We granted review of the following issue:

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE. As detailed below, we conclude that indecent acts with another, a violation of Article 134, UCMJ, is not a purely military offense. This appeal thus continues our inquiry, begun last term in United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009), into what constitutes a “purely military offense.”

Here seems to be the nub of the case and is consistent with Conliffe it seems to me.

Neither the CCA nor the parties to this case have given us a good reason to depart from this elements-based approach, which determines whether an offense is a “purely military offense” by reference to whether the elements of the underlying crime, either directly or by necessary implication, require that the accused be a member of the military.

(emphasis added). Clearly in Conliffe the person had to be an officer, a civilian can’t be punished in civilian court for violating Article 133, UCMJ. Other UCMJ offenses come to mind such as being drunk on duty or misbehavior by a sentinel. It remains to be seen whether the majority elements test will stand the test of time against Judge Baker’s contextual argument. Perhaps in a future deployed civilian case?

Oh, yes. It seems all too common that military personnel like to engage in sexual acts in the presence of others in the same barracks room. Maybe being too anecdotal, but it seems we see this issue come up quite often, although not usually combined with a Article 130, UCMJ, allegation.

Appellant’s prior crime, the crime of housebreaking, occurs when “[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters the building or structure of another with intent to commit a criminal offense therein. . . .” 10 U.S.C. § 930. . . . Appellant’s primary argument against this conclusion is that the district court improperly referenced the military court’s discussion of the underlying facts of his conviction. Generally, a court is only to consider “the fact of conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602. But the district court’s reference in this case to the underlying facts of Appellant’s housebreaking conviction, as articulated in the military court’s opinion, does not change the fact that the elements of housebreaking constitute a generic burglary crime, a crime of violence under our precedents. Further, and contrary to Appellant’s argument, the Supreme Court’s opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our decisions in regard to generic burglary and does not provide reason for reversal.

See, United States v. Whetzell, No. 09-1463 (8th Cir. February 10, 2010). I have linked to the SCOTUSWiki version of Begay because it has some interesting information about what constitutes a crime of violence for purposes of the Armed Career Criminal Act.

The act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” This last clause is referred to as the “otherwise” or “residual” clause. The ACCA also defines “serious drug offense” to include offenses under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” Begay v. United States asks whether a felony conviction for driving while intoxicated counts as a “violent felony” under the ACCA.

Sorry, for a headnote cite:

Held: New Mexico’s felony DUI crime falls outside the scope of the Act’s clause (ii) “violent felony” definition. Pp. 3–10. (a) Whether a crime is a violent felony is determined by how the law defines it and not how an individual offender might have committed it on a particular occasion. Pp. 3–4. (b) Even assuming that DUI involves conduct that “presents a serious potential risk of physical injury to another” under clause (ii), the crime falls outside the clause’s scope because it is simply too unlike clause (ii)’s example crimes to indicate that Congress intended that provision to cover it. Pp. 4–10.

No. 07-0401/NA. U.S. v. Russell B. MULLINS. CCA 200200988. Review granted on the following issues:

WHETHER THE LOWER COURT IN HOLDING THAT THERE WAS NOTHING IMPERMISSIBLE IN THE MILITARY JUDGE ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR TESTIMONY IN VIOLATION OF MILITARY RULE OF EVIDENCE 702.

No. 09-0729/MC. U.S. v. Jerry A. GARNER. CCA 200800481. Review granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT’S CONVICTION FOR ATTEMPTING TO ENTICE A MINOR TO ENGAGE IN ILLEGAL SEXUAL ACTIVITY, IN VIOLATION OF 18 U.S.C. SECTION 2422(b), WHERE THE RECORD OF TRIAL FAILED TO SHOW THAT APPELLANT TOOK THE “SUBSTANTIAL STEP” NECESSARY FOR AN ATTEMPT CONVICTION UNDER THE STATUTE.

No. 09-0754/AF. U.S. v. Gabriel R. CONTRERAS. CCA 37233. Review granted on the following issue:

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.

CAAF had decided this issue for allegations involving Article 133, UCMJ, but has not decided an Article 134, UCMJ, offense – yet.