United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014). · Go Syfert
United States v. Payne, 73 M.J. 19 (C.A.A.F. 2014). Cases Citing This Book View Copy Cite
“t is not necessary that the accused have been aware of the precise identity of the controlled substance, so long as he is aware that it is a controlled substance.”
139 citation events (139 in the last 25 years) across 6 distinct courts.
Strongest positive: United States v. Private (E-1) ZACHARY A. BENNETT (acca, 2016-06-30) · Strongest negative: United States v. Private E2 JOSHUA C. DAVIS (acca, 2015-11-25)
Treatment trajectory · 2014 → 2026 · click a year to view as-of
2014 2020 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited "but see" United States v. Private E2 JOSHUA C. DAVIS (6×) also: Cited as authority (rule)
A.C.C.A. · 2015 · signal: but see · confidence high
But see Payne, 73 M.J. at 23, “treating] as waived” an instructional error where defense counsel "refus[ed] to assist the military judge in correcting any alleged instructional error at the trial level.”
discussed Cited as authority (verbatim quote) United States v. Private (E-1) ZACHARY A. BENNETT
A.C.C.A. · 2016 · quote attribution · 1 verbatim quote · confidence high
where there is no objection to an instruction at trial, we review for plain error.
discussed Cited as authority (quoted) United States v. Rios
A.F.C.C.A. · 2014 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence low
t is not necessary that the accused have been aware of the precise identity of the controlled substance, so long as he is aware that it is a controlled substance.
discussed Cited as authority (rule) United States v. SELLENEIT
N.M.C.C.A. · 2026 · confidence medium
Standard of Review Whether members were properly instructed is a question of law we re- view de novo. 27 A military judge’s decision to give, or not give, an instruction is reviewed for an abuse of discretion. 28 The abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be “arbi- trary, fanciful, clearly unreasonable, or clearly erroneous.” 29 “The military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses an…
cited Cited as authority (rule) United States v. Howard
A.F.C.C.A. · 2025 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citation omitted).
cited Cited as authority (rule) United States v. York
A.F.C.C.A. · 2025 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014).
cited Cited as authority (rule) United States v. Sergeant JOHN PENALOZA
A.C.C.A. · 2025 · confidence medium
United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2013) (citing MCM pt.
cited Cited as authority (rule) United States v. Donley
A.F.C.C.A. · 2024 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014).
cited Cited as authority (rule) United States v. Solomon
A.F.C.C.A. · 2022 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citation omitted).
discussed Cited as authority (rule) United States v. Spears
N.M.C.C.A. · 2022 · confidence medium
We review the propriety of a military judge’s instructions de novo. 47 The military judge must instruct on the elements of the offenses and any affirmative, or “special,” defenses under R.C.M. 916 that are “in issue.” 48 “A matter is ‘in issue’ when some evidence, without regard to its source or credi- bility, has been admitted upon which members might rely if they choose.” 49 “It is not necessary that the evidence which raises an issue be compelling,” and “the instructional duty arises whenever some evidence is presented to which the fact finders might attach credit if…
cited Cited as authority (rule) United States v. Burnett
A.F.C.C.A. · 2022 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citation omitted).
cited Cited as authority (rule) United States v. Anderson
A.F.C.C.A. · 2022 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citation omitted).
discussed Cited as authority (rule) United States v. Brown (2×) also: Cited "see"
A.F.C.C.A. · 2021 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citation omitted). “[A] military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, com- plete, and intelligible statement of the law.” United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012) (citations omitted). “[T]he military judge . . . is re- quired to tailor the instructions to the particular facts and issues in a case.” United States v. Baker, 57 M.J. 330, 333 (C.A.A.F. 2002) (citations omitted). “[A]ny party may request that the military judge instruct the members on …
discussed Cited as authority (rule) United States v. Jones
A.F.C.C.A. · 2020 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citation omitted). 33 United States v. Jones, No. ACM 39543 “[A] military judge has wide discretion in choosing the instructions to give but has a duty to provide an accurate, complete, and intelligible statement of the law.” Behenna, 71 M.J. at 232 (citations omitted). “[T]he military judge . . . is required to tailor the instructions to the particular facts and issues in a case.” United States v. Baker, 57 M.J. 330, 333 (C.A.A.F. 2002) (citations omitted). 3.
discussed Cited as authority (rule) United States v. Sandoval
N.M.C.C.A. · 2020 · confidence medium
But despite the military judge correcting himself, he still omitted it from his instructions. 90 72 M.J. 339, 344 (C.A.A.F. 2013). 91 United States v. Payne, 73 M.J. 19, 20 (C.A.A.F. 2014). 92 Record at 621, 625, 810. 93 Id. at 810. 94 Federal Assimilative Crimes Act, 18 U.S.C. § 13 . 95 See MCM Part IV, ¶ 60.c.(4)(c)(ii). 17 United States v. Sandoval, NMCCA No. 201800355 Opinion of the Court We need not dwell on these instructional errors 96 for two reasons: first, under Davis, this was likely a waiver; and second, the specification fails for legal insuffi- ciency on other grounds. 3.
