United States v. Wells ( 2024 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
DeShaun L. WELLS, Airman
United States Air Force, Appellant
No. 23-0219
Crim. App. No. 40222
Argued March 6, 2024—Decided September 24, 2024
Military Judges: Charles E. Wiedie (arraignment), Willie
J. Babor (warrant application), and Matthew N. McCall.
For Appellant: Captain Samantha M. Castanien
(argued); Megan P. Marinos, Esq. (on brief); Major
Kasey W. Hawkins.
For Appellee: Captain Tyler L. Washburn (argued);
Colonel Matthew D. Talcott, Lieutenant Colonel
James P. Ferrell, and Mary Ellen Payne, Esq. (on
brief).
Judge SPARKS delivered the opinion of the Court,
in which Judge MAGGS and Judge JOHNSON
joined. Judge HARDY filed a dissenting opinion, in
which Chief Judge OHLSON joined.
_______________
United States v. Wells, No. 23-0219/AF
Opinion of the Court
Judge SPARKS delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted at a
general court-martial by a panel of officer and enlisted
members of assault consummated by a battery, obstructing
justice, and extramarital sexual conduct, in violation of
Articles 128, 131b, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 928, 931b, 934 (2018). The
members sentenced Appellant to a bad-conduct discharge,
255 days of confinement, two months of restriction to the
limits of Royal Air Force Lakenheath, United Kingdom,
two months of hard labor without confinement, forfeiture
of all pay and allowances, and reduction to grade E-1. The
convening authority disapproved the adjudged restriction
and hard labor without confinement, but otherwise took no
other action on the sentence. The United States Air Force
Court of Criminal Appeals affirmed the findings and
sentence. United States v. Wells, No. ACM 40222, 2023
CCA LEXIS 222, at *30, 2023 WL 3597239, at *11 (A.F. Ct.
Crim. App. May 23, 2023) (unpublished).
We granted review of the following issue:
Is Appellant’s conviction for a Clause 2, Article
134, UCMJ, offense legally insufficient as to the
terminal element?
United States v. Wells, 84 M.J. 113 (C.A.A.F. 2023) (order
granting review).
As will be discussed below, we hold that Appellant’s
conviction is legally sufficient.
I. Background
The lower court summarized the relevant background
as follows:
In November 2019—while he was married—
Appellant met a British national, BF, through the
electronic dating application Tinder. BF testified
that Appellant first told her that he was divorced,
but a week later said he was actually in the
process of getting divorced. Appellant and BF
entered a dating relationship, to include sexual
intercourse, which lasted several months. BF
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Opinion of the Court
spent weekends at Appellant’s home and they
discussed marriage and having children together.
BF testified that during the relationship
Appellant also met BF’s parents. In January 2020,
BF discovered Appellant was not actually in the
process of divorcing his spouse. BF contacted the
Appellant’s command's public affairs office via
email and reported, inter alia, that Appellant lied
to her about being divorced. During cross-
examination, BF stated her sexual relationship
with Appellant did not make her think less of the
Service.
At trial, and in response to circuit trial
counsel’s questions, BF testified about an
intimate video of her and Appellant:
Q. [D]id you ever come to learn about videos
that he may have still had in his possession
after your relationship was over?
A. Yes.
Q. Can you talk to us a little bit about that?
A. It was towards the end of last year. I was
having loads of Brandon[, UK,] people
request me on Instagram, local girls from
the area, and I’m not originally from the
area, so it was a bit concerning to me. So I
ended up messaging one of them and I was
like, do I know you because I was
concerned that something was going
around about me. She had explained that
she had also dated [Appellant]. She had
told me that he had been sharing intimate
videos of me and pictures of me with
people. That’s how I came to light on the
videos that were being shared.
BF identified the person she messaged
regarding the video as LW. LW, who also had
engaged in a romantic relationship with
Appellant, met with BF in person. LW described
to BF a video that included BF and “mentioned a
bathtub.” BF testified she “knew exactly what
time that was because there was only one time we
had had sex in the bath.” LW also testified and
explained Appellant showed her the video and
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Opinion of the Court
that afterwards she contacted BF. Later, BF and
LW went to Appellant’s home to confront him.
Appellant was not home; however, Appellant's
wife was present and they addressed the video
with her instead. The video of Appellant and BF
engaging in sexual conduct was also uploaded to a
publicly accessible pornographic website and
viewed at least 817 times.
