## Facts

- Mark R. Conliffe, a senior cadet at the United States Military Academy, secretly recorded female cadets in states of undress.
- He unlawfully entered the women’s varsity team locker room, concealed a video camera, and recorded women entering and exiting the showers.
- He unlawfully entered a female cadet’s barracks room, concealed a video camera, and recorded her changing clothes.
- He pleaded guilty at a general court-martial to three specifications of housebreaking (Article 130), multiple specifications of conduct unbecoming an officer and a gentleman (Article 133), and an Article 134 offense for nonconsensual video recording charged via assimilation of state law.
- For each housebreaking specification, the charged “intended criminal offense” upon entry was conduct unbecoming (Article 133).
- The military judge conducted a providence inquiry, advised Conliffe on the elements of housebreaking and Article 133, and advised that unlawful entry (Article 134) was a lesser included offense of housebreaking.
- The Army Court of Criminal Appeals affirmed the findings and sentence; Conliffe challenged only the providence of the housebreaking guilty pleas.

## Issues

1. Whether Article 133 (conduct unbecoming an officer and a gentleman) is a purely military offense for purposes of Article 130 housebreaking.
2. Whether Article 130’s “intent to commit a criminal offense therein” can be satisfied by intent to commit a purely military offense, and if not, whether the guilty pleas to housebreaking are improvident.
3. Whether unlawful entry under Article 134 may be affirmed as a lesser included offense on the guilty-plea record.

## Decision

- The Court of Appeals for the Armed Forces reversed the affirmance of the three housebreaking convictions.
- The court held that Article 133 is a purely military offense and cannot serve as the intended underlying offense for Article 130 housebreaking.
- The court affirmed findings of guilty to unlawful entry under Article 134 as a lesser included offense for each housebreaking specification.
- The court left intact the remaining affirmed convictions and remanded for further proceedings consistent with the modified findings (including sentence reassessment as appropriate).

## Legal Principles

- Article 130 housebreaking requires unlawful entry into a building or structure with intent to commit a “criminal offense” therein; the intended offense must be criminal in a general sense, not purely military.
- Article 133 is a purely military offense because its gravamen is the effect of the conduct on an officer’s status, honor, and fitness to command, rather than a civilian-criminal analogue.
- A conviction for housebreaking predicated on intent to commit a purely military offense is legally defective, rendering a guilty plea improvident as to housebreaking.
- Unlawful entry under Article 134 is a lesser included offense of housebreaking under the Manual for Courts-Martial; its elements are included within housebreaking’s elements.
- An appellate court may affirm a lesser included offense following reversal of the greater offense where the record establishes each element of the lesser offense and the accused had fair notice, including in the guilty-plea context.

## Conclusion

CAAF ruled that conduct unbecoming under Article 133 is a purely military offense that cannot satisfy the predicate “criminal offense” element of Article 130 housebreaking, making Conliffe’s housebreaking guilty pleas improvident; however, because the plea record supported unlawful entry and Conliffe had notice of that lesser included offense, the court affirmed unlawful entry under Article 134 for each specification and remanded for further proceedings.


United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009)