U.S. v. Gaskins, 72 M.J. 225

First Principles: Constitutional Matters: Generally

1. both the Fifth and Sixth Amendments ensure the right of an accused to receive fair notice of what he is being charged with
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

Core Criminal Law Subjects: Crimes: Article 128 - Assault Pre-2019 offenses

1. after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault

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

1. where an Article 134, UCMJ, specification neither expressly alleges nor necessarily implies the terminal element, the specification is defective
2. an Article 134, UCMJ, specification that fails to plead the terminal element does not put an accused on fair notice of which clause or clauses of the terminal element he must defend against
3. to punish conduct that is to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, the government must establish (1) a predicate act or failure to act, and (2) the terminal element; in charging an Article 134, UCMJ, offense, language describing (1) does not fairly imply (2)
4. in this case, it was plain and obvious error for the government not to allege the terminal element in the specifications under Article 134, UCMJ, alleging indecent acts with a child and indecent assault; even though evidence of the bad acts themselves may have been legally sufficient to prove the terminal element at trial, where the government failed to allege the terminal element, mention it during trial, or put on independent evidence of it, and appellant did not defend against it, appellant suffered material prejudice to his substantial right to notice and to defend himself; the argument that an accused is not prejudiced by the government’s failure to allege the terminal element because it is intuitive that the bad acts discredited the military runs contrary to long-established principles of fair notice; suggesting that there was no prejudice because the predicate acts were intuitively prejudicial to good order and discipline and service discrediting fails to recognize Article 134, UCMJ’s terminal element for what it is – a discrete element of a criminal offense; here, no direct evidence was put on to prove the terminal element; neither clause 1 nor 2 was directly or indirectly mentioned by either party until the military judge instructed the members on the elements of the Article 134, UCMJ, specifications, nor did the government proffer any physical evidence or witness testimony as to how appellant’s acts might have affected either his unit or the public’s opinion of the armed forces, nor did the defense indicate that they knew they were defending against either theory of liability; under these circumstances, both appellant and the appellate court lack knowledge of a matter of critical significance - namely, on which theory of criminality appellant was tried and convicted; because appellant was never given notice of the theory of criminality the government pursued, and no evidence was introduced on any theory, the errors in the Article 134, UCMJ, specifications were not cured; the government’s failure to allege the terminal element was thus plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against
5. in the context of a defective Article 134, UCMJ, specification raised for the first time on appeal, the failure to allege the terminal element is not necessarily structural error warranting automatic dismissal, but error that can be tested for prejudice

Core Criminal Law Subjects: Crimes: Article 134 -- Assault, Indecent Pre-2019 offenses

1. after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault

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

1. where an Article 134, UCMJ, specification neither expressly alleges nor necessarily implies the terminal element, the specification is defective
2. an Article 134, UCMJ, specification that fails to plead the terminal element does not put an accused on fair notice of which clause or clauses of the terminal element he must defend against
3. to punish conduct that is to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, the government must establish (1) a predicate act or failure to act, and (2) the terminal element; in charging an Article 134, UCMJ, offense, language describing (1) does not fairly imply (2)
4. in this case, it was plain and obvious error for the government not to allege the terminal element in the specifications under Article 134, UCMJ, alleging indecent acts with a child and indecent assault; even though evidence of the bad acts themselves may have been legally sufficient to prove the terminal element at trial, where the government failed to allege the terminal element, mention it during trial, or put on independent evidence of it, and appellant did not defend against it, appellant suffered material prejudice to his substantial right to notice and to defend himself; the argument that an accused is not prejudiced by the government’s failure to allege the terminal element because it is intuitive that the bad acts discredited the military runs contrary to long-established principles of fair notice; suggesting that there was no prejudice because the predicate acts were intuitively prejudicial to good order and discipline and service discrediting fails to recognize Article 134, UCMJ’s terminal element for what it is – a discrete element of a criminal offense; here, no direct evidence was put on to prove the terminal element; neither clause 1 nor 2 was directly or indirectly mentioned by either party until the military judge instructed the members on the elements of the Article 134, UCMJ, specifications, nor did the government proffer any physical evidence or witness testimony as to how appellant’s acts might have affected either his unit or the public’s opinion of the armed forces, nor did the defense indicate that they knew they were defending against either theory of liability; under these circumstances, both appellant and the appellate court lack knowledge of a matter of critical significance - namely, on which theory of criminality appellant was tried and convicted; because appellant was never given notice of the theory of criminality the government pursued, and no evidence was introduced on any theory, the errors in the Article 134, UCMJ, specifications were not cured; the government’s failure to allege the terminal element was thus plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against
5. in the context of a defective Article 134, UCMJ, specification raised for the first time on appeal, the failure to allege the terminal element is not necessarily structural error warranting automatic dismissal, but error that can be tested for prejudice

