UNITED STATES, Appellee 

v. 

David J. VON BERGEN, Airman First Class 

U.S. Air Force, Appellant 

No. 03-0629/AF 

Crim. App. No. 34817 

United States Court of Appeals for the Armed Forces 

Argued November 17, 2008 

Decided April 2, 2009 

BAKER, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN and STUCKY, JJ., joined. RYAN, J., filed a 

separate opinion concurring in the judgment. 

Counsel

For Appellant: Captain Phillip T. Korman (argued); Major Lance 

J. Wood and Captain Vicki A. Belleau (on brief); Lieutenant 

Colonel Mark R. Strickland and Major Shannon A. Bennett. 

For Appellee: Major Brendon K. Tukey (argued); Colonel Gerald 

R. Bruce and Major Jeremy S. Weber (on brief); Major Matthew S. 

Ward and Major Nicole P. Wishart. 

Military Judge: Gary M. Jackson 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Von Bergen, No. 03-0629/AF 

2

Judge BAKER delivered the opinion of the Court. 

 Appellant pleaded guilty in 2001 to violating a provision 

of the Child Pornography Prevention Act of 1996 (CPPA), codified 

at 18 U.S.C. § 2252A(a)(5)(A) (2000). Pursuant to his pretrial 

agreement, he waived his right to a hearing under Article 32, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (2000). 

However, this Court reversed his conviction on the basis of 

United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005). United 

States v. Von Bergen, 62 M.J. 370 (C.A.A.F. 2005) (order). On 

remand from this Court, Appellant received a rehearing in 2006 

on an amended specification of possessing child pornography 

charged as a violation of clauses 1 and 2 of Article 134, UCMJ, 

10 U.S.C. § 934 (2000). Appellant pleaded not guilty, withdrew 

from his 2001 pretrial agreement, and moved for an Article 32, 

UCMJ, investigation on the ground that his previous Article 32, 

UCMJ, waiver was conditioned on the pretrial agreement from 

which he had withdrawn. The military judge denied the motion on 

the grounds that Appellant’s earlier Article 32, UCMJ, waiver 

remained in effect and Appellant had not shown good cause for 

relief from his waiver. The United States Air Force Court of 

Criminal Appeals affirmed the findings and sentence. United 

States v. Von Bergen, No. ACM 34817 (f rev), 2008 CCA LEXIS 17, 

at *13, 2008 WL 179271, at *5 (A.F. Ct. Crim. App. Jan. 9, 2008) 

(unpublished). 
United States v. Von Bergen, No. 03-0629/AF 

3

 We granted review of the following issue: 

WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD 

APPELLANT’S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 

SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 

2006 REHEARING. 

We hold that the military judge erred in denying Appellant an 

Article 32, UCMJ, investigation. Finding no material prejudice 

to Appellant’s substantial rights, however, we affirm the 

findings and approve the sentence. 

BACKGROUND 

At his first court-martial, consistent with his pretrial 

agreement of September 10, 2001, and his pleas, Appellant was 

convicted of one specification of knowingly possessing a 

computer disk containing images of child pornography in 

violation of 18 U.S.C. § 2252A(a)(5)(A) and one specification of 

knowingly and wrongfully distributing child pornography in 

interstate or foreign commerce by means of a computer in 

violation of Article 134, UCMJ.1

 Appellant’s pretrial agreement 

included an offer to “waive a hearing under Article 32.” It 

also included a withdrawal provision stating, among other 

things, that: 

This agreement will also be canceled and of no effect, 

if any of the following occurs: 

 

1

 According to the specifications, Appellant committed the 

charged acts “at or near Building 210, Royal Air Force Base 

Mildenhall, United Kingdom.” 
United States v. Von Bergen, No. 03-0629/AF 

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a. Refusal of the court to accept my plea of 

guilty, as set forth above, or modification of the 

plea by anyone during the trial to not guilty or to 

a lesser degree of guilt. 

 

b. Withdrawal by either party to the agreement 

before the trial. 

The military judge engaged in the following colloquy with 

Appellant and his counsel regarding the waiver: 

MJ: Defense counsel, if the accused’s plea of guilty 

is determined to be improvident will the accused be 

afforded an Article 32 investigation or is it 

permanently waived? 

