TRIAL STAGES: Pretrial: Charges and Specifications

2017 (October Term)

United States v. Mangahas, 77 M.J. 220 (an accused is subject to the statute of limitations in force at the time of the offense). 

(statutes of limitations represent the legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them; thus, in the realm of criminal prosecution, after a certain time, no quantum of evidence is sufficient to convict; in addition, criminal statutes of limitations are to be liberally interpreted in favor of repose). 

2016 (October Term)

United States v. Reese, 76 M.J. 297 (Part IV, para. 60.c.(5)(a) of the MCM prohibits the government from using Article 134, UCMJ, to charge offenses that are listed in the UCMJ outside of Article 134; however, preemption under part IV, para. 60.c.(5)(a) is distinct from the provisions of part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c), of the MCM, prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework). 

United States v. Oliver, 76 M.J. 271 (an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice).   

2015 (September Term)

United States v. Rapert, 75 M.J. 164 (mens rea is Latin for guilty mind and refers to the state of mind an accused had when committing a crime; at common law, in order to secure a conviction the prosecution was required to prove two essential elements: the actus reus (or the guilty act) and the mens rea of the accused; this concept reflects the basic principle that wrongdoing must be conscious to be criminal and that an accused must be blameworthy in mind before he can be found guilty; thus, mens rea is the rule of, rather than the exception to, Anglo-American criminal jurisprudence). 

(the fact that a statute prohibiting communicating a threat does not specify any required mental state does not mean that none exists; federal criminal liability generally does not turn solely on the results of an act without considering an accused’s mental state; federal criminal statutes that are silent on the required mental state must be read to require only that mens rea which is necessary to separate wrongful conduct from otherwise lawful conduct; absent this requirement, liability would turn on whether a reasonable person regards the communication as a threat, which would reduce culpability on the all-important element of the crime to mere negligence). 

United States v. Gifford, 75 M.J. 140 (the existence of a mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence; the contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion but is instead universal and persistent in mature systems of law; if, at trial, the government is not required to prove that an accused had knowledge of the facts that make his or her actions criminal in order to secure a conviction, then the underlying crime is properly deemed a strict liability offense; while strict-liability offenses are not unknown to the criminal law, the limited circumstances in which Congress has created and appellate courts have recognized such offenses attest to their generally disfavored status). 

(on the basis of the general disfavor for strict liability offenses, silence in a criminal statute - or a general order - does not prevent mens rea from being inferred; while courts should ordinarily resist reading words or elements into a statute that do not appear on its face, the mere omission from a criminal enactment of any mention of criminal intent should not be read as dispensing with it; rather, an indication of congressional intent is required to dispense with mens rea; thus, a mens rea requirement has been inferred by courts in instances where it was necessary to separate wrongful conduct from otherwise innocent conduct - even when the text of a statute was otherwise silent). 

(the general rule that the government must prove an accused’s mens rea in order to secure a criminal conviction is not without exception; in limited circumstances, Congress may purposefully omit from a statute the need to prove an accused’s criminal intent, and courts are then obligated to recognize this congressional intent and conform their rulings accordingly; in certain instances, this class of legislation produces what is known as a “public welfare offense,” that uniquely focuses on “social betterment” or “proper care” rather than punishment). 

(whether mens rea is a necessary facet of the crime is a question of legislative intent to be construed by the court; if such an intent can be identified, courts must construe the relevant statute accordingly). 

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (in a capital case, failing to charge aggravating factors regarded as elements is an Apprendi error subject to harmless error review to determine whether the constitutional error was harmless beyond a reasonable doubt; where appellant preserved the charging issue at trial, the government bears the burden of establishing the error was harmless beyond a reasonable doubt; a specification’s failure to allege an element is not harmless if this error frustrated an accused’s right to notice and opportunity to zealously defend himself). 