Wells, 2023 CCA LEXIS 222, at *8-10, 2023 WL 3597239,
at *3-5 (alterations in original) (footnotes omitted).
II. Analysis
Article 134, UCMJ, creates three different types of
crimes, commonly referred to as Clauses 1, 2, and 3
offenses. Manual for Courts-Martial, United States pt. IV,
para. 91.c.(1) (2019 ed.) (MCM). Clause 1 offenses involve
disorders and neglects to the prejudice of good order and
discipline in the armed forces. Id. Clause 2 offenses involve
conduct of a nature to bring discredit upon the armed
forces. Id. Clause 3 offenses involve noncapital crimes or
offenses which violate federal law, including law made
applicable through the Federal Assimilative Crimes Act.
Id.For Appellant to be found guilty of the offense of
extramarital sexual conduct, charged under Clause 2, the
Government was required to prove beyond a reasonable
doubt that Appellant: (1) wrongfully engaged in
extramarital conduct with BF; (2) Appellant knew at the
time that he was married to someone else; and (3) under
the circumstances, the conduct was of a nature to bring
discredit upon the armed forces. MCM pt. IV, para. 99.b.
We granted review to consider whether the evidence was
legally sufficient to establish the third element.
Appellant argues that his conviction is legally
insufficient because the only direct evidence at trial on
Clause 2 demonstrated that the service was not discredited
by his extramarital sexual conduct. We perform a de novo
review of legal sufficiency issues. United States v. Richard,
82 M.J. 473, 476 (C.A.A.F. 2022). Legal sufficiency is
evaluated by determining whether, after viewing the
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Opinion of the Court
evidence in the light most favorable to the prosecution, any
rational factfinder could have found the essential elements
of the crime beyond a reasonable doubt. Id.It is well established that conviction of a criminal
offense under the Constitution requires proof of every
element of the offense beyond a reasonable doubt. Sullivan
v. Louisiana, 508 U.S. 275, 278 (1993); In re Winship, 397
U.S. 358, 361-64 (1970); United States v. Neal, 68 M.J. 289,
298 (C.A.A.F. 2010). The use of conclusive presumptions to
establish the elements of an offense is unconstitutional
because such presumptions conflict with the presumption
of innocence and invade the province of the trier of fact.
Sandstrom v. Montana, 442 U.S. 510, 523 (1979).
According to Appellant, United States v. Phillips, 70
M.J. 161 (C.A.A.F. 2011), cannot be relied upon to
determine the legal sufficiency of the Clause 2 offense in
his case because nothing in the record, other than the fact
of the activity itself in that case, was required to find the
conduct service discrediting. Thus, echoing the Phillips
dissent, he argues that the terminal element in Phillips
was conclusively presumed from the charged conduct itself.
In Phillips, the accused was caught in possession of child
pornography during a search of his room by law
enforcement looking for evidence pertaining to an
unrelated larceny offense. Id. at 163-64 There was no
testimony that the accused’s conduct was service
discrediting or that anyone other than the agents searching
his room were even aware of his conduct. Id. at 164. This
Court explained that the government is required to prove
every element of an offense beyond a reasonable doubt and
that it is improper to find the commission of an offense to
be conclusively service discrediting. Id. at 165. We,
however, rejected the notion that a conviction under a
service discrediting theory requires proof of the public’s
knowledge of an accused’s conduct. Id. Instead, this Court
concluded: “The 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.” Id. at
165-66. We further explained that the government need
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not prove anyone was aware of an accused’s conduct or “to
specifically articulate how the conduct is service
discrediting.” Id. at 166. Instead, the government must
“introduce sufficient evidence of the accused’s allegedly
service discrediting conduct to support a conviction.” Id.We also emphasized that “[w]hether conduct is of a ‘nature’
to bring discredit upon the armed forces is a question that
depends on the facts and circumstances of the conduct.” Id.Ultimately, we concluded a rational trier of fact could have
found the accused’s possession of child pornography to be
service discrediting “had the public known of it.” Id.Even though Appellant asserts BF’s testimony at trial
revealed that her personal opinion of the armed forces was
untarnished, we are not persuaded that the Government
failed to prove the terminal element. Here, there was
sufficient evidence for the trier of fact to determine beyond
a reasonable doubt that Appellant’s conduct under the
facts and circumstances would tend to bring the service
into disrepute if it were known. The evidence supports a
finding that Appellant’s sexual relationship with BF was
neither private nor discreet and therefore tended to bring
the service into disrepute. In fact, the evidence established
Appellant showed a video of his extramarital sexual
conduct to others and made it available to the general
public to view on a website. As the video depicts Appellant
engaging in intimate sexual acts with BF, it is strong
evidence of the “open or notorious nature” of the
extramarital conduct. BF’s opinion does not operate to
contradict or minimize the service discrediting nature of
Appellant’s conduct—her opinion merely reflects the
opinion of one person. Considering our deferential review
under the legal sufficiency standard, we conclude a rational
trier of fact could have found Appellant’s conduct service
discrediting.
