2020 (October Term)
United States v. Norwood, 81 M.J. 12 (a court-martial must reach a decision based only on the facts in evidence).
2018 (October Term)
United States v. English, 79 M.J. 116 (a variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge; where a variance exists, RCM 918(a)(1) permits a factfinder to enter findings of guilty with exceptions and substitutions, so long as the exceptions and substitutions are not used to substantially change the nature of the offense).
(exceptions and substitutions pursuant to RCM 918 may only be made by the factfinder at the findings portion of the trial).
United States v. Nicola, 78 M.J. 223 (under RCM 918(a), a general finding of guilt does not indicate the facts upon which the finding rests).
(in this general court-martial consisting of officer members, appellant could not have requested special findings as to matters of fact because, under RCM 918(b), special findings are authorized only in courts-martial composed of a military judge alone).
(a factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt).
2016 (October Term)
United States v. Rosario, 76 M.J. 114 (the members are permitted to independently consider evidence supporting a charge of which an appellant is acquitted while deliberating on other charges).
2015 (September Term)
United States v. Clark, 75 M.J. 298 (the military judge of a judge alone court-martial shall make a general finding and shall in addition on request find the facts specially).
United States v. Riggins, 75 M.J. 78 (under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged).
2014 (September Term)
United States v. Norman, 74 M.J. 144 (a factfinder may permissibly conclude that the same piece of evidence proves more than one element of a charged crime, so long as this conclusion is reached independently with respect to each element).
(in this case concerning a contested child endangerment offense, where the military judge properly instructed the members with the standard instruction in the Military Judges’ Benchbook verbatim, advising them that in order to convict appellant, they must find that under the circumstances the conduct of the accused was of a nature to bring discredit upon the armed forces and where the members could permissibly consider evidence of the charged conduct when evaluating the terminal element, excluding the Marine MP’s testimony regarding his opinion of service discrediting conduct, without more, did not necessitate reversing appellant’s conviction for lack of independent evidence of the terminal element; there was no unconstitutional presumptive conclusion because the military judge properly instructed the members of the court as to the elements of the offense, and did not require them to find proof of the terminal element simply because the government provided proof of the underlying conduct).
United States v. Piolunek, 74 M.J. 107 (in US v. Barberi, 71 MJ 127 (CAAF 2012), CAAF set aside a general verdict for possession of child pornography; because four of six images presented to the members were found by the CCA not to constitute child pornography, CAAF reasoned that Stromberg v. California, 283 US 359 (1931), required it to set aside the verdict because it could not know whether the members based their verdict on those images; this case was wrongly decided; Barberi was not a case of Stromberg error; this case abrogates Barberi).
(in this case, where appellant was found guilty wrongfully and knowingly receiving and possessing visual depictions of a sexually explicit nature of a minor child on divers occasions in violation of clause 2 of Art. 134, UCMJ, the military judge instructed members that it was their role to find which, if any, images in question exhibited the features that met the definition of minors engaging in sexually explicit conduct; absent an unconstitutional definition of criminal conduct, flawed instructions, or evidence that members did not follow those instructions, none of which are present here, there is simply no basis in law to upset the ordinary assumption that members were well suited to assess the evidence in light of the military judge’s instructions).
(convictions by general verdict for possession and receipt of visual depictions of a minor engaging in sexually explicit conduct on divers occasions by a properly instructed panel need not be set aside after the CCA decides several images considered by the members do not depict the genitals or pubic region; this case involves a straightforward application of the “general verdict rule;” the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; the record shows that the members were required to determine whether one or more of the twenty-two images constituted sexually explicit conduct based on the definition and explanation given by the military judge; the members then convicted appellant of possession and receipt of one or more depictions on divers occasions; because the CCA found that the evidence was legally and factually sufficient with respect to nineteen of the twenty-two images, and with no reason to disturb well-settled precedent on the application of the general verdict rule, appellant’s conviction stands).
