UNITED STATES, Appellee 

v. 

Robert M. PAYNE, Staff Sergeant 

U.S. Air Force, Appellant 

No. 13-0345 

Crim. App. No. 37594 

United States Court of Appeals for the Armed Forces 

Argued October 8, 2013 

Decided January 6, 2014 

ERDMANN, J., delivered the opinion of the court, in which BAKER, 

C.J., STUCKY and RYAN, JJ., and EFFRON, S.J., joined. 

Counsel

For Appellant: Captain Nicholas D. Carter (argued). 

For Appellee: Captain Thomas J. Alford (argued); Colonel Don 

Christensen and Gerald R. Bruce, Esq. (on brief). 

Military Judges: Katherine E. Oler and Dawn R. Eflein 

This opinion is subject to revision before final publication. 
United States v. Payne, No. 13-0345/AF 

2 

Judge ERDMANN delivered the opinion of the court. 

 Contrary to his pleas, Staff Sergeant (SSgt) Robert Payne 

was convicted by a general court-martial with members of one 

specification of attempting to communicate indecent language to 

a child under the age of sixteen, one specification of 

attempting to transfer obscene material to a minor, and one 

specification of attempting to persuade a minor to create child 

pornography, all in violation of Article 80, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 880 (2006). He was also 

convicted of three specifications of failure to obey a lawful 

general regulation by misusing his Government computer in 

committing the above-mentioned offenses, in violation of Article 

92, UCMJ, 10 U.S.C. § 892 (2006). Payne was sentenced to three 

years of confinement, a dishonorable discharge, forfeiture of 

all pay and allowances, and reduction to the lowest enlisted 

grade. The convening authority approved the adjudged sentence 

except for the forfeitures, and the United States Air Force 

Court of Criminal Appeals (CCA) affirmed the findings and the 

sentence in an unpublished opinion. United States v. Payne, No. 

ACM 37594, 2013 CCA LEXIS 18, at *38, 2013 WL 375777 at *18. 

(A.F. Ct. Crim. App. Jan. 17, 2013) (unpublished). 

 Both Article 51(c) UCMJ, 10 U.S.C. § 851(c) (2006), and 

Rule for Courts-Martial (R.C.M.) 920(e)(1), require a military 

judge to instruct the members on the elements of each offense 
United States v. Payne, No. 13-0345/AF 

3 

charged. We granted review to determine whether the military 

judge properly instructed the members on the elements of Charge 

I, Specification 4, which alleged an attempt to persuade a minor 

to create child pornography in violation of Article 134, UCMJ 

clauses 1 and 2.1 We conclude that she did not properly instruct 

the members as to Specification 4, but that the error was 

harmless beyond a reasonable doubt. We therefore affirm the 

CCA. 

Background

 SSgt Payne engaged in a series of sexually explicit 

Internet chats and phone calls with an undercover civilian 

sheriff’s deputy who Payne believed to be a fourteen-year-old 

girl named “Marley.” The communications took place over a 

period of about a month and a half. As a part of those chats, 

Payne repeatedly asked “Marley” to send him pictures of herself. 

Some of these requests were for “nude” pictures, while others 

were more general. Payne also promised nude pictures of himself 

in exchange for nude pictures of “Marley.” While Payne sent 

“Marley” nude pictures of himself, as well as a video of himself 

 

1

 Specifically, we granted review of the following issue: 

 

Whether the military judge improperly instructed the 

members of the elements for creation of child 

pornography. 

United States v. Payne, 72 M.J. 407 (C.A.A.F. 2013) (order 

granting review). 
United States v. Payne, No. 13-0345/AF 

4 

masturbating, “Marley” did not respond in kind. Eventually, 

Payne traveled from Philadelphia to upstate New York to meet 

“Marley,” where he was arrested by local law enforcement 

authorities. 

At trial, Payne’s defense to the Charge I specifications 

focused almost exclusively on the defense of entrapment. While 

the defense did not contest his underlying conduct, Payne did 

object to the military judge’s proposed instructions on the 

Charge I offenses. He argued that: 

[F]or all four specifications under Charge I, we 

object to your instructions because we do not believe 

that the government in its pleadings identified the 

offenses to which you are listing elements. We 

believe that based on what trial counsel stated when 

she read the identity of the elements to us and later 

to the members in their initial discussion about these 

findings instructions as you’ve memorialized on the 

record, and even at present, we believe that these 

elements are not necessarily a fair parsing of what 

was pled in each of the four specifications in Charge 

I. 

