UNITED STATES, Appellee 

v. 

Patrick M. LEONARD Jr., Airman First Class 

U.S. Air Force, Appellant 

No. 06-0615 

Crim. App. No. 35740 

United States Court of Appeals for the Armed Forces

Argued January 9, 2007 

Decided March 20, 2007 

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

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

separate opinion concurring in part and in the result. 

Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Lieutenant 

Colonel Mark R. Strickland and Major Anniece Barber (on brief). 

For Appellee: Captain Jefferson E. McBride (argued); Colonel 

Gerald R. Bruce and Lieutenant Colonel Robert V. Combs (on 

brief). 

Military Judge: R. Scott Howard 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Leonard Jr., No. 06-0615/AF 

2

Judge RYAN delivered the opinion of the Court. 

This case presents the question whether the maximum 

punishment for an offense charged under Article 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), clauses 

1 and 2, and not otherwise listed in the Manual for CourtsMartial, United States pt. IV, paras. 60-113 (2005 ed.) (MCM), 

may be determined by reference to the maximum punishment for 

violation of a federal statute that proscribes and criminalizes 

the same criminal conduct and mental state included in the 

specification. Answering that question in the affirmative, we 

hold that the military judge’s calculation of the maximum 

punishment in this case was correct and affirm the decision of 

the court below. 

A. Background 

A general court-martial composed of a military judge sitting 

alone convicted Appellant, pursuant to his plea, of wrongfully 

and knowingly receiving visual depictions of minors engaging in 

sexually explicit conduct, which conduct was prejudicial to good 

order and discipline or of a nature to bring discredit upon the 

armed forces in violation of Article 134, UCMJ. During the 

providence inquiry, Appellant admitted that he wrongfully and 

knowingly received from the Internet, and downloaded onto his 

home computer in South Dakota, visual depictions of actual 

minors engaging in sexually explicit conduct. Prior to 
United States v. Leonard Jr., No. 06-0615/AF 

3

sentencing, the military judge, trial counsel, and defense 

counsel agreed that the maximum term of imprisonment for 

Appellant’s offense was fifteen years. In determining the 

maximum sentence for Appellant’s offense, the trial counsel 

referenced the maximum sentence for the analogous federal 

statute, 18 U.S.C. § 2252(a)(2) (2000). This statute prohibits, 

inter alia, the knowing receipt of any visual depiction, 

transported in interstate or foreign commerce by any means, of a 

minor engaging in sexually explicit conduct. At the time of the 

offense, the maximum term of imprisonment for a violation of 18 

U.S.C. § 2252(a)(2) was fifteen years. 18 U.S.C. § 2252(b)(1) 

(amended Apr. 30, 2003). 

The sentence adjudged by the court-martial included a 

dishonorable discharge, confinement for forty-five months, and 

reduction to E-1. The convening authority approved the findings 

and the sentence. The United States Air Force Court of Criminal 

Appeals affirmed. United States v. Leonard, No. ACM 35740, 2006 

CCA LEXIS 74, at *5, 2006 WL 888157, at *1 (A.F. Ct. Crim. App. 

Mar. 21, 2006) (unpublished). 

We granted review of the following specified issues: 

I. WHETHER THE MILITARY JUDGE ERRED IN CALCULATING THE 

MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT’S PLEA 

WAS IMPROVIDENT BECAUSE IT WAS BASED UPON A SUBSTANTIAL 

MISUNDERSTANDING OF THE MAXIMUM PUNISHMENT. 
United States v. Leonard Jr., No. 06-0615/AF 

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II. WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL 

MISAPPREHENDED THE MAXIMUM PUNISHMENT AND, IF SO, 

WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO 

EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE 

COUNSEL’S ADVICE WAS BASED UPON AN ERRONEOUS 

CALCULATION OF THE MAXIMUM PUNISHMENT. 

United States v. Leonard, 64 M.J. 184 (C.A.A.F. 2006). 

B. Discussion 

1. 

“Article 134 makes punishable acts in three categories of 

offenses not specifically covered in any other article of the 

code.” MCM pt. IV, para. 60.c.(1). Those categories are 

separated into three clauses. Clause 1 prohibits conduct “to 

the prejudice of good order and discipline in the armed forces.” 

Id. Clause 2 prohibits “conduct of a nature to bring discredit 

upon the armed forces.” Id. Clause 3 covers “noncapital crimes 

or offenses which violate Federal law.” Id. When the decision 

is made to charge the offense under clause 3, “the proof must 

establish every element of the crime or offense as required by 

the applicable law.” Id. at para. 60.b. But when the offense 

is charged under clauses 1 or 2, the specification need only 

allege “[t]hat the accused did or failed to do certain acts[,]” 

id. at para. 60.b.(1), and “[t]hat, under the circumstances, the 

accused’s conduct 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” respectively. Id. at para. 
United States v. Leonard Jr., No. 06-0615/AF 

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60.b.(2). The MCM states no preference as to which clause of 

Article 134, UCMJ, must be used in a particular case. In this 

case, the Government elected to charge the wrongful and knowing 

receipt of visual depictions of minors engaged in sexually 

explicit activity as violations of clauses 1 or 2. 