cited Cited as authority (rule) United States v. Lee
A.F.C.C.A. · 2020 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citation omitted).
cited Cited as authority (rule) United States v. Ramirez
A.F.C.C.A. · 2020 · confidence medium
IV, ¶ 4.b.; United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014).
cited Cited as authority (rule) United States v. Plourde
A.F.C.C.A. · 2019 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citations omitted).
cited Cited as authority (rule) United States v. Owens
A.F.C.C.A. · 2019 · confidence medium
IV, ¶ 4.b.; United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014).
discussed Cited as authority (rule) United States v. Sergeant First Class JEREMIAH W. RAPMUND
A.C.C.A. · 2019 · confidence medium
Under a plain error analysis, appellant has the burden to show: “(1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” Jd. at 230 (quoting United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014)).
discussed Cited as authority (rule) United States v. Mote
A.F.C.C.A. · 2019 · confidence medium
Under a plain er- ror analysis, an appellant must demonstrate that “(1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substan- tial right of the [appellant].” United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (quoting United States v. Tunstall, 72 M.J. 191 , 193–94 (C.A.A.F. 2013)).
discussed Cited as authority (rule) United States v. Palmer
A.F.C.C.A. · 2019 · confidence medium
“Under a plain error analysis, the accused has the burden of demon- strating that (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (internal quotation marks omitted) (quoting United States v. Tunstall, 72 M.J. 191 , 193–94 (C.A.A.F. 2013)).
examined Cited as authority (rule) United States v. Rich (3×) also: Cited "see"
A.F.C.C.A. · 2019 · confidence medium
“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 material- ly prejudiced a substantial right of the accused.’” United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (quoting United States v. Tunstall, 72 M.J. 191 , 193–94 (C.A.A.F. 2013)). “[M]erely requesting an instruction is ordinarily not sufficient to preserve a claim of error . . . .
discussed Cited as authority (rule) United States v. Grigger
A.F.C.C.A. · 2019 · confidence medium
“Under a plain error analysis, the ac- cused ‘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.’” United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (quoting United States v. Tunstall, 72 M.J. 191 , 193–94 (C.A.A.F. 2013)).
discussed Cited as authority (rule) United States v. Sergeant TERRACE L. SOLOMON
A.C.C.A. · 2019 · confidence medium
“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.” Id. at 230 (citing United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014)).
discussed Cited as authority (rule) United States v. First Lieutenant HECTOR HERNANDEZAVILES
A.C.C.A. · 2019 · confidence medium
“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.” United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Watkins
N.M.C.C.A. · 2019 · confidence medium
Because this section covers tamper- ing with both witnesses and evidence, the members heard an expansive and repetitive definition: The term “tamper” means that the evidence supports a find- ing that the accused knowingly used intimidation, threatened or corruptly persuaded C.K.W., or attempted to do so, or en- gaged in misleading conduct towards another person with the intent to influence, delay, or prevent the testimony of C.K.W. in an official proceeding; cause or induce C.K.W. to withhold tes- timony or withhold a record, document, or other object from an official proceeding; alter, de…
discussed Cited as authority (rule) United States v. Hale (2×)
C.A.A.F. · 2019 · confidence medium
United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014) (citation omitted).
discussed Cited as authority (rule) United States v. Specialist JORDAN T. RODRIGUEZ
A.C.C.A. · 2019 · confidence medium
We similarly apply plain error review here, as, like Peebles, “this case does not turn on determining the correct standard of review.” Peebles, __ M.J.__, 2019 CCA LEXIS, at *10; see also, e.g., United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (applying plain error review to forfeited claim of instructional error); United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014); Davis, 76 M.J. at 229 .
discussed Cited as authority (rule) United States v. FRANCISCO C. LARA
A.C.C.A. · 2018 · confidence medium
In order to warrant reversal 8 LARA—ARMY 20170025 as plain error, appellant “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 [appellant].” Mott, 72 M.J. at 325 (quoting United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014)). “[F]ailure to establish any one of the prongs is fatal to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006). 6 1.
discussed Cited as authority (rule) United States v. Livingstone
uscgcoca · 2018 · confidence medium
See, e.g., United States v. Norwood, 71 M.J. 204 , 206–07 (C.A.A.F. 2012). 5 R.C.M. 920(e)(1); United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014) (holding that the military judge’s failure to instruct on all elements constituted plain error). 10 United States v. Anthony J.
discussed Cited as authority (rule) United States v. Keeter
N.M.C.C.A. · 2018 · confidence medium
