In the justice delayed category we have this report from Marine Corps Times about unresolved alleged miclsconduct by the Marine Corps head of the Joint Non-Lethal Weapons Directorate in Quantico, Va. Apparently this misconduct came to light in March 2013 and resulted in Col. Tracy Tafolla’s removal as commander of the directorate. But no action has been taken since that time. The actions fall into the gray area between sexual harassment and sexual assault. But if Colonel Taffola was Staff Sergeant Taffola, I think the chances are high there would already be preferred charges. Whether that’s the right result or not is a different question and one you can’t answer without more facts.  Update:  A commenter noted that at the end of the article the Marine Corps spokesman stated that NJP proceedings are not released to the public (which is actually not true, the services release that info when it suits their needs): “It’s possible, though, that he will receive nonjudicial punishment as a result of the accusations, or that he has already accepted an NJP. Runyon said that because NJP proceedings are not open to the public, he could not release any information about that process.”  So justice may not be delayed as NJP may have been imposed.  So there you go, maybe justice has not been delayed and this O-6 has received NJP for this conduct.

CAAF decided the Army case of United States v. Jones, No. 14-0071/AR, __ M.J. __ (CAAFlog case page) (link to slip op.), on Monday, July 21, 2014. The court abrogates the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test. The court then applies that test to the facts of the case and determines that the military judge’s ruling admitting Appellant’s confession was not clearly erroneous, affirming Appellant’s conviction and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

While deployed to Iraq in 2011, Appellant (a military policeman with the rank of Specialist (E-4)) participated in a robbery of an Iraqi businessman of over $380,000 in U.S. currency. Before the robbery, Appellant and his roommate (another military policeman named Carrasquillo whose conviction is also under review by CAAF (grant discussed here)) attempted to recruit then-Private First Class (E-3) Ellis into the conspiracy. Ellis was an augmentee military policeman who wore a military policeman’s uniform but had little formal training. Ellis thought the idea a joke, but when he later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31(b), UCMJ.

The questioning included the following exchange:

SPC Ellis: “Don’t play games with me . . . . Why’d you do it?”
Appellant: “What are you talking about?”
SPC Ellis: “Jones, don’t f’n play games with me.”
Appellant: “All right. We did it.”
SPC Ellis: “Who is we?”
Appellant: [No response]
SPC Ellis: “Where’s your roommate, Carrasquillo?”
Appellant: “I guess, he’s in the room.”

Slip op. at 5. Ellis reported what Appellant told him to his section leader. Appellant was eventually charged with the robbery. At trial he moved to suppress his statements to Ellis due to the fact that Ellis did not warn him about his right to remain silent in accordance with Article 31(b). “The Government responded in opposition to the motion and argued that SPC Ellis was not required to give Article 31(b), UCMJ, warnings because (1) SPC Ellis was not acting in an official capacity, and (2) SPC Ellis did not coerce Appellant.” Slip op. at 6. The military judge agreed with the Government, Ellis testified at trial, and Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of conspiracy to commit burglary and burglary, in violation of Articles 81 and 129. Appellant was sentenced to confinement for two years and a bad-conduct discharge.

The Army CCA summarily affirmed Appellant’s convictions but CAAF granted review to determine:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Judge Ryan answers that question in the negative, finding that “the military judge did not abuse his discretion in admitting Appellant’s statement, as [Ellis] was not acting in an official law enforcement or disciplinary capacity when he questioned Appellant.” Slip op. at 2-3.

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The National Defense Authorization Act (NDAA) for Fiscal Year 2014 (FY14) made numerous changes to the UCMJ (analysis available here). Among those changes was section 1702(b) of the NDAA, revising Article 60(c) to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. This section was the focus of my analysis published earlier this month by LexisNexis (available at 2014 Emerging Issues 7217).

The revised Article 60(c)(2)(B) states that “except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” This allows a convening authority to modify the adjudged sentence, with certain limits. The limits are provided in Article 60(c)(4)(A), which states:

Except as provided in subparagraph (B) or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.

My Emerging Issues Analysis discusses why this language limits a convening authority’s power for only the adjudged punishments of (1) confinement for more than six months and (2) a punitive discharge, leaving a convening authority free to modify any other adjudged punishment in any case. So, for example, when an accused is sentenced to confinement for one year and a $5,000 fine, the statute permits suspension of the fine (because it is not “an adjudged sentence of confinement for more than six months or a sentence of [punitive discharge]” ).