To buttress his insufficiency claim, Appellant contends
that we should overturn Phillips because it was wrongly
decided. According to Appellant, Clause 2, on its face, is
unconstitutional because it permits conviction for per se
service discrediting conduct and therefore cannot be used
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Opinion of the Court
as the basis to uphold the vitality of Phillips as a precedent.
Although we believe that Parker v. Levy, 417 U.S. 733(1974), established conclusively the constitutionality of
Article 134, UCMJ, we will address this aspect of
Appellant’s argument.
When asked to overrule one of our precedents, we
analyze the matter under the doctrine of stare decisis.
United States v. Blanks, 77 M.J. 239, 241-42 (C.A.A.F.
2018). Stare decisis is the doctrine of precedent, under
which a court must follow earlier judicial decisions when
the same points arise again. United States v. Andrews, 77
M.J. 393, 399 (C.A.A.F. 2018). “[A]dherence to precedent is
the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial process.” Id.(alteration in original) (internal quotation marks omitted)
(quoting Blanks, 77 M.J. at 242).
Applying stare decisis is not an inexorable command,
and we are not bound by precedent when there is a
significant change in circumstances after the adoption of a
legal rule, or an error in legal analysis. Id. In evaluating
the application of stare decisis, we consider: “whether the
prior decision is unworkable or poorly reasoned; any
intervening events; the reasonable expectations of
servicemembers; and the risk of undermining public
confidence in the law.” Id. (citation omitted) (internal
quotation marks omitted).
For offenses under Article 134, UCMJ, the President
has explained: “ ‘Discredit’ means to injure the reputation
of. This clause of Article 134 makes punishable conduct
which has a tendency to bring the service into disrepute or
which tends to lower it in public esteem.” MCM pt. IV,
para. 91.c.(3). The President further iterated service
discrediting conduct in the context of extramarital conduct:
Extramarital conduct may be Service discrediting,
even though the conduct is only indirectly or
remotely prejudicial to good order and discipline.
“Discredit” means to injure the reputation of the
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Opinion of the Court
armed forces and includes extramarital conduct
that has a tendency, because of its open or
notorious nature, to bring the Service into
disrepute, make it subject to public ridicule, or
lower it in public esteem. While extramarital
conduct that is private and discreet in nature may
not be service discrediting by this standard, under
the circumstances, it may be determined to be
conduct prejudicial to good order and discipline.
MCM pt. IV, para. 99.c.(1). This Court has stated that
“[p]residential narrowing of the ‘general’ article through
examples of how it may be violated is part of why Article
134, UCMJ,” is not considered unconstitutionally void for
vagueness. United States v. Jones, 68 M.J. 465, 472
(C.A.A.F. 2010) (citing Levy, 417 U.S. at 753-56). Further,
it is this narrowing of the breadth of Article 134 through
these presidential enumerations that provides
servicemembers with fair notice of what conduct is subject
to criminal sanction under the statute. Until the United
States Supreme Court decides otherwise, Article 134,
UCMJ, in its entirety, remains constitutional on its face.
Appellant’s main contention as to why Phillips should
be discarded as controlling precedent is that it sanctions
per se service discrediting conduct, and as a result, the
Government is unconstitutionally relieved of its burden to
prove all elements of the charged offense beyond a
reasonable doubt. Yet, Phillips expressly stated that so-
called “conclusive presumptions” are impermissible. 70
M.J. at 165. Simply put, Phillips did not expressly or
impliedly sanction such a presumption.