Proper instructions to the members are a question of law we review de novo. 29 We evaluate a military judge’s instructions “in the context of the overall message conveyed” to the members. 30 When, as here, the appellant “fails to preserve the instructional error by an adequate objection or request, 26 Record at 445. 27 Id. at 426. 28 Appellant’s Brief of 5 Sep 2017 at 19-21. 29 United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014). 30 See United States v. Prather, 69 M.J. 338, 344 (C.A.A.F. 2011) (internal quota- tion marks omitted) (quoting Humanik v. Beyer, 871 F.2d 432, 441 (3d C…
cited Cited as authority (rule) United States v. Watkins
N.M.C.C.A. · 2018 · confidence medium
Where there is no objection to an instruction at trial, we review for plain error.” United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citations omitted).
cited Cited as authority (rule) United States v. Gonzalez-Starks
N.M.C.C.A. · 2018 · confidence medium
United States v. Payne, 73 M.J. 19, 23-24 (C.A.A.F. 2014) (citing United States v. Tunstall, 72 M.J. 191, 193-94 (C.A.A.F. 2013)). 1.
cited Cited as authority (rule) United States v. Private E2 ANTHONY M. BODOH
A.C.C.A. · 2018 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citations omitted).
discussed Cited as authority (rule) United States v. Staff Sergeant ANTHONY T. POWELL
A.C.C.A. · 2018 · confidence medium
United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013). “‘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.” United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014) (quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)).
cited Cited as authority (rule) United States v. Specialist ROBERT S. AVERY
A.C.C.A. · 2017 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014) (citations omitted).
discussed Cited as authority (rule) United States v. Specialist RICARDO A. MORALES
A.C.C.A. · 2017 · confidence medium
Before the panel deliberated on findings, the military judge instructed the members they could consider evidence of the charged sexual assault offenses “for their bearing on any matter to which it is relevant in relation to other sexual assault charges[,]” and they may also consider such evidence “for its tendency, if any, to show [appellant’s] propensity or predisposition to engage in other sexual assaults.” 3 The military judge did not, however, provide a spillover instruction to the panel. 4 In its findings argument, the government revisited a theme introduced during its opening s…
discussed Cited as authority (rule) United States v. Delaney
N.M.C.C.A. · 2017 · confidence medium
King, 58 M.J. at 114 . ‘“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.”’ United States v. Davis, 76 M.J. 224, 230 (C.A.A.F. 2017) (quoting United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014)). “[T]he failure to establish any one of the prongs is fatal to a plain error claim.” United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006).
discussed Cited as authority (rule) United States v. Evans
N.M.C.C.A. · 2017 · confidence medium
At trial, counsel repeatedly referred to “good” military character, though the new MILITARY RULE OF EVIDENCE 404(a)(2)(A), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) identifies such evidence as “general” military character. 13 Record at 420. 14 Id. at 452; AE XLVI at 6. 6 United States v. Evans, No. 201600111 237, 239-40 (C.A.A.F. 2017);15 see also United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017) (holding that failure to request a required instruction or otherwise object to the final form of instructions constitutes forfeiture, and reviewing courts will test for plain …
cited Cited as authority (rule) United States v. Christopher
N.M.C.C.A. · 2017 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014).
cited Cited as authority (rule) United States v. Williams III
N.M.C.C.A. · 2017 · confidence medium
United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014).
discussed Cited as authority (rule) United States v. Motsenbocker (2×) also: Cited "see, e.g."
N.M.C.C.A. · 2017 · confidence medium
Our analysis of Article 120(b)(1)(B), however, applies equally to the appellant’s convictions for abusive sexual contact under Article 120(d), UCMJ, which states: “Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.” Consequently, since the appellant’s convictions for abusive sexual contact each alleged a “bodily harm” theory of liability, we incorpo…
discussed Cited as authority (rule) U.S. V.WILEY
N.M.C.C.A. · 2017 · confidence medium
United States v. Feliciano, 76 M.J. 237, 239-40 (C.A.A.F. 2017); see also United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017) (holding that failure to request a required instruction or otherwise object to the final form of instructions constitutes forfeiture and reviewing courts will test for plain error). ‘“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.”’ Davis, 76 M.J. at 230 (quoting United States v. Payne, 73 M.J.…
examined Cited as authority (rule) United States v. Davis (3×) also: Cited "see"
C.A.A.F. · 2017 · confidence medium
See, e.g., Johnson v. United States, 520 U.S. 461, 468-69 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (reviewing instructional error for “plain error” where no objection was made at trial); United States v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014) (reviewing failure to give a required instruction on an element of an offense for plain error); United States v. Tunstall, 72 M.J. 191, 193-94 (C.A.A.F. 2013) (reviewing failure to give a required instruction on a lesser included offense for plain error);' United States v. Eckhojf, 27 M.
