United States v. Negron , 2004 CAAF LEXIS 757 ( 2004 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Wesley B. NEGRON, Corporal
U.S. Marine Corps, Appellant
No. 03-0651
Crim. App. No. 200100844
United States Court of Appeals for the Armed Forces
Argued April 21, 2004
Decided July 29, 2004
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., EFFRON, BAKER and ERDMANN, JJ., joined.
Counsel
For Appellant: Commander Michael J. Wentworth, JAGC, USNR
(argued); Lieutenant Colonel Eric B. Stone, USMC (on brief);
Lieutenant Commander E. J. McDonald, JAGC, USN.
For Appellee: Lieutenant Christopher J. Hajec, JAGC, USNR
(argued); Commander R. P. Taishoff, JAGC, USN, (on brief);
Lieutenant Frank L. Gatto, JAGC, USNR.
Military Judge: T. L. Miller
This opinion is subject to editorial correction before final publication.
United States v. Negron, No. 03-0651/MC
Judge GIERKE delivered the opinion of the Court.
Our review of this case relates only to Appellant’s guilty
plea to depositing obscene matter in the mail. In the
providency inquiry, the military judge erroneously gave the
definition of “obscene” relating to indecent acts to define the
“obscene” language that renders this offense punishable. The
principal issue before this Court is whether the military
judge’s use of this erroneous definition of “obscene” and his
questioning of the Appellant using primarily leading questions
about this offense were deficient, thereby rendering Appellant’s
plea improvident.
A military judge sitting as a general court-martial
convicted Appellant, pursuant to his pleas, of one specification
of wrongful appropriation, one specification of making and
uttering a worthless check, and one specification of the offense
at issue in this appeal, in violation of Articles 121 and 134,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
§§ 921 and 934 (2000), respectively. The adjudged sentence
provides for a bad-conduct discharge, reduction to the lowest
enlisted grade, total forfeitures, and confinement for 18
months. The convening authority approved the sentence, but
suspended confinement in excess of 12 months in accordance with
the pretrial agreement.
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In its original decision, the Court of Criminal Appeals set
aside the conviction of depositing obscene matter in the mail,
reassessed and modified the sentence. United States v. Negron,
NMCM No. 200100844, slip op. (N-M. Ct. Crim. App. March 14,
2002). On reconsideration, en banc, the court vacated the
original decision and affirmed the findings and sentence. United
States v. Negron, 58 M.J. 834 (N-M. Ct. Crim. App. 2003). But
the lower court was divided. In addition to the lead opinion,
there were three separate opinions reflecting various concurring
or dissenting views of several other judges.
This Court granted review of the following issues:
I. WHETHER THE LOWER COURT ERRED IN AFFIRMING
APPELLANT’S PLEA OF GUILTY TO DEPOSITING OBSCENE
MATTERS IN THE MAIL WHERE THE RECORD DISCLOSES A
SUBSTANTIAL BASIS FOR QUESTIONING THAT PLEA.
II. WHETHER THE LOWER COURT ERRED IN HOLDING THAT
APPELLANT’S PLEA OF GUILTY TO DEPOSITING OBSCENE
MATTERS IN THE MAIL WOULD SUSTAIN A CONVICTION FOR
SERVICE DISCREDITING CONDUCT UNDER ARTICLE 134(2),
UCMJ.
For the reasons set forth below we reverse the decision of
the Court of Criminal Appeals. We hold Appellant’s guilty plea
improvident to the offense of depositing obscene matter in the
mail and set aside Appellant’s conviction of this offense.
FACTS
Working overseas as a postal clerk, Appellant wrongfully
took $1,540.00 cash from the postal safe and used it for
personal spending. On another occasion, Appellant wrote a check
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for $500.00 on his account at the Marine Federal Credit Union
(Credit Union), but later withdrew funds from that account
thereby causing the prior check to be dishonored when it was
presented for payment.
In an attempt to obtain funds to replenish his checking
account, Appellant applied for a loan from the same Credit
Union, but his request was denied. After reading the letter
informing him that his loan application was rejected, Appellant
immediately wrote a letter to the Credit Union and placed it in
the United States mail system. Appellant’s letter contained
this language:
Oh, yeah, by the way y’all can kiss my ass too!!