2013 (September Term)
United States v. Treat, 73 M.J. 331 (RCM 918(a)(i) explicitly authorizes a court-martial to make findings by exceptions and substitutions; however, at times this authority lies in tension with an accused’s constitutional right to receive fair notice of what he is being charged with).
(in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the variance in the amended offense was material because the exceptions and substitutions substantially changed the nature of the offense; by charging a specific aircraft in the original charging document, the specific flight number became an integral part of an element of the offense).
(in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the material variance in the amended offense did not prejudice appellant and was not fatal, where his defense was squarely focused on the assertion that he was prevented from moving with his unit because he was kidnapped, his defense counsel did not claim in any manner that appellant was not present on the date of his unit’s movement because he was unaware of the specific aircraft he was supposed to be on or the unit he was supposed to move with, and right from the beginning of the case, appellant channeled his efforts into convincing first the investigators and then the court-martial that, as stated by defense counsel in her opening statement, appellant did not intend to miss the movement, but he was prevented from going with his unit because of what had happened to him; while defense counsel did mention the lack of evidence of the flight number in her closing argument, she did not channel her efforts into disproving the Flight TA4B702 element; furthermore, despite citing the lack of proof that it was specifically Flight TA4B702 that appellant missed, defense counsel did not move pursuant to RCM 917 for a finding of not guilty on that particular charge; finally, the defense has not identified any different trial strategy it might have employed if appellant originally had been charged with missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan; all indications are that appellant’s defense of impossibility due to kidnapping would have remained precisely the same whether or not he was charged per the original specification or per the exceptions and substitutions, and there is no reasonable possibility that the verdict in this case would have been any different; accordingly, appellant was not denied the opportunity to defend against the charge on which he was convicted).
United States v. Elespuru, 73 M.J. 326 (where the government charged and tried abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof because it believed the abusive sexual contact specification was more difficult to prove, both convictions may not stand and the finding of guilty for wrongful sexual contact must be disapproved).
(when a panel returns guilty findings for two specifications and it was agreed that these specifications were charged for exigencies of proof, it is incumbent either to consolidate or dismiss a specification).
(dismissal of specifications charged for exigencies of proof is particularly appropriate given the nuances and complexity of Article 120, UCMJ, which make charging in the alternative an unexceptional and often prudent decision).
United States v. Paul, 73 M.J. 274 (it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case).
(an accused is entitled to have each element of the charged crime established at trial).
2011 (September Term)
United States v. Vela, 71 M.J. 283 (even though the members must keep the evidence of each offense separate, if evidence has been presented which is relevant to more than one offense, they may consider that evidence with respect to each offense to which it is relevant).
United States v. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside).
(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision).
(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict).
(where four out of six images introduced by the government in support of appellant’s conviction for possession of child pornography in violation of Article 134 were constitutionally protected and where it is unknown which images formed the basis for the finding of guilt to the possession of child pornography charge and the finding may have been based on the constitutionally protected images, the general verdict of guilt must be set aside).
(the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered).
2010 (September Term)
United
States v. Flores, 69 M.J. 366 (in a guilty
plea context, a military judge
who has advised an accused that she is waiving her right against
self-incrimination only to those offenses to which she is pleading
guilty
cannot later rely on those statements as proof of a separate offense;
to do so
would compel an accused to incriminate herself in the separate criminal
proceeding).
United
States v. Ross, 68 M.J. 415 (a clear record
as to the occasion for which
an accused is found guilty is necessary when the words “on divers
occasions”
are excepted from findings).
(when the phrase “on divers
occasions” is
included in the charged specification but removed from the findings,
the effect
is that the accused has been found guilty of misconduct on a single
occasion
and not guilty of the remaining occasions).