On appeal, Appellant argues that the military judge erred 

in referencing the term of imprisonment authorized for a 

violation of 18 U.S.C. § 2252(a)(2).1

 Appellant correctly notes 

that an element of the offense set forth in 18 U.S.C. § 

2252(a)(2) is that the visual depictions of children engaged in 

sexually explicit activity were received through a medium of 

interstate or foreign commerce. See United States v. Corp, 236 

F.3d 325, 333 (6th Cir. 2001) (reversing the appellant’s 

conviction under 18 U.S.C. § 2252 due to an insufficient nexus 

with interstate commerce). Appellant asserts that, because this 

interstate or foreign commerce element was missing from the 

specification in this case, it was improper for the military 

judge to look to 18 U.S.C. § 2252(a)(2) to establish the maximum 

punishment for Appellant’s offense. 

 

1

 Appellant also argues that the military judge should have 

advised him that the maximum punishment for his offense was that 

established under federal law for a violation of 18 U.S.C. § 

2252(a)(4), which was five years at the time of his offense. 18 

U.S.C. § 2252(b)(2) (amended Apr. 30, 2003). But that 

subsection of the statute, which criminalizes the knowing 

possession of child pornography, requires the same 

jurisdictional element as a violation of 18 U.S.C. § 2252(a)(2). 
United States v. Leonard Jr., No. 06-0615/AF 

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While this federal jurisdictional element was not charged 

in the specification, neither clause 1 nor clause 2 requires 

that a specification exactly match the elements of conduct 

proscribed by federal law. United States v. Jones, 20 M.J. 38, 

40 (C.M.A. 1985) (“‘[f]ederal [crimes] may be properly tried as 

offenses under clause (3) of Article 134, but . . . if the facts 

do not prove every element of the crime set out in the criminal 

statutes, yet meet the requirements of clause (1) or (2), they 

may be alleged, prosecuted and established under one of those 

[clauses]’” (quoting United States v. Long, 2 C.M.A. 60, 65, 6 

C.M.R. 60, 65 (1952))). 

Exercising his Article 56, UCMJ, 10 U.S.C. § 856 (2000) 

responsibilities, the President has published the maximum 

punishment for some offenses punishable under Article 134, UCMJ. 

The question remains what the maximum permissible punishment is 

for the offense of knowing receipt of visual depictions of 

minors engaged in sexually explicit activity, which conduct is 

prejudicial to good order and discipline or of a nature to bring 

discredit on the armed forces. While the President has 

published the maximum punishment for some offenses punishable 

under Article 134, UCMJ, see MCM pt. IV, paras. 61-113, the MCM

itself does not list Appellant’s offense, nor is it included in 

or closely related to any offense therein. See Rule for CourtsMartial (R.C.M.) 1003(c)(1)(B)(ii). 
United States v. Leonard Jr., No. 06-0615/AF 

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We observe that the “closely related” language in R.C.M. 

1003(c)(1)(B)(ii) refers to offenses that are closely related to 

offenses listed in the MCM. And, while R.C.M. 1003(c)(1)(B)(ii) 

provides that an offense “is punishable as authorized by the 

United States Code, or as authorized by the custom of the 

service,” there is at least a question whether the United States 

Code could authorize punishment absent the jurisdictional 

element, which provides the clear textual nexus to interstate 

commerce. See, e.g., United States v. Morrison, 529 U.S. 598, 

613 (2000); United States v. Lopez, 514 U.S. 549, 567 (1995). 

Similarly, how Appellant’s offense would be punished “as 

authorized by the custom of the service,” R.C.M. 

1003(c)(1)(B)(ii), is at best an open question: the 

proliferation of the receipt of visual depictions of minors 

engaged in sexually explicit conduct by military members is a 

relatively recent, albeit pernicious, development. 

But we need not grapple with these points in order to 

decide the question in this case, because clear direction is 

provided by the UCMJ. Article 134, UCMJ, which applies only to 

conduct “not specifically mentioned” under the UCMJ, 

specifically provides that an accused “shall be punished at the 

discretion of [the] court.” While a court’s discretion is 

bounded both where specific direction is given under R.C.M. 

1003(c) and by the limitations established by the President 
United States v. Leonard Jr., No. 06-0615/AF 

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pursuant to Article 56, UCMJ, R.C.M. 1003(c) does not give 

specific direction here, and no maximum punishment has been set 

by the President for the offense set forth in the specification. 

2. 

We have looked before at the maximum sentence for offenses 

charged under clauses 1 or 2 of Article 134, UCMJ, that include 

the conduct and mens rea proscribed by directly analogous 

federal criminal statutes. In doing so, we focused on whether 

the offense as charged is “essentially the same,” as that 

proscribed by the federal statute. United States v. Jackson, 17 

C.M.A. 580, 583, 38 C.M.R. 378, 381 (1968); see also United 

States v. Williams, 17 M.J. 207, 216-17 (C.M.A. 1984) (upholding 

sentence for kidnapping under clauses 1 or 2 by referencing the 

maximum sentence for a violation of the federal kidnapping 

statute). The military judge did not err by referencing a 

directly analogous federal statute to identify the maximum 

punishment in this case, when every element of the federal 

crime, except the jurisdictional element, was included in the 

specification. 

