This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________

UNITED STATES Appellee

v.
Nicholas E. BUSCH, Airman First Class

United States Air Force , Appellant

No. 15

- 0477
Crim. App. No. 38530

Argued October 7, 2015

— Decided January 29, 2016

Military Judge: Mat t h ew S. Ward

Fo r Appellant: Captain Luke D. Wilson (argued); Captain Michael A. Schrama (on brief); Major Thomas A. Smith

. For Appellee: Major Mary Ellen Payne (argued); Colonel Katherine E. Oler and Gerald R. Bruce , Esq. (on brief)

. Chief Judge ERDMANN delivered the opinion of the Court, i n which Judge OHLSON and Judge DIAZ joined. Judge STUCKY filed a sepa rate dissenting opi nion, in which Judge RYAN joined.

_______________

Chief Judge ERDMANN delivered the opinion of the
Court. 1

Pursuant to his pleas, Airman First Class Nicholas E.
Busch was convicted at a judge

- alone general court

- martial of one specification of fraudulent enlistment, one specific ation of absence without leave, one specification of making a false official statement, and one specification of sexual abuse of a child, in violation of Articles 83, 86, 107, and 120b, Un iform Code of Military Justice (UCMJ), 10 U.S.C. §§ 883, 886, 907, 920b (2012). The military judge sentenced Busch to a

1 Judge Albert Diaz, of the United States Court of Appeals for the Fourth Circuit, sat by designation, pursuant to Article 142(f), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 942(f) (2012).United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

2 dishonorable discharge, confinement for six years, forfeiture of all pay and allowances, and a reduction to E -1 . The co nvening authority approved the sentence and the United States Air Force Court of Criminal Appeals (AFCCA) a ffirmed the findings and sentence. United States v. Busch

, No. ACM 38530, 2015 CCA LEXIS 51, at *19, 2015 WL 894415, at *6 (A.F. Ct. Crim. App. Feb. 11, 2015) (u npublished).

“The Constitution forbids the passage of ex post facto laws, a category that includes [e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Peugh v. United
States , 133 S. Ct. 2072, 2077

- 78 (2013) (alteration in orig inal) (internal quotation marks omitted) (citation omitted). In addition, where there is no punishment listed for an offense
in Part IV of the Manual for Courts

- Martial, United States ( MCM ) , Rule for Courts

- Martial (R.C.M.) 1003(c)(1)(B) e stablishes the procedures for determining the appropriate maximum sentence. We granted review of this case to d etermine: (1) whether the military judge violated the Ex Post
Facto Clause of the Constitution when he determined the maximum punishment for the Article 120b (c), UCMJ, o ffense of sexual abuse of a child; and (2) whether the military judge erred when he held that the charged offense of sexual abuse of a child was “closely related” to the offense of i nd ecent liberties with a child under R.C.M. 1003(c)(1)(B)(i) for purposes of determining the maximum sentence of sexual
abuse of a child. 2 We hold that there was no violation of the Ex Post Facto Clause and that, although the military judge
and AFCCA relie d on an erroneous analysis of R.C.M. 1003(c)(1)(B), the correct analysis results in the same max imum sentence. Finding no prejudice from the error, we a ffirm the holding of the AFCCA as to the maximum sentence.

2 We granted review of the following issue:

At the time of A ppellant’s alleged sexual abuse of a child offense, the P resident had not set the max imum punishment for the offense. The military judge used a later

- enacted executive order to set the maximum pun ishment, even though it i ncreased the confinement range from one year to fi fteen years. Was the Ex Post Facto Clause violated?United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

3 Background

Busch’s appeal is limited to the process utilized by the military judge to determine the maximum sentence for the Article 120b, UCMJ, offense of sexual abuse of a child. Busch admitted to maintaining an Internet relationship
with a fifteen

- year

- old girl from early February until May of

201 3. Initially the Internet relationship involved an e xchange of text messages, but eventually became sexual in nature with Busch exposing his genitals and masturbating while the minor watched over Skype, an Internet video se rvice. The government, however, c harged Busch only with exposing his genitals to a child under the age of sixteen u nder Article 120b.