But the Secretary of the Navy recently took the opposite position in ALNAV 051/14, promulgating guidance that I believe is both erroneous and unlawful.

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This week at SCOTUS: Another jurisdictionless pro se cert petition was docketed last week, in Newton v. United States, No. 14-5284. CAAF denied review in the case on April 15, 2014. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

The Army recently published a complete revision of Part III of the Manual for Courts-Martial (2012), the Military Rules of Evidence, incorporating the changes made by the President in Executive Order 13643 (discussed here). I’ve anticipated this since it was announced by the JSC at this year’s Code Committee meeting (discussed here).

The update is available in PDF here. It also includes a new Appendix 22 (analysis of the M.R.E.).

This public notice set for publication tomorrow in the Federal Register announces that a meeting of the Judicial Proceedings Panel (JPP) (creation discussed here) will be held on Thursday, August 7, 2014, at The George Washington University Law School, Faculty Conference Center, 5th Floor, 716 20th Street NW., Washington, DC 20052. The Public Session will begin at 10:00 a.m. and end at 5:00 p.m. The agenda is:

  • 8:30 a.m.-10:00 a.m.Administrative Session (41 CFR § 160(b), closed to the public)
  • 10:00 a.m.-10:10 a.m.Comments from the Panel Chair
  • 10:10 a.m.-11:00 a.m.Military Justice Discussion and Legislation Update
  • 11:00 a.m.-12:00 p.m.Discussion of the Response Systems to Adult Sexual Assault Crimes Panel Report
  • 12:00 p.m.-1:00 p.m.Lunch
  • 1:00 p.m.-2:30 p.m.Rape and Sexual Assault Laws in the United States
  • 2:30 p.m.-4:00 p.m.Evolution of Article 120 of the UCMJ
  • 4:00 p.m.-4:45 p.m.Panel Deliberations
  • 4:45 p.m.-5:00 p.m.Public Comment

The notice also states that the panel’s website is http://jpp.whs.mil/ but it looks like the site isn’t live.

The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.

 

From Stars and Stripes, here:

The Army has issued a formal reprimand for misconduct to its former top sex-crimes prosecutor after investigating a complaint that he kissed and groped a female officer while attending a conference on sexual-assault prevention, according to Army officials.

Lt. Col. Joseph “Jay” Morse received the reprimand in late June, officials said, four months after the Army received the complaint and suspended him from his job as supervisor of the Army’s special-victim prosecutors.

Morse has apparently notified the Army that he plans to retire.  Can things get any worse on this front . . . did I actually type that?  H/t JG

A brief personal update: I left active duty on July 1 and moved to Massachusetts with my wife and two children. I remain in the Marine Corps Reserve. I’ve been busy setting up the household and preparing for civilian practice. More news on that to come.

I will continue blogging. In fact, I’m planning to do a lot of writing about military justice issues in the coming months. For example, here is a link to my analysis of the new Article 60(c) (the convening authority’s clemency power for offenses committed on or after June 24, 2014) published as part of the LexisNexis Emerging Issues Analysis series, 2014 Emerging Issues 7217.

CAAF decided the Army case of United States v. Treat, No. 14-0280/AR, __ M.J. __ (CAAFlog case page) (link to slip op.) on Wednesday, July 16, 2014. A plurality of the court holds that the military judge’s finding of guilty by exceptions and substitutions constituted a material variance but that the variance is not fatal because it did not prejudice Appellant. The court therefore affirms the published decision of the Army CCA that affirmed Appellant’s conviction for missing movement (despite the fact that the CCA found no material variance).

Judge Ohlson writes for the court, joined by Judge Erdmann (and creating what I believe is the first plurality opinion of the court since Forney (discussed here) was decided in 2009). Chief Judge Baker writes separately, concurring in the result but finding that the variance was not material. Judge Stucky dissents across the board, finding that Appellant waived this issue, and further finding that even if Appellant didn’t waive the issue then the variance was both material and fatal and the conviction should be reversed. Judge Ryan also dissents, joining Judge Stucky’s dissent but writing separately to express skepticism about whether the court should find waiver in this case.

Appellant was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he was kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight left. His command didn’t believe his story, and he was soon charged. He was convicted contrary to his pleas of not guilty, by a special court-martial composed of a military judge alone, of missing movement and making a false official statement in violation of Articles 87 and 107. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

CAAF granted review of a single issue involving the missing movement conviction:

Whether there is a fatal variance and a violation of Appellant’s due process right to notice when the Government alleged that Appellant missed the movement of a particular aircraft but the proof established that he missed the movement of a particular unit.