The instant case directly refutes Appellant’s contention
that the terminal element alone is sufficient to convict for
Clause 2. Here, the members were told they had to
determine beyond a reasonable doubt that Appellant’s
conduct was service discrediting. They were told that in
making the determination, they must “consider all the
facts and circumstances offered on the issue.” They were
properly instructed on criteria to use in making their
determination. No reasonable panel that followed these
instructions could have made a “per se” determination that
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Opinion of the Court
the mere fact of Appellant’s extramarital sexual conduct
was automatically service discrediting.
Given that Phillips expressly condemns conclusive
presumptions and reaffirms that the Government must
prove not only the offense itself, but also the nature of that
offense beyond a reasonable doubt, the decision in Phillips
is not unworkable or poorly reasoned. We have also
considered the other factors affecting our application of
stare decisis and conclude that they do not aid Appellant’s
argument. Consistent with our precedent, we reiterate that
whether any given conduct violates Clause 2 is a question
for the trier of fact to determine, based upon all the facts
and circumstances; it cannot be conclusively presumed
from any particular course of conduct.
III. Judgment
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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Judge HARDY, with whom Chief Judge OHLSON joins,
dissenting.
Earlier this term, but after we granted review in this
case, the Judge Advocate General of the Air Force certified
United States v. Rocha to this Court for review. 83 M.J. 275(C.A.A.F. 2023) (certificate for review). In that case, the ap-
pellant was convicted of violating Clause 2 of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2018), for engaging in indecent acts with a childlike sex
doll—conduct that a panel of members sitting as a general
court-martial found to be of a nature to bring discredit
upon the armed forces. United States v. Rocha, 84 M.J. 346,
347-48 (C.A.A.F. 2024). Although in this case Appellant
urges this Court to overturn its prior decision in United
States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011), Rocha—an
Article 134, Clause 2, case in which the government pre-
sented no evidence or argument in direct support of the ter-
minal element—already provided the Court with the op-
portunity to reconsider its decision in Phillips. The Court
declined to do so, and Phillips remains good law. It there-
fore remains the case that for convictions under Clause 2,
Article 134, UCMJ, proof of the charged 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. Nevertheless, I disagree with the majority’s con-
clusion that in this case a rational trier of fact could have
found Appellant’s actions service discrediting beyond a rea-
sonable doubt based on his conduct alone.
Common sense dictates that the military does not con-
sider every act of extramarital sexual conduct by service-
members to violate Clause 2 of Article 134, UCMJ; and
that conclusion is confirmed by the President’s guidance in
the Manual for Courts-Martial, United States (Manual or
MCM). The President expressly acknowledges that not all
extramarital conduct is service discrediting and lists nine
factors for commanders to consider when determining
whether such conduct is criminal under Article 134,
UCMJ. MCM pt. IV, para. 99.c.(1)(a)-(i) (2019 ed.). Yet the
Government in this case made no attempt to persuade the
panel that Appellant’s extramarital conduct satisfied any
United States v. Wells, No. 23-0219/AF
Judge HARDY, dissenting
of these factors or was otherwise service discrediting. To
the contrary, the only evidence presented to the panel di-
rectly with respect to the terminal element was the testi-
mony of the coactor who stated that she did not hold Appel-
lant’s misconduct against the armed forces. Confronted
with this record, I cannot say that the Government met its
burden of proving each element of Article 134, UCMJ, be-
yond a reasonable doubt. I therefore respectfully dissent.
I. United States v. Phillips
In Phillips, the Court held that in Article 134, Clause 2,
cases, proof of the charged conduct “may” be sufficient to
prove the terminal element. 70 M.J. at 163. The Court em-
phasized the word “may,” underscoring the fact that in
some cases, additional evidence would be necessary to
prove beyond a reasonable doubt that the charged conduct
was of a nature to bring discredit upon the armed forces.
Additionally, the Court stated that “whether any given con-
duct violates [Clause 2] is a question for the trier of fact to
determine, based upon all the facts and circumstances; it
cannot be conclusively presumed from any particular
course of action.” Id. at 165. Thus, in applying Phillips the
Court must look at the underlying circumstances of the
charged conduct—in this case, extramarital sexual con-
duct—to determine whether the service discrediting ele-
ment has been proven beyond a reasonable doubt.