Discussion

The Ex Post Facto Clause

In June 2012, as part of a comprehensive revision of A rticle 120, Congress created Article 120b, to consolidate the previous offenses of aggravated sexual abuse of a child, a ggravated sexual contact with a child, abusive sexual contact with a child, and indecent liberties with a child, into the si ngle offense of sexual abuse of a child. See MCM Analysis of
the Punitive Articles app. 23 at A23

- 16 (2012 ed.). The amendments to Article 120, took effect on June 28, 2012. Id. However, the President did not exercise his Article 56, UCMJ, 10 U.S.C. § 856 (2012), authority to establish the maximum punishment for the revised offe nses until May 15, 2013, when Exec. Order No. 13,643 (2013), 78 Fed. Reg. 29559 (May 21, 2013), was signed and published. Busch’s offense took place after the effective date of the 2012 amendments to Article 120, but before Exec. Order No. 13,643 was prom ulgated. During this period, Part IV of the
MCM did not include sentence maximums for Article 120
offenses. See MCM pt. IV, para. 45b.a. Note (2012 ed.).

At trial, the military judge and trial defense counsel had the following colloquy as to the maximum se ntence for the charged offense of sexual abuse of a child:

MJ: Okay. And then with regard to Charge IV [sexual abuse of a child], what do you calculate the maximum at?United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

4 .. .. DC: A dishonorable discharge, sir, confinement for 1 year, and total forfeitures o f pay and allowances.

MJ: Okay. So how do you get that number under Charge IV, given the President’s direction that it carry a penalty of a dishonorable discharge, 15 years, and total forfeitures?

DC: Okay. Well, I believe that, you know, a max imum punishment has not been put into Article 120 under the 2012 amendment. May I have a moment, Your Honor?

[The defense team conferred.]

Your Honor, we’re arguing that this is the appr opriate punishment because it mirrors the language in the Article 120 from the 20 07 to 2012 [sic] where it talks about indecent exposure, and that would
be
– MJ: All right. What’s your view of Executive Order [13

, 643] where the President has stated that the maximum punishment under paragraph 45b, Art icle 120b

-- [R]ape and Sexual Assaul t of a Child

-- is amended by inserting the following use of par agraph e:

e. Maximum Punishment: ....

(3) Sexual Abuse of a Child:

(a) Cases involving sexual contact: disho norable discharge, forfeiture of all pay and a llowances, and confinement for 20 years.

(b) Other cases: dishonorable discharge, fo rfeiture of all pay and allowances, and confin ement for 15 years.

So it would appear under that executive order, pa ragraph e(3)(b): Other cases: dishonorable discharge, fo rfeiture of all pay and allowances, and confin ement for 15 years would be applicable.
First set of brackets in original.

At that point defense counsel asked for a recess so that
he could look int o the maximum punishment issue. The mil itary judge recessed for lunch to provide both parties time to research the issue. After the lunch recess, the military judge
continued the discussion with the defense counsel as to theUnited States v. Busch , No. 15

- 0477 /AF Opinion of the Court

5 appropriate maximum punishment for the offense of sexual
abuse of a child. Defense counsel asserted that the most analogous maximum punishment would be the offense of i ndecent exposure under the old Article 120. 3

The military judge noted that the intent required for i ndecent exposure was simply that the exposure be intentio nal. As the charged offense of sexual abuse of a child requires that the accused engage in a lewd act, the military judge further noted that a “lewd act” requires an intentional exp osure of one’s genitals with the intent to arouse or gratify the
sexual desires of a person. De fense counsel conceded that the intent requirements between indecent exposure and sexual abuse of a child were different. The military judge
then directed defense counsel’s attention to the offense of
indecent liberties with a child:

MJ: Okay. So if you c ould, look at indecent liberty with a child, which is subparagraph (j). In the MCM it’s Appendix 28

- 2. That paragraph states, “Any person subject to this chapter who engages in indecent liberty in the physical presence of a child with the intent to arouse, appeal to, or gratify the sexual desire of any person shall be punished as a

court

- martial may direct.” S o again the intent is
the same.

And then if you get down to the definition of an i ndecent liberty: “The term ‘indecent liberty’ means indecent conduct, but physical contact is not r equired. It includes one who with the requisite i ntent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the phys ical pres ence of the child.”

So, again, it seems like indecent liberty under the prior statute is more applicable than indecent exp osure, because, again, it covers the indecent exposure, but it narrows the focus to the child.

3 The maximum sentence for this offense was a dishonorable discharge, confinement for one year, forfeiture of all pay and a llowa nces, and reduction to E

- 1. See MCM

, Maximum Punishment Chart app. 12 at A12

- 4 (2008 ed.).United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

6 An d with regard to your comment on physical pre sence, and again, I go to the current statute which indicates from the definition section for lewd act under paragraph (D): “Any indecent conduct, inte ntionally done with or in the presence of a child, i ncluding via any communication technology.” So that seems to indicate, to the Court anyway. That under 120, the current 120, physical presence is also co nstructive physical presence so when done via co mmunication technology. So under that analysis, it would seem that the indecent liberties from the prior statute would be most applicable.

