United States v. Rocha (2024)

Because I agree that Appellee did not have fair notice that the charged conduct was criminal, I join Part II.A. of Judge Johnson's well-reasoned dissent. 1 I write separately to express my concerns about the unreasonably broad scope of this Court's jurisprudence with respect to charges brought under clause 2 of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934.

The Government charged Appellee with a criminal offense in this case because it believed that the way Appellee masturbated—in the privacy of his own personal bedroom and unbeknownst to anyone—was indecent and therefore was “of a nature to bring discredit upon the armed forces.” Article 134, UCMJ. Although Appellee's criminal liability hinged on the Government proving the terminal element of Article 134, UCMJ, beyond a reasonable doubt, the Government offered no theory, either through evidence or through argument, to explain why Appellee's entirely private conduct was service discrediting in nature.

The criminalization of Appellee's private conduct was only possible because of this Court's decision in United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011), which authorized the Government's cavalier approach toward the terminal element of the clause 2, Article 134 charge in this case. In Phillips, the Court concluded that “[t]he focus of clause 2 is on the ‘nature’ of the conduct, whether the accused's conduct would tend to bring discredit on the armed forces if known by the public, not whether it was in fact so known.” Id. at 165-66. The Court further held that “proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces.” Id. at 163.

This case illustrates the consequences of the Court's faulty reasoning in Phillips. This Court has repeatedly acknowledged “that the Constitution demands that the Government prove every element of an Article 134 offense—including the second or ‘terminal’ element—beyond a reasonable doubt.” United States v. Richard, 82 M.J. 473, 476 (C.A.A.F. 2022); see also United States v. Fosler, 70 M.J. 225, 226 (C.A.A.F. 2011); United States v. Wilcox, 66 M.J. 442, 448 (C.A.A.F. 2008). But Phillips enables the government to secure a conviction under clause 2 of Article 134, UCMJ, without making any attempt to litigate the terminal element. Here, the Government offered evidence and argument to prove the first two elements of the enumerated offense—that Appellee engaged in certain conduct and that the conduct was indecent—but relied solely on Phillips to carry its burden of proof as to whether Appellee's conduct was of a nature to bring discredit upon the armed forces. I do not see how relieving the Government entirely of its burden of proof for an element of an offense satisfies due process. See In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).

Absent a basis in evidence and argument to conclude beyond a reasonable doubt that Appellee's entirely private conduct was of a service discrediting nature, Phillips authorized the trier of fact to draw this conclusion instead by evaluating whether Appellee's conduct itself “would tend to bring discredit on the armed forces if known by the public.” 70 M.J. at 166 (first emphasis added). But such a conclusion comports neither with due process nor with common sense. As a matter of due process, I do not see how a finding that conduct would have a “tendency” to bring discredit upon the service is consistent with proving the terminal element beyond a reasonable doubt. Allowing a finding of guilt based on a finding that the charged conduct might be service discrediting—in a hypothetical world where the facts of the case were different from those presented—is a far lower burden than requiring the government to prove that the conduct was “of a nature to bring discredit upon the armed forces.” Article 134, UCMJ.

As a matter of common sense, entirely private conduct cannot discredit the military—and is therefore not “of a nature” to do so—exactly because no one knows about it. Article 134, UCMJ. The Court's contrary holding in Phillips disregards the private nature of the charged conduct without any legal or logical justification. Authorizing convictions based on whether a defendant's purely private conduct would tend to “bring the service into disrepute” or tend to “lower it in public esteem” if his conduct were to somehow become public knowledge mischaracterizes the true nature of the conduct and masks as proof what is merely conjecture. See Manual for Courts-Martial, United States pt. IV, para. 91.c.(3) (2019 ed.) (defining conduct of a nature to bring discredit to the armed forces).

“In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Estelle v. Williams, 425 U.S. 501, 503 (1976) (citing In re Winship, 397 U.S. 358, 364 (1970)). As this case illustrates, Phillips dilutes the government's burden of proof as to whether a defendant's conduct charged under clause 2 of Article 134, UCMJ, was “of a nature to bring discredit upon the armed forces.” I continue to believe that this Court should reconsider whether Phillips is consistent with due process and its own Article 134 jurisprudence.

FOOTNOTES

1.   I decline to join the portion of Judge Johnson's opinion addressing Appellee's First Amendment claim only because I believe that this case can be fully resolved on nonconstitutional grounds.

Judge HARDY, dissenting.