DC: It’s not permanently waived, ma’am. 

MJ: So it was contingent on the Offer for Pretrial 

Agreement as well? 

DC: Yes, ma’am. 

MJ: And trial counsel, do you agree? 

ATC: Yes, ma’am. 

MJ: So you understand Airman Von Bergen, that, again, 

if for any reason I’m not able to accept your plea or 

you’re not able to complete your Offer for Pretrial 

Agreement and the convening authority’s not bound by 

it for some reason, that you would then be afforded 

you [sic] right to an Article 32? 

ACC: Yes, ma’am. 

The military judge subsequently accepted Appellant’s guilty 

pleas and sentenced Appellant to a dishonorable discharge, 

confinement for twenty-eight months, and reduction to the grade 

of E-1. The convening authority approved the sentence as 

adjudged. 
United States v. Von Bergen, No. 03-0629/AF 

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On appeal, this Court affirmed the finding of guilty on the 

specification of distributing child pornography, but reversed 

the finding on the specification of possessing child pornography 

and set aside the sentence. Von Bergen, 62 M.J. at 370. This 

Court returned the record of trial to the Judge Advocate General 

of the Air Force for further action consistent with Martinelli, 

62 M.J. at 52. Von Bergen, 62 M.J. at 370. Accordingly, the 

convening authority authorized a rehearing and amended the 

specification related to possession of child pornography, 

eliminating reference to 18 U.S.C. § 2252A(a)(5)(A) and 

inserting language derived from clauses 1 and 2 of Article 134, 

UCMJ: “which conduct was prejudicial to good order and 

discipline in the armed forces or of a nature to bring discredit 

upon the armed forces.” 

At his rehearing in 2006, Appellant pleaded not guilty to 

the amended specification. Appellant withdrew from the pretrial 

agreement that he had entered at the original court–martial and 

moved for an Article 32, UCMJ, investigation. Appellant argued 

that he was entitled to relief from his earlier Article 32, 

UCMJ, waiver because it was conditioned on the pretrial 

agreement from which he had since withdrawn. In response, the 

Government argued that no remedy was required because “the 

accused clearly waived his right to an Article 32 hearing” and 
United States v. Von Bergen, No. 03-0629/AF 

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“the Defense has offered no evidence of ‘good cause’ for relief 

of the accused’s waiver of an Article 32 hearing.” 

At the rehearing, the military judge denied the motion for 

relief, concluding that Appellant “had made a knowing and 

voluntary waiver of his Article 32 hearing” and Appellant failed 

to show good cause for relief from the waiver. The military 

judge found Appellant guilty under the amended specification and 

sentenced Appellant to a dishonorable discharge, confinement for 

three years, reduction to grade E-1, and forfeiture of all pay 

and allowances. Consistent with Rule for Court-Martial (R.C.M.) 

810(d)(1), the convening authority approved a sentence of a 

dishonorable discharge, confinement for twenty-eight months, and 

reduction to grade E-1. 

The United States Air Force Court of Criminal Appeals 

affirmed the approved findings and sentence. Von Bergen, 2008 

CCA LEXIS 17, at *13, 2008 WL 179271, at *5. The Court of 

Criminal Appeals found that “[o]nce a pretrial investigation has 

been waived, relief from that waiver can be obtained only for 

good cause shown.” Id. at *4, 2008 WL 179271, at *2 (quotation 

marks omitted). The Court of Criminal Appeals rejected 

Appellant’s argument that “under Nickerson, if the decision to 

waive the Article 32 investigation was in some way connected to 

the appellant’s decision to plead guilty, good cause to receive 

relief from the waiver exists.” Id. at *5, 2008 WL 179271, at 
United States v. Von Bergen, No. 03-0629/AF 

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*2 (citing United States v. Nickerson, 27 M.J. 30, 31-32 (C.M.A. 

1988)). As withdrawal from a pretrial agreement does not 

“automatically establish[] good cause” and “[A]ppellant 

presented no other reason as a basis,” the Court of Criminal 

Appeals concluded that “he did not show good cause.” Id. 