(in a capital case, an aggravating factor that renders an accused eligible for death is the functional equivalent of an element of a greater offense; the Fifth Amendment’s due process clause and the Sixth Amendment’s notice and jury trial guarantees require any fact that increases the maximum penalty for a crime to be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt

United States v. Bennitt, 74 M.J. 125 (an accused has a right to be tried and heard on the specific charges of which he is accused). 

2013 (September Term)

United States v. Leahr, 73 M.J. 364 (the convening authority or a superior competent authority may for any reason cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced; charges which are withdrawn from a court-martial should be dismissed unless it is intended to refer them anew promptly or to forward them to another authority for disposition).    

(when a commander dismisses charges, further disposition under RCM 306(c) of the offenses is not barred).  

(in order for a withdrawn charge to be dismissed, RCM 604(a) contemplates that an additional affirmative action will be taken by the convening authority).   

(charges are ordinarily dismissed by lining out and initialing the deleted specifications or otherwise recording that a specification is dismissed).   

(when charges are dismissed, the RCMs contemplate that reinstitution of charges requires the command to start over; the charges must be re-preferred, investigated, and referred as though there were no previous charges or proceedings; in other words, once charges are dismissed, reinstitution of charges requires the command to start over at a new trial). 

(under RCM 604(a), the convening authority may for any reason cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced; charges that have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawal was for an improper reason). 

(a proper reason for withdrawal of charges is a legitimate command reason which does not unfairly prejudice an accused). 

(withdrawal of charges for the purpose of judicial economy by trying all known charges in a single trial is proper where an accused was not unfairly prejudiced). 

(ordinarily all known charges should be referred to a single court-martial). 

(in this case, the convening authority withdrew the charges out of anticipation of the possibility that a new allegation would cause appellant to become the subject of a newly preferred additional charge and out of a desire for appellant to be tried on all charges at a single trial to best serve the interests of justice and promote judicial economy; this reasoning aligns with the proper reason of promoting judicial economy and referring all known charges to a single court-martial; consequently, the convening authority’s reasoning for the withdrawal and subsequent dismissal was proper; additionally, the withdrawal and dismissal did not unfairly prejudice appellant where the new charges, like the dismissed charges, were referred to a general court-martial, the charges were not referred to a new military judge, appellant did not lose the benefit of favorable rulings, appellant was not in confinement, and the delay did not harm appellant’s ability to present his defense at the second court-martial). 

(under RCM 601(e)(2), while additional charges may be joined with other charges for a single trial at any time before arraignment, after arraignment of the accused upon charges, no additional charges may be referred to the same trial without consent of the accused).

United States v. Merritt, 72 M.J. 483 (a servicemember must have fair notice that his conduct is punishable before he can be charged under Article 134 with a service discrediting offense). 

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (where an Article 134, UCMJ, specification neither expressly alleges nor necessarily implies the terminal element, the specification is defective). 

(an Article 134, UCMJ, specification that fails to plead the terminal element does not put an accused on fair notice of which clause or clauses of the terminal element he must defend against).

(to punish conduct that is to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, the government must establish (1) a predicate act or failure to act, and (2) the terminal element; in charging an Article 134, UCMJ, offense, language describing (1) does not fairly imply (2)).  

(RCM 907(b)(1)(B) establishes that the failure to state an offense is grounds for dismissing the charge). 

United States v. Goings, 72 M.J. 202 (in a contested case involving an Article 134, UCMJ, offense, the terminal element must be pleaded or fairly implied, and the allegation of the act itself is insufficient to support a fair implication of the terminal element).

(Article 134, UCMJ, has two elements: (1) a predicate act or failure to act, and (2) a terminal element; the terminal element of an Article 134, UCMJ, offense may not be fairly implied from nothing more than the language describing the alleged act or failure to act itself). 

United States v. Tunstall, 72 M.J. 191 (the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; the Due Process Clause of the Fifth Amendment also does not permit convicting an accused of an offense with which he has not been charged).

2011 (September Term)

United States v. Rauscher, 71 M.J. 225 (a fundamental purpose of a specification is to provide notice to an accused as to the matters against which he must defend). 

