U.S. v. Jones, 68 M.J. 465

First Principles: Constitutional Matters: Due Process

1. the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged; if indeed an LIO is a subset of the greater charged offense, the constituent parts of the greater and lesser offenses should be transparent, discernible ex ante, and extant in every instance
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

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges must instruct the members on LIOs reasonably raised by the evidence

Core Criminal Law Subjects: Crimes: Article 79 - Conviction of Lesser Included Offenses Pre-2019 offenses

1. an offense is not necessarily included in, a subset of, or an LIO of a charged greater offense when it has no elements in common with the elements of the charged offense but is nonetheless either listed as an LIO in the MCM or has been held by this Court to be an LIO on some other ground
2. the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged; if indeed an LIO is a subset of the greater charged offense, the constituent parts of the greater and lesser offenses should be transparent, discernible ex ante, and extant in every instance
3. it is for Congress to define criminal offenses and their constituent parts; one offense either is or is not an LIO, necessarily included in another offense
4. in determining what constitutes a lesser-included offense in the military justice system, an appellate court applies the elements test and looks to whether the elements of the purported LIO are a subset of the elements of the charged offense; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements
5. 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
6. accuseds may be convicted of uncharged LIOs precisely because they are deemed to have notice
7. the offense of indecent acts is not an LIO of the offense of rape because the elements of rape do not include all (or indeed any) of the elements of indecent acts, notwithstanding that the accused may have been on notice of the possibility that he might be convicted of such an LIO where (1) the offense of indecent acts was held to be an LIO of rape by the CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed the offense of indecent acts as an LIO of rape; to the extent that Schoolfield and US v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law
8. suggesting that listing a criminal offense as an LIO within the MCM automatically makes it one, irrespective of its elements, ignores the very definition of a crime
9. an LIO, the subset necessarily included in the greater offense, must be determined with reference to the elements defined by Congress for the greater offense; however, this opinion does not, and should not, be read to question the President’s ability to list examples of offenses with which one could be charged under Article 134, UCMJ; the President in those instances is not defining offenses but merely indicating various circumstances in which the elements of Article 134 could be met; the President’s listing of offenses under Article 134 is persuasive authority to the courts, and offers guidance to judge advocates under his command regarding potential violations of the article
10. interpreting Article 79, UCMJ, to require the elements test for LIOs has the constitutionally sound consequence of ensuring that one can determine ex ante - solely from what one is charged with - all that one may need to defend against; this practice is surely preferable and more sound than judges at the trial and appellate levels making subjective judgments as to whether elements line up realistically

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. the offense of indecent acts is not an LIO of the offense of rape because the elements of rape do not include all (or indeed any) of the elements of indecent acts, notwithstanding that the accused may have been on notice of the possibility that he might be convicted of such an LIO where (1) the offense of indecent acts was held to be an LIO of rape by the CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed the offense of indecent acts as an LIO of rape; to the extent that Schoolfield and US v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law

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

1. an LIO, the subset necessarily included in the greater offense, must be determined with reference to the elements defined by Congress for the greater offense; however, this opinion does not, and should not, be read to question the President’s ability to list examples of offenses with which one could be charged under Article 134, UCMJ; the President in those instances is not defining offenses but merely indicating various circumstances in which the elements of Article 134 could be met; the President’s listing of offenses under Article 134 is persuasive authority to the courts, and offers guidance to judge advocates under his command regarding potential violations of the article

Core Criminal Law Subjects: Crimes: Article 134 -- Indecent Acts with Another Pre-2019 offenses

1. the offense of indecent acts is not an LIO of the offense of rape because the elements of rape do not include all (or indeed any) of the elements of indecent acts, notwithstanding that the accused may have been on notice of the possibility that he might be convicted of such an LIO where (1) the offense of indecent acts was held to be an LIO of rape by the CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed the offense of indecent acts as an LIO of rape; to the extent that Schoolfield and US v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law

Trial Stages: Pretrial: Charges and Specifications

1. an offense is not necessarily included in, a subset of, or an LIO of a charged greater offense when it has no elements in common with the elements of the charged offense but is nonetheless either listed as an LIO in the MCM or has been held by this Court to be an LIO on some other ground
2. the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged; if indeed an LIO is a subset of the greater charged offense, the constituent parts of the greater and lesser offenses should be transparent, discernible ex ante, and extant in every instance
3. it is for Congress to define criminal offenses and their constituent parts; one offense either is or is not an LIO, necessarily included in another offense
4. determinations as to what constitutes a federal crime, and the delineation of the elements of such criminal offenses, including those found in the UCMJ, are entrusted to Congress

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in the context of a plain error analysis, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right
2. in this case, the military judge committed plain error in instructing the members that the offense of indecent acts was an LIO of rape; conviction of an offense not charged was clearly prejudicial in the context of plain error analysis where the case was not tried on a theory of indecent acts and the military judge did not introduce the subject of indecent acts into the case until after the parties had completed their presentation of the evidence; the variance between what appellant was charged with and what he was convicted of was fatal: appellant was charged with rape, and nothing in that charge put appellant on notice that he also needed to defend against indecent acts

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

1. in determining what constitutes a lesser-included offense in the military justice system, an appellate court applies the elements test and looks to whether the elements of the purported LIO are a subset of the elements of the charged offense; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements

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

1. an offense is not necessarily included in, a subset of, or an LIO of a charged greater offense when it has no elements in common with the elements of the charged offense but is nonetheless either listed as an LIO in the MCM or has been held by this Court to be an LIO on some other ground
2. the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged; if indeed an LIO is a subset of the greater charged offense, the constituent parts of the greater and lesser offenses should be transparent, discernible ex ante, and extant in every instance
3. it is for Congress to define criminal offenses and their constituent parts; one offense either is or is not an LIO, necessarily included in another offense
4. in determining what constitutes a lesser-included offense in the military justice system, an appellate court applies the elements test and looks to whether the elements of the purported LIO are a subset of the elements of the charged offense; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements
5. 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
6. accuseds may be convicted of uncharged LIOs precisely because they are deemed to have notice
7. the offense of indecent acts is not an LIO of the offense of rape because the elements of rape do not include all (or indeed any) of the elements of indecent acts, notwithstanding that the accused may have been on notice of the possibility that he might be convicted of such an LIO where (1) the offense of indecent acts was held to be an LIO of rape by the CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed the offense of indecent acts as an LIO of rape; to the extent that Schoolfield and US v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law
8. suggesting that listing a criminal offense as an LIO within the MCM automatically makes it one, irrespective of its elements, ignores the very definition of a crime
9. an LIO, the subset necessarily included in the greater offense, must be determined with reference to the elements defined by Congress for the greater offense; however, this opinion does not, and should not, be read to question the President’s ability to list examples of offenses with which one could be charged under Article 134, UCMJ; the President in those instances is not defining offenses but merely indicating various circumstances in which the elements of Article 134 could be met; the President’s listing of offenses under Article 134 is persuasive authority to the courts, and offers guidance to judge advocates under his command regarding potential violations of the article
10. interpreting Article 79, UCMJ, to require the elements test for LIOs has the constitutionally sound consequence of ensuring that one can determine ex ante - solely from what one is charged with - all that one may need to defend against; this practice is surely preferable and more sound than judges at the trial and appellate levels making subjective judgments as to whether elements line up realistically