 Appellant also argued on appeal that good cause for relief 

existed under R.C.M. 405(k) because the Government destroyed 

certain evidence before the rehearing and the specification was 

changed. Id. at *5-*6, 2008 WL 179271, at *2. The Court of 

Criminal Appeals found that “[t]hese arguments were waived by 

the trial defense counsel’s failure to raise them at trial, and 

the appellant is entitled to relief only if his case at trial 

was harmed by this waiver.” Id. at *6, 2008 WL 179271, at *2. 

The Court of Criminal Appeals concluded that the destroyed 

evidence did not entitle Appellant to relief because 

“appellant’s confession, which was corroborated by eyewitness 

testimony, was more than sufficient to sustain a conviction at 

trial.” Id. at *6-*7, 2008 WL 179271, at *2. The Court of 

Criminal Appeals further concluded that the amendment to the 

specification did not entitle Appellant to relief because 

“[c]hanging the allegation from an Article 134, UCMJ, Clause 3 

specification to one containing elements under Clauses 1 and 2 

does not amount to a significant change to the specification.” 

Id. at *7, 2008 WL 179271, at *3 (quotation marks omitted). 
United States v. Von Bergen, No. 03-0629/AF 

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Additionally, the Court of Criminal Appeals noted that, “in 

a sense, appellant has already received the benefit of his 

[pretrial agreement] from the first trial” because the convening 

authority fulfilled his obligation of approving a reduced 

sentence, and “the sentence of that trial forms the basis of the 

maximum sentence that the convening authority can approve in 

this trial.” Id. at *8, 2008 WL 179271, at *3. The Court of 

Criminal Appeals thus decided that “the military judge did not 

err when he determined the appellant failed to establish good 

cause, and the appellant was not harmed by trial defense 

counsel’s failure to raise any of the matters the appellant 

raises on appeal.” Id.

Appellant renews his arguments before this Court. He 

argues that he was entitled to an Article 32, UCMJ, 

investigation because the 2006 specification was a “major” 

change from the 2001 specification. See R.C.M. 603. The 

Government responds, inter alia, that the pretrial agreement was 

conditioned on the military judge accepting Appellant’s 2001 

plea. The military judge having done so and the convening 

authority having fulfilled its sentencing commitment, the 

Government argues that the terms of the pretrial agreement were 

met and Appellant remains bound on rehearing by his 2001 waiver. 
United States v. Von Bergen, No. 03-0629/AF 

9

DISCUSSION 

This Court reviews a military judge’s decision whether to 

order relief from a waiver of an Article 32, UCMJ, 

investigation for an abuse of discretion. See United States v. 

Siroky, 44 M.J. 394, 398 n.1 (C.A.A.F. 1996) (“On discretionary 

decisions, [the reviewing court] usually asks whether the 

decision is legal in the sense of being within the prescribed 

boundaries which define the area of discretion.”) (quoting 

Martha S. Davis, A Basic Guide to Standards of Judicial Review, 

33 S.D. L. Rev. 468, 472-73 (1988) (footnote omitted)). “We 

review a military judge’s conclusions of law under the de novo 

standard. If a military judge’s ruling is based on an 

erroneous view of the law, he has abused his discretion.” 

United States v. Mobley, 44 M.J. 453, 454 (C.A.A.F. 1996) 

(quotation marks omitted). Based on the following analysis, we 

conclude that the military judge abused his discretion in 

denying Appellant an Article 32, UCMJ, investigation on 

rehearing. Two related arguments are persuasive. First and 

foremost, Appellant’s 2001 plea was improvident as a matter of 

law, which had the effect of canceling the pretrial agreement 

according to its terms. Alternatively, whether the 2006 

Article 134(1) and (2), UCMJ, specification represented a major 

change to the 2001 Article 134(3), UCMJ, specification or not, 

the effect of the rehearing and Appellant’s subsequent 
United States v. Von Bergen, No. 03-0629/AF 

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withdrawal from the agreement was to place the parties in their 

pretrial status quo ante. See R.C.M. 705(d)(4).

