U.S. v. Miller, 67 M.J. 385

First Principles: Constitutional Matters: Generally

1. the Constitution requires that an accused be on notice as to the offense that must be defended against, and that only lesser included offenses that meet these notice requirements may be affirmed by an appellate court
2. the notice requirement is met when the elements of the lesser offense are a subset of the elements of the charged offense; an accused is by definition on notice of a lesser included offense because it is a subset of the greater offense alleged
3. the principle of fair notice mandates that an accused has a right to know to what offense and under what legal theory he will be convicted and that a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged; this precedent is consistent with the Constitution and Supreme Court precedent regarding due process

First Principles: Constitutional Matters: Due Process

1. appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process

Core Criminal Law Subjects: Crimes: Article 95 - Resistance, Flight, Breach of Arrest, and Escape Pre-2019 offenses

1. a simple disorder under Article 134, UCMJ, is not a lesser included offense of resisting apprehension under Article 95, UCMJ, because Article 134, UCMJ, has an element not present in Article 95, UCMJ; clauses 1 and 2 of Article 134, UCMJ, include the element that, in addition to doing or failing to do a certain act, “under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces” - an element not contained in the textual exposition of Article 95, UCMJ

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. the courts of criminal appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the UCMJ, may not affirm a conviction to a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles; Article 134, UCMJ, is not an “offense necessarily included” under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ
2. a simple disorder under Article 134, UCMJ, is not a lesser included offense of resisting apprehension under Article 95, UCMJ, because Article 134, UCMJ, has an element not present in Article 95, UCMJ; clauses 1 and 2 of Article 134, UCMJ, include the element that, in addition to doing or failing to do a certain act, “under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces” - an element not contained in the textual exposition of Article 95, UCMJ
3. clauses 1 and 2 of Article 134, UCMJ, are not per se included in every enumerated offense under the UCMJ, overruling United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000), United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997), and United States v. Foster, 40 M.J. 140 (C.M.A. 1994)

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. the courts of criminal appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the UCMJ, may not affirm a conviction to a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles; Article 134, UCMJ, is not an “offense necessarily included” under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ
2. a simple disorder under Article 134, UCMJ, is not a lesser included offense of resisting apprehension under Article 95, UCMJ, because Article 134, UCMJ, has an element not present in Article 95, UCMJ; clauses 1 and 2 of Article 134, UCMJ, include the element that, in addition to doing or failing to do a certain act, “under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces” - an element not contained in the textual exposition of Article 95, UCMJ
3. clauses 1 and 2 of Article 134, UCMJ, are not per se included in every enumerated offense under the UCMJ, overruling United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000), United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997), and United States v. Foster, 40 M.J. 140 (C.M.A. 1994)

Trial Stages: Appeals: Generally

1. appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial; to uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the courts of criminal appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the UCMJ, may not affirm a conviction to a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles; Article 134, UCMJ, is not an “offense necessarily included” under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ

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

1. whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. although MCM explanations of offenses are not binding on the CAAF, they are generally treated as persuasive authority, to be evaluated in light of the CAAF’s precedent

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. the courts of criminal appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the UCMJ, may not affirm a conviction to a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles; Article 134, UCMJ, is not an “offense necessarily included” under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ
2. the Constitution requires that an accused be on notice as to the offense that must be defended against, and that only lesser included offenses that meet these notice requirements may be affirmed by an appellate court
3. Article 79, UCMJ, provides that an accused may be found guilty of an offense necessarily included in the offense charged, and the MCM explanation of Article 79, UCMJ, advises that a lesser offense is included in a charged offense when the specification contains allegations which either expressly or by fair implication put the accused on notice to be prepared to defend against it in addition to the offense specifically charged
4. the notice requirement is met when the elements of the lesser offense are a subset of the elements of the charged offense; an accused is by definition on notice of a lesser included offense because it is a subset of the greater offense alleged
5. a simple disorder under Article 134, UCMJ, is not a lesser included offense of resisting apprehension under Article 95, UCMJ, because Article 134, UCMJ, has an element not present in Article 95, UCMJ; clauses 1 and 2 of Article 134, UCMJ, include the element that, in addition to doing or failing to do a certain act, “under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces” - an element not contained in the textual exposition of Article 95, UCMJ
6. the principle of fair notice mandates that an accused has a right to know to what offense and under what legal theory he will be convicted and that a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged; this precedent is consistent with the Constitution and Supreme Court precedent regarding due process
7. clauses 1 and 2 of Article 134, UCMJ, are not per se included in every enumerated offense under the UCMJ, overruling United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000), United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997), and United States v. Foster, 40 M.J. 140 (C.M.A. 1994)