As I said in the 802 conference, our challenge is 

this, we have a duty to candor towards a tribunal and 

to identify any errors and give you a forthright 

answer, but we also have a competing duty to Staff 

Sergeant Payne and not to assist the government or 

even the bench in perfecting elements in charges 

against him if we think that there’s, perhaps, a right 

way to do this. And therefore, we simply say that we 

don’t believe that the court has been able, due to the 

nature of the pleadings, to properly identify if these 

are offenses and if so, what those elements would be. 

The military judge did not specifically rule on the objection 

and she gave the members her proposed instructions concerning 
United States v. Payne, No. 13-0345/AF 

5 

Charge I. As to Specification 4, the military judge described 

the specification as “the offense of soliciting a minor to 

create child pornography” and subsequently provided the 

following instruction: 

First, that, within the continental United States, on 

divers occasions from on or about 1 June 2008 to on or 

about 1 August 2008, the accused attempted to 

persuade, induce, entice, or coerce “Marley,” someone 

he believed was a female 14 years of age, to commit 

the offense of creating child pornography by 

requesting that she send nude photos of herself to the 

accused; 

Second, that the accused intended that the person 

he thought was “Marley” actually produce one or more 

visual depictions of her nude body to send to him 

electronically or through the mail; 

Third, 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. 

The military judge also instructed the members that they must 

find that “the accused’s statements constituted a serious 

request that the offense be committed.” In addition, she 

instructed that “‘[c]hild pornography’ means any visual 

depiction of a minor engaging in sexually explicit conduct,” and 

that “‘[s]exually explicit conduct’ includes masturbation or 

lascivious exhibition of the genitals or pubic area of any 

person,” and also properly defined the term “lascivious 

exhibition.” Following these definitions, the military judge 

instructed the members that to convict on this specification, 
United States v. Payne, No. 13-0345/AF 

6 

the panel must be convinced beyond a reasonable doubt that Payne 

“specifically intended that ‘Marley’ produce visual depictions 

of a minor engaged in sexually explicit conduct.” 

 The members convicted Payne of Specifications 2, 3, and 4 

under Charge I. Before the CCA, in regard to Specification 4, 

Payne argued that the military judge erred by failing to 

properly instruct the members on the elements of attempt. 

Payne, 2013 CCA LEXIS 18, at *14, 2013 WL 375777 at *5. While 

the CCA concluded that the instructions given by the military 

judge “lacked some specificity,” it ultimately held that “they 

included all the required elements and adequately instructed the 

members to find the necessary predicate facts beyond a 

reasonable doubt.” Id. at *21, 2013 WL 375777, at *7. 

Before this court, Payne renews his argument that the 

military judge erred by omitting the elements of attempt when 

instructing on Specification 4. The government concedes that 

“the military judge did not read the statutory elements of 

Article 80 [Attempts]” but argues that for this “unique charge 

of attempting to entice a minor to create child pornography, the 

military judge was permitted to, and appropriately did, tailor 

her instructions to cover . . . the required elements . . . .” 

The government further argues that “[t]he combination of an 

attempt offense, a federal crime, and the UCMJ article applying 

that federal crime to the military simply cannot be overlooked 
United States v. Payne, No. 13-0345/AF 

7 

when determining what instructions the military judge needed to 

provide the members.”2

 

Discussion

Standard of Review and Preservation of Error

The question of whether the members were properly 

instructed is a question of law and thus review is de novo. 

United States v. Maynulet, 68 M.J. 374, 376 (C.A.A.F. 2010) 

(citations omitted). Where there is no objection to an 

instruction at trial, we review for plain error. United States 

v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013); see also R.C.M. 

920(f). As Payne did offer a general objection to all of the 

military judge’s proposed Charge I instructions, we must 

determine whether that objection adequately preserved the error 

he now raises on appeal. 

We have had occasion to address the adequacy of evidentiary 

objections and have held that the law “does not require the 

moving party to present every argument in support of an 

objection, but does require argument sufficient to make the 

military judge aware of the specific ground for objection, ‘if 

 

2

 Contrary to both parties’ positions, Specification 4 does not 

allege an offense under 18 U.S.C. § 2251(a) as incorporated by 

clause three of Article 134, UCMJ. See Manual for CourtsMartial, United States pt. IV, para. 60.c.(6)(b) (2012 ed.) 

