U.S. v. Marshall, 67 M.J. 418

First Principles: Constitutional Matters: Due Process

1. the fact that two alternative theories of a case may both involve criminal conduct does not relieve the government of its due process obligations of notice to the accused and proof beyond a reasonable doubt of the offense alleged
2. fundamental due process demands that an accused be afforded the opportunity to defend against a charge before a conviction on the basis of that charge can be sustained

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

1. 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
2. the elements of escape from custody under Article 95, UCMJ, are as follows: (a) that a certain person apprehended the accused; (b) that said person was authorized to apprehend the accused; and (c) that the accused freed himself or herself from custody before being released by proper authority
3. 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
4. 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

Trial Stages: Merits: Findings

1. 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
2. to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby
3. 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
4. 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
5. 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
6. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. 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
2. 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

Trial Stages: Appeals: Preservation of Error / Plain Error

1. defense counsel’s motion for a finding of not guilty under RCM 917, on the ground that the proof varied from the charge, preserved the issue; the motion placed the fundamental issue - whether there was any evidence that the accused escaped from the custody of one individual rather than another - squarely before the military judge as trier of fact; once that motion was denied, appellant had no duty to engage in the empty exercise of repeating the objection after the military judge announced his findings

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

1. to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby
2. 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
3. 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

Trial Stages: Appeals: Waiver

1. forfeiture and waiver, although frequently conflated, are not the same
2. the purpose of the forfeiture rule is to ensure that the trial judge has the opportunity to rule on issues arising at trial, and to prevent the raising of such issues for the first time on appeal, after any chance to correct them has vanished