(where appellant was charged
with possession
of child pornography on divers occasions during a particular time
period and
the military judge excepted from the specification the words “on divers
occasions” without further explanation, the findings were ambiguous;
although
excepting those words without explanation created ambiguous findings,
the
government could nevertheless prevail if the evidence was legally
insufficient
to show that appellant was guilty of possession with respect to two of
the
three seized electronic storage media; under those circumstances, as a
matter
of law, the military judge could have found appellant guilty of
possession with
respect to only one of the media - in other words, the verdict would be
unambiguous; but here, where the evidence was legally sufficient with
respect
to the presence of child pornography on two of the storage media, the
fact
remains that an appellate court could not know what the military judge
found
appellant guilty and not guilty of, or indeed whether he found
appellant not
guilty of anything at all; under these circumstances, a proceeding in
revision
is not permitted, and dismissal of the charge and its specification
with
prejudice is required).
United
States v. Trew, 68 M.J. 364 (when the phrase
“on divers occasions” is
removed from a specification, the effect is that the accused has been
found
guilty of misconduct on a single occasion and not guilty of the
remaining
occasions; if there is no indication on the record which of the alleged
incidents forms the basis of the conviction, then the findings of guilt
are
ambiguous).
(a finding on the guilt or
innocence of the
accused is not final until it is formally and correctly announced in
open
court; the general findings of a court-martial state whether the
accused is
guilty of each offense charged; one or more words or figures may be
excepted
from a specification, and, when necessary, others substituted, if the
remaining
language of the specification, with or without substitutions, states an
offense
by the accused which is punishable by court-martial; if an error was
made in
the announcement of the findings of the court-martial, the error may be
corrected
by a new announcement in accordance with RCM 922; the error must be
discovered
and the new announcement made before the final adjournment of the
court-martial
in the case; in the context of a judge-alone trial, clarification of
the
ambiguity can be accomplished by a clear statement on the record by the
military judge as to which alleged incident formed the basis of the
conviction).
(a military judge’s findings
of guilty to the
LIO of assault consummated by a battery on a child under 16 years, when
initially announced, did not reference the charged “divers occasions”
language
in the specification; however, trial counsel immediately asked for a
clarification of those findings with regard to the divers occasions
language;
when the military judge responded that it was “on the one occasion,”
she made
clear on the record that her findings as to the LIO were only
applicable for
one event, rather than multiple incidents as charged; under the facts
of this
case, a formal recitation of exceptions and substitutions was not
necessary
because of the military judge’s clarification immediately following her
announcement of the findings; the clarification that it was “on the one
occasion,” amounted to a correction of the announcement of the findings
as
permitted by RCM 922).
(where a specification alleges
wrongful acts
on “divers occasions,” the members must be instructed that any findings
by
exceptions and substitutions that remove the “divers occasions”
language must
clearly reflect the specific instance of conduct upon which their
modified
findings are based; that can generally be accomplished through
reference in the
substituted language to a relevant date or other facts in evidence that
will clearly
put the accused and the reviewing courts on notice of what conduct
served as
the basis for the findings).
(in a judge-alone case, a
military judge can
clarify an ambiguity in the findings by making a clear statement on the
record
as to which alleged incident formed the basis of the conviction).
(in this case, the government
charged the
accused with indecent acts on “divers occasions,” introduced evidence
of more
than one occasion, and argued in both opening and closing statements
that at
least two incidents had occurred; when the military judge clarified
that her
guilty findings to the LIO of assault consummated by a battery on a
child under
16 years were for “one occasion,” she should have made a clear
statement on the
record as to which alleged incident formed the basis of the conviction;
the
military judge’s failure to do so resulted in fatally ambiguous
finding).
United
States v. Lubasky, 68 M.J. 260 (a variance
between pleadings and proof exists
when evidence at trial establishes the commission of a criminal offense
by the
accused, but the proof does not conform strictly with the offense
alleged in
the charge).
(a
change in the subject of the larceny at the appellate stage of review
may
not be analyzed and upheld as a nonfatal variance:
under the UCMJ and the RCMs, “variance”
occurs at trial, not the appellate level; while an appellate court may
affirm
an LIO to larceny under Article 59, UCMJ, larceny from one person is
not an LIO
of larceny from another person).
