U.S. v. Ballan, 71 M.J. 28

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge may not accept a plea of guilty until the elements of each offense charged have been explained to the accused and unless the military judge has questioned the accused to ensure that he understands and agrees that the acts or the omissions constitute the offense or offenses to which he is pleading guilty

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (b) Rape of a Child

1. indecent acts with a child is not an LIO of rape of a child

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

1. while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused
2. whether specifications for charged violations of Article 134, UCMJ, may be upheld in the guilty plea context where the terminal element is not alleged cannot be answered by determining that the act that an accused did or failed to do, is inherently, impliedly, or as a matter of common sense, prejudicial to good order and discipline or service discrediting
3. the terminal element of an Article 134, UCMJ, offense, which may be charged in three different ways, is an actual and distinct element; as such, the terminal element, like any element of any criminal offense, must be separately charged and proven
4. a violation of any of the three clauses of Article 134, UCMJ, does not necessarily lead to a violation of the other clauses, and the principle of fair notice requires that an accused know to which clause he is pleading guilty, and against which clause or clauses he must defend; regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication
5. while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2

Trial Stages: Pretrial: Charges and Specifications

1. major changes or amendments to charges or specifications may not be made over the objection of an accused unless the charge or specification affected is preferred anew; in this case, changing the charge from a violation of Article 120, UCMJ, to a violation of Article 134, UCMJ, was, a major change; however, appellant not only did not object to the change, he proposed the change in his pretrial agreement, explained to the military judge why he was guilty before the plea was accepted, and benefited from the amendment; appellant’s actions were the equivalent of agreeing to an amendment to the charge and specification, even though the charge sheet itself was not physically amended

Trial Stages: Pretrial: Referral

1. action by the convening authority showing an intent to refer a particular charge to trial is sufficient to satisfy the jurisdictional requirement of the Rules for Court-Martial
2. each charge before the court-martial must be referred to it by competent authority; referral is defined as the order of a convening authority that charges against an accused will be tried by a specified court-martial
3. although the referral order is a jurisdictional prerequisite, the form of the order is not jurisdictional
4. where the convening authority refers one offense to court-martial on the charge sheet, but enters into a pretrial agreement whereby he agrees to accept a plea of guilty from appellant to a different charge that is also not an LIO of the original charge, a court-martial has jurisdiction over the latter offense because implicit in the convening authority’s entry into a pretrial agreement was his personal decision that the charge be referred to court-martial; the convening authority’s entry into the pretrial agreement was the functional equivalent of a referral order
5. major changes or amendments to charges or specifications may not be made over the objection of an accused unless the charge or specification affected is preferred anew; in this case, changing the charge from a violation of Article 120, UCMJ, to a violation of Article 134, UCMJ, was, a major change; however, appellant not only did not object to the change, he proposed the change in his pretrial agreement, explained to the military judge why he was guilty before the plea was accepted, and benefited from the amendment; appellant’s actions were the equivalent of agreeing to an amendment to the charge and specification, even though the charge sheet itself was not physically amended

Trial Stages: Merits: Guilty Pleas

1. in the context of a specification that was legally sufficient at the time of trial and to which a plea of guilty was entered and accepted, no prejudice is found and the providence of a plea will not be disturbed where the providence inquiry clearly delineates each element of the offense and shows that the appellant understood to what offense and under what legal theory he was pleading guilty, even if that specification is later determined to fail to allege an element of the offense because of intervening changes in the law
2. a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case
3. a military judge may not accept a plea of guilty until the elements of each offense charged have been explained to the accused and unless the military judge has questioned the accused to ensure that he understands and agrees that the acts or the omissions constitute the offense or offenses to which he is pleading guilty
4. the guilty plea process within the military justice system ensures that an appellant has notice of the offense of which he may be convicted and all elements thereof before his plea is accepted and, moreover, protects him against double jeopardy
5. while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2

Trial Stages: Merits: Pretrial Agreements

1. where the convening authority refers one offense to court-martial on the charge sheet, but enters into a pretrial agreement whereby he agrees to accept a plea of guilty from appellant to a different charge that is also not an LIO of the original charge, a court-martial has jurisdiction over the latter offense because implicit in the convening authority’s entry into a pretrial agreement was his personal decision that the charge be referred to court-martial; the convening authority’s entry into the pretrial agreement was the functional equivalent of a referral order

Trial Stages: Appeals: Harmless / Prejudicial Error

1. while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused
2. a jurisdictional defect goes to the underlying authority of a court to hear a case; however, where an error is procedural rather than jurisdictional in nature, an appellate court tests for material prejudice to a substantial right to determine whether relief is warranted
3. while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2

Trial Stages: Appeals: Preservation of Error / Plain Error

1. while the rules state that a charge or specification that fails to state an offense should be dismissed, a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error
2. in the context of a plain error analysis, appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of appellant

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

1. while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused
2. an appellate court reviews jurisdictional questions de novo
3. a jurisdictional defect goes to the underlying authority of a court to hear a case; however, where an error is procedural rather than jurisdictional in nature, an appellate court tests for material prejudice to a substantial right to determine whether relief is warranted
4. whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo
5. while in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, an appellate court views the specification with maximum liberality; such construction still does not permit the court to necessarily imply a separate and distinct element from nothing beyond allegations of the act or failure to act itself
6. while the rules state that a charge or specification that fails to state an offense should be dismissed, a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error
7. in the context of a plain error analysis, appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of appellant

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

1. indecent acts with a child is not an LIO of rape of a child