In Article 56, Congress delegated to the President of the United States the authority to prescribe maximum punishments for offenses under the UCMJ. These maximums are contained in Part IV of the Manual for Courts-Martial. But it’s possible for an accused to be convicted of an offense that does not have a maximum punishment listed in Part IV, and Rule for Courts-Martial 1003(c)(1)(B) provides instructions for how to calculate the maximum punishment for such an offense.

Unlisted offenses are most common under Articles 133 and 134 (where novel charges are possible). But after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications).

That failure caused early problems, including leading one military judge to rule that the maximum punishment for sexual assault in violation of Article 120(b) (2012) is the jurisdictional limit of a summary court-martial (that ruling was reversed after the Government sought extraordinary relief). Other problems persist, in cases such as the recently-decided (but unpublished) United States v. Busch, No. 38530 (A.F. Ct. Crim. App. Feb. 11, 2015) (link to slip op.).

The appellant in Busch pleaded guilty to sexual abuse of a child in violation of Article 120b(c) (2012), in connection with his online communications with a “15-year-old high school student from Florida he never met in person.” Slip op. at 2. Those communication occurred between “on or about 1 February 2013 and 20 May 2013,” slip op. at 1 n.1, raising the issue of the maximum authorized punishment for the offense.

The parties agreed that determining the maximum punishment for sexual abuse of a child in violation of Article 120b(c) requires applying R.C.M. 1003(c)(1)(B)(i), which states:

(i) Included or related offenses. For an offense not listed in Part IV of this Manual which is included in or closely related to an offense listed therein the maximum punishment shall be that of the offense listed; however if an offense not listed is included in a listed offense, and is closely related to another or is equally closely related to two or more listed offenses, the maximum punishment shall be the same as the least severe of the listed offenses.

During the guilty plea:

The appellant argued his offense’s language “mirrors” the offense of indecent exposure under the prior version of Article 120(n) [2006], and thus should share its maximum punishment of one year confinement. The military judge disagreed, finding the offense was more closely related to the prior offense of indecent liberty with a child, Article 120(j) [2006], and therefore used a maximum sentence of 15 years’ confinement for the offense. Using this figure, the military judge calculated the appellant’s overall maximum sentence to include 22 years’ and one month confinement.

Slip op. at 6 (internal citations omitted). The appellant’s argument was predicated on the fact that one of the elements of the offense of indecent liberty with a child in violation of Article 120(j) (2006) is that the act occur in the physical presence of the child – an element not satisfied by his electronic communications. A three-judge panel of the AFCCA rejects this elements-based analysis:

Although an element comparison is a logical starting point, we find that the lack of identical elements is not dispositive when evaluating offenses within Part IV of the Manual under R.C.M. 1003(c)(1)(B)(i). First, if every element of the new unlisted UCMJ specification is found in an offense listed in Part IV, the new UCMJ specification would be “included in” that Part IV offense, and its maximum would apply. See R.C.M 1003(c)(1)(B)(i). Second, the words “closely-related” are used in R.C.M. 1003(c)(1)(B)(i) but not in R.C.M. 1003(c)(1)(B)(ii), evincing an intent that these two parts of the rule be evaluated and applied differently when comparing offenses. Furthermore, the use of this language in R.C.M. 1003(c)(1)(B)(i) clearly means that the listed and unlisted offenses do not need to be identical or have identical elements.

We therefore find there is no requirement that the alleged misconduct be punishable as a violation of the applicable closely related offense.

Slip op. at 7. Writing for the panel, Judge Teller reasons that:

[T]he better approach to applying R.C.M. 1003(c)(1)(B)(i) in these circumstances is articulated in United States v. Ramsey, 40 M.J. 71 (C.A.A.F. 1994). There, in deciding what offense was closely related to the appellant’s crime, the court focused on the “social cost” of the appellant’s misconduct rather than the presence or absence of any particular element. See id. at 75. Applying the Ramsey approach, we find indecent liberty with a child is more closely related to the appellant’s misconduct than indecent exposure or indecent acts. As the military judge indicated, the predominant social cost inflicted by the appellant was not a public display of indecency, but rather the wrongful involvement of a child in the appellant’s indecent conduct.

Slip op. at 8. Ramsey addressed the offense of self-injury without intent to avoid service charged at a time prior to its enumeration in Article 134. See MCM, pt. IV, para. 103a. See also Exec. Order No. 12,960, 60 Fed. Reg. 26,647, 26,656 (May 17, 1996) (creating para. 103a). The dispute in Ramsey was over whether the maximum punishment for self-injury without intent to avoid service should be the maximum prescribed for malingering (10 years) or the maximum prescribed for wrongful discharge of a firearm so as to endanger human life (1 year). Yet while CAAF considered “the social cost that appellant’s act perpetrated, and that is the social cost principally addressed in malingering, as opposed to life-threatening discharge of a firearm,” 40 M.J. at 75, it also highlighted the fact that self-injury without intent to avoid service was listed in the MCM as a lesser included offense of malingering. Not so in Busch.

Moreover, Judge Teller’s opinion notes that:

At the time of the appellant’s misconduct, there were three offenses in Part IV of the Manual that could be considered closely related offenses: indecent liberty, indecent act, and indecent exposure, which have maximum punishments of 15 years, 5 years, and 1 year, respectively.

Slip op. at 8 n.8. This raises the issue of application of the second clause of R.C.M. 1003(c)(1)(B)(i):

however if an offense not listed is included in a listed offense, and is closely related to another or is equally closely related to two or more listed offenses, the maximum punishment shall be the same as the least severe of the listed offenses.

Since the CCA acknowledges that the appellant’s offense “could be considered closely related” to three different offenses, it stands to reason that his sentence should have been based on the least severe of those three offenses. Unfortunately, this is not directly addressed in the decision.

Ultimately, the CCA affirms the plea as provident, and finds any error in the computation of the maximum possible sentence harmless (based on other offenses the appellant pleaded guilty to committing, and the overall sentence adjudged).

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