U.S. v. Finch, 64 M.J. 118

Core Criminal Law Subjects: Crimes: Article 81 - Conspiracy Pre-2019 offenses

1. although an overt act is an element of the offense of conspiracy, it is not the core of the offense; rather, its purpose as an element is to demonstrate that the agreement to commit a crime –- which is the inherent nature of the offense of conspiracy -- is alive and in motion

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Voluntariness

1. the failure of a military investigator to notify appellant’s civilian counsel before interrogating appellant to afford his counsel the opportunity to be present at the interrogation, even though the investigator knew that appellant was represented by counsel, did not render appellant’s subsequent statements involuntary under Article 31(d), UCMJ, overruling United States v. McOmber, and accepting MRE 305(e) as controlling authority
2. MRE 305(e) provides for two situations where counsel must be present during an interrogation, absent waiver: (1) custodial interrogations and (2) post-preferral interrogation

Trial Stages: Merits: Findings

1. failure to object at trial to exceptions and substitutions made at findings constitutes waiver of that issue in the absence of plain error
2. to prevail on a fatal-variance claim, appellant must show that the variance was material and that it substantially prejudiced him
3. 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
4. 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
5. 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
6. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. 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
2. an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo; if there has been a denial of due process, appellant is entitled to relief unless the court is convinced that the error was harmless beyond a reasonable doubt; where an appellate court can determine that any violation of the due process right to speedy post-trial review and appeal is harmless beyond a reasonable doubt, it need not undertake the four-factor Barker analysis prior to disposing of that post-trial or appellate delay issue

Trial Stages: Appeals: Preservation of Error / Plain Error

1. failure to object at trial to exceptions and substitutions made at findings constitutes waiver of that issue in the absence of plain error
2. when an objection is waived at trial, it can only be reviewed by establishing plain error
3. there are three elements for the plain error test: (1) that there was an error, (2) that the error was plain, that is, clear or, equivalently, obvious, and (3) the plain error affected substantial rights
4. 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

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

1. failure to object at trial to exceptions and substitutions made at findings constitutes waiver of that issue in the absence of plain error
2. there are three elements for the plain error test: (1) that there was an error, (2) that the error was plain, that is, clear or, equivalently, obvious, and (3) the plain error affected substantial rights
3. to prevail on a fatal-variance claim, appellant must show that the variance was material and that it substantially prejudiced him
4. 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
5. 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
6. an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo; if there has been a denial of due process, appellant is entitled to relief unless the court is convinced that the error was harmless beyond a reasonable doubt; where an appellate court can determine that any violation of the due process right to speedy post-trial review and appeal is harmless beyond a reasonable doubt, it need not undertake the four-factor Barker analysis prior to disposing of that post-trial or appellate delay issue

Trial Stages: Appeals: Waiver

1. failure to object at trial to exceptions and substitutions made at findings constitutes waiver of that issue in the absence of plain error

Miscellaneous Matters: Speedy Trial: Post-Trial

1. an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo; if there has been a denial of due process, appellant is entitled to relief unless the court is convinced that the error was harmless beyond a reasonable doubt; where an appellate court can determine that any violation of the due process right to speedy post-trial review and appeal is harmless beyond a reasonable doubt, it need not undertake the four-factor Barker analysis prior to disposing of that post-trial or appellate delay issue

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. a change in a rule cannot supplant a statute, including a statutorily based judicial decision