Worthless bastards! I hope y’all rot in hell you
scumbags. Maybe when I get back to the states, I’ll
walk in your bank and apply for a blowjob, a nice dick
sucking, I bet y’all are good at that, right?
Facing several charges arising from his offenses,
Appellant negotiated a pretrial agreement. Consistent with
this agreement, Appellant pleaded guilty to several
offenses including the offense of depositing obscene matter
in the mail. For purposes of this appeal, we focus on the
providency inquiry relating to this single offense.
Initially, the judge advised Appellant of the elements
of this offense including: that Appellant deposited in the
United States mail a letter with the previously identified
language, that he did this wrongfully and knowingly, that
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United States v. Negron, No. 03-0651/MC
the matter deposited was obscene, and that his conduct was
to the prejudice of good order and discipline in the armed
forces or was of such a nature to bring discredit upon the
armed forces. As to the definition of obscene, the
military judge stated:
The term "obscene" as referred to in the specification
refers to that form of immorality relating to sexual
impurity with (sic) is not only grossly vulgar and
repugnant to common society, but which tends to excite lust
and deprave the morals with respect to sexual relations.
The matter must violate community standards of decency or
obscenity and must go beyond customary limits of
expression. The [community’s] standards of decency or
obscenity are to be judged according to the average person
in the military community as a whole rather than the most
prudish or [tolerant].
Proof that you believe the matter to be obscene is not
required. It is sufficient, however, if you knew the
contents of the matter at the time of the depositing.
Later during the providency inquiry, the judge engaged
Appellant in a dialogue as to the factual basis for the guilty
plea. The relevant discussion of this offense follows:
MJ: Let's look at this last Additional Charge, supporting
specification of Additional Charge II. On 10 April 2000 in
Okinawa, Japan, did you deposit or cause to be deposited a
letter in the United States mail?
ACC: Yes, sir.
MJ: Now, who wrote that letter?
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United States v. Negron, No. 03-0651/MC
ACC: I did, sir.
. . . .
MJ: Now, did you deposit the letter for mailing in the
United States mails and for mailing and delivery to the
Marine Corps Federal Credit Union?
ACC: Yes, sir.
MJ: Did the letter you deposited on 10 April, year 2000,
contain language to this effect: "Oh yeah, by the way y’all
can kiss my ass too!! Worthless bastards! I hope y’all
rot in hell, you scumbags. Maybe when I get back to the
states, I'll walk in your bank and apply for a blowjob. A
nice dick sucking. I bet y'all are good at that; right,"
or words to that effect?
ACC: Yes, sir.
MJ: Now, did you write that language on the letter?
ACC: Yes, sir.
MJ: Did you know the letter contained that language when
you deposited it in the mail?
ACC: Yes, sir.
MJ: Did anyone force you to write that letter or deposit
it in the mail?
ACC: No, sir.
MJ: Was the writing and depositing -- was [writing] and
depositing that letter in the mail the result of a
freely-made decision on your part?
ACC: Yes, sir.
MJ: Do you believe you knowingly and wrongfully
deposited that letter in the mail?
ACC: [No response].
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United States v. Negron, No. 03-0651/MC
MJ: I'll repeat that question for you. Do you believe
that you knowingly and wrongfully deposited that letter in
the mail?
ACC: Yes, sir.
MJ: Now, was the letter deposited on 10 April to the
Marine Corps Federal Credit Union?
ACC: Yes, sir.
MJ: Did you write that letter in response to a problem you
were having with the Marine Corps Federal Credit Union?
ACC: Yes, sir.
MJ: What was the problem?
ACC: Well, sir, I was trying to solve this problem, sir, by
getting a loan from them, and I felt like that was my last
way out of the situation that I was in, sir. And when they
denied it, that's when I -- that frustrated me, sir, and
that's what caused me the write the letter, sir.
. . . .
MJ: Did you know anyone there that you sent it to?
ACC: No, sir. I didn't attention it to anybody.
MJ: Do you feel that this was a joke?
ACC: No, sir.
MJ: Did you feel that this was funny or obscene?
ACC: No, sir. It was obscene, sir, but it wasn't funny.
MJ: Do you think that this letter would probably offend
the people there at the Marine Corps Federal Credit Union?
ACC: Yes, sir.