And the maximum punishment for indecent liberty of a child is a dishonorable discharge, forfeiture or all pay and allowances, and confinement for 15 years, which I believe tracks with the punishment under the President’s executive order with regard to Article 120b for the conduct to which your client has pled guilty. So you don’t have to agree or dis agree with the court’s analysis, but

-- well, let me know if you disagree with it and the basis for it.

Emphasis added.

Before this court, Busch argues that the military judge relied on Exec. Order No. 13,643 to set the maximum pu nishment for the charged offense, based on his references to
the executive order. Because Exec. Order No. 13,643 was promulgated after Busch’s alleged act, Busch argues the mi litary judge’s use of Exec. Order No. 13,643 violated the pr ohibition against ex post facto laws.

The government responds that the Ex Post Facto Clause is not implicated in this case because the military judge did not rely on Exec. Order No. 13,643 to set the maximum pu nishment. Instead, the government argues that the military judge correctly determined the maximum punishment under R.C.M. 1003(c)(1)(B)(i), a rule in effect at the time Bus ch
committed his misconduct.

We review questions of constitutional law de novo. Uni ted States v. Castillo , 74 M.J. 160, 165 (C.A.A.F. 2015). If a constitutional error is found, whether it is harmless beyond
a reasonable doubt is also reviewed de novo. Un ited States v.
Walker , 57 M.J. 174, 178 (C.A.A.F. 2002). “An increase in
the maximum sentence to confinement authorized for a crime would clearly be ex post facto legislation.” UnitedUnited States v. Busch , No. 15

- 0477 /AF Opinion of the Court

7 States v. Gorski , 47 M.J. 370, 373 (C.A.A.F. 1997). An ex post facto law has been defined as one “that aggravates a crime, or makes it greater than it was, when committed.” United States v. McDonagh , 14 M.J. 415, 419 (C.M.A. 1983) (emphasis omitted) (internal quotation marks omitted) (quoting Calder v. Bull , 3 U.S. 386 (1798))

. As reflected in the trial record, the military judge did reference Exec. Order No. 13,643 prior to the lunch break, and asked defense counsel why it would not be applicable to Busch’s maximum sentence. However, after the lunch break, the military judge performed an analysis as to whether the offense of indecent exposure or the offense of indecent libe rties with a child was the offense most “closely related” to the charged offense of sexual abuse of a child. This reflects an R.C.M. 1003(c)(1)(B) analysis, although the military judge did not reference that provision. Under that analysis, the military judge held that indecent liberties with a child would be “more applicable,” because it focused on the victimization of a child while still encompassing the el ements of indecent

exposure. 4

The AFCCA agreed that “[t]he military judge’s decision was based on his conclusion that a closely related offense existed, which is the standard under R.C.M. 1003(c)(1)(B)(i).
Because he did not base his decision on Executive Order

13

, 643, the [E]x [P]ost [F]acto [C]lause is not implicated.”
Busch , 2015 CCA LEXIS 51, at *17, 2015 WL 894415, at *6. Based on this court’s review of the record, we conclude, like the AFCCA, that the record in this case reflects that the mi litary ju dge did not rely on Exec. Order No. 13

, 643. Ther efore, the Ex Post Facto Clause is not implicated in this case.

Further, this ruling is not inconsistent with the recent Supreme Court decision of Peugh. That case involved a trial judge who used Federal Sentencing Guidelines provisions that had been promulgated almost a decade after the d efendant’s criminal conduct to calculate a sentencing rang e of

4 At the conclusion of his analysis the military judge noted that the maximum punishment for indecent liberties with a child “tracks” the punishment in the executiv e order for the new offense of sexual abuse of a child, but this reference reflects a comparison
rather than a reliance.United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

8 seventy to eighty months. Peugh, 133 S. Ct. at 2078

- 79. However, under the Federal Sentencing Guidelines pr ov isions in effect at the time of the crime, the defendant’s se ntencing range would have been thirty to thirty -seven months. Id. at 2078. The Supreme Court held that there was an ex post facto violation based on this “retrospective i ncrease in the Guidelin es range applicable to [the] defendant” because it created “a sufficient risk of a higher sentence.” Id

. at 2084. There is no similar “sufficient risk” in this case that Exec. Order No. 13,643 subjected Busch to a higher sentence because the military judge ultimately did not rely on this
executive order. Therefore Peugh does not indicate that there is an ex post facto violation in this case.