(MCM) (“When alleging a clause 3 violation, each element of the 

federal or assimilated statute must be alleged expressly or by 

necessary implication. In addition, the federal or assimilated 

statute should be identified.”). 
United States v. Payne, No. 13-0345/AF 

8 

the specific ground was not apparent from the context.’” United 

States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005) (quoting Military 

Rule of Evidence (M.R.E.) 103(a)(1)). We have not, however, 

addressed the specificity required to preserve an error in the 

context of an objection to proposed instructions. R.C.M. 920 

deals with “Instructions on Findings” and subsection (f) 

specifically addresses waiver of an objection under that 

section.3

 The Analysis to R.C.M. 920(f) notes that this 

subsection was based on the last two sentences of Fed. R. Crim. 

P. 30, “Jury Instructions.” MCM, Analysis of the Rules for 

Courts-Martial app. 21 at A21-70.4

 At the time R.C.M. 920(f) was 

adopted, the last two sentences of Fed. R. Crim. P. 30 provided:5

No party may assign as error any portion of the charge 

or omission therefrom unless [that party] objects 

thereto before the jury retires to consider its 

verdict, stating distinctly the matter to which [that 

party objects] and the grounds of [the] objection. 

Opportunity shall be given to make the objection out 

 

3

 The text of R.C.M. 920(f) states that “Failure to object to an 

instruction or to omission of an instruction before the members 

close to deliberate constitutes waiver of the objection in the 

absence of plain error.” 

4

 The Analysis of the Rules for Courts-Martial notes that there 

were four basic goals for the 1984 revision to the MCM, the 

first of which “was to conform to federal practice to the extent 

possible, except where the Uniform Code of Military Justice 

requires otherwise or where specific military requirements 

render such conformity impracticable.” MCM, Analysis of the 

Rules for Courts-Martial app. 21 at A21-1; see also Article 36, 

UCMJ, 10 U.S.C. § 836 (2006). 

5

 R.C.M. 920(f) was enacted with initial adoption of the Rules 

for Courts-Martial in 1984. At that time the version of Fed. R. 

Crim. P. 30 adopted in 1944 (as amended in 1966) was in effect. 
United States v. Payne, No. 13-0345/AF 

9 

of the hearing of the jury and, on request of any 

party, out of the presence of the jury. 

Fed. R. Crim. P. 30, 18 U.S.C. app. at 622 (1982) (emphasis 

added). Given the similarity of purpose between R.C.M. 920(f) 

and M.R.E. 103(a)(1), as well as the requirements of Fed. R. 

Crim. P. 30, we see no reason not to require the same level of 

specificity for objections to instructions as we do for 

evidentiary objections. 

Payne’s defense counsel objected to all of the military 

judge’s instructions to Charge I on the grounds that “the 

government in its pleadings [did not] identif[y] the offenses to 

which [the military judge was] listing elements.” However, 

defense counsel did not identify which specification or 

specifications he was referring to or which elements he felt the 

military judge should have instructed on because he did not want 

“to assist the government or even the bench in perfecting 

elements in charges against [Payne].” (Emphasis added.) In 

taking this position, it appears that defense counsel was trying 

to preserve any instructional error for appeal while 

simultaneously refusing to assist the military judge in 

correcting any alleged instructional error at the trial level.6

 

6

 “The purpose of [Fed. R. Crim. P.] 30 is to alert the district 

court to potential problems in jury instructions and thereby 

avert any error in the first place.” United States v. O’Neill, 

116 F.3d 245, 247 (7th Cir. 1997) (citation omitted). 
United States v. Payne, No. 13-0345/AF 

10 

Under these circumstances we believe that the issue is most 

appropriately treated as waived in absence of plain error. See

United States v. Zapata, 546 F.3d 1179, 1190 (10th Cir. 2008).7

“Under a plain error analysis, the accused ‘has the burden of 

demonstrating that: (1) there was error; (2) the error was 

plain or obvious; and (3) the error materially prejudiced a 

substantial right of the accused.’” Tunstall, 72 M.J. at 193-94 

(quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 

2011)). 

Elements of Charge I, Specification 4

We next turn to the elements of the charged offense. 