3. 

At argument, Appellant suggested that allowing reference to 

federal statutory maximums to determine the sentence for 

analogous conduct charged under clauses 1 or 2 would permit too 

much latitude, allowing the government to avoid charging and 
United States v. Leonard Jr., No. 06-0615/AF 

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proving critical elements necessary for conviction under clause 

3. We do not hold that the government may avoid charging and 

proving elements setting forth the gravamen of the offense under 

federal law, yet still avail itself of the federal statutory 

maximum. And that is not this case. The criminal conduct and 

mens rea set forth in the specification satisfy the requirements 

of clauses 1 and 2 of Article 134, UCMJ, and describe the 

gravamen of the offense proscribed by 18 U.S.C. 2252(a)(2), for 

which the maximum sentence is fifteen years. 

C. Conclusion 

We hold that the military judge did not err in advising the 

Appellant that the maximum sentence for the offense charged was 

fifteen years. Therefore, we answer the specified Issue I in 

the negative, making Issue II moot. The decision of the United 

States Air Force Court of Criminal Appeals is affirmed. 
United States v. Leonard Jr., No. 06-0615/AF 

BAKER, Judge (concurring in part and in the result): 

The question presented is whether the military judge 

referenced the appropriate offense “punishable as authorized by 

the United States Code” under Rule for Courts-Martial (R.C.M.) 

1003(c)(1)(B)(ii) to set Appellant’s maximum sentence. 

Appellant asserts that the military judge used the wrong federal 

statute, because his conduct was better described as possession 

under 18 U.S.C. § 2252(a)(4) rather than receipt under 18 U.S.C. 

§ 2252(a)(2). Appellant also argues that § 2252(a)(2) is not an 

analogous statute under the United States Code because the 

statute includes an “interstate or foreign commerce” element. 

This argument is made in the alternative, because § 2252(a)(4), 

which Appellant argues the military judge should have applied, 

also contains this same jurisdictional requirement. 

The predicate statutory language is found in Article 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000): 

“Though not specifically mentioned in this chapter, all 

disorders and neglects to the prejudice of good order and 

discipline in the armed forces, all conduct of a nature to bring 

discredit upon the armed forces . . . shall be punished at the 

discretion of [the] court.” However, this language must be read 

in light of the President’s adoption of R.C.M. 1003(c)(1)(B). 

This procedural rule is intended to delimit the exercise of 

discretion by courts-martial in adjudicating punishment for 
United States v. Leonard Jr., No. 06-0615/AF 

2

offenses “not listed in Part IV” of the Manual for CourtsMartial, United States (MCM) “and not included in or closely 

related to any offense listed therein.”1 R.C.M. 

1003(c)(i)(B)(ii). 

Thus, the applicable principle is not just “the discretion 

of [the] court,” which is open-ended, but also R.C.M. 

1003(c)(1)(B). In this case, the offense of which Appellant 

stands convicted is neither listed in the MCM nor is it included 

in or closely related to an offense listed. Thus, Appellant’s 

offense “is punishable as authorized by the United States Code.” 

This is consistent with military practice and this Court’s 

precedent as well. United States v. Williams, 17 M.J. 207, 216-

17 (C.M.A. 1984); United States v. Jackson, 17 C.M.A. 580, 583 

38 C.M.R. 378, 381 (1968). 

As a result, where R.C.M. 1003(c)(1)(B) applies, military 

judges are constrained to look for an analogous offense in the 

United States Code, if any, in setting the maximum punishment. 

The military judge did so in this case. Appellant’s offense is 

indeed analogous to the United States Code section used by the 

military judge; the offenses in question are essentially the 

same. Appellant was convicted of “wrongfully and knowingly 

 

1

 The majority relies alone on the “discretion of [the] court” 

language of Article 134, UCMJ, in holding that the military 

judge did not abuse his discretion in applying an analogous 

federal statute. But it is not clear where this discretion 

ultimately ends. 
United States v. Leonard Jr., No. 06-0615/AF 

3

receiv[ing] visual depictions of minors engaging in sexually 

explicit conduct.” In downloading these images Appellant both 

received and possessed child pornography. See United States v. 

Kuchinski, 469 F.3d 853, 861 (9th Cir. 2006); United States v. 

MacEwan, 445 F.3d 237, 241 (3d Cir. 2006). Thus, it was 

appropriate for the military judge to look to 18 U.S.C. § 

2522(a)(2) to determine the maximum penalty. Further, the 

requirement in § 2522(a)(2) that the activity occur in 

“interstate or foreign commerce” is a jurisdictional rather than 

a substantive requirement intended to reflect Congress’s 

authority to legislate. Therefore, it is inherently not an 

applicable element of the analogous offense in the military 

context.