R.C.M. 1003(c)(1)(B)

Having held that the Ex Post Facto Clause was not vi olated, we turn to whether the military jud ge correctly a pplied R.C.M. 1003(c)(1)(B) in determining the maximum se ntence for the offense of sexual abuse of a child. “The maximum punishment authorized for an offense is a que stion of law, which we review de novo.” United States v. Beaty , 70 M.J. 39, 41 (C.A.A.F. 2011). “While [the court] r eview[s] a military judge’s sentencing determination under an abuse of discretion standard, ... where a military judge’s decision was influenced by an erroneous view of the law,
that decision constitutes an abuse of di scretion.” Id. (citation omitted).

When the maximum punishment of any court

- martial o ffense is not listed in Part IV of the MCM, the maximum punishment is determined by R.C.M. 1003(c)(1)(B): 5

(B) Offenses not listed [in] Part IV.

(i) Included or related offenses

. For an offense not listed in Part IV of this Manual which is i n-

5 While the offense of sexual abuse of a child was an offense contained in Part IV of the MCM at the time of the trial, the pa rties an d the lower courts all treated the offense as not being listed in Part IV for purposes of R.C.M. 1003(c)(1)(B), since no punis hment was listed for that offense in Part IV at the time of the trial. We see no reason to depart from that law of the case. Busch

, 2015 CCA LEXIS 51, at *9, 2015 WL 894415, at *4.United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

9 cluded in or closely related to an offense listed therein the maximum punishment shall be that of the offense listed; however if an offense not listed is included in a listed offe nse, and is closely related to another or is equally closely related to two or more listed offenses, the maximum punishment shall be the same as the least severe of the listed offenses.

(ii) Not included or related offenses

. An offense not listed in Part IV and not included in or closely related to any offense listed therein is punishable as authorized by the United States Code, or as a uthorized by the custom of the service.
Busch argues that under the facts of this case, the Article 120b, offense of sexual abuse of a child is “closely related” 6 to the offense of indecent exposure. As such, the maximum a uthorized punishment for the offense should have only i ncluded one year of confinement under R.C.M. 1003(c)(1)(B)(i). Busch further argues that because sexual abuse of a child does not require a physical presence of a child while indecent liberties with a child does, the two o ffenses are not “closely related.”

At oral argument, Busch raised an alternative analysis of this issue by arguing that when the UCMJ was amended in 2012, the offenses of indecent exposure and indecent libe rties with a child, which were in the 2008 edition of the
MCM , were repealed and were no longer “listed offenses” for the comparison purposes of R.C.M. 1003(c)(1)(B)(i). As a r es ult, Busch argues that R.C.M. 1003(c)(1)(B)(ii) controls as it deals with charged offenses which are not listed in Part IV and are not closely related to any offense listed in Part IV. Relying on the “custom of the service” comparison in subse ction (ii), B usch concludes that indecent exposure provides the proper sentence maximum, as he alleges that it has been charged for this type of conduct from the inception of the
UCMJ until 2002.

As noted above, the government contends that the mil itary judge correctl y applied R.C.M. 1003(c)(1)(B)(i) in d etermining that the offense of sexual abuse of a child is

6 Both parties focused their R.C.M. 1003(c)(1)(B) (i) arguments on the “closely related” criteria and neither relied up on the “i ncluded in” criteria.United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

10 “closely related” to the offense of indecent liberties with a child under Article 120(j) of the 2008 edition of the MCM,
which carries a maximum confinement of fifteen years. The government further contends that sexual abuse of a child is not “closely related” to the offense of indecent exposure b ecause it does not capture the fact that Busch’s misconduct was committed against a child. Finally, the government a ss erts in the alternative that, if Busch’s misconduct was not considered “closely related” to any offense listed in Part IV of
the MCM , it was punishable by the “custom of the service” in accordance with R.C.M. 1003(c)(1)(B)(ii). Under this ana lysis, the gov ernment argues that Busch’s actions were e ncompassed by the long

- existing offense of indecent acts with another, which has historically carried a maximum punis hment of five years confinement.

R.C.M. 1003(c)(1)(B)(ii): Offenses “Not Listed” in Part IV

The military judge, the AFCCA, and the parties primar ily relied on R.C.M. 1003(c)(1)(B)(i) as controlling authority for determining the proper maximum sentence for this case. However, that subsection requires that the charged offense be included in or closely related to “an offense listed [in Part IV].” See R.C.M. 1003(c)(1)(B)(i). At the time of the trial, ne ither indecent liberties with a child nor indecent exposure were offenses listed in Part IV for the purpose of sentencing.
When the offense of indecent li berties with a child was su bsumed into Article 120b, in the 2012 amendments to the
MCM , Congress explicitly repealed the offense. 7 Once r epealed, the former offense of indecent liberties with a child
was removed from Part IV of the MCM and moved to A ppendi x 28. See MCM

, Punitive Articles Applicable to Sexual Offenses Committed During the Period 1 October 2007 Through 27 June 2012, app. 28 at A28

- 2 (2012 ed.). Al though the offense of indecent exposure was not repealed in 2012, it was moved to Article 120c, of the 2012 edition of the
MCM. As a result of that move, it was not provided a max i-

7 See National Defense Authorization Act for Fiscal Yea r 2012,
Pu b. L. No. 112

- 81, § 541(a)(2) , 125 Stat. 1298, 1405 (2011) (“R epeal of provisions relating to offenses replaced by new article
120b.

