[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Notices]
[Pages 47785-47787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22405]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2009-OS-0133]


Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC), DOD.

ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial, 
United States (2008 ed.) (MCM) and Notice of Public Meeting.

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SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States (2008 Edition) (MCM). 
The proposed changes constitute the 2009 annual review required by the 
MCM and DoD Directive 5500.17, ``Role and Responsibilities of the Joint 
Service Committee (JSC) on Military Justice,'' May 3, 2003 (DoD 
Directive 5500.17). The proposed changes concern the rules of procedure 
and evidence and the punitive articles applicable in trials by courts-
martial. These proposed changes have not been coordinated within the 
Department of Defense under DoD Directive 5500.1, ``Preparation, 
Processing and Coordinating Legislation, Executive Orders, 
Proclamations, Views Letters Testimony,'' June 15, 2007, and do not 
constitute the official position of the Department of Defense, the 
Military Departments, or any other Government agency.
    This notice also sets forth the date, time and location for the 
public meeting of the JSC to discuss the proposed changes.
    This notice is provided in accordance with DoD Directive 5500.17. 
This notice is intended only to improve the internal management of the 
Federal Government. It is not intended to create any right or benefit, 
substantive or procedural, enforceable at law by any party against the 
United States, its agencies, its officers, or any person.
    In accordance with paragraph III.B.4 of the Internal Organization 
and Operating Procedures of the JSC, the committee also invites members 
of the public to suggest changes to the Manual for Courts-Martial.

DATES: Comments on the proposed changes must be received no later than 
November 16, 2009, to be assured consideration by the JSC. A public 
meeting for comments will be held on October 29, 2009 at 10:30 a.m.

ADDRESSES: A public meeting for comments will be held on October 29, 
2009, at 10:30 a.m. in the 8th Floor Conference Room, 1501 Wilson 
Blvd., Rosslyn, VA 22209-2460.
    You may submit comments, identified by docket number and title, by 
any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160. Instructions: All 
submissions received must include the agency name and docket number for 
this Federal Register document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Stacia Gawronski, 
Executive Secretary, Joint Service Committee on Military Justice, 
Office of the Judge Advocate General, Criminal Law Division (Code 20), 
1254 Charles Morris Street, SE., Suite B01, Washington Navy Yard, 
District of Columbia 20374, (202) 685-7683, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: The proposed amendments by Executive Order 
to the MCM are as follows:
    Section 1. Part III of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) M.R.E. 504 (c)(2)(D) is added to read as follows: ``(D) Where 
both parties have been substantial participants in illegal activity, 
those communications between the spouses during the marriage regarding 
the illegal activity in which they have jointly participated are not 
marital communications for purposes of the privilege in subdivision 
(b), and are not entitled to protection under the privilege in 
subdivision (b).''
    (b) The following amendments conform M.R.E. 609 to F.R.E. 609:
    (1) M.R.E. 609 (a) is amended to substitute the words ``character 
for truthfulness'' for the word ``credibility.''
    (2) M.R.E. 609 (a)(2) is amended to substitute the words 
``regardless of the punishment, if it readily can be determined that 
establishing the elements of the crime required proof or admission of 
an act of dishonesty or false statement by the witness'' for the words 
``if it involved dishonesty or false statement, regardless of the 
punishment.''
    (3) M.R.E. 609(c) is amended to substitute the words ``a subsequent 
crime that was punishable by death, dishonorable discharge, or 
imprisonment in excess of one year'' for the words ``a subsequent crime 
which was punishable by death, dishonorable discharge, or imprisonment 
in excess of one year.''
    Section 2. Part IV of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) Paragraph 13, Article 89, Disrespect toward a superior 
commissioned officer, paragraph c.(1) is amended to substitute the 
words ``uniformed service'' for ``armed forces'' everywhere the words 
``armed forces'' appear in that paragraph. This change is made to 
clarify that the uniformed officers of the Public Health Service and 
the National Oceanographic and Atmospheric Administration, when 
assigned to and serving with the armed forces, are included in the 
definition of a superior commissioned officer.
    (b) A clerical amendment is made to Paragraph 35, Article 111, 
Drunken or reckless operation of vehicle, aircraft or vessel, paragraph 
f to read as follows:
    ``(f) Sample Specification.
    In that ------ (personal jurisdiction data), did (at/on board--
location) (subject matter jurisdiction data, if required), on or about 
------, 20 --, (in the motor pool area) (near the Officer's Club) (at 
the intersection of ------ and ------) (while in the Gulf of Mexico) 
(while in flight over North America) physically control [a vehicle, to 
wit: (a truck) (a passenger car) (------)] [an aircraft, to wit: (an 
AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker) (------)] [a 
vessel, to wit: (the aircraft carrier USS ------) (the Coast Guard 
Cutter ------) (------)], [while drunk] [while impaired by ------] 
[while the alcohol concentration in his (blood or breath) equaled or 
exceeded the applicable limit under subparagraph (b) of the text of the 
statute in paragraph 35 as shown by chemical analysis] [in a (reckless) 
(wanton) manner by (attempting to pass another vehicle on a sharp 
curve) (by ordering that the