As noted above, when this case came before this Court the 

first time, we reversed the finding on the specification of 

possessing child pornography based on Martinelli. Von Bergen, 

62 M.J. at 370; see Martinelli, 62 M.J. at 62 (concluding that 

the CPPA does not apply extraterritorially, thus the CPPA as 

incorporated into Article 134(3), UCMJ, does not apply 

extraterritorially). As in Martinelli itself, Appellant’s plea 

was improvident with respect to the Article 134(3), UCMJ, 

specification. Further, and also as in Martinelli, the 

specification did not reference prejudice to good order and 

discipline or service discredit, and the military judge during 

the providence inquiry did not sufficiently inquire into whether 

Appellant was willing to admit that his conduct was prejudicial 

to good order and discipline or service discrediting. 

Martinelli, 62 M.J. at 670. Thus, we cannot uphold an offense 

under Article 134(1) or (2), UCMJ, which, as explained in United 

States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008), do not 

necessarily constitute lesser included offenses of Article 

134(3), UCMJ. As a result, Appellant’s plea was improvident. 

Although improvidence of the plea upon appellate review was 

not an express basis for cancellation in the pretrial agreement, 

this Court’s decision had the same effect as if the military 
United States v. Von Bergen, No. 03-0629/AF 

11

judge had not accepted Appellant’s plea, which was an express 

basis for cancellation. As a matter of law, the plea could not 

have been accepted by the military judge. As the military judge 

could not have accepted an improvident plea, the pretrial 

agreement was subject to the first cancellation term. 

Thus, a condition precedent to the Article 32, UCMJ, 

waiver, acceptance of the pleas, never occurred. Therefore, the 

waiver was not in effect at the rehearing. This point is 

reinforced by the military judge’s explanation to Appellant at 

the 2001 court-martial that Appellant would be afforded an 

Article 32, UCMJ, investigation should the military judge not 

accept Appellant’s pleas for any reason. Moreover, during the 

same colloquy, the parties agreed that the Article 32, UCMJ, 

waiver would not apply if Appellant’s pleas were “determined to 

be improvident.” 

Even if the pretrial agreement were still in effect -- and 

we are convinced that it was not -- when this Court set aside 

Appellant’s plea and the amended specification was referred for 

rehearing, Appellant’s subsequent withdrawal from the agreement 

meant that the court-martial process should have begun anew. 

R.C.M. 810(a)(1) provides that: “[rehearing] procedure shall be 

the same as in an original trial.” Therefore, “the effect of 

ordering a rehearing is . . . to place the United States and the 

accused in the same position as they were at the beginning of 
United States v. Von Bergen, No. 03-0629/AF 

12

the original trial.” United States v. Staten, 21 C.M.A. 493, 

495, 45 C.M.R. 267, 269 (1972). As one of the first steps in a 

general court-martial proceeding is an Article 32, UCMJ, 

investigation, unless the accused waives it, one of the first 

steps at the rehearing in this general court-martial proceeding 

should likewise have been an Article 32, UCMJ, investigation if 

not previously afforded to the accused. See Article 32, UCMJ; 

see generally United States v. Beatty, 25 M.J. 311, 315 (C.M.A. 

1987) (asserting that “there is no necessity for conducting a 

new Article 32, UCMJ, 10 U.S.C. § 832, investigation”) (emphasis 

added). Accordingly, when this Court reversed and remanded this 

case, Appellant should have been afforded an Article 32, UCMJ, 

investigation prior to the rehearing, unless Appellant waived it 

at that time. 

As a result, the military judge erred by relying on an 

Article 32, UCMJ, waiver that was no longer effective at the 

rehearing. Because Appellant did not knowingly and voluntarily 

waive his Article 32, UCMJ, rights at the rehearing, we do not 

need to inquire further into whether Appellant has shown good 

cause for relief. See R.C.M. 405(k). It is enough that 

Appellant’s Article 32, UCMJ, waiver was conditioned on a 

pretrial agreement that was not in effect at the rehearing, or, 

in the alternative, that referring the amended specification for 
United States v. Von Bergen, No. 03-0629/AF 

13

rehearing started the court-martial process anew. However, our 

analysis does not stop with a finding of error. 

Prejudice

Article 32, UCMJ, errors are tested on direct review for 

prejudice as defined by Article 59(a), UCMJ, 10 U.S.C. § 859(a) 

(2000). United States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 

2007); see also United States v. Mickel, 9 C.M.A. 324, 327, 26 

C.M.R. 104, 107 (1958) (“Once the case comes to trial on the 

merits, the pretrial proceedings are superseded by the 

procedures at the trial; the rights accorded to the accused in 

the pretrial stage merge into his rights at trial.”). 

