not wait for a response from A1C

HS before entering her room. When they entered

her room, they saw SrA MJ lying on one bed naked

and A1lC HS was lying on the other bed under the

covers. They were both asleep. SrA JA went back to

his room to obtain a camera because they wanted to

take a picture of SrA MJ sleeping in the nude. After

8 SrA JP was an acquaintance of the appellant’s at Osan AB.

® Al1C HS could not remember her interactions with the

appellant: however, she indicated that he had permission to be

in her room while she was engaging in sexual acts with SrA

MJ. In addition, SrA MJ testified that both he and the

appellant engaged in consensual sexual acts with A1C HS.

26a

taking pictures of SrA MJ, SrA JA woke him up and

escorted SrA MJ out of AlC HS’s room.

SrA JA testified that, when he returned to A1C

HS’s room after escorting SrA MJ out, Al1C HS had

awoke and she and the appellant started kissing. At

some point, the appellant digitally penetrated her

vagina while SrA JA sat and watched. Shortly

thereafter, SrA JA began to digitally penetrate A1C

HS. After he digitally penetrated AlC HS, SrA JA

proceeded to engage in sexual intercourse with A1C

HS until she told him to stop. SrA JA’s testimony

contradicted AlC HS’ testimony in that he claimed

she consented to all of the sexual activity while she

maintained that she did not give him consent as she

had never met him before.

SrA MJ testified!® that he first met Al1C HS on

the night of 10 February 2007 in another airman’s

dorm room prior to going downtown that night.

Although he did not remember exactly how it

occurred, at some point after they had all been out

drinking, he ended up in A1lC HS’ room with her and

the appellant. They both engaged in various

consensual sexual activities with AlC HS in the

presence of each other. SrA MJ testified that at no

point did she ever direct either of them to leave the

room. Additionally, when he spoke to A1C HS after

he heard she had claimed to be raped, she stated the

sexual relations with him and the appellant were

consensual and she was raped by someone she did

not know. A1C HS also told him that she did not

object to SrA MJ and the appellant being in her

10 SrA Md testified pursuant to a grant of testimonial

immunity.

yAg he

room. However, AlC HS testified that she did not

give consent to either SrA JA or the appellant to be

in her room the second time.

Housebreaking

The first assignment of error is that the

housebreaking charge should be set aside because

the underlying Article 134, UCM offense of

indecent acts with another is a purely military

offense.

The question of whether an underlying offense is

a purely military offense is a question of law that we

review de novo. United States v. Conliffe, 67 M.dJ.

127, 131 (C.A.A.F. 2009). Under Article 136, UCM,

an accused who unlawfully enters the building or

structure of another with intent to commit a

criminal offense therein is guilty of housebreaking.

The second element of housebreaking, the element at

issue here, “requires a specific intent to enter with

the intent to commit la criminal] offense.” Conlrffe,

67 M.J. at 131 (quoting United States v. Peterson, 47

M.J. 231, 235 (C.A.A.F. 1997). The Manual for

Courts-Martial, United States (MCM) Part IV, 4

56.c.(3) (2008 ed.) defines a criminal offense as “any

act or omission which is punishable by courts-

martial, except an act or omission constituting a

purely military offense.”

The appellant relies upon Con/iffe, in which our

superior court held that conduct unbecoming an

officer and gentleman under Article 133, UCMJ, 10

U.S.C. § 933, is a purely military offense, and cannot

serve as the underlying criminal offense in a

28a

housebreaking charge. However, in Conliffe, our

superior court specifically declined to decide whether

an Article 134, UCMJ offense can serve as an

underlying offense in a housebreaking charge.

Conliffe, 67 M.J. at 133 n.2. Notwithstanding this,

our superior court did note one significant difference

between an Article 133 and Article 134, UCM

offense. Under Article 133, UCMJ, an accused can

be charged with either the Article 133, UCM,

offense or the enumerated punitive article based on

the same underlying conduct, whereas under Article

134, UCMJ, the preemption doctrine prohibits the

government from charging an accused under Article

134, UCMJ, clauses 1 and 2, for conduct that is

appropriately charged under an enumerated article.

/d. In its appellate brief, the government submitted

a Minnesota State Statute that makes unlawful any

open or gross, lewd or lascivious behavior, or any

public indecency.