discussed Cited as authority (rule) United States v. Sergeant ANTHONY J. PATTON
A.C.C.A. · 2017 · confidence medium
United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014); United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013); United States v. Simpson, 56 M.J. 462, 465 (C.A.A.F. 2002); Davis, 75 M.J. at 543-44 ; R.C.M. 920(f) 1 Under our superior court’s plain error jurisprudence, “‘[a]ppellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.’” McClour, 76 M.J. at 25 (quoting United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014)). “‘[T]he failure to establish any one of the prongs is fatal to a plain e…
discussed Cited as authority (rule) United States v. Rodriguez (2×) also: Cited "see"
N.M.C.C.A. · 2017 · confidence medium
United States v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014).
cited Cited as authority (rule) United States v. Knox
uscgcoca · 2016 · confidence medium
United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014).
cited Cited as authority (rule) United States v. Knox
uscgcoca · 2016 · confidence medium
United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014).
cited Cited as authority (rule) United States v. Staff Sergeant TIMOTHY A. SKAGGS
A.C.C.A. · 2016 · confidence medium
United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014); see United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011); see also United States v. Davis, 75 M.J. 537, 544 (Army Ct. Crim.
Retrieving the full opinion text from the archive…
UNITED STATES, Appellee
v.
Robert M. PAYNE, Staff Sergeant, U.S. Air Force, Appellant
13-0345/AF.
Court of Appeals for the Armed Forces.
Jan 6, 2014.
73 M.J. 19
For Appellant: Captain Nicholas D. Carter (argued)., For Appellee: Captain Thomas J. Alford (argued); Colonel Don Christensen and Gerald R. Bruce (on brief).
Erdmann, Baker, Stucky, Ryan, Effron.
Cited by 102 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 84%
Citer courts: Air Force Court of Criminal Ap… (1)
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[*21] 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 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, 10 U.S.C. § 934 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 sheriffs 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 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[*22] 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 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 “ ‘[cjhild pornography’ means any visual depiction of a minor engaging in sexually explicit conduct,” and that “ ‘[sexually 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, the panel must be convinced beyond a reasonable doubt that Payne “specifically intended that ‘Marley [1] 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 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. [*23] 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 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 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] identify] 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] 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.’”[*24] 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 b

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 Sheriffs 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) 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(e), UCMJ. Having held that the alleged instructional error was not preserved at trial and having identified the élements 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 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.”

[*25] 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 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 Manee, 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 Manee, Payne would appear to be entitled to relief.

However, since we decided Manee in 1988, the Supreme Court addressed this issue in Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (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 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 Manee 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 Manee 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 Manee 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[*26] elements were both “uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” Neder, 527 U.S. at 17, 119 S.Ct. 1827. [10]

Decision

The decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

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).
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 Courts-Martial, 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.”).

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.

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).

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).

8

. The first element of attempt is that "the accused did a certain overt act.” MCM pt. IV, para. 4.b.(l). This element was covered by the military judge’s instruction that the members must find that Payne "attempted to persuade ... ‘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.” 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.”

9

. In Neder, the Supreme Court reviewed under a "harmless error” standard as Neder had objected at trial. 527 U.S. at 15, 119 S.Ct. 1827.

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 "[ujnless 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....”