[[Page 47786]]

aircraft be flown below the authorized altitude)] [and did thereby 
cause said (vehicle) (aircraft) (vessel) to (strike and) (injure ----
)].''
    (c) A clerical amendment is made to Paragraph 48, Article 123, 
Forgery, paragraph c.(4) to add the word ``to'' after the word 
``liability'' the second time it appears in the fifth sentence.
    (d) Paragraph 68b. is added as follows:
    ``68b. Article 134--(Child pornography)
    a. Text. See paragraph 60.
    b. Elements.
    (1) Possessing, receiving, or viewing child pornography.
    (a) That the accused knowingly and wrongfully possessed, received 
or viewed child pornography; and
    (b) 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.
    (2) Possessing child pornography with intent to distribute.
    (a) That the accused knowingly and wrongfully possessed child 
pornography;
    (b) That the possession was with the intent to distribute; and
    (c) 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.
    (3) Distributing child pornography.
    (a) That the accused knowingly and wrongfully distributed child 
pornography to another; and
    (b) 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.
    (4) Producing child pornography.
    (a) That the accused knowingly and wrongfully produced child 
pornography; and
    (b) 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.
    c. Explanation.
    (1) It is not a defense to any offense under this paragraph that 
the minor depicted was not an actual person or did not actually exist.
    (2) An accused may not be convicted of possessing, receiving, 
viewing, distributing, or producing child pornography, if he was not 
aware of the contraband nature of the visual depictions. Awareness may 
be inferred from circumstantial evidence such as the name of a computer 
file.
    (3) ``Child Pornography'' means any visual depiction of a minor, or 
what appears to be a minor, engaging in sexually explicit conduct.
    (4) ``Distributing'' means delivering to the actual or constructive 
possession of another.
    (5) ``Minor'' means any person under the age of 18 years;
    (6) ``Possessing'' means exercising control of something. 
Possession may be direct physical custody like holding an item in one's 
hand, or it may be constructive, as in the case of a person who hides 
something in a locker or a car to which that person may return to 
retrieve it. Possession must be knowing and conscious. Possession 
inherently includes the power or authority to preclude control by 
others. It is possible for more than one person to possess an item 
simultaneously, as when several people share control over an item.
    (7) ``Producing'' means creating or manufacturing. As used in this 
paragraph, it refers to making child pornography that did not 
previously exist. It does not include reproducing or copying.
    (8) ``Sexually explicit conduct'' means actual or simulated:
    (a) Sexual intercourse or sodomy, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of the 
same or opposite sex;
    (b) Bestiality;
    (c) Masturbation;
    (d) Sadistic or masochistic abuse; or
    (e) Lascivious exhibition of the genitals or pubic area of any 
person.
    (9) ``Visual depiction'' includes undeveloped film and videotape, 
and data stored on a computer disk or by electronic means which is 
capable of conversion into a visual image, and also includes any 
photograph, film, video, picture, digital image or picture, or computer 
image or picture, whether made or produced by electronic, mechanical, 
or other means.
    (10) Affirmative defenses.
    It shall be an affirmative defense to a charge of possessing child 
pornography that the accused promptly and in good faith, and without 
retaining or allowing any person, other than a law enforcement agency, 
to access any such visual depiction:
    (a) Took reasonable steps to destroy each such visual depiction; or
    (b) Reported the matter to a law enforcement agency and afforded 
that agency access to each such visual depiction.
    (11) On motion of the government, in any prosecution under this 
paragraph, except for good cause shown, the name, address, social 
security number, or other nonphysical identifying information, other 
than the age or approximate age, of any minor who is depicted in any 
child pornography or visual depiction or copy thereof shall not be 
admissible and may be redacted from any otherwise admissible evidence, 
and the panel shall be instructed, upon request of the Government, that 
it can draw no inference from the absence of such evidence.
    d. Lesser included offenses.
    (1) Possessing, receiving, or viewing child pornography.
    Article 80--attempts.
    (2) Possessing child pornography with intent to distribute.
    Article 80--attempts.
    Article 134--possessing child pornography.
    (3) Distributing child pornography.
    Article 80--attempts.
    Article 134--possessing child pornography.
    Article 134--possessing child pornography with intent to 
distribute.
    (4) Producing child pornography.
    Article 80--attempts.
    Article 134--possessing child pornography.
    e. Maximum punishment.
    (1) Possessing, receiving or viewing child pornography. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 10 years.
    (2) Possessing child pornography with intent to distribute. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 15 years.
    (3) Distributing child pornography. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 20 years.
    (4) Producing child pornography. Dishonorable discharge, forfeiture 
of all pay and allowances, and confinement for 30 years.
    f. Sample specification.
    Possessing, receiving, viewing, possessing with intent to 
distribute, distributing or producing child pornography.
    In that ---- (personal jurisdiction data), did, at ----, on or 
about ---- 20--, knowingly and wrongfully (possess) (receive) (view) 
(distribute) (produce) child pornography, to wit: a (photograph) 
(video) (film) (picture) (digital image) (computer image) of a minor, 
or what appears to be a minor, engaging in sexually explicit conduct, 
(with intent to distribute the said child pornography).''
    Section. 3. These amendments shall take effect 30 days from the 
date of this order.

[[Page 47787]]

    (a) Nothing in these amendments shall be construed to make 
punishable any act done or omitted prior to the effective date of this 
order that was not punishable when done or omitted.
    (b) Nothing in these amendments shall be construed to invalidate 
any nonjudicial punishment proceedings, restraint, investigation, 
referral of charges, trial in which arraignment occurred, or other 
action begun prior to the effective date of this order, and any such 
nonjudicial punishment, restraint, investigation, referral of charges, 
trial, or other action may proceed in the same manner and with the same 
effect as if these amendments had not been prescribed.

The White House

Changes to the Discussion accompanying the Manual for Courts Martial, 
United States

    (a) A clerical amendment is made to the first paragraph of the 
Discussion following R.C.M. 1107(d)(1) to correctly reference R.C.M. 
1003(b)(5) and (6) instead of R.C.M. 1003(b)(6) and (7).

    Dated: September 14, 2009.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E9-22405 Filed 9-16-09; 8:45 am]
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