Charge I alleged violations of Article 80 (Attempts) and 

Specification 4 specifically alleged that Payne: 

[Did] wrongfully and knowingly attempt to persuade, 

induce, entice, . . . or coerce “Marley,” someone he 

believed was a female 14 years of age, who was, in 

fact, Lillian Vedder, an Ulster County New York 

Sheriff’s Office undercover detective, to create child 

pornography by requesting that “Marley” send nude 

photos of herself to the said STAFF SERGEANT ROBERT M. 

PAYNE, which conduct was prejudicial to good order and 

discipline or of a nature to bring discredit upon the 

armed forces. 

There are four elements of attempt: (1) that the accused 

did a certain overt act; (2) that the act was done with the 

specific intent to commit a certain offense under the code; (3) 

 

7

 “[W]e have held that a generalized objection to an instruction 

is insufficient to preserve a specific objection on appeal.” 

Zapata, 546 F.3d at 1190; United States v. Bornfield, 184 F.3d 

1144, 1146 n.2 (10th Cir. 1999). 
United States v. Payne, No. 13-0345/AF 

11 

that the act amounted to more than mere preparation; and (4) 

that the act apparently tended to effect the commission of the 

intended offense. MCM pt. IV, para. 4.b. Although this 

specification is not a model of clarity, we find that it alleged 

all of the elements of attempt and it provided Payne with notice 

that he was charged with an attempt to commit an Article 134, 

UCMJ, offense. The offense charged was the persuasion of a 

minor to create child pornography, which was alleged to be both 

prejudicial to good order and discipline and service 

discrediting. 

The Military Judge’s Instructions

A military judge has a sua sponte duty to instruct on the 

elements of every offense. R.C.M. 920(e)(1); Article 51(c), 

UCMJ. Having held that the alleged instructional error was not 

preserved at trial and having identified the elements of 

Specification 4, we must now examine whether the military 

judge’s instructions on those elements amounted to plain error. 

While Payne argues that the military judge failed to 

instruct on any of the elements of attempt, we are satisfied 

that the instructions adequately covered the first two elements 

of attempt.8

 The third element of attempt requires “[t]hat the 

 

8

 The first element of attempt is that “the accused did a certain 

overt act.” MCM pt. IV, para. 4.b.(1). This element was 

covered by the military judge’s instruction that the members 

must find that Payne “attempted to persuade . . . ‘Marley,’ 
United States v. Payne, No. 13-0345/AF 

12 

act amounted to more than mere preparation[.]” MCM pt. IV, 

para. 4.b.(3). We have interpreted this element as requiring 

that the accused take a “substantial step” toward commission of 

the crime. United States v. Jones, 37 M.J. 459, 461 (C.M.A. 

1993) (citing Article 80, UCMJ, 10 U.S.C. § 880; United States 

v. Schoof, 37 M.J. 96, 102 (C.M.A. 1993)). 

Despite the fact that the military judge did not instruct 

on the “substantial step” requirement, the government argues 

that the members were adequately informed of the third element 

when the military judge instructed that the members needed to 

find that “the accused’s statements constituted a serious 

request that the offense be committed.” The government argues 

that since the overt act in this attempt offense was the actual 

request transmitted to the recipient, the “serious request” 

referenced by the military judge constituted a “substantial 

step” and the members were therefore aware that they needed to 

find that “the act amounted to more than mere preparation.” 

 

someone he believed was a female 14 years of age, to commit the 

offense of creating child pornography, by requesting that she 

send nude photos of herself to the accused.” The second element 

of attempt is that “the act was done with the specific intent to 

commit a certain offense under the code.” MCM pt. IV, para. 

4.b.(2). This element was covered by the military judge’s 

instruction that Payne must have “intended that the person he 

thought was ‘Marley’ actually produce one or more visual 

depictions of her nude body to send him electronically or 

through the mail.” 
United States v. Payne, No. 13-0345/AF 

13 

We do not agree that an instruction which requires a 

“serious request that the offense be committed” is the 

equivalent of an instruction that an accused must take a 

substantial step toward the commission of the substantive 

offense. The “serious request” instruction focused the finder 

of fact upon Payne’s mental state at the time of the act in 

question. By contrast, a “substantial step” instruction would 

focus on the extent to which Payne actually acted in furtherance 

of his attempted crime. See United States v. Winckelmann, 70 

M.J. 403, 407 (C.A.A.F. 2011) (“[T]he substantial step must 

unequivocally demonstrat[e] that the crime will take place 

unless interrupted by independent circumstances.”) (second set 

of brackets in original) (question marks and citation omitted). 