United
States v. Burton, 67 M.J. 150 (an accused may
not be convicted of a crime
based on a general criminal disposition).
(trial counsel’s suggestion
during closing
argument on findings that the members of the panel could compare the
similarities between the charged sex offenses for a propensity to
commit these
types of offenses and see the accused’s modus operandi was improper
argument;
although the charged offenses were themselves the proper subject of
closing
argument, the underlying conduct had not been offered or admitted under
MRE 404
or 413 [allowing character evidence when offered first by the accused,
allowing
evidence of other crimes to show motive, opportunity, intent,
preparation,
plan, knowledge, identity, or absence of mistake, and allowing evidence
of
prior sexual assaults when the accused is charged with a sexual assault
offense], and as such, trial counsel’s invitation to the panel to
compare the
charged offenses to find modus operandi or propensity was improper).
United
States v. Wilson, 67 M.J. 423 (when the phrase
“on divers occasions” is
removed from a specification, the effect is that the accused has been
found
guilty of misconduct on a single occasion and not guilty of the
remaining
occasions; if there is no indication on the record which of the alleged
incidents forms the basis of the conviction, then the findings of guilt
are
ambiguous and the court of criminal appeals cannot perform a factual
sufficiency review).
(where the military judge
found appellant
guilty of the specification of rape after multiple incidents of rape
were
charged in that specification and presented at trial, and where the
military
judge excepted the words “on divers occasions” from the specification
in her
findings, she was required to indicate the single incident for which
she
convicted appellant; because the record did not contain either
substituted
language or a statement on the record that would identify the specific
incident
for which the military judge convicted appellant, without such
clarification,
the findings were fatally ambiguous).
(clarification of ambiguous
findings can
generally be accomplished through reference in the substituted language
to a
relevant date or other facts in evidence that will clearly put the
accused and
the reviewing courts on notice of what conduct served as the basis for
the
findings; in addition, in the context of a judge-alone trial,
clarification of
the ambiguity can be accomplished by a clear statement on the record by
the
military judge as to which alleged incident formed the basis of the
conviction).
United
States v. Marshall, 67 M.J. 418 (the military
judge’s findings created a fatal
variance where appellant pled not guilty to escaping from the custody
of one
individual but was convicted, by exceptions and substitutions, of
escaping from
the custody of another individual).
(to prevail on a fatal
variance claim, an
appellant must show both that the variance was material and that he was
substantially prejudiced thereby).
(a variance that is material
is one that
substantially changes the nature of the offense, increases the
seriousness of
the offense, or increases the punishment of the offense).
(a variance can prejudice an
appellant by (1)
putting him at risk of another prosecution for the same conduct, (2)
misleading
him to the extent that he has been unable adequately to prepare for
trial, or
(3) denying him the opportunity to defend against the charge).
(in an escape from custody
charge, a variance
substituting the identity of the custodian from whom appellant was
alleged to
have escaped was material; although the nature of the offense remained
the same
- escape from custody - by substituting the charged custodian with
another, the
military judge changed the identity of the offense against which the
accused
had to defend, and this denied him the opportunity to defend against
the
charge).
(in an escape from custody
charge, a material
variance in the custodian from whom appellant was alleged to have
escaped was
prejudicial where appellant could not have anticipated being forced to
defend
against the charge of which he was ultimately convicted; had appellant
known
that he would be called upon to refute an agency theory or to defend
against a
charge that he escaped from a different individual than the one
charged,
appellant was unlikely to have focused his defense and his closing
argument on
the lack of evidence that charged individual placed him in custody or
that he
escaped from the custody of the charged individual).
United
States v. Rodriguez, 66 M.J. 201 (when members
find an accused
guilty of an “on divers occasions” specification, they need only
determine that
the accused committed two acts that satisfied the elements of the crime
as
charged -- without specifying the acts, or how many acts, upon which
the
conviction was based).