We find that the offense of indecent acts with

another is not a purely military offense. Although

offenses under Article 134, UCMJ, clauses 1 and 2,

include a purely military element that either the

conduct is prejudicial to good order and discipline or

is service discrediting, the core of many of the

offenses criminalizes conduct similar to other

jurisdictions. In this case, it appears the conduct

which formed the basis of the offense of indecent acts

with another would also be considered criminal

conduct in the state of Minnesota. Accordingly, we

find that the offense of indecent acts with another is

not a purely military offense.

29a

Legal and Factual Sufficiency

The appellant asserts that the evidence is legally

and factually insufficient to sustain findings of guilty

to the housebreaking and conspiracy charges. In

accordance with Article 66(c), UCMJ, 10 USC §

866(c), we review issues of legal and _ factual

sufficiency de novo. United States v. Washington, 57

M.J. 394, 399 (C.A.A.F. 2002). The test for legal

sufficiency of the evidence is ““whether, considering

the evidence in the light most favorable to the

prosecution, any reasonable fact-finder could have

found all the essential elements beyond a reasonable

doubt.” United States v. Day, 66 M.J. 172, 173

(C_A.A.F. 2008) (quoting United States v. Turner, 25

M.J. 324 (C.M.A. 1987)).

The test for factual sufficiency is “whether, after

weighing the evidence in the record of trial and

making allowances for not having personally

observed the witnesses l[wel are _ lourselves|

convinced of the accused’s guilt beyond a reasonable

doubt.” Turner, 25 M.J. at 325. Review of the

evidence is limited to the entire record, which

includes only the evidence admitted at trial and

exposed to the crucible of cross-examination. Article

66(c), UCMJ, United States v. Bethea, 46 C.M.R.

223, 224-25 (C.M.A. 1973).

There is ample evidence in the Record of Trial

that the appellant committed the charged offenses.

The evidence clearly shows that the appellant

conspired with SrA JA to commit indecent actions

upon A1lC HS and that he entered her dormitory

room without her permission with the intent to

commit indecent acts upon _ her. Accordingly,

30a

considering the evidence in the light most favorable

to. the prosecution, a reasonable fact finder could

have found all the essential elements beyond a

reasonable doubt and concluded the appellant

committed the offenses of housebreaking and

conspiracy. Furthermore, we are ourselves

convinced of the appellant’s guilt beyond a

reasonable doubt.

Failure to Instruct on Mistake of Fact as a Defense

The appellant contends that the military judge

failed to properly instruct on mistake of fact as a

defense to the housebreaking charge. The appellant

claims that although the military judge advised the

members of the mistake of fact defense concerning

the underlying offense of indecent acts with another,

the military judge failed to advise the members that

the instruction on the mistake of fact defense also

applied to the first element of housebreaking. The

appellant contends the military judge should have

instructed the members that the mistake of fact

defense applied to whether the appellant mistakenly

believed he had consent to enter Al1C HS’s room,

independent of whether he believed he had consent

to commit an indecent act.

The standard of review for alleged instructional

error is de novo. United States v. Kasper, 58 M.J.

314, 318 (C.A.A.F. 2003). Absent objection by the

trial defense counsel, the error, if any, is waived

absent plain error. United States v. Blough, 57 M.J.

528, 534 (A.F. Ct. Crim. App. 2002). “Even if the

sentencing instructions were erroneous, we will not

31a

grant relief absent a showing of material prejudice to

a substantial right.” Jd. (citations omitted). If there

is a Constitutional error, we may not affirm the case

unless the error was harmless beyond a reasonable

doubt. United States v. Grijalva, 55 M.J. 223, 228

(C.A.A.F. 2001); United States v. McDonald, 57 M.JJ.

18, 20 (C.A.A.F. 2002).

In addition to giving the members an instruction

on the mistake of fact defense concerning indecent

acts, the military judge also gave the members an

instruction on the mistake of fact defense as it

applied to the lesser included offense of unlawful

entry. However, the military judge did not give this

instruction with respect to the first element of the

housebreaking charge. Although the military judge

was trying not to confuse the members, the military

judge should have instructed the members on the

mistake of fact defense for the first element of

housebreaking. However, we find that this error did

not prejudice the appellant. Having found that the

appellant conspired with SrA JA to commit indecent

acts upon A1C HS, the only issue remaining for the

members was whether or not the appellant had

consent to reenter AlC HS’s dorm room, or

reasonably believed that he did. See United States

v. Peterson, 47 M.J. 231, 234-35 (C.A.A.F. 1997) (the

unlawful entry element of housebreaking is a

general intent crime, therefore any mistake of fact

must be both “subjectively held and reasonable in

light of all the circumstances”). The evidence clearly

shows Al1C HS did not give the appellant consent to

reenter her room, nor did the appellant have any

reasonable belief that she did consent. The only

credible evidence that the appellant believed he had

32a

A1C HS’ consent to enter her room is that she had

consented to his presence in her room earlier in the

evening. But this fact is greatly outweighed by all

other facts and circumstances surrounding the

charge. Just because an accused is given permission

to enter a structure at one point in time or for one

purpose does not mean that accused can reenter that

structure at any time, for any purpose. See United

States v. Davis, 54 M.J. 622 (A.F. Ct. Crim. App.