The military judge’s instructions did not include the third 

element of attempt -- an error which we find to be plain and 

obvious. 

With respect to the fourth element of attempt, “[t]hat the 

act apparently tended to effect the commission of the intended 

offense,” MCM pt. IV, para. 4.b.(4), the government merely 

argues that the evidence on the element presented at trial was 

legally sufficient to support that element. The government does 

not point to any portion of the military judge’s instructions 

which would cover the fourth element of attempt, and indeed 

there are none. An element cannot be considered to be properly 
United States v. Payne, No. 13-0345/AF 

14 

instructed upon simply because legally sufficient evidence had 

previously been admitted at trial. We therefore hold that the 

military judge’s failure to instruct on the fourth element of 

attempt also constituted plain and obvious error. 

Prejudice

Having found plain and obvious error, Payne points us to 

our holding in United States v. Mance, 26 M.J. 244 (C.M.A. 

1988), and argues that failure to instruct on an element of an 

offense is structural error which is per se prejudicial. In 

Mance, we held that “when a judge omits entirely any instruction 

on an element of the charged offense, this error may not be 

tested for harmlessness because, thereby, the court members are 

prevented from considering that element at all.” 26 M.J. at 

255. As the military judge failed to instruct on two elements 

of the charged offense, we agree that under the rationale of 

Mance, Payne would appear to be entitled to relief. 

However, since we decided Mance in 1988, the Supreme Court 

addressed this issue in Neder v. United States, 527 U.S. 1, 8 

(1999), and it held that the failure to instruct on an element 

does not constitute structural error.9 Less than a month after 

Neder was decided, this court issued United States v. Glover, 50 

M.J. 476, 478 (C.A.A.F. 1999), which, while holding that there 

 

9

 In Neder, the Supreme Court reviewed under a “harmless error” 

standard as Neder had objected at trial. 527 U.S. at 15. 
United States v. Payne, No. 13-0345/AF 

15 

was no plain error in the context of the military judge’s 

instructions, cited but did not rely on Mance. 

Other than Glover, we have since applied Neder rather than 

Mance in examining instructional errors and have tested for 

prejudice. See United States v. Upham, 66 M.J. 83, 86-87 

(C.A.A.F. 2008). We have not cited or relied upon Mance to find 

structural error resulting from the omission of an element from 

instructions since Neder was decided. To alleviate further 

confusion on this issue, today we overrule Mance to the extent 

it conflicts with the holding in Neder that omission of an 

instruction regarding an element may be tested for harmless 

error. 

We conclude that the omission of instructions on the third 

and fourth elements of attempt did not materially prejudice 

Payne’s substantial rights. Payne did not contest those 

elements at trial as he relied primarily upon the defense of 

entrapment. Furthermore, the evidence on those elements, which 

includes the logs of the explicit chats between Payne and 

“Marley,” was overwhelming. We are therefore satisfied beyond a 

reasonable doubt that the omitted elements were both 

“uncontested and supported by overwhelming evidence, such that 
United States v. Payne, No. 13-0345/AF 

16 

the jury verdict would have been the same absent the error.” 

Neder, 527 U.S. at 17.10

Decision

 The decision of the United States Air Force Court of 

Criminal Appeals is hereby affirmed. 

 

10 Payne’s additional arguments, that the military judge failed 

to define “create” in “creation of child pornography” and that 

she improperly instructed the members that nude pictures 

constituted child pornography, have no merit and we need not 

address them in detail. “‘Words generally known and in 

universal use do not need judicial definition.’” United States 

v. Nelson, 53 M.J. 319, 321 (C.A.A.F. 2000) (quoting United 

States v. Shepard, 1 C.M.A. 487, 492, 4 C.M.R. 79, 84 (1952)). 

The word “create” -- as used in a specification for an attempted 

general disorder under Article 134 -- is such a word. We are 

also satisfied that the military judge properly instructed the 

panel as to what constitutes child pornography. She defined 

that term and then provided proper definitions of “sexually 

explicit conduct” and “lascivious exhibition.” The military 

judge concluded by instructing the members that “[u]nless you 

are satisfied beyond a reasonable doubt . . . that the accused 

specifically intended that ‘Marley’ produce visual depictions of 

a minor engaged in sexually explicit conduct, as I have defined 

that term for you, you may not convict the accused . . . .”