(even assuming that the charged specification alleging an assault with intent to commit murder under Article 134, UCMJ, was defective for failing to allege the terminal element of conduct prejudicial to good order and discipline or service discrediting conduct, the specification clearly alleged every element of the lesser included offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, where the specification alleged (1) that appellant did bodily harm to the victim by stabbing him in the hand and chest, (2) that he did so with a knife, (3) that the bodily harm was done with unlawful force or violence, without authorization or justification, and (4) that the weapon was used in a manner likely to produce death or grievous bodily harm - stabbing the victim in the chest; the specification clearly placed appellant on notice of that against which he had to defend, and the government’s theory of the case from beginning to end was that appellant stabbed the victim with a knife in the hand and chest; appellant defended against this theory throughout the trial; appellant proposed instructions for the Article 128 offense and did not object to the instructions given by the military judge; in closing, defense counsel even asked the panel to closely look at Article 128 because that was much more aligned with what happened; through these actions, appellant demonstrated that he was on notice, and his substantial right to be tried only on charges presented in a specification was not violated).

(in order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial; he may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute). 

United States v. Humphries, 71 M.J. 209 (a specification charging the accused with adultery in violation of Article 134, UCMJ, was defective where it omitted the terminal element of that offense, i.e., conduct prejudicial to good order and discipline or service discrediting conduct). 

(while a specification that fails to properly allege an element of a charged offense is defective, and while such a defect affects constitutional rights, it does not constitute structural error subject to automatic dismissal). 

(the apparently straightforward language of RCM 907(b)(1)(B), which provides that a charge or specification shall be dismissed at any stage of the proceedings if the specification fails to state an offense, does not survive the erosion of the legal basis for its existence and thus mandate automatic dismissal of a defective specification; a rule should not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction; other rules, even if important and mandatory, should not be given the jurisdictional brand). 

(a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice). 

United States v. Norwood, 71 M.J. 204 (in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense; in this regard, Article 134 predicate offenses should not be treated differently in pleadings under Article 80 or 81 from the enumerated offenses in Articles 83 through 132). 

(a charge and specification are sufficient if they, first, contain the elements of the offense charged and fairly inform an accused of the charge against which he must defend, and, second, enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense; a specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication). 

United States v. Nealy, 71 M.J. 73 (when a convening authority refers a charge to a court-martial, any LIOs of that charge are referred with it, and need not be separately charged and referred). 

United States v. King, 71 M.J. 50 (in reviewing the adequacy of a specification, the analysis is limited to the language as it appears in the specification, which must expressly allege the elements of the offense, or do so by necessary implication). 

United States v. Ballan, 71 M.J. 28 (major changes or amendments to charges or specifications may not be made over the objection of an accused unless the charge or specification affected is preferred anew; in this case, changing the charge from a violation of Article 120, UCMJ, to a violation of Article 134, UCMJ, was, a major change; however, appellant not only did not object to the change, he proposed the change in his pretrial agreement, explained to the military judge why he was guilty before the plea was accepted, and benefited from the amendment; appellant’s actions were the equivalent of agreeing to an amendment to the charge and specification, even though the charge sheet itself was not physically amended). 

United States v. Pierce, 70 M.J. 391 (clause 3 offenses under Article 134, UCMJ, involve noncapital crimes or offenses which violate Federal law; when alleging a clause 3 violation, each element of the federal statute must be alleged expressly or by necessary implication).

2010 (September Term)

United States v. Fosler, 70 M.J. 225 (to establish a violation of Article 134, UCMJ, the government must prove beyond a reasonable doubt both that the accused engaged in certain conduct and that the conduct satisfied at least one of three listed criteria; the latter element is commonly referred to as the terminal element of Article 134 and the government must prove that at least one of the article’s three clauses has been met:  that the accused’s conduct was (1) to the prejudice of good order and discipline, (2) of a nature to bring discredit upon the armed forces, or (3) a crime or offense not capital; if the government fails to allege at least one of the three clauses either expressly or by necessary implication, the charge and specification fail to state an offense under Article 134). 