MJ: Now, I -- these words that I'm going to use. Corporal
Negron, are not intended to embarrass you. They are just -
- I have to make clear in my mind that you are, in fact,
guilty of this offense. Now, the words, "kiss my ass"
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United States v. Negron, No. 03-0651/MC
might mean that you wanted someone at the Marine Corps
Federal Credit Union to kiss your rear end. Is that what
you intended to convey to the reader?
ACC: No, sir. I was just angry and I intended to offend
them and get back at them for denying me.
MJ: Okay. Did you intend to convey to them the message
though that somebody there at the Marine Corps Federal
Credit Union could kiss your rear end?
ACC: Yes, sir.
MJ: Now, a "bastard" might define someone of illegitimate
birth. Were you describing someone of illegitimate birth
in your letter?
ACC: No, sir.
MJ: What did you mean by the word "bastard"? You might
want to discuss that with Major Woodworth.
The accused conferred, with his defense counsel.
ACC: I wasn't paying so much attention to the technical
definition of what it was, sir, I just threw the word out
to offend them.
MJ: All right. Well, a "bastard" might be somebody of
illegitimate birth or it might mean somebody that is just a
mean or despicable person.
ACC: Yes, sir.
MJ: Were you just trying to describe somebody that was a
mean or despicable person?
ACC: Yes, sir.
MJ: All right. Now, a “blowjob” and “dick sucking" as
referred to in the language are slang terms for sodomy. Do
you understand that?
ACC: Yes, sir.
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United States v. Negron, No. 03-0651/MC
MJ: Now, "sodomy" means for a person to take into that
person's mouth the sexual organ of another person. Now, is
that the message that you were trying to convey?
ACC: Yes, sir.
MJ: Okay. So was the message that you were trying to
convey to the Marine Corps Federal Credit Union that they
were mean people who could kiss your rear end and commit
sodomy on you?
ACC: Yes, sir.
MJ: Do you believe and admit that the depositing of the
letter referred to in the specification was done
wrongfully and knowingly?
ACC: Yes, sir.
MJ: Now, let me define for you again the term “obscene”.
[The judge repeats the definition he stated earlier.]
. . . .
Do you believe and admit, Corporal Negron, that the
language you used in this letter was obscene?
ACC: Yes, sir.
MJ: Do you believe and admit that this language used in
your letter was calculated to corrupt morals or excite
lustful thoughts?
ACC: Yes, sir.
MJ: Now, on 10 April when you deposited that letter, was
your conduct substantially prejudicial to the good order
and discipline in the armed forces?
ACC: Yes, sir.
MJ: Do you believe also that your conduct was of a nature
to bring discredit upon the armed forces?
ACC: Yes, sir.
MJ: Do you believe that members of the Marine Corps
Federal Credit Union who read your letter would look down
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United States v. Negron, No. 03-0651/MC
on the United States Marine Corps for writing this grossly
vulgar and obscene matter?
ACC: Yes, sir.
MJ: Do you believe they were grossly offended by your
letters?
ACC: Yes, sir.
Based on his questions and Appellant’s responses, the
military judge found Appellant’s guilty plea to this offense
provident, with a factual basis, and accepted it as well as
Appellant’s guilty pleas to other offenses.
On appeal at the lower court and before this Court,
Appellant argues that the language in the letter he sent to the
Credit Union was not obscene. Appellant claims that he was
angry that his loan application was denied and that the letter
“was not calculated to corrupt morals or excite libidinous
thoughts.” Appellant also claims that his answers throughout
the providency inquiry were in response to leading questions
posed by the military judge and failed to establish a factual
basis to support the guilty plea to this offense.
The Government argues, in general, that Appellant’s plea is
provident because Appellant admitted facts to establish every
element of the offense and, in particular, that Appellant’s
responses establish his language was obscene as the purpose of
Appellant’s letter to the Credit Union was to offend its
employees “by means of a graphic description of a deviant sexual
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United States v. Negron, No. 03-0651/MC
act.” Before this Court, the Government acknowledges the test
of obscene language stated by this Court in United States v.
French, 31 M.J. 57 (C.M.A. 1990), and applied in United States
v. Brinson, 49 M.J. 360 (C.A.A.F. 1998). However, the
Government claims that these cases do not present the complete
test for obscene and indecent language. And the Government joins
the lower court in requesting this court to reevaluate Brinson
and to overrule its definition of “obscene” as it is
inconsistent with the definition stated by the President in
Manual for Courts-Martial, United States (2002 ed.) [hereinafter
MCM], Part IV, para. 89.c.