2000) (accused who had unfettered access to

warehouse for duties can commit housebreaking by

entering warehouse while off-duty and without

lawful purpose); United States v. Carroll, 45 M.3J.

604 (Army Ct. Crim. App. 1997) (accused guilty of

housebreaking where he reentered female soldier’s

dorm room several hours after attending a party in

her room); United States v. Fayne, 26 M.J. °28

(A.F.C.M.R. 1988) (accused guilty of housebreaking

when he re-entered his wife’s home without her

permission to commit a crime). In this case the

appellant had no lawful authority to reenter A1C

HS’s room. Cf Davis, 54 M.J. at 625 (““[W]hen one

enters a building with proper authority but also has

the intent to commit a crime, the entry is not

unlawful.”) Moreover, given the lateness of the hour,

a considerable amount of time passed between the

appellant’s departure and return.!! We find, beyond

a reasonable doubt, that the appellant had no

'' The appellant left SrA HS’ room for anywhere from 30 to 90

minutes. The appellant told investigators he was in AIC HS's

room at 0200 As previously noted, SrA JP testified the

appellant came to her room no later than 0300. SrA JA

testified the appellant brought him to AlC HS'’s room at

approximately 0330.

reasonable belief that he was entitled A1l1C HS’ room

Peterson, 47 M.J. at 235.

Accordingly, the appellant was not prejudiced by

the military judge’s failure to instruct the members

on the mistake of fact defense concerning the first

element of the housebreaking charge.

Inappropriately Severe Sentence

The appellant asserts that his sentence, which

includes a bad-conduct discharge, is inappropriately

severe. We disagree.

This Court reviews sentence appropriateness de

novo. United States v. Barer, 60 M.J. 382, 384-85

(C.A.A.F°. 2605). We “may aftirm only such findings

of guilty and the sentence or such part or amount o!

the sentence, as [we find] correct in law and fact and

determinel|), on the basis of the entire record, should

be approved.” Article 66(c), UCMJ. We assess

sentence appropriateness by considering’ the

particular appellant, the nature and seriousness of

the offense, the appellant’s record of service, and all

matters contained in the record of trial. United

States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982);

United States v. Bare, 63 M.J. 707, 714 (A.F. Ct.

Crim. App. 2006), a/fd, 65 M.J. 35 (C.A.A.F. 2007).

We have a great deal of discretion in determining

whether a particular sentence is appropriate but are

not authorized to engage in exercises of clemency.

United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F.

1999); United States v. Healy, 26 M.J. 394, 395-96

(C.M.A. 1988). Sentence comparison is generally

inappropriate, unless this Court finds that any cited

cases are “closely related” to the appellant's case and

the sentences are “highly disparate.” Lacy, 50 M.J

at 288 (citing United States v. Ballard, 20 M.J. 282,

283 (C.M.A. 1985)). “An appellant bears the burden

of demonstrating that any cited cases are ‘closely

related’ to his or her case and that the sentences art

‘highly disparate.’ If the appellant meets that

burden . then the Government must show that

there is a rational basis for the disparity.” /d

The maximum punishment in this case was a

dishonorable discharge, confinement for life,

forfeiture of all pay and allowances, and reduction to

K-1. The appellant’s approved sentence was a bad

conduct discharge, confinement for five months,

forfeiture of all pay and allowances, and reduction to

K- ]

Comparing his case to his co-conspirator, SrA JA,

the appellant claims that the two sentences are

highly disparate. SrA JA, who was found guilty by a

military judge sitting alone of conspiracy to commit

indecent acts with another, indecent acts with

another, and adultery,!* was sentenced — to

confinement for 15 days, forfeiture of $500 pay for

one month and reduction to E-3. Although the two

cases are closely related, even if we were to find that

the sentences are highly disparate, the government

has provided a rational basis for the disparity. In

this case the appellant was the instigator who went

bragging to various other airmen about his sexual

encounter with AlC HS. He invited SrA JA and led

him to A1lC HS’ room, he encouraged SrA JA to

SrA JA was acquitted of rape, housebreaking and indecent

assault upon Al HS

(4) Retired members of a regular component of

(5)

(6)

~—

the armed forces who are entitled to pay.