(the military is a notice pleading jurisdiction; a charge and specification will be found sufficient if they, first, contain the elements of the offense charged and fairly inform an accused of the charge against which he must defend, and, second, enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense). 

(a specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication; this requirement ensures that an accused understands what he must defend against). 

(an accused charged under Article 134 must be given notice as to which clause or clauses he must defend against; this requirement is based on fair notice). 

(minor and technical deficiencies are not fatal to a charge and specification, assuming they do not prejudice the accused). 

(the discussion in the MCM stating that the allegation of the terminal element of Article 134 in a specification is not required is not intended to be binding; the government must allege every element expressly or by necessary implication, including the terminal element). 

(when the phrase “Article 134” appears in the charge, the charge and specification do not allege the terminal element expressly or by necessary implication; to the extent that prior decisions such as Mayo (12 MJ 286 (CMA 1982)) and Marker (1 CMA 393, 3 CMR 127 (1952)) hold to the contrary, they are overruled). 

(because an accused must be notified which of the three clauses under Article 134, UCMJ, he must defend against, to survive an RCM 907 motion to dismiss, the terminal element must be set forth in the charge and specification).

2009 (September Term)

United States v. Morton, 69 M.J. 12 (it is the government’s responsibility to determine what offense to bring against an accused; aware of the evidence in its possession, the government is presumably cognizant of which offenses are supported by the evidence and which are not; in some instances, there may be a genuine question as to whether one offense as opposed to another is sustainable; in such a case, the prosecution may properly charge both offenses for exigencies of proof, a long accepted practice in military law).

United States v. Jones, 68 M.J. 465 (an offense is not necessarily included in, a subset of, or an LIO of a charged greater offense when it has no elements in common with the elements of the charged offense but is nonetheless either listed as an LIO in the MCM or has been held by this Court to be an LIO on some other ground). 


(the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged; if indeed an LIO is a subset of the greater charged offense, the constituent parts of the greater and lesser offenses should be transparent, discernible ex ante, and extant in every instance). 

(it is for Congress to define criminal offenses and their constituent parts; one offense either is or is not an LIO, necessarily included in another offense). 


(determinations as to what constitutes a federal crime, and the delineation of the elements of such criminal offenses, including those found in the UCMJ, are entrusted to Congress). 

United States v. Sutton, 68 M.J. 455 (a specification states an offense if it alleges, either expressly or by implication, every element of the offense, so as to give the accused notice and protection against double jeopardy).

(a specification alleging that appellant asked his 10-year-old stepdaughter to lift her shirt to show him her breasts failed to state the offense of solicitation to commit indecent liberties with a child because the victim could not commit the offense of indecent liberties with a child on herself).

2008 (September Term)

United States v. Smead, 68 M.J. 44 (as a general matter, withdrawal of charges, by itself, does not preclude reinstatement of the withdrawn charges in a subsequent trial unless the withdrawal was for an improper reason). 


(at a rehearing on findings and sentence, convening authority could not revive charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA; the remand for a rehearing did not return the parties to status quo ante, but was instead based on the government’s failure to comply with a PTA term involving the effective date of the reduction in rank). 

2008 (Transition)

United States v. Lopez de Victoria, 66 M.J. 67 (in 2003, Congress amended Article 43(b)(1), UCMJ, to except from the general five-year statute of limitations certain child abuse offenses, listed in Article 43(b)(2)(B), UCMJ, including indecent acts and liberties with a child; the statute of limitations for these offenses would expire when the child reached the age of twenty-five years; a further amendment in 2006 changed the limitation period to the greater of the life of the child or five years after the offense). 


(the 2003 congressional amendment to the statute of limitations, Article 43(b), UCMJ, 10 USC § 843(b), that extended the statute of limitations for child abuse offenses from five years to a child victim’s twenty-fifth birthday, does not apply retroactively to offenses committed before the amendment’s effective date, considering the lack of any indication of congressional intent to apply the 2003 amendment retrospectively, the general presumption against retrospective legislation in the absence of such an indication, and the general presumption of liberal construction of criminal statutes of limitation in favor of repose). 