Trial Stages: Pretrial: Charges and Specifications

1. where an Article 134, UCMJ, specification neither expressly alleges nor necessarily implies the terminal element, the specification is defective
2. an Article 134, UCMJ, specification that fails to plead the terminal element does not put an accused on fair notice of which clause or clauses of the terminal element he must defend against
3. to punish conduct that is to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, the government must establish (1) a predicate act or failure to act, and (2) the terminal element; in charging an Article 134, UCMJ, offense, language describing (1) does not fairly imply (2)
4. RCM 907(b)(1)(B) establishes that the failure to state an offense is grounds for dismissing the charge

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a court of criminal appeals has discretion to order a sentencing rehearing in a general court-martial that had sentenced appellant to a dishonorable discharge and twelve years of confinement when the record of trial included a verbatim transcript but was incomplete because of the substantial omission of a sentencing exhibit due to the absence; nothing in Articles 18 or 54, UCMJ, and nothing in RCM 1103 compels a limitation on sentence to that which could be approved if there was not a verbatim transcript (i.e., no discharge and no confinement in excess of six months); and the MCM - including Article 54, UCMJ, and RCM 1103 - does not limit a court of criminal appeals’ discretion to remedy an error in compiling a complete record; in contrast, RCM 810(a)(2) specifically authorizes a rehearing on sentence, as does Article 63, UCMJ, and Article 66(d), UCMJ; where a court of criminal appeals exercises its authority to order a rehearing on sentence, the record of the rehearing, in concert with the record on findings, constitutes the complete record for review by the convening authority and the court of criminal appeals, as required by Articles 54 and 66, UCMJ
2. in this case, the court of criminal appeals did not prejudice appellant when it ordered a sentencing rehearing because of the absence of a defense sentencing exhibit from the trial record; on rehearing, the military judge crafted remedial measures that sought to cure any prejudice appellant may have suffered from the absence of the missing exhibit by limiting the government’s aggravation evidence, and the confinement adjudged was three years less than the original sentence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the court of criminal appeals did not prejudice appellant when it ordered a sentencing rehearing because of the absence of a defense sentencing exhibit from the trial record; on rehearing, the military judge crafted remedial measures that sought to cure any prejudice appellant may have suffered from the absence of the missing exhibit by limiting the government’s aggravation evidence, and the confinement adjudged was three years less than the original sentence
2. in this case, it was plain and obvious error for the government not to allege the terminal element in the specifications under Article 134, UCMJ, alleging indecent acts with a child and indecent assault; even though evidence of the bad acts themselves may have been legally sufficient to prove the terminal element at trial, where the government failed to allege the terminal element, mention it during trial, or put on independent evidence of it, and appellant did not defend against it, appellant suffered material prejudice to his substantial right to notice and to defend himself; the argument that an accused is not prejudiced by the government’s failure to allege the terminal element because it is intuitive that the bad acts discredited the military runs contrary to long-established principles of fair notice; suggesting that there was no prejudice because the predicate acts were intuitively prejudicial to good order and discipline and service discrediting fails to recognize Article 134, UCMJ’s terminal element for what it is – a discrete element of a criminal offense; here, no direct evidence was put on to prove the terminal element; neither clause 1 nor 2 was directly or indirectly mentioned by either party until the military judge instructed the members on the elements of the Article 134, UCMJ, specifications, nor did the government proffer any physical evidence or witness testimony as to how appellant’s acts might have affected either his unit or the public’s opinion of the armed forces, nor did the defense indicate that they knew they were defending against either theory of liability; under these circumstances, both appellant and the appellate court lack knowledge of a matter of critical significance - namely, on which theory of criminality appellant was tried and convicted; because appellant was never given notice of the theory of criminality the government pursued, and no evidence was introduced on any theory, the errors in the Article 134, UCMJ, specifications were not cured; the government’s failure to allege the terminal element was thus plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against
3. in the context of a defective Article 134, UCMJ, specification raised for the first time on appeal, the failure to allege the terminal element is not necessarily structural error warranting automatic dismissal, but error that can be tested for prejudice
4. where a defective specification: (1) was tried prior to the decision in Fosler (70 MJ 225 (CAAF 2011)) and (2) was raised for the first time on appeal, an appellate court tests that error for prejudice, which turns on whether that error frustrated an accused’s right to notice and opportunity to zealously defend himself, which depends in turn on whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in the absence of waiver, where defects in a specification are raised for the first time on appeal, dismissal of the defective specification will depend on whether there is plain error - which, in most cases, will turn on the question of whether the defective specification resulted in material prejudice to appellant’s substantial right to notice
2. in this case, it was plain and obvious error for the government not to allege the terminal element in the specifications under Article 134, UCMJ, alleging indecent acts with a child and indecent assault; even though evidence of the bad acts themselves may have been legally sufficient to prove the terminal element at trial, where the government failed to allege the terminal element, mention it during trial, or put on independent evidence of it, and appellant did not defend against it, appellant suffered material prejudice to his substantial right to notice and to defend himself; the argument that an accused is not prejudiced by the government’s failure to allege the terminal element because it is intuitive that the bad acts discredited the military runs contrary to long-established principles of fair notice; suggesting that there was no prejudice because the predicate acts were intuitively prejudicial to good order and discipline and service discrediting fails to recognize Article 134, UCMJ’s terminal element for what it is – a discrete element of a criminal offense; here, no direct evidence was put on to prove the terminal element; neither clause 1 nor 2 was directly or indirectly mentioned by either party until the military judge instructed the members on the elements of the Article 134, UCMJ, specifications, nor did the government proffer any physical evidence or witness testimony as to how appellant’s acts might have affected either his unit or the public’s opinion of the armed forces, nor did the defense indicate that they knew they were defending against either theory of liability; under these circumstances, both appellant and the appellate court lack knowledge of a matter of critical significance - namely, on which theory of criminality appellant was tried and convicted; because appellant was never given notice of the theory of criminality the government pursued, and no evidence was introduced on any theory, the errors in the Article 134, UCMJ, specifications were not cured; the government’s failure to allege the terminal element was thus plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against