In its original decision, a divided lower court found that
Appellant’s plea was improvident because the language used in
the letter was not “calculated to corrupt morals or excite
libidinous thoughts” as required by French and Brinson. Almost
16 months later a divided en banc court vacated its earlier
decision. Six of the judges affirmed Appellant’s conviction for
depositing obscene matter in the mail, two of the judges voted
to affirm a lesser-included offense of service discrediting
conduct under Article 134(2), UCMJ, and one judge would neither
affirm the conviction for depositing obscene matter in the mail
nor the lesser-included offense.
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DISCUSSION
Depositing obscene matter in the mail is not specifically
enumerated in the Code as a criminal offense, but it is
punishable under Article 134, UCMJ; See MCM, Part IV, para.
94.b. This provision of the MCM states that the elements for
this offense are:
(1) That the accused deposited or caused to be
deposited in the mails certain matter for mailing
and delivery;
(2) That the act was done wrongfully and knowingly;
(3) That the matter was obscene; and
(4) 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.
From this provision and its explanation, it is clear that
the focus of this offense is on “obscene” words. The
explanation states: “Whether something is obscene is a question
of fact. ‘Obscene’ is synonymous with ‘indecent’ as the latter
is defined in paragraph 89.c. The matter must violate community
standards of decency or obscenity and must go beyond customary
limits of expression.”
Paragraph 89.b of Part IV of the MCM states the elements
for the charge of orally or in writing communicating to another
person indecent language. Because its definition of “indecent”
is synonymous with “obscene” in paragraph 94.c, it is this
precise language that is the focus of our attention. Paragraph
89.c states:
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United States v. Negron, No. 03-0651/MC
“Indecent” language is that which is grossly
offensive to modesty, decency, or propriety, or
shocks the moral sense because of its vulgar,
filthy, or disgusting nature, or its tendency to
incite lustful thought. Language is indecent if
it tends reasonably to corrupt morals or incite
libidinous thoughts. The language must violate
community standards.
Addressing the scope of this provision in Brinson, this
Court stated that “[w]hen the Government makes speech a crime,
the judges on appeal must use an exacting ruler.” 49 M.J. at
361. This Court also embraced the narrow French test to
determine if language is indecent, that is, “whether the
particular language is calculated to corrupt the morals or
excite libidinous thoughts.” Id. at 364 (quoting French, 31
M.J. at 60). That opinion further explained that calculated
means “intended” or “planned.” Id. Finally, the Court
reaffirmed that language must be evaluated in the “precise
circumstances under which the charged language was
communicated.” Id.
In Brinson, this Court applied this test to circumstances
where Appellant had used gross, vulgar, and profane language in
an outrageous reaction to police officers performing their
legitimate duties. This Court found that the evidence did not
support a conviction of communicating indecent language because
the language Appellant used “was clearly calculated or intended
to express his rage, not any sexual desire or moral
dissolution.” Id.
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There was a dissent in Brinson pointing out that MCM, Part
IV, paragraph 89.c, “provides for at least two definitions of
‘indecent language,’ either of which can be the basis for a
conviction.” Brinson, 49 M.J. at 368 (Crawford, J., joined by
Gierke, J., dissenting in part and concurring in the result).
The dissent stated the second definition of ‘indecent language’
found in paragraph 89.c “provides that indecent language
includes language that is ‘grossly offensive to modesty,
decency, or propriety, or shocks the moral sense, because of its
vulgar, filthy, or disgusting nature, or its tendency to incite
lustful thought.’” Id. Accordingly, the dissent would have
found that Appellant’s language in Brinson would fit within this
second definition of “indecent language.”
Notwithstanding the disagreement in Brinson, the majority
view stated the law defining obscene matter at the time of
Appellant’s court-marital. The clear and unequivocal holding of
Brinson was that only language “calculated to corrupt morals or
excite libidinous thoughts” was obscene. See French, 31 M.J. at
60.
As Appellant proferred a guilty plea, the military judge
had the duty to apply this precedent, that is, to accurately
inform Appellant of the nature of his offense and elicit from
him a factual basis to support his plea. See United States v.
Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969). An essential aspect
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United States v. Negron, No. 03-0651/MC
of informing Appellant of the nature of the offense is a correct
definition of legal concepts. The judge’s failure to do so may
render the plea improvident. See United States v. O’Connor, 58
M.J. 450, 453 (C.A.A.F. 2003)(holding plea improvident due to
erroneous definition of child pornography); United States v.
Pretlow, 13 M.J. 85, 88-89 (C.M.A. 1982)(holding plea
improvident where a military judge failed to define the
substantive elements of conspiracy to commit robbery, a complex
offense).
But such an error in advising an accused does not always
render a guilty plea improvident. Where the record contains
“factual circumstances” that “objectively support” the guilty
plea to a more narrowly construed statute or legal principle,
the guilty plea may be accepted. See United States v. James, 55
M.J. 297, 300 (C.A.A.F. 2001); United States v. Shearer, 44 M.J.
330, 334 (C.A.A.F. 1996). We have stated that in evaluating the
providency of a plea, the entire record should be considered.
See United States v. Jordan, 57 M.J. 236, 238-39 (C.A.A.F.
2002). To prevail, Appellant has the burden to demonstrate a
“substantial basis in law and fact for questioning the guilty
plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
In the present case, the providency inquiry was deficient
because the military judge used an erroneous definition of
“obscene.” The judge’s definition of obscene is in large part
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United States v. Negron, No. 03-0651/MC
taken from the definition of “indecent” in the Article 134
offense of indecent actions with another. The explanation of
this offense states, “‘Indecent’ signifies that form of
immorality relating to sexual impurity which is not only grossly
vulgar, obscene, and repugnant to common propriety, but tends to
excite lust and deprave the morals with respect to sexual
relations.” MCM, Part IV, para. 90.c. The military judge
possibly attempted to blend the language from this paragraph
with the language from MCM, Part IV, para. 94.c as he added the
requirement that the language “must violate community
standards.” Regarding this blended definition of obscene
language, six of the judges agreed in noting the following:
In providing this definition, the military judge gave the
definition of “obscene” contained in the then current
Military Judges’ Bench book for use with the offense of
depositing obscene matter in the mail. . . . [T]he shadow
of this pronouncement of what is “obscene” adequately
covers both the definition provided in MCM, Part IV, ¶89.c
and the test for obscenity adopted by our superior Court in
French and reaffirmed and expanded somewhat in Brinson.
58 M.J. at 840-41 (footnotes omitted).
We reject the lower court’s reasoning that the “shadow” of
the definition of indecent acts “adequately covers” the
definition of what is “obscene” language. Where speech is an
alleged crime, judges must evaluate the speech using the
definition provided by the President and not a “shadow.” See
Brinson, 49 M.J. at 261. Many of the same root words appear in
both the definition of “indecent language” and “indecent acts,”
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United States v. Negron, No. 03-0651/MC
such as, “grossly,” “propriety,” “vulgar,” and “lust.” But
sharing common words does not render the definitions fungible.
The President elected to punish under Article 134, UCMJ,
the separate offenses of indecent acts and indecent language.
The President also used different definitions of “indecent” as
to each offense. Compare MCM, Part IV, para. 89.c with para.
90.c. We will use the definition the President has provided for
each offense and scrutinize any attempt to substitute one for
the other.
The linchpin of this case is the judge’s erroneous use of
the definition of “indecent acts” to evaluate Appellant’s
alleged “indecent language.” In light of this fundamental
definitional error, had the military judge conducted an
otherwise perfect providency colloquy with Appellant,
Appellant’s plea to the charged offense would still have been
improvident. Appellant simply could not have providently
pleaded guilty to a charged offense of placing obscene material
in the mail when the military judge used the substantively
different definition of indecent found in MCM, Part IV, para.
90.c.
Moreover, this definitional error by the military judge
tainted the entire providency inquiry pertaining to the charge
at issue. It induced him to focus the providency inquiry on the
indecent nature of the acts that were the subject of Appellant’s
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United States v. Negron, No. 03-0651/MC
language rather than Appellant’s “planned” and “intended” result
from use of his language. Id. at 364. Because of this error,
the military judge failed to establish a factual basis for
Appellant’s guilty plea. Often unable to get narrative
responses from Appellant that would establish the facts
supporting Appellant’s guilty plea, the military judge almost
exclusively resorted to leading questions and elicited merely a
“yes” or “no” response from the Appellant.