(the longstanding common law
rule
is that when the factfinder returns a guilty verdict on an indictment
charging
several acts, the verdict stands if the evidence is sufficient with
respect to
any one of the acts charged; the rule is based on the presumption that
the
verdict attaches to each of the several alternative theories charged;
because
the verdict attaches to all theories, the verdict may stand despite
trial
errors if any one of the counts is good and warrants the judgment).
United
States v. Brown, 65 M.J. 356 (with minor
exceptions for capital cases, a
court-martial panel, like a civilian jury, returns a general verdict
and does
not specify how the law applies to the facts, nor does the panel
otherwise
explain the reasons for its decision to convict or acquit; in returning
such a
general verdict, a court-martial panel resolves the issue presented to
it: did the accused commit the offense
charged,
or a valid lesser included offense, beyond a reasonable doubt; a
factfinder may
enter a general verdict of guilt even when the charge could have been
committed
by two or more means, as long as the evidence supports at least one of
the
means beyond a reasonable doubt).
(military criminal practice
requires neither
unanimous panel members, nor panel agreement on one theory of
liability, as
long as two-thirds of the panel members agree that the government has
proven
all the elements of the offense).
2006
United
States v. Finch, 64 M.J. 118 (failure to object
at trial to exceptions and substitutions made at findings constitutes
waiver of that issue in the absence of plain error).
(to prevail on a
fatal-variance claim, appellant must show that the variance was
material and that it substantially prejudiced him).
(a variance that is material
is one that, for instance, substantially changes the nature of the
offense, increases the seriousness of the offense, or increases the
punishment of the offense).
(with respect to the two-part
material variance test, the critical question is one of prejudice; the
prejudice prong consists of a two-part analysis: (1) has the accused
been misled to the extent that he has been unable adequately to prepare
for trial; and (2) is the accused fully protected against another
prosecution for the same offense).
(in this case, the military
judge’s finding of guilty by exceptions and substitutions did not
result in a material variance with respect to the offense of conspiracy
to violate a general order by providing alcohol for consumption to a
delayed entry trainee, where the military judge’s exceptions and
substitutions did not substantially change the nature of the offense;
the primary difference between the charged offense and the offense of
which the military judge found appellant guilty went to the acts taken
in furtherance of that conspiracy -– specifically, in the location of
the consumption of the alcohol that was provided and the exact manner
by which it was provided; minor variances, such as the location of the
offense or the date upon which an offense is allegedly committed, do
not necessarily change the nature of the offense and in turn are not
necessarily fatal).
(even assuming there was a
material variance between the pleadings and the findings, appellant
failed to show prejudice stemming from that error, where the change in
the description of the alleged overt acts taken in furtherance of that
conspiracy did not prejudice appellant -- that is, it neither misled
appellant in preparing or presenting his defense, nor failed to protect
him against a subsequent prosecution for the same misconduct; because
appellant failed to establish any prejudice by demonstrating that he
was misled as to (1) what he had to defend against at trial, or (2)
whether he could be tried again for the same offense or a similar one,
there was no plain error).
United States v. Alexander, 63 M.J. 269 (the court-martial
announces its findings on each charge and specification following the
presentation of evidence, closing arguments, instructions, and
deliberations; the findings do not expressly incorporate the text of
the charges and the underlying specifications; instead, the findings
constitute a decision by the factfinder whether the government has met
its burden of proof beyond a reasonable doubt as to the charged offense
or as to any lesser included offense).
United States v. Cendejas,
62 M.J. 334 (where the military judge found the accused guilty of
possessing eight images that met the existing definition of child
pornography under the Child Pornography Prevention Act, a definition
that included portions later found unconstitutional, his general
finding of could not be upheld because it cannot not be determined on
appeal whether the military judge only relied on those portions of the
statutory definition of child pornography later found constitutional).
