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).