Appellant argues that he was prejudiced by the absence of 

an Article 32, UCMJ, hearing due to the passage of time between 

his first and second courts-martial, during which time witness 

memories may have faded and original documentary evidence was 

destroyed. Appellant also argues that an Article 32, UCMJ, 

investigation would have afforded him the opportunity to prepare 

his defense to the changed specification and test the strength 

of the Government’s case based on the evidence available at the 

rehearing. 

We disagree. 

First, while the specification was indeed amended to change 

the underlying offense from a violation of the CPPA to a 

violation of Article 134(1) and (2), UCMJ, Appellant was on fair 
United States v. Von Bergen, No. 03-0629/AF 

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notice regarding how the specification would be amended after 

remand from this Court based on this Court’s precedents in 

Martinelli and other cases that have addressed the CPPA. See,

e.g., United States v. O’Connor, 58 M.J. 450, 454-55 (C.A.A.F. 

2003); United States v. Mason, 60 M.J. 15, 18, 20 (C.A.A.F. 

2004). Second, the new specification addressed the same conduct 

as the original specification. Third, the Government relied on 

much of the same evidence as at Appellant’s original courtmartial, such as Appellant’s statement and testimony of 

witnesses who had statements or stipulations of expected 

testimony admitted as evidence at the 2001 court-martial. 

Finally, the witnesses testified about the destroyed evidence, 

including what the images portrayed, how they were found, and 

how they were traced to Appellant. In a different context, the 

destruction of the original evidence and passage of time might 

well be prejudicial; however, under these circumstances, 

Appellant was not prejudiced by the military judge’s error in 

not ordering an Article 32, UCMJ, investigation. 

DECISION 

Accordingly, subject to the foregoing discussion, the 

decision of the United States Air Force Court of Criminal 

Appeals is affirmed. 
United States v. Von Bergen, No. 03-0629/AF 

RYAN, J. (concurring in the judgment): 

 I concur in the judgment because I agree with the 

majority’s conclusion that the pretrial agreement (PTA) in this 

case did not waive Appellant’s right to a pretrial 

investigation, pursuant to Article 32, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 832 (2000), on the amended and 

rereferred charge. I also agree that while Appellant was 

entitled to an Article 32, UCMJ, investigation on the amended 

charge, he was not prejudiced by the lack of such an 

investigation. United States v. Von Bergen, __ M.J. __ (13-14) 

(C.A.A.F. 2009). 

The granted issue can be resolved on a simple basis: 

Whether or not Appellant’s original waiver via the PTA in this 

case was canceled by our order of the rehearing, Von Bergen, __ 

M.J. at __ (10-11), and whether or not the rehearing itself 

permitted Appellant to withdraw from the PTA,1 id. at __ (11), 

                                                           

1

 Although the majority opinion finds that the PTA was not in 

effect at the rehearing, a portion of the opinion assumes, 

arguendo, that the PTA did remain in effect. Von Bergen, __ 

M.J. at __ (9, 11-12). Even so, the majority holds that 

Appellant subsequently withdrew from the PTA and was therefore 

entitled to an Article 32, UCMJ, investigation. Despite the 

Government’s argument that Appellant’s right to withdraw from 

the PTA no longer existed, the majority posits, without 

explanation, a connection between the order of rehearing and 

Appellant’s right to withdraw. Brief of Appellee at 7, United 

States v. Von Bergen, No. 03-0629 (C.A.A.F. Sept. 5, 2008). We 

have previously stated that the effect of a rehearing is 

generally to “place the United States and the accused in the 
United States v. Von Bergen, No. 03-0629/AF 

2 

it is certain that the agreement between Appellant and the 

Government to waive Appellant’s right to an Article 32, UCMJ, 

investigation referred only to the original charges and 

specifications, and not to the new charge and specification 

referred at the rehearing. Offer for Pretrial Agreement, at 1, 

United States v. Von Bergen, No. FR358-76-6491 (USAF Trial 

Judiciary Sept. 10, 2001) (“I have read the charges and 

specifications alleged against me and they have been explained 

to me . . . . Understanding the above and under the conditions 

set forth below, . . . I offer . . . to waive a hearing under 

Article 32, UCMJ.”). 