Outside of the military, extramarital sexual conduct be-
tween adults is generally not a criminal act. And even
within the military, the President has instructed that such
conduct only violates Article 134, UCMJ, when the accused
“wrongfully” engages in it. MCM pt. IV, para. 99.b.(1). Of
course, the accused’s conduct must also satisfy the termi-
nal element by being either prejudicial to good order and
discipline, service discrediting, or both. MCM pt. IV, para.
99.b.(3). In the Manual, the President provides a lengthy
description of extramarital conduct that satisfies these re-
quirements. MCM pt. IV, para. 99.c.(1).
The President explains that service discrediting adul-
tery “includes extramarital conduct that has a tendency,
because of its open or notorious nature, to bring the Service
into disrepute, make it subject to public ridicule, or lower
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United States v. Wells, No. 23-0219/AF
Judge HARDY, dissenting
it in public esteem.” Id. The President also notes, however,
that “extramarital conduct that is private and discreet in
nature may not be service discrediting by this standard.”
Id. To assist commanders in determining whether specific
extramarital conduct violates Article 134, UCMJ, the Pres-
ident has provided an extensive, but nonexhaustive, list of
factors that commanders should consider when determin-
ing whether extramarital conduct violates Article 134,
UCMJ. 1
1 The factors include:
(a) The accused’s marital status, military
rank, grade, or position;
(b) The co-actor’s marital status, military
rank, grade, and position, or relationship to the
armed forces;
(c) The military status of the accused’s spouse
or the spouse of the co-actor, or their relationship
to the armed forces;
(d) The impact, if any, of the extramarital con-
duct on the ability of the accused, the co-actor, or
the spouse of either to perform their duties in sup-
port of the armed forces
(e) The misuse, if any, of Government time and
resources to facilitate the commission of the con-
duct;
(f) Whether the conduct persisted despite
counseling or orders to desist; the flagrancy of the
conduct, such as whether any notoriety ensued;
and whether the extramarital conduct was accom-
panied by other violations of the UCMJ;
(g) The negative impact on the units or organ-
izations of the accused, the co-actor or the spouse
of either of them, such as a detrimental effect on
unit or organization morale, teamwork, and effi-
ciency;
(h) Whether the accused’s or co-actor’s mar-
riage was pending legal dissolution, which is de-
fined as an action with a view towards divorce pro-
ceedings, such as the filing of a petition for
divorce; and
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United States v. Wells, No. 23-0219/AF
Judge HARDY, dissenting
Accordingly, whether a servicemember’s extramarital
conduct constitutes a crime under Article 134, UCMJ, de-
pends on the specific nature and circumstances of the
charged conduct. Some extramarital conduct violates Arti-
cle 134, UCMJ; other extramarital conduct does not. Be-
cause this is a fact-specific, multifactored, case-by-case de-
termination, the Government must carry some burden of
proving, beyond a reasonable doubt, that Appellant’s extra-
marital conduct was of a nature to bring discredit upon the
armed forces. 2 See Phillips, 70 M.J. at 164 (“It is estab-
lished that conviction of a criminal offense under the Con-
stitution requires proof of every element of the offense be-
yond a reasonable doubt.”); In re Winship, 397 U.S. 358,
361-64 (1970). I turn, therefore, to the evidence the Gov-
ernment presented to the panel to determine whether the
Government met its burden in this case.
II. The Legal Sufficiency of Appellant’s
Conviction Under Article 134, UCMJ
Before this Court, the Government argued that various
factors—including that Appellant shared the video of the
victim online and lied to the victim about being married—
made Appellant’s behavior in conducting the affair “duplic-
itous, crass, flagrant, and exploitive.” I take no issue with
(i) Whether the extramarital conduct involves
an ongoing or recent relationship or is remote in
time.
MCM pt. IV, para. 99.c.(1)(a)-(i).
2 It is worth noting that the President’s guidance in the Man-
ual also makes clear that the Government’s burden to prove the
terminal element will be different for other offenses under Arti-
cle 134, UCMJ. For example, the Manual recognizes only two
circumstances that will prevent the possession of child pornog-
raphy from being criminal: (1) when the accused is “not aware
that the images were of minors, or what appeared to be minors,
engaged in sexually explicit conduct,” and (2) when the facts
demonstrate that the accused “unintentionally and inadvert-
ently acquired” the child pornography. MCM pt. IV, para.