Retired members of a reserve component

who are receiving hospitalization from an

armed force.

Members of the Fleet Reserve and Fleet

Marine Corps Reserve.

Persons in custody of the armed forces

serving a sentence imposed by a cour

martial.

Members ot the National Oceanic and

Atmospheric Administration, Public Health

Service, and other organizations, when

assigned to and serving with the armed

forces

(9) Prisoners of war in custody of the armed

fi rces.

(10)In time of war, persons serving with or

accompanying an armed force in the field.

(11)Subject to any treaty or agreement to

which the United States is or may be a

party or to any accepted rule of

international law, persons serving with,

employed by, or accompanying the armed

forces outside the United States and

outside the Commonwealth of Puerto Rico,

Guam, and the Virgin Islands.

(12)Subject to any treaty or agreement to

which the United States is or may be a

party or to any accepted” rule of

international law, persons within an area

leased by or otherwise reserved or acquired

for the use of the United States which is

under the control of the Secretary

concerned and which is outside the United

States and outside the Canal Zone, the

Commonwealth of Puerto Rico, Guam, and

the Virgin [slaids

APPENDIX E

1O U.S.C. §884, Article 84, UCMJ, (2006), Unlawfui

enlistment, provides the following:

Any person subject to this chapter who effects an

enlistment or appointment in or a separation from

the armed forces of any person who is known to him

to be ineligible for that enlistment, appointment, or

separation because it is_ prohibited by law,

regulation, or order shall be punished as a court-

martial may direct

APPENDIX F

APPENDIX G

1O U.S.C. $910, Article 110, UCM.J. (2006). Improper

hazarding of vessel, provides the following:

(a) Any person subject to this chapter who

willfully and wrongfully hazards or suffers

to be hazarded any vessel of the armed

forces shall suffer death or _— such

punishment as a court-martial may direct

(b) Any person subject to this chapter who

negligently hazards or suffers to be

hazarded any vessel of the armed forces

shall be punished as a court-martial may

direct.

APPENDIX H

1O U.S.C. §915, Article 115, UCMJ, Malingering

(2006), provides the following

\ny person subject to this « hapter who for th

purpose of avoiding work, duty, or service

43a

APPENDIX I

10 U.S.C. §930, Article 130, UCM, (2006)

Housebreaking, provides the following:

Any person subject to this chapter who unlawfully

enters the building or structure of another with

intent to commit a criminal offense therein is guilty

of housebreaking and shall be punished as a court

martial may direct.

APPENDIX J

i ts... $933, Article 133, UCMdJ, (2006), Conduct

unbecoming an officer and a gentleman, provides th

following:

Any commissioned officer, cadet, or midshipman who

is convicted of conduct unbecoming an officer and a

gentleman shall be punished as a court-martial may

direct.

APPENDIX K

1O U.S.C 9934, Article 134, UCM. (2006). Gene

article, provides the following

Though not specifically mentioned in this chapte:

all disorders and neglects to the prejudice of good

order and discipline in the armed forces, all conduct

of a nature to bring discredit upon the armed forces

and crimes and offenses not capital, of which person:

subject to this chapter may be guilty, shall be taken

cognizance of by a general, special, or summary

court-martial, according to the nature and degree of

the offense, and shall be punished at the discretion

of that court

46a

APPENDIX L

Article L, American Articles of War of 1775. W.

WINTHROP, MILITARY LAW AND PRECEDENTS 946, 957

(rev.2d. ed. 1920), states the following:

All crimes, not capital, and all disorders and

neglects, which officers and soldiers may be guilty of,

to the prejudice of good order and military discipline,

though not mentioned in the articles of war, are to

be taken cognizance of by a general or regimental

court-martial, according to the nature and degree of

the offence, and be punished at their discretion.

APPENDIX M

The MANUAL FOR COURTS-“MARTIAL, UNITED STAT!

pt. IV, para. 56.c(3) (2005 ed.)

otfense’ for Article 130. UCM.J. Hou

define criminal

ebre ykKin

Criminal offense Any act or om) on which

punishable by court martial except an ct

omission constituting a purely military offense

“criminal! oftens«

APPENDIX N

APPEN

PENDIX O

LPPENDIX |]