2005
United
States v. Augspurger, 61 M.J. 189 (when a servicemember is charged
with
illegal conduct “on divers occasions” and the members find the accused
guilty
of charged conduct but strike out the “on divers occasions” language,
the
effect of the findings is that the accused has been found guilty of
misconduct
on a single occasion and not guilty of the remaining occasions).
(the military judge should ensure that the members’ findings, as
announced, are
clear as to the factual basis for an offense; first, the military judge
should
properly instruct the members that if they except the “divers occasion”
language from a specification, they need to make clear which allegation
was the
basis for their guilty finding; second, after the military judge
examines the
findings worksheet but prior to announcement, the military judge should
ask the
members to clarify any ambiguous findings; once the findings of a
court-martial
have been announced, any finding that amounts to a finding of not
guilty is not
subject to reconsideration or a post-trial session such as a proceeding
in
revision).
(it is the responsibility of military judges to ensure that any
ambiguities in
findings are clarified before the findings are announced, and if they
fail to
do so, the appellate courts cannot rectify that error).
United
States v. Scheurer, 62 M.J. 100 (when an accused is charged with
committing
illegal conduct on divers occasions and the court-martial finds the
accused
guilty of charged conduct but strikes out the on divers occasions
language, the
effect of the findings is that the accused has been found guilty of
misconduct
on a single occasion and not guilty of the remaining occasions; thus,
where a
divers occasions specification is converted to a one occasion
specification,
the finder of fact should substitute language into the specification to
clearly
put the accused and the reviewing courts on notice of what conduct
served as
the basis for the findings).
2004
United
States v. Lovett, 59 MJ 230 (a variance between
pleadings and
proof exists when evidence at trial establishes the commission of a
criminal
offense by the accused, but the proof does not conform strictly with
the
offense alleged in the charge; the Rules for Courts-Martial
authorize findings
by exceptions and substitutions, with the caveat that they may not be
used to
substantially change the nature of the offense or to increase the
seriousness
of the offense or the maximum punishment for it).
(minor
variances
that do not change the nature of the offense are not necessarily fatal;
where,
however, an appellant can demonstrate that a variance is material and
that he
was prejudiced, the variance is fatal and the findings thereon cannot
stand;
prejudice may arise from a material variance if an appellant can show
that the
variance puts him at risk of another prosecution for the same conduct,
or
alternatively, if he can show that his due process protections have
been
violated where he was misled to the extent that he has been unable
adequately
to prepare for trial, or where the variance at issue changes the nature
or
identity of the offense and he has been denied the opportunity to
defend
against the charge).
(upon
receiving a charge of soliciting the murder of his wife, appellant’s
defense
team channeled its efforts in the direction of solicitation of
premeditated
murder, in order to defeat the Government’s attempt to prove
premeditated
murder beyond a reasonable doubt; given the explicit language of the
charge,
appellant could not have anticipated conviction for a lesser-included
offense
of soliciting a person to wrongfully prevent his wife from appearing in
a
judicial proceeding; because he lacked notice to prepare an adequate
defense,
there was a fatal variance between the precise specification as
charged, and
the general findings as returned by the members).
(we
hold that a soliciting murder charge did not put appellant on notice to
defend
against a lesser-included offense of soliciting the commission of
obstruction
of justice; consequently, there was a fatal variance between the
specification
as charged and the members’ ultimate findings).
United
States v. Roberts, 59 MJ 323 (it is well accepted that
circumstantial evidence is sufficient to sustain a finding of guilt).