In the providency inquiry Appellant stated that he wrote
the letter because he was “frustrated” and “angry.” Appellant
repeatedly stated that his intention was to “offend” the reader
of his letter. But Appellant never stated that he planned or
intended to engage in or to solicit sexual acts. Similarly,
Appellant never stated that he intended to excite libidinous
thoughts in the reader of his letter. To the contrary, when the
military judge asked what he intended in using the words “kiss
my ass,” Appellant denied that he wanted someone to actually
“kiss [his] rear end.” Appellant also admitted using slang
words for sodomy, but again he never stated that he sought to
engage in these sexual acts or intended to invite the reader of
his letter to actually perform them. Appellant explained his
choice of words by informing the judge, “I wasn't paying so much
attention to the technical definition of what it was, sir, I
just threw the word out to offend them.” These statements by
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United States v. Negron, No. 03-0651/MC
Appellant belie any assertion that Appellant “planned” or
“intended” his language to incite lustful or libidinous thought.
In response to one leading question, Appellant merely
stated, “Yes” when the military judge asked him if he was trying
to convey the message that “they [unidentified Credit Union
employees who denied his loan] were mean people who could kiss
your rear end and commit sodomy on you[.]” Appellant also
merely answered “Yes” to the leading question whether his
language “was calculated to corrupt morals or excite lustful
thoughts[.]” We view the military judge’s inquiry as
establishing only that Appellant used certain words that related
to sexual acts. The military judge failed to have Appellant
present any facts that explain how the Appellant’s language “was
calculated to corrupt morals or excite lustful thoughts.” Here,
just as in Brinson, the facts establish only that an angry and
frustrated servicemember resorted to using improper language to
express his feelings. Under the narrow definition of indecent
language applied in Brinson, Appellant’s language was not
obscene.
We have repeatedly advised against and cautioned judges
regarding the use of conclusions and leading questions that
merely extract from the Appellant “yes” and “no” responses
during the providency inquiry. See Jordan, 57 M.J. at 238;
United States v. Sweet, 42 M.J. 183, 185 (C.M.A. 1995); United
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United States v. Negron, No. 03-0651/MC
States v. Lee, 16 M.J. 278, 282 (C.M.A. 1983). We have stated,
“[I]t is especially important that the accused speak freely so
that a factual basis will be clearly established in the record.”
United States v. Holt, 27 M.J. 57, 58 (C.M.A. 1988). But here
the military judge did not follow this direction. The
questioning method of the military judge in the present case led
the lower court to comment that Appellant’s answers “consist
primarily of: ‘Yes, sir[.]’” 58 M.J. at 839. We agree but come
to a different conclusion as to the impact of this form of
leading questioning. We find this providency inquiry fatally
deficient as a classic example of questioning that extracts
little relevant factual information from an accused to establish
his offense and to support the guilty plea. We find little
benefit in establishing a factual record where as here Appellant
merely is "parroting" responses to leading questions asked by
the military judge. Here we find Appellant’s guilty plea to the
Article 134 offense of depositing obscene mail matter
improvident.
Our consideration of this case does not terminate here. We
return to Brinson to ensure that justice is done both in this
case and in the future.
Although this Court in Brinson found that “coarse language”
and the “scurrilous public denunciation” of a law enforcement
officer was not indecent language, we also observed that the
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United States v. Negron, No. 03-0651/MC
charged offense “necessarily includes an allegation of a simple
military disorder.” 49 M.J. at 364. So the Court concluded
that the evidence was sufficient to establish the offense of
disorderly conduct. Id. at 365. Consistent with this
reasoning, we must consider if Appellant’s conduct of depositing
this particular matter also “necessarily includes an allegation
of a simple military disorder.” See United States v. Felty, 12
M.J. 438, 442 (C.M.A. 1982); United States v. Epps, 25 M.J. 319(C.M.A. 1987). The elements of a simple military disorder are
that the accused was disorderly at some place and 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, Part IV, para.
73.b.