The specification at issue in this appeal was originally 

charged and pleaded to as a violation of clause 3 of Article 

134, UCMJ. A rehearing was ordered because that specification 

                                                                                                                                                                                               

same position as they were at the beginning of the original 

trial.” United States v. Staten, 21 C.M.A. 493, 495, 45 C.M.R. 

267, 269 (1972). But we have also acknowledged that rehearings 

“have long been treated as a continuation of the first trial.” 

Id. Rehearings are ordered for many different reasons, and our 

prior treatment of this issue suggests that some agreements made 

before or during the original trial may continue in effect 

during a subsequent rehearing, while others may not. Id.

(“There are exceptions to the rule” that a “rehearing of the 

case generally leaves the proceedings in the same position as 

before trial.”) (quoting United States v. Cox, 12 C.M.A. 168, 

169, 30 C.M.R. 168, 169 (1961)) (quotation marks omitted). The 

issue granted did not cover this tension and the parties’ 

briefing did not seek to resolve it; I do not fault the majority 

for declining to address the tension between these cases. But 

it seems an imprudent path to proceed to decide the case, albeit 

on an alternate ground, as if the tension does not exist. 
United States v. Von Bergen, No. 03-0629/AF 

3 

of the charge relied on extraterritorial application of the 

Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 

2252A (2000). United States v. Von Bergen, 62 M.J. 370 

(C.A.A.F. 2005) (summary disposition); United States v. 

Martinelli, 62 M.J. 52, 62 (C.A.A.F. 2005) (holding that the 

CPPA does not have exterritorial application). On rehearing, 

the convening authority amended the original specification from 

alleging a violation of clause 3 of Article 134, UCMJ, to 

alleging a violation of clauses 1 or 2 of Article 134, UCMJ, and 

referred this new specification to a general court-martial. 

Absent specific pleadings and proof, clauses 1 and 2 of 

Article 134, UCMJ, are not lesser included offenses of clause 3, 

Article 134, UCMJ. See, e.g., United States v. Medina, 66 M.J. 

21, 26 (C.A.A.F. 2008) (holding that clauses 1 and 2 are not 

necessarily lesser included offenses of clause 3). Appellant’s 

waiver of an Article 32, UCMJ, pretrial investigation pursuant 

to the PTA could not constitute a waiver for an offense the PTA 

did not address. Appellant was entitled to a new Article 32, 

UCMJ, pretrial investigation prior to referral of the new 

specification to trial by general court-martial, and it was 

error for the military judge to deny his request. See R.C.M. 

405(a) (“[N]o charge or specification may be referred to a 

general court-martial for trial until a thorough and impartial 

investigation . . . has been made . . . .”). 
United States v. Von Bergen, No. 03-0629/AF 

4 

I also take exception to the majority’s statement that our 

prior remand of this case was partially due to the fact that the 

original providence inquiry did not reveal sufficient evidence 

to affirm a conviction under clauses 1 or 2 of Article 134, 

UCMJ. Von Bergen, __ M.J. at __ (9-10). I continue to doubt 

that affirming a conviction to a failed charge and specification 

of clause 3, Article 134, UCMJ, under clauses 1 or 2 of Article 

134, UCMJ, as a lesser included offense based on the contents of 

the providency inquiry alone passes constitutional muster. See

Schmuck v. United States, 489 U.S. 705, 718 (1989) (allowing 

lesser included offense instructions “only in those cases where 

the indictment contains the elements of both offenses and 

thereby gives notice to the defendant that he may be convicted 

on either charge”); Medina, 66 M.J. at 26 (emphasizing an 

accused’s “right to know to what offense and under what legal 

theory he or she is pleading guilty”); Jones v. United States, 

526 U.S. 227, 232 (1999) (“Much turns on the determination that 

a fact is an element of an offense . . . given that elements 

must be charged in the indictment, submitted to a jury, and 

proven by the Government beyond a reasonable doubt.”). 

 I concur in the judgment.