United States v. Mack, 65 M.J. 108 (a servicemember who violates one or more of the conditions of pretrial restriction may be charged with an offense under the UCMJ). 

United States v. Tippit
, 65 M.J. 69 (the act of withdrawing a referred charge from a court-martial under RCM 604 does not produce dismissal of the charges; when charges are withdrawn under RCM 604, they remain in effect). 

(in this case, although the SJA recommended that the convening authority “withdraw” the charges and the convening authority wrote “concur,” this is not a case where the convening authority had the option of either dismissal or withdrawal; with respect to the disposition choices in his recommendation, the SJA provided the convening authority with only one option with respect to dismissal or withdrawal –- that is, dismissal –- and he used common language which has the same colloquial meaning as dismissal; the parties agreed that the charges had not been referred to a court-martial at the time of the convening authority’s action, and that the convening authority could not “withdraw” the charges from a court-martial as a matter of law under RCM 604; although use of the word “withdrawal” to implement a dismissal of charges is not recommended, the SJA’s accurate presentation of dismissal as an option and the convening authority’s decision to concur were sufficient to dismiss the charges and stop the RCM 707 speedy trial clock). 

(the existence of parallel investigations of the accused by multiple agencies and the decision to await their completion to fully ascertain the number and nature of offenses constituted a legitimate reason for dismissing the charges with a view towards later re-preferral).

United States v. Crafter, 64 M.J. 209 (a specification states an offense if it alleges, either expressly or by implication, every element of the offense, so as to give the accused notice and protection against double jeopardy). 

(a specification that is susceptible to multiple meanings is different from a specification that is facially deficient; although a facially deficient specification cannot be saved by reference to proof at trial or to a rule referenced in the specification, it is appropriate to consider such matters in the case of a specification susceptible to multiple meanings). 

(the true test of the sufficiency of a specification is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the accused of what he must be prepared to meet; and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction).

(the declaration in a bribery specification that appellant, a prison guard, accepted money “for” arranging a male prisoner’s private meeting with a female friend was sufficient to allege the intent to influence or induce an official act, an element of the offense at issue, where (1) the specification cited the specific regulation allegedly violated by appellant and that citation clarified that appellant was charged with accepting money with the intent to influence or induce his actions, and (2) the record demonstrated that appellant was on notice of the charge where defense counsel affirmatively addressed the element of whether appellant had the intent to induce or influence an official act, arguing to the panel that the evidence was insufficient, and the military judge instructed the members -- without defense objection -- on the elements of the offense of bribery, including the requirement that appellant acted with intent to influence or induce). 


United States v. Alexander, 63 M.J. 269 (the format of charge and specification is used to allege violations of the UCMJ; the charge is a legal citation, while the specification sets forth the alleged facts constituting the charged offense; the charge sheet, which contains the charges and specifications, provides the basis for referral and arraignment and is included in the record of trial).


United States v. Parker, 59 MJ 195 (minor changes to charges and specifications after arraignment are permitted prior to the announcement of findings, but major changes may not be made over the objection of the accused).

(charges and specifications may be modified during deliberations on findings; the panel, or the military judge in a bench trial, may modify the charges and specifications under the authority to make exceptions and substitutions; this power may be used to conform the findings to the evidence, but it may not be used to substantially change the nature of the offense).

(changing the date or place of the offense may, but does not necessarily, change the nature or identity of the offense).


United States v. Barner, 56 MJ 131 (when the government pleads an offense "on or about," it is not required to prove the exact date, if a date reasonably near is established).

United States v. Simpson, 56 MJ 462 (the military justice system encourages the joinder of all known offenses at one trial and permits a motion for severance of offenses only to prevent manifest injustice).


United States v. Rogers
, 54 MJ 244 (specification charged under Article 133, conduct unbecoming an officer, was not void for vagueness where it failed to allege a violation of a regulation or custom of the service which forbade an unprofessional relationship of inappropriate familiarity between a commander and a subordinate officer; the Constitution does not require that a regulation of custom of the service be established, with the possible exception of officer-enlisted “fraternization cases charged under Article 133 instead of Article 134).