We eschew the opportunity to resolve the issue of whether
there was disorderly conduct or any other lesser included
offense for four reasons. First, we observe that state courts
are divided on the issue of whether the mailing of a vile,
profane, or offensive letter is disorderly conduct. Cf. State
v. Schwebke, 644 N.W.2d 666 (Wis. 2002)(holding that an
anonymous private harassment mailing is punishable under a
disorderly conduct statute) with People v. Ohneth, 89 N.E.2d 433(Ill. App. Ct. 1949)(concluding that the writing of a vile
letter and mailing it without other evidence of violent,
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United States v. Negron, No. 03-0651/MC
boisterous, turbulent or other act of a public nature was not
disorderly conduct). Second, the President in the MCM has
explicitly defined the term “disorderly.” MCM, Part IV, para.
73.c.2. Whether Appellant’s conduct is “disorderly” under this
definition is an issue that the parties have not addressed
before this court. Third, the deficiencies in the providency
inquiry previously discussed (including extracting little
relevant factual information and often mere conclusions) give us
pause in affirming any lesser included offense. Finally, the
normal remedy for finding a plea improvident is to set aside the
finding based upon the improvident plea of guilty and to
authorize a rehearing at which the accused is permitted to plead
anew. See United States v. Williams, 53 M.J. 293 (C.A.A.F.
2000); United States v. Marsh, 15 M.J. 252 (C.M.A. 1983). This
remedy restores the appellant to his position before proferring
the guilty plea and permits the Government the opportunity to
prove the charged offense or any lesser included offense. In
light of all these circumstances, we conclude that authorizing a
rehearing is appropriate here.
Issue II in this case questions whether Appellant’s conduct
was service discrediting conduct. In light of our disposition
of this case, we need not address this issue.
One final matter invites further attention. Because a
rehearing is authorized, it is necessary that we also address
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United States v. Negron, No. 03-0651/MC
the confusion, apparent in this case, perhaps arising from this
Court's decision in Brinson, regarding the definition of
"indecent" applicable to charges of indecent language. The
President in Part IV of the MCM has provided that the use of
certain expressly defined language is punishable for the
offenses of indecent language and depositing obscene matter in
the mail. MCM, Part IV, para. 89.c, provides two alternate
definitions of "indecent language." The use of the disjunctive
in this paragraph makes clear that either definition of indecent
language may be the legal authority for a conviction. In
addition to criminalizing language that is grossly offensive
because of “its tendency to incite lustful thought,” the
President made punishable indecent language that “is grossly
offensive to modesty, decency, or propriety, or shocks the moral
sense, because of its vulgar, filthy, or disgusting nature.”
Simply stated, paragraph 89.c presents two different definitions
to measure speech that may be a crime, dependent on the context
in which it is spoken. We adopt and will apply this plain
language of the Manual prospectively to cases tried after the
date of this decision. See United States v. Moore, 28 M.J. 366,
367 (C.M.A. 1989)(stating new per se rule against Government's
use of peremptory challenges to excuse members of accused's own
race applies prospectively only); United States v. Crowley, 7
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United States v. Negron, No. 03-0651/MC
M.J. 336 (C.M.A. 1979)(applying rule establishing standards for
plea bargain inquiries prospectively).
To render language punishable for the offenses of indecent
language and depositing obscene matter in the mail, the
President has required that the language and 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, Part IV, paras. 89.b.3 and 94.b.4. In
part, it is this element of these offenses that filters out from
punishment language that is colloquial vocabulary and may be
routinely used by service members. As these offenses touch on
First Amendment free speech issues, the Government must always
exercise care in both charging and proving these offenses to
establish that the factual predicate for these offense is within
the ambit of the “narrowly limited classes of [punishable]
speech.” See Chaplinsky v. New Hampshire, 315 U.S. 568, 571
(1942). See also O’Connor, 58 M.J. at 455.
DECISION
The decision of the United States Navy-Marine Court of
Criminal Appeals as to Additional Charge II and its single
specification is reversed. The decision as to the remaining
Charges and their specifications is affirmed. The findings of
guilty to Additional Charge II and its single specification and
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United States v. Negron, No. 03-0651/MC
the sentence are set aside. The record is returned to the Judge
Advocate General of the Navy. A rehearing is authorized. If a
rehearing is deemed impracticable, the dismissal of Additional
Charge II and a reassessment as to sentence alone may be
ordered.
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