Trial Stages: Appeals: Remedies › Rehearing

1. a court of criminal appeals has discretion to order a sentencing rehearing in a general court-martial that had sentenced appellant to a dishonorable discharge and twelve years of confinement when the record of trial included a verbatim transcript but was incomplete because of the substantial omission of a sentencing exhibit due to the absence; nothing in Articles 18 or 54, UCMJ, and nothing in RCM 1103 compels a limitation on sentence to that which could be approved if there was not a verbatim transcript (i.e., no discharge and no confinement in excess of six months); and the MCM - including Article 54, UCMJ, and RCM 1103 - does not limit a court of criminal appeals’ discretion to remedy an error in compiling a complete record; in contrast, RCM 810(a)(2) specifically authorizes a rehearing on sentence, as does Article 63, UCMJ, and Article 66(d), UCMJ; where a court of criminal appeals exercises its authority to order a rehearing on sentence, the record of the rehearing, in concert with the record on findings, constitutes the complete record for review by the convening authority and the court of criminal appeals, as required by Articles 54 and 66, UCMJ
2. in this case, the court of criminal appeals did not prejudice appellant when it ordered a sentencing rehearing because of the absence of a defense sentencing exhibit from the trial record; on rehearing, the military judge crafted remedial measures that sought to cure any prejudice appellant may have suffered from the absence of the missing exhibit by limiting the government’s aggravation evidence, and the confinement adjudged was three years less than the original sentence

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

1. where a defective specification: (1) was tried prior to the decision in Fosler (70 MJ 225 (CAAF 2011)) and (2) was raised for the first time on appeal, an appellate court tests that error for prejudice, which turns on whether that error frustrated an accused’s right to notice and opportunity to zealously defend himself, which depends in turn on whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted
2. an appellate court applies the elements test to determine whether one offense is an LIO of another; applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense

Trial Stages: Appeals: Waiver

1. in this case, where appellant failed to object at trial to Article 134, UCMJ, specifications on the ground that the terminal element was not pleaded, because appellant’s trial occurred before Fosler (70 MJ 225 (CAAF 2011)), his failure to object forfeited, rather than waived, the error; moreover, appellant’s failure to raise the issue at his sentence rehearing, which was held two months after the decision in Fosler, did not constitute waiver because a defense motion to dismiss the findings for failure to allege the terminal element was beyond the military judge’s proscribed authority to conduct a rehearing on sentence

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

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
2. an appellate court applies the elements test to determine whether one offense is an LIO of another; applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense
3. after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault