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 

 

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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. 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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? 
United States v. Negron, No. 03-0651/MC 

 

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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].
United States v. Negron, No. 03-0651/MC 

 

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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" 
United States v. Negron, No. 03-0651/MC 

 

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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. 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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. 
United States v. Negron, No. 03-0651/MC 

 

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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: 
United States v. Negron, No. 03-0651/MC 

 

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 “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.
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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,” 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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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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 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

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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, 
United States v. Negron, No. 03-0651/MC 

 

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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 
United States v. Negron, No. 03-0651/MC 

 

23

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 
United States v. Negron, No. 03-0651/MC 

 

24

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 
United States v. Negron, No. 03-0651/MC 

 

25

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.