The Government charged Appellant as follows:

In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

Slip op. at 3 (emphasis added). “However, at trial the Government’s witnesses could not recall the flight number of the aircraft on which Appellant’s unit deployed. After hearing all the evidence, the military judge convicted Appellant of the missing movement charge, but only after excepting the words ‘Flight TA4B702,’ and substituting therefor the words ‘the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.’” Slip op. at 3.

The Defense did not move for a finding of not guilty based on the Government’s failure to prove the flight number, nor did the Defense object at the time the military judge made the findings (a fact that Judge Ohlson addresses in a last-page footnote as requiring plain error review). However, the Defense did raise the issue of a variance during the post-trial process. A variance is when the offense proven at trial does not conform with the offense alleged in the charge, and it is a potential issue when findings are made by exceptions and substitutions. Exceptions and substitutions are changes to a specification permitted by Rule for Courts-Martial 918; an accused may be found guilty of a specification while not guilty of certain language within the specification (exceptions) and guilty of other language added to the specification (substitutions).

In this case, the Defense strategy was based on Appellant’s asserted kidnapping, and “the defense’s theme throughout the trial was ‘the truth is stranger than fiction.’” Slip op. at 8. But “in order ‘to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby.” Slip op. at 12 (emphasis in original) (quoting United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009)). On automatic review the Army CCA found no material variance in the findings, issuing a published decision (72 M.J. 845). I discussed that opinion in this post, where I reviewed the two different theories of missing movement under Article 87 and concluded that there was a material variance in the findings and that the CCA’s finding of no variance was mistaken. But I felt that Appellant’s kidnapping defense wasn’t affected by the variance, nor would it have been any more effective had the offense been charged consistent with the judge’s findings. So I agreed with the CCA’s ultimate conclusion affirming the findings.

Judge Ohlson’s plurality opinion agrees with my conclusion that there was a material but non-fatal variance.

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Much coverage of Sergeant Bowe Bergdahl’s retention of former NIMJ President Eugene Fidell, here (NBC), here (ABC), and here (Fox). Bergdahl is reportedly working a desk job at Ft. Sam Houston in San Antonio after finishing reintegration training for former POWs.

When two people get really drunk, arguably to the point of “substantial incapacitation,” and engage in sexual activity, who is the perpetrator and who is the victim? That issue is one that I’ve spit-balled before with fellow attorneys, and one which I was hoping would eventually be raised by someone in a real case. That finally happened in the case of United States v. Redmon, No. 201300077 (N-M.C.C.A. 26 Jun 2014).

In Redmon, the appellant and the victim, IT3 S, attended a farewell party thrown by a third party in honor of the appellant. The victim consumed a substantial amount of alcohol throughout the night, both before and during the party, as did the appellant. The party ended around 0300 and the victim was having difficulty walking. She was helped back to her apartment, about a 10 minute walk away, by the appellant and other sailors. Once at her apartment, the victim undressed and sat in the shower for approximately 45 minutes. Another sailor attempted to remove her from the shower, but required the appellant’s assistance to do so. They got her out and began to dress her, however she began to vomit. Eventually though, they were able to clothe her and lay her on a futon. The appellant later lay down to sleep with her.

The appellant’s roommate and her boyfriend were in the apartment that night, and both left the apartment around 0530. At that time, the appellant and victim were “spooning,” but nothing else appeared to be amiss. The victim alleged that after falling asleep, the next thing she remembers was waking up naked from the waist down, with the appellant penetrating her vagina. She began to cry, pushed the appellant away, dressed and went to sleep in her bed. After this, the appellant got a ride back to his barracks room with a friend, who observed semen on the appellant’s boxers when he changed clothes in his barracks room. Read more »

CAAF decided the Air Force case of United States v. Elespuru, No. 14-0012/AF, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, July 15, 2014. The court finds that Appellant knowingly waived his multiplicity claim. Nevertheless, the court dismisses one of the offenses at issue; not for multiplicity, but instead because the Government made it clear that the offense was charged in the alternative.

Judge Ryan writes for a practically-unanimous court. Chief Judge Baker concurs in the result but dissents from the majority’s finding of waiver.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of abusive sexual contact upon a substantially incapacitated person, wrongful sexual contact, and assault consummated by a battery, in violation of Articles 120 (2006)  and 128. He was sentenced to reduction to E-1, confinement for 36 months, and a dishonorable discharge.

CAAF granted review to determine:

Whether Specifications 2 [abusive sexual contact] and 3 [wrongful sexual contact] of Charge I are multiplicious.

Slip op. at 2 (modification in original). Appellant’s victim fell asleep after a night of drinking. While she was sleeping, Appellant repeatedly touched her body. She awoke each time, told him to stop, and then fell back asleep. This cycle repeated four times.

The Government charged Appellant with abusive sexual contact (Article 120(g) (2006)) (an offense that involves engaging in sexual contact with someone substantially incapable of declining participation in, or communicating unwillingness to engage in, the sexual contact) and wrongful sexual contact (Article 120(m) (2006)) (an offense that involves unlawful sexual contact with another person without their permission). At trial, Appellant “submitted a Motion for Unreasonable Multiplication of Charges for Findings or Finding Charges Multiplicious for Sentencing.” Slip op. at 4. The Government responded “that the offenses were charged not as lesser included offenses, but in the alternative for exigencies of proof,” and that if Appellant were convicted of both offenses then the court “should merge the offenses for calculation of maximum punishment.” Slip op. at 4. Discussing the motion, Appellant’s defense counsel “conceded that the elements test for lesser included offenses was not met and that Appellant’s charge of wrongful sexual contact was not a lesser included offense of abusive sexual contact.” Slip op at 4.

Appellant was then convicted of both offenses and they were merged for sentencing. This merger meant that Appellant was sentenced only for the greater offense (abusive sexual contact). But on appeal Appellant asserted that the lesser offense should be dismissed because it is a lesser included offense of the greater offense. This assertion was directly contrary to the position advanced at trial.

And yet, CAAF grants Appellant the requested relief, dismissing the wrongful sexual contact offense. The court does so because “the Government charged and tried the abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof.” Slip op. at 9. And it does so unanimously. However, CAAF also finds that Appellant “knowingly waived his right to assert a multiplicity claim on appeal.” Slip op. at 8.

Chief Judge Baker dissents from the waiver decision, asserting that “it is not clear why the majority is reaching so hard to find waiver in a case in which the Court’s unanimous decision renders the issue moot.” Diss. op. at 3. But the Chief Judge’s quest for clarity is likely rhetorical because had the court accepted Appellant’s argument against waiver, it would have marked a major shift in the court’s precedent for claims of ineffective assistance of counsel.

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In United States v. Piolunek, 72 M.J. 830 (A.F.Ct.Crim.App. Oct. 21, 2013), rev. granted, __ M.J. __ (C.A.A.A.F. Apr. 1, 2014), and cert. for rev. filed, __ M.J. __ (C.A.A.F.  Apr. 18, 2014) (CAAFlog case page), the Air Force CCA extended CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding general verdicts of guilt in child pornography cases where some of the images are not actually child pornography, to include a three-prong test for prejudice based on “(1) The quantitative strength of the evidence; (2) The qualitative nature of the evidence; and (3) The circumstances surrounding the offense as they relate to the elements of the offense charged.” Piolunek, 72 M.J. at 838. The AFCCA used this test to affirm Senior Airman Piolunek’s convictions for receipt and possession of child pornography despite finding that some of the twenty-two images submitted to the members did not meet the definition of child pornography (and were therefore constitutionally protected). CAAF will review this decision in the upcoming term.

I’m aware of a few cases in which the AFCCA employed the Piolunek prejudice analysis. One is United States v. Huey, No. 38139 (A.F.Ct.Crim.App. Dec. 4, 2013) (slip op. available here), rev. granted, __ M.J. __ (C.A.A.F. May 12, 2014) (discussed here), and cert. for rev. filed., __ M.J. __ (C.A.A.F. Jun. 11, 2014) (discussed here). In Huey the CCA found that 18 of the 112 images considered by the military judge (sitting as a general court-martial) “either do not meet the legal definition of sexually explicit conduct or the age of the person depicted cannot reasonably be determined” slip op. at 6, but nevertheless affirmed the findings because “the evidence of the appellant’s guilt is overwhelming,” slip op. at 8. The issues before CAAF in Huey are functionally identical to those in Piolunek.

Another case applying Piolunek is United States v. Rieber, No. 38226, 2014 WL 2511366 (A.F.Ct.Crim.App. May 22, 2014) (slip op. not avail. on the CCA’s website). The appellant in Rieber was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of knowing and wrongful possession of one or more visual depictions of a minor engaged in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for 90 days, reduction to E-3, and a bad-conduct discharge. On automatic review the AFCCA found that “186 of the 198 images that served as the possible basis for the appellant’s conviction do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Rieber at *5. Testing for prejudice, the CCA found that the quantitative strength of the remaining images favored the appellant while the qualitative strength favored the Government. But it reversed the conviction on the basis that “the circumstantial evidence supporting the knowing possession of these images is not overwhelming.” Rieber at *6. The Government has not (yet) appealed Rieber.

