2021 (October Term)
United States v. Givens, 82 M.J. 211 (generally, any person subject to the UCMJ may prefer charges; however, the accuser must state that the charges are true in fact to the best of his knowledge and belief; under RCM 307(b), through the accuser’s signature, preferral signifies that a person has sworn an oath to assure that they have either personal knowledge of or investigated the matters set forth in the charges and specifications).
(a person who has been ordered or coerced into preferring charges becomes an accuser within the meaning of Article 1(9), UCMJ, and an accuser is disqualified from acting as a convening authority in that case).
(RCM 905(b)(1) requires that any pretrial motion asserting defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing, must be raised before a plea is entered; thus, challenges alleging defects in the preferral of the charges must be raised prior to entry of pleas).
(at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver).
(if a commander is coerced into preferring charges that he does not believe are true, the charges are treated as unsigned and unsworn).
(claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause).
United States v. Simmons, 82 M.J. 134 (the military is a notice pleading jurisdiction).
(stating on a charge sheet the date of an alleged offense with a certain degree of specificity and accuracy is required; moreover, such a step is essential to the fundamental fairness of the criminal justice process because it provides an accused with adequate and proper notice of the government’s proffer of evidence, and thereby informs the accused of what he or she needs to defend against at trial; it is the government that controls the charge sheet from the inception of the charges through the court-martial itself, and there are rules that govern when and how the government may amend the charges and specifications; the government does not have authority to ignore those rules simply because they are inconvenient; accordingly, it is the government that has both the opportunity and the responsibility to ensure that the dates in the charges and specifications align with the facts of the case so that an accused is not misled as to the offenses charged).
2019 (October Term)
United States v. Moore, 79 M.J. 483 (nothing in Article 43, UCMJ, suggests that a charge or specification that was timely when received by the officer exercising summary court-martial jurisdiction might become untimely if the convening authority makes changes to the charge or specification that are authorized by Article 34(c), UCMJ; on the contrary, Article 43, UCMJ, says nothing about amendments, even though amendments are very common; this silence leads to the conclusion that Congress chose not to create a different rule for when the statute of limitations is tolled in cases where the convening authority makes authorized amendments; likewise, when a convening authority makes changes to charges or specifications that are authorized by Article 34(c), UCMJ, nothing in the language of that article suggests that the convening authority is creating a new charge or specification as opposed to merely amending an existing charge or specification; and Article 34(c), UCMJ, does not indicate in any way that a properly amended charge or specification must go back to the officer exercising summary court-martial jurisdiction to toll the statute of limitations, or that the date of amendment marks the date when the original charge or specification was considered received by that officer; if Congress had intended either of those results, Congress easily could have indicated when changes create new charges and what effect creating new charges would have on the statute of limitations; the silence in Article 34(c), UCMJ, about these subjects leads to the conclusion that changes to charges and specifications that are authorized by Article 34(c), UCMJ, do not affect the application of the statute of limitations; furthermore, precedent in US v. Arbic [16 C.M.A. 292, 36 C.M.R. 448 (1966)] supports this position).
(prior to 2019, RCM 603(d) specified that if major changes were made to a specification, the specification must be preferred anew; in US v. Stout [79 M.J. 168 (CAAF 2019)], the CAAF held that RCM 603 did not apply when a convening authority amends a specification under Article 34(c), UCMJ, prior to referring it to trial; as amended in 2019, the current version of RCM 603 permits changes to charges and specifications prior to referral regardless of whether they are major or minor).
United States v. Turner, 79 M.J. 401 (when an accused servicemember is charged with an offense at court-martial, each specification will be found constitutionally sufficient only if it alleges, either expressly or by necessary implication, every element of the offense, so as to give the accused notice of the charge against which he must defend and protect him against double jeopardy).
(the lens through which an appellate court evaluates the sufficiency of a specification differs depending on when counsel first raised the issue; when a charge and specification are first challenged at trial, the wording will be read narrowly and interpretations will only be adopted that hew closely to the plain text; hewing closely to the plain text means that only the language contained in the specification will be considered in deciding whether it properly states the offense in question; however, a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; under the latter scenario, the specification will be viewed with maximum liberality).
(if a specification fails to state an offense, the appropriate remedy is dismissal of that specification unless the government can demonstrate that this constitutional error was harmless beyond a reasonable doubt).
(although 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, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense).
(a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; although failure of a specification to state an offense is a fundamental defect which can be raised at any time, specifications are liberally construed in favor of validity when they are challenged for the first time on appeal).
(although a claim that a specification fails to state an offense may be made at any time, if the claim is first raised after trial, then the deficient specification will be viewed with greater tolerance and will be liberally construed in favor of validity).
(as soon as the finder of fact announces a guilty verdict regarding a facially deficient specification, the trial has ended, and the liberal construction and greater tolerance standards apply).
(what it means to liberally construe a specification in favor of validity and to view it with greater tolerance is to view the specification with maximum liberality; when a failure to state an offense claim is first raised after trial, the claim will fail absent a clear showing of substantial prejudice to the accused - such as a showing that the specification is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had).
(in this case, where the government sought to charge appellant with the offense of attempted premeditated murder, one of the elements of the completed offense of premeditated murder under Article 118, UCMJ, was that the killing was unlawful; however, the specification on the charge sheet failed to explicitly allege that the attempted killing was unlawful (and also failed to cite Article 118, UCMJ, in the text of the specification); because this element of the completed offense of premeditated murder was not alleged expressly, in order to state an offense, the specification had to allege that the killing was unlawful by necessary implication such that appellant would have been aware of the nature of the underlying target or predicate offense; in analyzing whether the specification here failed to state an offense, because the claim was first raised after trial, the deficient specification is viewed with greater tolerance and is liberally construed in favor of validity; when viewed with maximum liberality, it is a reasonable construction of the charged language (“did … attempt to kill with premeditation by Specialist [C.S.G.] by means of shooting her with a loaded firearm, causing grievous bodily harm”), that appellant was being charged with the offense of attempted premeditated murder (i.e., an unlawful killing); although a deployed soldier may lawfully use force to kill an enemy combatant, here the specification notified appellant that he was charged with an attempt to kill a fellow soldier (an unlawful target), and not an enemy combatant, and that the attempt occurred in the United States, and not on a battlefield; as such, the unlawfulness element of the offense was sufficiently alleged by necessary implication).
2018 (October Term)
United States v. Stout, 79 M.J. 168 (Article 34, UCMJ, specifically allows the government to make changes to the charges and specifications to bring them into alignment with the evidence adduced by the pretrial investigation; the words of Article 34 are clear and unambiguous: before referral, changes may be made to conform the specifications to the evidence contained in the report of the Article 32 investigating officer).
United States v. English, 79 M.J. 116 (it is the government’s responsibility, by virtue of its control of the charge sheet, to place the accused on notice of the offense he must defend against).
United States v. Nicola, 78 M.J. 223 (under RCM 906(b)(6), appellant could have requested a bill of particulars to obtain more precise information about the government’s theory or theories of liability).
2017 (October Term)
United States v. Armstrong, 77 M.J. 465 (to prepare a defense, the accused must have notice of what the government is required to prove for a finding of guilty; the charge sheet provides the accused notice that he or she will have to defend against any charged offense and specification).
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).
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).
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
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).
2006
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).
2004
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).
2002
(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).
1999United 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).