-- Subsections (b), (d), (f), (g), (i), (j) [indecent liberties with a child], and (o) are repealed.”).United States v. Busch , No. 15

- 0477 /AF Opinion of the Court

11 mum sentence until Exec. Order No. 13,643 was promulga ted. See MCM pt. IV, para. 45.c Note (2012 ed.).

As neither indecent liberties with a child nor indecent

exposure were offenses listed in Part IV for sentencing pu rposes at the time of the offense, the proper analysis for this case is found in R.C.M. 1003(c)(1)(B)(ii). That subsection a ddresses charged offenses which are not closely related to any offenses listed in Part IV and directs a comparison to offen ses in “the United States Code, or as authorized by the cu stom of the service.” As neither party argues that there are comparable offenses in the United States Code, we look to
the “custom of the service.”

The phrase “custom of the service” for purposes of dete rmining a maximum punishment under R.C.M. 1003(c)(1)(B)(ii) is not defined in the MCM . However, Col onel William Winthrop explained “Usages or Customs of the Service” and stated that in determining which acts suppor t particular offenses, “the court in deliberating upon its jud gment (as also the commander in passing upon the same), will constantly recur to the general usage of the service as understood and acted upon by military men.” William Wi nthrop, Military Law an d Precedents 42 (2d ed., Government Printing Office 1920) (1895) (emphasis supplied). From this, and from a common sense perspective, we find that the “cu stom of the service,” as used in R.C.M. 1003(c)(1)(B)(ii), sim ply means the penalty authorized for tho se offenses which have traditionally been used in the military justice system to charge service members under the same or similar factual circumstances. We therefore look to see how the military justice system has traditionally charged the factual circu mst ance of exposing one’s genitals in the presence of minors.

The parties are correct that both indecent exposure and
indecent acts or liberties with a child 8 have been used in the

8 Indecent liberties with a child and indecent acts with a child “are alternative ways of committing the same military offense of committing indecent acts or taking indecent liberties with a child.” See, e.g., United States v. Neblock , 45 M.J. 191, 192 (C.A .A.F. 1996) (internal quotation marks omitted ) (quoting United States
v. Brown , 3 C.M.A. 454, 13 C.M.R. 10 (1953)). The MCM reco gnized “indecent acts with a child under the age of 16 years” as anUnited States v. Busch , No. 15

- 0477 /AF Opinion of the Court

12 past as the basis for charges under these circumstances. Our
research of cases with similar factual situations, from this court and the Courts of Criminal Appeals from 1951 to 2012,
revealed that indecent acts or liberties with a child was charged in twenty

- nine cases while indecent exposure was charged in nine cases. Taking into account the charging di scretion of convening authorities, it appears that the “general usage of the service” has been to charge the offense of ind ecent liberties with a child under these factual circumstances.

Prior to 2008, the maximum period of confinement that could be imposed for indecent liberties with a child was se ven years. However, in 2008, when the offense was moved from Article 134 to Article 120, the maximum sentence was increased to fifteen years of confinement. Compare MCM ch. XXV, para. 127c (1951 ed.), with MCM , Maximum Punis hment Chart app. 12 at A12

- 4 (2008 ed.). The use of this fi fteen- year maximum sentence for the past seven years is su fficient to create a custom of the service under R.C.M. 1003(c)(1)(B)(ii). Although the military judge a nd the AFCCA utilized the wrong analysis under R.C.M. 1003(c)(1)(B)(i), they reached the correct result.

Decision

We affirm, on different grounds, the decision of the Uni ted States Air Force Court of Criminal Appeals.

offense since its inclusion in the 1951 edition of the MCM

. See MCM ch. XXVIII, para. 213d(3) (1951 ed.).United States v. Busch , No. 15

- 0477/AF

Judge STUCKY, with whom Judge RYAN joins

, dissen ting

.