(officer charged with conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity between a himself and a subordinate officer was on fair notice that his conduct was punishable under Article 133 where a nonpunitive regulation gave examples of unprofessional relationships and where that officer had had occasion to discuss and apply the standards relating to personal relationships).

(specification alleging conduct unbecoming an officer for having an unprofessional relationship of inappropriate familiarity with a subordinate officer did not fail to state an offense because it did not specify the acts which constituted the unprofessional relationship; the acts did not constitute the relationship, rather they evidenced that relationship, and appellant was notice of those acts which were set forth in a Bill of Particulars as supplemented by the Article 32 investigating officer’s report).


United States v. Allen, 50 MJ 84 (when the government charges “on or about”, the government is not required to prove a specific date alleged; although not specific, proof of the identical time frame alleged in a specification is not a material variance).

United States v. Savage, 50 MJ 244 (distribution of a controlled substance necessarily includes possession with the intent to distribute, and Congress did not intend to punish a servicemember twice for essentially the same act).

United States v. McDaniels, 50 MJ 407 (specification alleging disobedience of lawful order stated an offense where appellant, who was diagnosed as suffering from narcolepsy, was ordered not to drive a POV; the order had a valid military purpose and was neither overly broad nor an impermissible burden on appellant’s personal rights).

United States v. Hargrove
, 51 MJ 408 (minor offenses may not be escalated in severity by charging them as violations of orders or the willful disobedience of superiors; see paragraph 16e(2)(Note), Part IV, Manual for Courts-Martial, United States (1998 ed.).

United States v. Kerr, 51 MJ 401 (there is a three-pronged test to assess the danger of spillover from either improper joinder or evidence of uncharged acts:  (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and, (3) whether the findings reflect an impermissible crossover).

United States v. Robbins, 52 MJ 159) (preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132, UCMJ, where Congress has occupied the field of a given type of misconduct, set the minimum requirements for such offenses, and intended that some other punitive article cover a class of offenses in a complete way).

(preemption doctrine prohibits assimilating crimes under Article 134 if two questions are answered in the affirmative:  (1) did Congress intend to limit prosecution for wrongful conduct within a particular area or field to offenses defined in specific articles of the Code; and, (2) is the offense charged composed of a residuum of elements of a specific offense and asserted to be a violation of either Articles 133 or 134, UCMJ.  See United States v. McGuinness, 35 MJ 149 (1992)).

(the analysis for determining whether assimilation is permissible includes:  (1) asking whether the defendants conduct is made punishable by any enactment of Congress?; and, (2) if the answer to the first inquiry is “yes”, then ask whether the federal statutes that apply to the act or omission preclude application of the state law in question or, put differently, does the applicable federal law indicate an intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue?  See Lewis v. United States, 523 U.S. 155, 164-66 (1998)).

(an Ohio statute prohibiting “the unlawful termination of another’s pregnancy as a proximate result of the offender’s committing or attempting to commit a felony” was properly assimilated into Article 134 through the Assimilative crimes act where the Ohio statute specifically distinguished the unlawful termination of the fetus from the traditional offense of manslaughter and Congress has not specifically proscribed the killing of a fetus in either the UCMJ or the Federal Criminal Code).

(an Ohio statute prohibiting “the unlawful termination of another’s pregnancy as a proximate result of the offender’s committing or attempting to commit a felony” was cognizable by a court-martial under this Court’s analysis set forth in United States v. McGuinness, 35 MJ 149 (1992), because:  (1) the offense is not a residuum of elements of a specific offense, but instead is a separate offense proscribed by the Ohio Revised Code; (2) the Ohio statute does not conflict with congressional intent to preempt the field; (3) the Ohio statute does not enlarge or redefine an offense already proscribed by Congress; and, (4) the Ohio statute creates a new offense that is distinct and fills a gap in the criminal law).

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