The AFCCA decided a third such case a few weeks ago: United States v. Thompson, No. 38269 (A.F.Ct.Crim.App. Jun. 17, 2014) (link to slip op.). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of three specifications of knowingly and wrongfully possessing one or more visual depictions of minors engaging in sexually explicit conduct, in violation of Article 134. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The CCA finds that “8 of the 216 charged files do not constitute child pornography and therefore are constitutionally protected.” Slip op. at 8. But it affirms the convictions after concluding “beyond a reasonable doubt that the eight constitutionally-protected images were unimportant in relation to everything else the military judge considered. Thus, any error in the factfinder’s consideration of these 8 images among the 216 admitted in evidence was harmless.” Slip op. at 10.

I anticipate CAAF will grant review (and the Government will cross-certify) Thompson on the same issues as in Piolunek and Huey.

If any readers are aware of other AFCCA cases applying Piolunek, please let me know about them in the comments or by email to zack@caaflog.com

In an order dated July 2, 2014, in United States v. Long, No. 2014-02 (link to order), the Air Force CCA rejects a Government appeal and affirms a military judge’s ruling dismissing four novel specifications of violation of clause 2 of Article 134 (conduct of a nature to bring discredit upon the armed forces). The specifications alleged that the accused used a computer communication system to importune a person under 18 years of age to engage in sexual contact with him (two specifications) and provided a sexually oriented image to a person under 18 years of age (two specifications), both of which are offenses under Mississippi state law. The military judge dismissed the specifications after finding that they were preempted by Article 120b (2012).

The preemption doctrine states that Article 134 cannot be used to prohibit conduct already prohibited by Congress in the other punitive Articles. Preemption applies where (1) Congress intended to limit prosecutions for certain conduct to offenses defined in specific articles of the UCMJ, and (2) the charged offense is composed of a residuum of elements of an enumerated offense under the UCMJ. The preemption doctrine evolved from the conclusion that “the Government could not ‘eliminate vital elements’ from the offenses specified in [the other] article[s] and charge the remaining elements as an offense in violation of Article 134.” United States v. Wright,  5 M.J. 106, 110 (C.M.A. 1978) (quoting United States v. Norris, 8 C.M.R. 36, 39 (C.M.A. 1953)). 

The CCA’s opinion reveals that the Government’s charging decision eliminated the vital element of Article 120b (2012) that a child is someone under the age of 16; the Mississippi statute applies to anyone under the age of 18:

Two of the charged specifications allege the appellee used a computer communication system to importune a minor to engage in sexual contact. The Government argues that, by looking at the Mississippi law, there are five elements of this offense, which are different from those in the Article 120, UCMJ, offense. However, these elements are no different than a charged offense for a violation of Article 120b, UCMJ. We are not convinced by the Government’s argument that use of “a computer communication system” is materially different from using “any communication technology.” The allegation is covered by Article 120b, UCMJ, for lewd acts by intentionally communicating indecent language to a child or committing indecent conduct with a child, or, under Article 80, UCMJ, for soliciting a child to engage in sexual contact. The only difference between the charged offense and the Article 120b, UCMJ, offenses is that the UCMJ applies to communications with children under 16 years of age, while the Mississippi law applies to minors under 18 years of age. The charged specification involves “the dropping of an element of a specifically denounced offense” and converting it to a broader age range. See United States v. Herndon, 36 C.M.R. 8, 11 (C.M.A. 1965). The Government cannot use Article 134, UCMJ, to enlarge the age range of an enumerated offense. See Williams v. United States, 327 U.S. 711 (1946) (Prosecutors could not use Arizona state law under Assimilative Crimes Act to broaden scope of offense to those under 18 years of age when Congress has defined federal law with a narrower scope as to only those under 16 years of age).

The other two specifications allege that the appellee provided “a sexually oriented image to wit: a photograph of an erect penis” to a person who had not attained the age of 18 years. We also find that this is nearly identical to the Article 120b, UCMJ, offense of “intentionally exposing one’s genitalia . . . to a child by any means, including via any communication technology.” Again, the only substantive difference is that the Government seeks to expand the age range to include persons over 16 years of age but under 18 years of age.

Order at 4-5 (emphases added).

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