W e granted review to consider whether the military judge violated the Ex Post Facto Clause of the Constitution by considering an e xecutive o rder issued after Appellant’s
offenses to determine the maximum punishment that could be adjudged

. As the majority notes, “Busch’s appeal is li mited to the process utilized by the military judge to dete rmine the maximum sentence .” United States v. Busch

, __ M.J. __,

__ (3) (C.A.A.F. 201 6). But t he constitutional issue is a red herring. It does not matter for the purposes of this appeal what process the military judge used to reach his
conclusion ; i t only matters whether he was correct in dete rmining the maximum punishment for Appellant’s offense , an analysis we must undertake under Rule for Courts

- Mart ial (R.C.M. ) 1003 . The majority eventually concludes that the military judge reached the correct result: a dishonorable di scharge and confinement for fifteen years. I disagree and

, therefore, dissent.

In the past ten years, Congress has substantially rewr i tten and reorganized the sexual assault offenses in the Un iform Code of Military Justice (UCMJ) , once in 2006 1 and again in 2011. 2 Appellant was convicted of sexual abuse of a
child in 2013 under the 2011 version of Article 120b(c), Un iform Code of Military Justice (UCMJ), 10 U.S.C. § 920b(c) (2012)

. During the plea inquiry, the military judge asked the parties for their views on the maximum authorized punis hment. Appellant argued that the maximum punishment for the violation of Article 120b(c) was a dishonorable discharge and confinement for one year, but the military judge dete rmined that it was a dishonorable discharge and confin ement for fifteen years.

1 National Defense Authorization Act for Fiscal Year 2006,
Pub. L. No. 109

- 163, § 552, 119 Stat. 3136, 3256

- 63 (2006).

2 National Defense Authorization Act for Fiscal Year 2012,
Pub. L. N o. 112

- 81, § 541, 125 Stat. 1298, 1404 (2011).United States v. Busch

, No. 15

- 0477/AF Judge STUCKY, dissenting

2 Article 120b (c) provides that

, “ [a] ny person subject to this chapter who commits a lewd act u pon a child is guilty of sexual abuse of a child and shall be punished as a court

martial may direct. ” Nevertheless, as is the case for most offenses, th e maximum punishment can “not exceed such limits as the President may prescribe for that offense.” Art icle 56, UCMJ , 10 U.S.C. § 856 (2012). 3 Under his Article 56 authority, the President , in R.C.M. 1003(c), established rules for determining the maximum sentence for an offense :
(1) The maximum limits for each offense set forth in Part
IV of the Manual for Courts

- Martial , United States ( MCM ).
R.C.M. 1003 (c)(1)(A)(i).

(2) For offenses not specifically listed in Part IV:

(a) The maximum for an offense included in or closely
related to an of fense that is listed in Part IV is the max imum for the listed offense ; “however if an offense not listed is ... closely related to another or is equally closely related to two or more listed offenses, the maximum punishment shall
be the same as the least severe of the listed offenses.” R.C.M. 1003(c)(1)(B)(i).

(b) If not inc luded or closely related to an offense listed in Part IV, the maximum is “as authorized by the United States Code, or as authorized by the custom of the service.” R.C.M. 1003(c)(1)(B)(ii).

Offenses not specifically listed in Part IV

that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment “authorized by the custom of the service,” they are punishable as “general” or “simple” disorders, with a maximum sentence of four months of confinement and forfe iture of two

- thirds pay per month for four months

. United States v. Beaty , 70 M.J. 39, 45 (C.A.A.F. 2011)

. At the time of Appellant’s offenses, the President had not yet set the maximum punishment for violations of Article 120b(c).

3 Now Article 56(a), UCMJ. See National Defense Authoriz ation Act for Fiscal Year 2014, Pub. L. No. 113

- 66, § 1705(a)(1), (2)(A), 127 Stat. 672, 959 (2013).United States v. Busch

, No. 15

- 0477/AF Judge STUCKY, dissenting

3 The parties to this appeal agree that the maximum pu nishment authorized for Appellant’s offense is the maximum punishment authorized for a closely related offense listed
under Part IV of the MCM

. 4 See R.C.M. 1003(c)(1)(B)(i). The parties simply disagree as to the offense most closely rela ted. Appellant alleges that the offense of sexual abuse of a child is most like indecent exposure , for which the maximum sentence to confinement is one year ; th e Government argues
it is more akin to indecent libert y with a child, for which the maximum includes confinement for fifteen years

. The majority notes that the 2011 amendments to the UCMJ specifically repealed the offense of indecent acts with
a child

, moved the offense of indecent exposure to Article 120c, UCMJ, and that both offenses were removed from the
list of offenses in Part IV of the MCM

. Therefore , the major ity concludes that the maximum punishment is calculated
under R.C.M. 1003 (c)(1)(B)(ii) b ased on the custom of the
service

. Busch , __ M.J. at __ (12

– 13). I disagree.