95.c.(5), (12). This difference likely reflects the fact that child
pornography “harms and debases the most defenseless of our cit-
izens,” United States v. Williams, 553 U.S. 285, 307 (2008), and
that its possession violates both federal law and the law of all
fifty states and the District of Columbia.
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Judge HARDY, dissenting
this characterization of Appellant’s conduct. But the fact
that the Government is making this point for the first time
now—years after Appellant’s court-martial—only high-
lights and emphasizes the deficiency of the Government’s
argument at trial.
A. Evidence Presented at Trial
During Appellant’s court-martial, the Government
largely ignored the terminal element of the Article 134 of-
fense. Outside of evidence that Appellant had an extramar-
ital affair, the Government presented no evidence on how
Appellant’s conduct was of a nature to discredit the armed
forces. The Government never argued that the extramari-
tal conduct was “open or notorious” or that it was otherwise
service discrediting under the nine factors enumerated by
the President in the Manual.
Unlike the Government, trial defense counsel did not
neglect the terminal element of the Article 134 offense.
During the defense’s cross-examination of BF, the follow-
ing exchange occurred:
[Trial Defense Counsel:] Given that relation-
ship, you do not think any less of the United
States Air Force?
[BF:] What, for having a relationship with
him?
[Trial Defense Counsel:] Right.
[BF:] What do you mean?
[Trial Defense Counsel:] Does it make you—
you do not think any less of the United States Air
Force, at large, based on your relationship with
Airman Wells.
[BF:] Just the relationship, minus if—
[Trial Defense Counsel:] Yes
[BF:] —he’s accused of everything.
[Trial Defense Counsel:] Your consensual sex-
ual relationship with Airman Wells, you don’t
hold that against—
[BF:] If he was a single man then I wouldn’t—
it’s not their responsibility to stop someone
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Judge HARDY, dissenting
cheating, but it is to stop them from running
around getting girls pregnant and beating them.
[Trial Defense Counsel:] To be clear, as it re-
lates to your consensual sexual relationship—
[BF:] Yeah.
[Trial Defense Counsel:] —you do not hold it
against—
[BF:] No.
[Trial Defense Counsel:] [T]he U.S. Air Force.
[BF:] No.
(Emphasis added.) Thus, the only evidence in the record
that directly addressed whether Appellant’s extramarital
conduct was service discrediting was contrary evidence—
BF, the victim of Appellant’s actions, did not hold Appel-
lant’s conduct against the Air Force.
In its closing argument, the Government acknowledged
this testimony, stating “[t]hankfully, [BF] is not willing to
impute [Appellant’s] conduct onto the Air Force at
large. . . . She is mature enough to at least say . . . . I’m not
going to hold [Appellant’s conduct] against the Air Force.”
But even though the only evidence of the terminal element
on the record was contrary evidence, the Government still
did not argue why Appellant’s conduct—when considered
in light of the President’s guidance in the Manual—was
nonetheless service discrediting. The Government did not
claim that Appellant’s adultery was “open or notorious” or
explain why the President’s nine factors supported a find-
ing of guilt. Instead, the Government merely expressed
gratitude that Appellant’s conduct did not actually injure
the military’s reputation, but reminded the panel that the
military’s reputation could have been injured. In the Gov-
ernment’s view, this is all the law requires under Phillips.
I am not willing to extend this Court’s holding in Phillips
that far.
B. “Open or Notorious” Conduct
In concluding that Appellant’s conviction was legally
sufficient, the majority relies on the evidence that “Appel-
lant showed a video of his extramarital sexual conduct to
others and made it available to the general public to view
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United States v. Wells, No. 23-0219/AF
Judge HARDY, dissenting
on a website.” United States v. Wells, __ M.J. __, __ (6)
(C.A.A.F. 2024). The majority concludes that because the
“video depicts Appellant engaging in intimate sexual acts
with BF, it is strong evidence of the ‘open or notorious na-
ture’ of the extramarital conduct.” Id.My problem with this approach is twofold. First, I do
not believe that the uploaded video establishes the “open
or notorious” nature of Appellant’s conduct as the majority
suggests. The record indicates that when Appellant posted
the video online, both his and BF’s identities were anony-
mous. Neither Appellant nor BF was identifiable in the
video, and the video provides no indication that Appellant
had any connection to the United States military. Thus,
while Appellant’s extramarital sexual conduct was not
purely private, its level of openness and notoriety was more
trivial than the majority implies.
