U.S. v. Treat, 73 M.J. 331

First Principles: Constitutional Matters: Generally

1. RCM 918(a)(i) explicitly authorizes a court-martial to make findings by exceptions and substitutions; however, at times this authority lies in tension with an accused’s constitutional right to receive fair notice of what he is being charged with

Core Criminal Law Subjects: Crimes: Article 87 -- Missing Movement Pre-2019 offenses

1. if a person is ordered to move as a passenger aboard a particular ship or aircraft, then missing the particular sailing or flight is essential to establishing the offense of missing movement
2. in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the variance in the amended offense was material because the exceptions and substitutions substantially changed the nature of the offense; by charging a specific aircraft in the original charging document, the specific flight number became an integral part of an element of the offense
3. in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the material variance in the amended offense did not prejudice appellant and was not fatal, where his defense was squarely focused on the assertion that he was prevented from moving with his unit because he was kidnapped, his defense counsel did not claim in any manner that appellant was not present on the date of his unit’s movement because he was unaware of the specific aircraft he was supposed to be on or the unit he was supposed to move with, and right from the beginning of the case, appellant channeled his efforts into convincing first the investigators and then the court-martial that, as stated by defense counsel in her opening statement, appellant did not intend to miss the movement, but he was prevented from going with his unit because of what had happened to him; while defense counsel did mention the lack of evidence of the flight number in her closing argument, she did not channel her efforts into disproving the Flight TA4B702 element; furthermore, despite citing the lack of proof that it was specifically Flight TA4B702 that appellant missed, defense counsel did not move pursuant to RCM 917 for a finding of not guilty on that particular charge; finally, the defense has not identified any different trial strategy it might have employed if appellant originally had been charged with missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan; all indications are that appellant’s defense of impossibility due to kidnapping would have remained precisely the same whether or not he was charged per the original specification or per the exceptions and substitutions, and there is no reasonable possibility that the verdict in this case would have been any different; accordingly, appellant was not denied the opportunity to defend against the charge on which he was convicted

Trial Stages: Merits: Findings

1. RCM 918(a)(i) explicitly authorizes a court-martial to make findings by exceptions and substitutions; however, at times this authority lies in tension with an accused’s constitutional right to receive fair notice of what he is being charged with
2. in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the variance in the amended offense was material because the exceptions and substitutions substantially changed the nature of the offense; by charging a specific aircraft in the original charging document, the specific flight number became an integral part of an element of the offense
3. in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the material variance in the amended offense did not prejudice appellant and was not fatal, where his defense was squarely focused on the assertion that he was prevented from moving with his unit because he was kidnapped, his defense counsel did not claim in any manner that appellant was not present on the date of his unit’s movement because he was unaware of the specific aircraft he was supposed to be on or the unit he was supposed to move with, and right from the beginning of the case, appellant channeled his efforts into convincing first the investigators and then the court-martial that, as stated by defense counsel in her opening statement, appellant did not intend to miss the movement, but he was prevented from going with his unit because of what had happened to him; while defense counsel did mention the lack of evidence of the flight number in her closing argument, she did not channel her efforts into disproving the Flight TA4B702 element; furthermore, despite citing the lack of proof that it was specifically Flight TA4B702 that appellant missed, defense counsel did not move pursuant to RCM 917 for a finding of not guilty on that particular charge; finally, the defense has not identified any different trial strategy it might have employed if appellant originally had been charged with missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan; all indications are that appellant’s defense of impossibility due to kidnapping would have remained precisely the same whether or not he was charged per the original specification or per the exceptions and substitutions, and there is no reasonable possibility that the verdict in this case would have been any different; accordingly, appellant was not denied the opportunity to defend against the charge on which he was convicted

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in order 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 from the charged offense 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
3. an appellate court looks closely at the specifics of the defense’s trial strategy when determining whether a material variance denied an accused the opportunity to defend against a charge; in so doing, it considers how the defense channeled its efforts and what defense counsel focused on or highlighted
4. in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the material variance in the amended offense did not prejudice appellant and was not fatal, where his defense was squarely focused on the assertion that he was prevented from moving with his unit because he was kidnapped, his defense counsel did not claim in any manner that appellant was not present on the date of his unit’s movement because he was unaware of the specific aircraft he was supposed to be on or the unit he was supposed to move with, and right from the beginning of the case, appellant channeled his efforts into convincing first the investigators and then the court-martial that, as stated by defense counsel in her opening statement, appellant did not intend to miss the movement, but he was prevented from going with his unit because of what had happened to him; while defense counsel did mention the lack of evidence of the flight number in her closing argument, she did not channel her efforts into disproving the Flight TA4B702 element; furthermore, despite citing the lack of proof that it was specifically Flight TA4B702 that appellant missed, defense counsel did not move pursuant to RCM 917 for a finding of not guilty on that particular charge; finally, the defense has not identified any different trial strategy it might have employed if appellant originally had been charged with missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan; all indications are that appellant’s defense of impossibility due to kidnapping would have remained precisely the same whether or not he was charged per the original specification or per the exceptions and substitutions, and there is no reasonable possibility that the verdict in this case would have been any different; accordingly, appellant was not denied the opportunity to defend against the charge on which he was convicted

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when counsel fails to object at trial, an appellate court reviews a military judge’s findings by exceptions and substitutions for plain error; under plain error review, 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 of the accused

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

1. whether there was a fatal variance in a charged offense is a question of law reviewed de novo
2. when counsel fails to object at trial, an appellate court reviews a military judge’s findings by exceptions and substitutions for plain error; under plain error review, 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 of the accused
3. in order to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby
4. the test for whether a variance in a charged offense is material is whether it substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense
5. a variance from the charged offense 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
6. an appellate court looks closely at the specifics of the defense’s trial strategy when determining whether a material variance denied an accused the opportunity to defend against a charge; in so doing, it considers how the defense channeled its efforts and what defense counsel focused on or highlighted