U.S. v. Allen, 50 M.J. 84

Trial Stages: Pretrial: Charges and Specifications

1. when the government charges “on or about”, the government is not required to prove a specific date alleged; although not specific, proof of the identical time frame alleged in a specification is not a material variance

Trial Stages: Merits: Findings

1. to prevail on a claim of variance between pleadings and proof an appellant must show that the variance was material and that it substantially prejudiced him; to show prejudice, an appellant must show that he was misled by the language of the specification such that he was unable to adequately prepare for trial, and that he is at risk of another prosecution for the same offense

Trial Stages: Appeals: Remedies › Rehearing

1. After consolidating three rape specifications, rehearing on sentence was not necessary where: (1) evidence indicated that intercourse occurred “more than once” rather than on specific dates; (2) the multiple findings did not increase the maximum punishment; (3) the sentence adjudged included offenses other than rape and was well below the maximum; and (4) Court was confident that members sentenced appellant based on evidence of the course of conduct reflected in the consolidated specification

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. although charged with three specifications of rape on divers occasions during three specific time periods, evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (1979), to sustain finding of a consolidated specification that appellant committed rape on more than one occasion during a single, expanded time frame
2. to prevail on a claim of variance between pleadings and proof an appellant must show that the variance was material and that it substantially prejudiced him; to show prejudice, an appellant must show that he was misled by the language of the specification, unable to adequately prepare for trial, and at risk of another prosecution for the same offense