First, the majority implies that the repeal of the offense
of indecent libert y extinguishe d the offense altogether . It
does not , as is made clear by the general provision governi ng all federal statutes:

The repeal of any statute shall not have the e ffect to release or extinguish any

... liability i ncurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such

... liability.

1 U.S.C. § 109 (2012) . Here t he repealing act did not e xpressly provide for extinguishing the offense of indecent li berty with a child. See § 541, 125 Stat. at 1404

. Thus, the o ffense still had the force of law for conduct committed before its repeal.

Second, Part IV of the MCM is part of an executive order, promulgated by the President under his Article 36(a),

4 As an alternative, Appellant suggested at oral argument that the Air Force custom had been to prosecute Appellant’s conduct as indecent exposure.United States v. Busch

, No. 15

- 0477/AF Judge STUCKY, dissenting

4 UCMJ, authority to prescribe pretr ial, trial, and post

- trial procedures for courts

- martial. 10 U.S.C. § 836 (2012). The majority has not pointed to any executive order removing
indecent liberty with a child and indecent exposure from
Part IV of the MCM , nor have I been able to find one. 5 A s both indecent libert y with a child and indecent exposure
were still offenses under the UCMJ and the President had
not withdrawn them from Part IV, the parties were correct to focus their arguments on R.C.M. 1003 (c)(1)(B)(i).

Under R.C.M. 1003(c)(1)(B)(i)

, the maximum for Appe llant’s offense is the maximum for the most closely related
offense listed in Part IV of the MCM

. The statutory elements
of the offense of sexual abuse of a child are:
(a) That the accused committed an act upon a child; and

(b) That the act was lewd.

The term “lewd act” means
— (A) any sexual contact with a child;

(B) intentionally exposing one’s genitalia, anus, buttocks, or female areola or nipple to a child by

any means, including via any communication tec hnology , with an intent to abuse, humiliate, or d egrade any person, or to arouse or gratify the sexual desire of any person;

(C) intentionally communicating indecent la nguage to a child by any means, including via any communication technology, with an intent to abuse, humiliate, o r degrade any person, or to arouse or gratify the sexual desire of any person; or

(D) any indecent conduct, intentionally done with or in the presence of a child, including via any communication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common

5 It appears that the Joint Service Committee on Military Ju stice amende d Part IV of the 2012 MCM on its own to incorporate statutory ame ndments to the UCMJ enacted on December 31, 2011, eighteen days after the President had promulgated the last
executive order included in the 2012 MCM

. See MCM , Preface, at

1 , ¶¶ 1, 4.United States v. Busch

, No. 15

- 0477/AF Judge STUCKY, dissenting

5 propriety, and tends to excite sexual desire or d eprave morals with respect to sexual relations.
Article 120b(h)(5), UCMJ (emphasis added)

. Appellant claims the most closely related offense is “i ndecent exposure, ” which carries a maximum punishment of one year, and whose elements under the 2006 version of A rticle 120(n), UCMJ, are:
(a) That the accused exposed his or her genit alia, anus, buttocks, or female areola or nipple;

(b) Tha t the accused’s exposure was in an in d ecent manner;
(c) That the exposure occurred in a pl ac e where the conduct involved could reasonably be ex pected to be viewed by people other than the accused’s family or household; and

(d) That the exposure was inte ntional.

MCM , Punitive Articles Applicable to Sexual Offenses Committed During the Period 1 October 2007 Through 27 June 2012 app. 28, at A28 -9 [hereinafter MCM , Punitive A rticles Applicable to Sexual Offenses]

. 6 Indecent exposure is more general than is sexual abuse of a child: it protects both
child and adult victims. And while the conduct of a sexual
abuse of a child offense may be committed using a form of
communications technol ogy , it is not so clear whether that is permissible for the offense of indecent exposure, which r equires that the accused’s exposure occurred “ in a place
where the conduct involved could reasonably be expected to be viewed by people other than the accused’s family or
household.” Id.