United
States v. Thompson,
59 MJ 432 (when the panel
announced its
findings in open court, those findings were final and were not subject
to
reconsideration by the members; to the extent that a military judge may
clarify
an ambiguous finding, any such authority is not applicable in the
present case;
the military judge had instructed the members that they could return a
verdict
of guilty to the lesser-included offense of indecent acts with a child;
he also
had instructed them that they could find appellant guilty if they
determined
that these acts occurred at any time between September 1, 1992, and
March 1,
1996; they returned a verdict in which their findings mirrored the
military
judge’s instruction both as to the lesser-included offense of indecent
acts and
the full period of time from September 1, 1992, to March 1, 1996; there
was no
ambiguity; the findings were clear; the problem was not that the
military judge
permitted an ambiguous verdict; the problem was that, absent a statute
of
limitations waiver, the military judge was required to provide the
members with
instructions that focused their deliberations on a much narrower period
of time
-- January 3, 1995, to March 1, 1996 -- the period not barred by the
statute of
limitations; the time to focus the members’ attention on the correct
time
period was before they concluded their deliberations -- not after they
concluded their deliberations and returned a finding that addressed a
much
longer span of time; the failure to do so was not relieved by the
military
judge’s subsequent reference to evidence in the record that could
support the
finding; the issue here is not legal sufficiency of the evidence; it is
the
failure of the military judge to focus the panel’s deliberations on the
narrower time period permitted by the statute of limitations).
(where
the
panel’s findings were not ambiguous, the military judge was not
authorized to
modify them, irrespective of any subsequent discussions with the
members).
2003
United
States v. Teffeau, 58 MJ 62 (variance between
pleadings
and proof exists when evidence at trial establishes the commission of a
criminal offense by the accused, but the proof does not conform
strictly with
the offense alleged in the charge; the MCM anticipates the
potential for
a variance by authorizing findings by exceptions and substitutions; but
findings by exceptions and substitutions may not be used to
substantially
change the nature of the offense or to increase the seriousness of the
offense
or the maximum punishment for it).
(minor variances, such as the location of the offense or the date
upon which
an offense is allegedly committed, do not necessarily change the nature
of the
offense and in turn are not necessarily fatal; where, however, an
appellant can
demonstrate that a variance is material and that he or she was
prejudiced, the
variance is fatal and the findings thereon can not stand).
(prejudice can arise from a material variance in a number of ways:
appellant
may show that the variance puts him at risk of another prosecution for
the same
conduct; and appellant may show that his due process protections have
been
violated where he was misled to the extent that he has been unable
adequately
to prepare for trial, or where the variance at issue changes the nature
or
identity of the offense and he has been denied the opportunity to
defend
against the charge).
(to the extent that the Court's opinion in United States v. Allen,
50
M.J. 84 (C.A.A.F. 1999) could be read to require that appellant must
show both
that he or she was misled and that the variance put appellant at risk
of
another prosecution, the Court now makes it clear that a dual showing
is not
required and that these are alternative forms of demonstrating error).
(where a conviction is predicated upon a different incident than the
one
originally alleged in the specification, such a conviction violates due
process; prejudice flows from any material variance that changes the
very
nature of the offense in issue and impacts upon an accused’s ability to
defend
against the charge against him; when a material variance deprives an
accused of
the fundamental right to due process, he has been prejudiced).
United
States v. Walters, 58 MJ 391 (when a specification
alleging instances of misconduct on divers occasions is involved,
findings by
exceptions and substitutions eliminating all but one instance are a
distinct
possibility; both trial practitioners and military judges need to be
aware of
the potential for ambiguous findings in such cases and take appropriate
steps
through instruction and pre-announcement review of findings to ensure
that no
ambiguity occurs).
(while the R.C.M. 922 discussion indicates that the military judge
can seek
clarification of ambiguous findings after announcement, a verdict which
excepts
"divers occasions" and substitutes on "one occasion"
involves a dual finding of guilty and not guilty; once announced, the
latter
aspect of the verdict clearly becomes final and cannot be reconsidered;
in
order to avoid any uncertainty as to when post-announcement
"clarification" under R.C.M. 922 crosses the line into prohibited
"reconsideration" under R.C.M. 924, ambiguities in this type of
verdict should be resolved prior to announcement).
1999