Second, and more importantly, the Government never
argued at trial that the uploaded video established that Ap-
pellant’s extramarital conduct was open or notorious, and
it made no attempt to otherwise connect the video to the
terminal element of the Article 134 offense. Instead, trial
counsel focused on whether BF was actually the person in
the video and whether she consented to Appellant record-
ing her. But those arguments addressed the charge for un-
lawful recording or broadcasting under Article 120c,
UCMJ, 10 U.S.C. § 920c (2018), for which Appellant was
found not guilty. The Government never argued to the
panel that the video made Appellant’s extramarital con-
duct known to others, bringing disrepute and public ridi-
cule upon the military. See MCM pt. IV, para. 99.c.(1) (ex-
plaining why open and notorious extramarital conduct is
service discrediting).
C. Appellant’s Due Process Rights
To now accept the Government’s “open or notorious” ar-
gument—or any of the other arguments the Government
presents now on appeal—raises fundamental questions of
fairness and due process. Because the Government never
argued at trial that Appellant’s extramarital conduct was
service discrediting because it was committed in an open or
notorious manner, Appellant was never given any notice of
7
United States v. Wells, No. 23-0219/AF
Judge HARDY, dissenting
the theory under which the Government now claims he was
found guilty. Appellant therefore never had the oppor-
tunity at trial to introduce contrary evidence or to rebut the
theory that his extramarital conduct was open or notorious.
When pressed on this point at oral argument, Government
counsel stated that “[the defense] could have attacked
whether it was open and notorious . . . and if they failed to
do so unconvincingly for a factfinder, that’s how the justice
system works.” Oral Argument at 38:40-39:20, United
States v. Wells (C.A.A.F. Mar. 6, 2024) (No. 23-0219). Un-
der the Government’s view, it has no obligation to present
any evidence or argument with respect to the terminal ele-
ment in any Clause 2, Article 134, case, but the accused has
the burden to affirmatively refute every possible theory for
why his extramarital conduct was service discrediting. I
disagree with the Government that this is “how the justice
system works.”
As the Court reaffirmed in Phillips, “conviction of a
criminal offense under the Constitution requires proof of
every element of the offense beyond a reasonable doubt.”
70 M.J. at 164 (citing Sullivan v. Louisiana, 508 U.S. 275,
278 (1993); In re Winship, 397 U.S. at 361-64)). And the
terminal element in a Clause 2, Article 134, case is an ele-
ment of the offense which “must be proved beyond a rea-
sonable doubt like any other element.” Id. at 165. The Su-
preme Court has made clear that the Constitution
prohibits the government from shifting this burden to the
accused. Sandstrom v. Montana, 442 U.S. 510, 523-24
(1979).
In this case, Appellant was convicted of violating Arti-
cle 134, UCMJ, by engaging in extramarital conduct that
was of a nature to discredit the armed forces. The Presi-
dent’s guidance in the Manual instructs that such conduct
may violate Article 134, UCMJ, in some circumstances but
does not do so in other circumstances. The Government
largely ignored the terminal element, neither arguing that
Appellant’s extramarital acts were conducted in an open or
notorious manner or that they satisfied any of the other
nine factors enumerated by the President for identifying
violations of Article 134, UCMJ. As a result, the only evi-
dence in the record directly related to the terminal element
8
United States v. Wells, No. 23-0219/AF
Judge HARDY, dissenting
was the coactor’s testimony that Appellant’s misconduct
did not harm her views about the armed forces.
As I mentioned above, in its briefs and at oral argument
before this Court the Government offered reasonable theo-
ries why Appellant’s extramarital conduct was service dis-
crediting. But this is neither the time nor the place for
those arguments to be presented and litigated in the first
instance. Due process requires a criminal defendant to be
presented with a “meaningful opportunity” to defend him-
self. Jackson v. Virginia, 443 U.S. 307, 314 (1979). Appel-
lant was denied that opportunity in this case. For that rea-
son, I do not believe that Appellant’s conviction for
violating Article 134, UCMJ, was legally sufficient, and I
respectfully dissent.
III. Conclusion
For the foregoing reasons, I would reverse the decision
of the United States Air Force Court of Criminal Appeals
as to Appellant’s conviction under Clause 2, Article 134,
UCMJ.
9