The Government asserts that the offense most closely r elated to the 2011 version of sexual abuse of a child is ind ecent liberty with a child under t he 2006 version of Article 120(j ) , UCMJ , the elements of which are:

6 In carrying out our duty to interpret the elements of su bstantive offenses this Court is not bound by those promulgated by
the President in the MCM

. United States v. Davis , 47 M.J. 484, 486 (C.A.A.F. 1998) ; see United States v. Mance , 26 M.J. 244, 252 (C.M.A. 1988). Nevertheless, it appears the elements of the offen ses as promulgated in the MCM appear to be correct.United States v. Busch

, No. 15

- 0477/AF Judge STUCKY, dissenting

6 (a ) That the accused committed a certain act or communication;

(b ) That the act or communication was ind ecent;
(c ) That the accused committed the act or co mmunication in the physical presence of a certain child;

(d ) That the child was under 16 years of age;
and

(e ) That the accused committed the act or co mmunication with the inten t to : (i) arouse, appeal to, or gratify the sexual desires of any person; or

(ii) abuse, humiliate, or degrade any person.

MCM

, Punitive Article s Applicable to Sexual Offenses app. 28, at A28

- 8 to A28 -9 (emphasis added)

. The term “indecent liberty” means indecent
conduct , but physical contact is not required. It i ncludes one who with the requisite intent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of

commu nication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or i nvolved in sexual conduct, it is an indecent liberty;
th e child’s consent is not relevant.

Id. app. 28, at A28 -4 (emphasis added).

The term “indecent conduct” means that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or d eprave morals with respect to sexual relations. Ind ecent conduct includes observing, or making a vid eotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, with out a nother person’s consent, and contrary to that other person’s reasonable expectation of privacy, of
— (A) that other person’s genitalia, anus, or bu ttocks, or (if that other person is female) that pe rson’s areola or nipple; orUnited States v. Busch

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- 0477/AF Judge STUCKY, dissenting

7 (B) that oth er person wh ile that other per son is engaged in a sexual act, sodomy (under section 925 (article 125) of this chapter), or sexual contact.

Id.

Ind ecent liberty with a child, like sexual abuse of a child,
is limited to conduct involving children. However, it is more narrowly drawn

, in that it specifically require s that the co nduct occur in the physical presence of the victim. Id. app. 28,
at A28 -9. Moreover , the definition of “indecent conduct, ” as it regards electronic communication, seems to contemplate representations of the victim’s private parts, a situation which is not present here. See id. app. 28, at A28

- 4.

Citing this Court’s opinion in Beaty , 70 M.J. at 42, Appe llant argues that to be closely related the offense must co ntain all the elements of t he alleged offense. But in Beaty

, we were applying R.C.M. 1003(c)(1)(B)(ii), which requires that the Article 134 offense be essentially the same

— contain the

same conduct and mens rea

— as the offense under the Uni ted States Code from which the maximum senten ce was drawn. 70 M.J. at 42

– 43. In applying R.C.M. 1003(c)(1)(B)(i), this Court has never required that the closely related offense
contain all of the elements of the offense of which the appe llant was convicted.

The Government argues that United States v. Ramsey , 40 M.J. 71, 76 (C.M.A. 1994), “offers a much better framework
than Beaty for determining” closely related offenses. In Ramsey , the Court of Military A ppeals compared the “ social

costs ” of the offenses in appl ying R.C.M. 1003(c)(1)(B)(i) to determine the maximum punishment for an Article 134 o ffense not specifically delineated in the MCM

. But Ramsey is
the sole case in which this Court has employed a social costs analysis to evaluate closely related offenses. At ot her times, we have compared the elements of the offenses, albeit in a somewhat cursory manner. See United States v. McDaniel

, 39 M.J. 173, 175 (C.M.A. 1994). Evaluating the social costs
of an offense is exceedingly subjective , open to varying i nterpretatio ns, and does not provide the guidance of an el ements test.

C omparing the elements of the offenses, it appears that
the offense of sexual abuse of a child is more closely relatedUnited States v. Busch

, No. 15

- 0477/AF Judge STUCKY, dissenting

8 to indecent exposure than to indecent liberty

. At worst, it could be argued t hat the two are equally closely related to the offense of sexual abuse of a child, in which case the a pplicable maximum punishment is that of “ the leas t severe of the listed offenses, ” R.C.M. 1003(c)(1)(B)(1) : a dishonorable discharge and confinement for o ne year

. Based on a fifteen

- year confinement maximum for sexual abuse of a child, the military judge determined that the maximum punishment for all of the offenses to which Appe llant pled guilty was a dishonorable discharge and confin ement for twenty

- two y ears and one month . I conclude the maximum was a dishonorable discharge and confinement for eight years and one month. I would reverse the judgment of
the United States Air Force Court of Criminal Appeals as to
the sentence and remand for reassess ment

. 7

7 Appellant was prepared to plead guilty under either max imum punishment. Therefore, there is no issue as to whether the military judge’s error affected the providence of Appellant’s pleas. See United States v. Walker , 34 M.J. 264, 266

– 67 (C.M.A. 1992).