U.S. v. Reese, 76 M.J. 297

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

1. Part IV, para 60.c.(6)(c) of the MCM states that if conduct by an accused does not fall under any of the listed offenses for violations of Article 134 in the MCM (paragraphs 61 through 113 of Part IV), a specification not listed in the MCM may be used to allege the offense
2. Part IV, para. 60.c.(5)(a) of the MCM prohibits the government from using Article 134, UCMJ, to charge offenses that are listed in the UCMJ outside of Article 134; however, preemption under part IV, para. 60.c.(5)(a) is distinct from the provisions of part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c), of the MCM, prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework
3. a novel Article 134, UCMJ, offense charged by the government that was intended to charge the listed Article 134, UCMJ, offense of obstructing justice but relieved the government of having to prove two elements of obstructing justice and thereby reduced the government’s burden of proof, was barred by part IV, para. 60.c.(6)(c), of the MCM, a provision that prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework, and it therefore failed to state an offense

Core Criminal Law Subjects: Crimes: Art. 134 - Obstructing Justice Pre-2019 offenses

1. a novel Article 134, UCMJ, offense charged by the government that was intended to charge the listed Article 134, UCMJ, offense of obstructing justice but relieved the government of having to prove two elements of obstructing justice and thereby reduced the government’s burden of proof, was barred by part IV, para. 60.c.(6)(c), of the MCM, a provision that prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework, and it therefore failed to state an offense

Trial Stages: Pretrial: Charges and Specifications

1. Part IV, para. 60.c.(5)(a) of the MCM prohibits the government from using Article 134, UCMJ, to charge offenses that are listed in the UCMJ outside of Article 134; however, preemption under part IV, para. 60.c.(5)(a) is distinct from the provisions of part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c); part IV, para. 60.c.(6)(c), of the MCM, prohibits the government from using a novel specification to allege an Article 134 offense that is already listed inside the article’s framework

Trial Stages: Merits: Trial Procedures › Generally

1. RCM 603(d) provides that changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew; the plain language of RCM 603(d) does not discuss prejudice; rather, if a change is major, it provides that such change cannot be made over defense objection unless the charge is preferred anew; the practical effect is that if a change is major and the defense objects, the charge has no legal basis and the court-martial may not consider it unless and until it is preferred anew, and subsequently referred; to the extent that past precedent has required a separate showing of prejudice under these circumstances, it is overruled; absent preferral anew and a second referral there is no charge to which jurisdiction can attach, and Article 59(a), UCMJ, is not implicated
2. whether a change made to a specification is minor is a matter of statutory interpretation and is reviewed by an appellate court de novo
3. RCM 603(a) provides that minor changes in charges and specifications are any except those which add a party, offenses, or substantial matter not fairly included in those previously preferred, or which are likely to mislead the accused as to the offenses charged; minor changes include those changes] necessary to correct inartfully drafted or redundant specifications, to correct a misnaming of the accused, to allege the proper article, or to correct other slight errors; a change is minor so long as no additional or different offense is charged and if the substantial rights of the accused are not prejudiced; the first prong usually is satisfied if the charge is altered to allege a lesser-included offense, and the second prong is satisfied if the amendment does not cause unfair surprise; the evil to be avoided is denying an accused notice of the charge against him, thereby hindering his defense preparation
4. a change to a specification of a charge of sexual abuse of a child was a major change and thus without a legal basis where the specification changed during trial, over defense objection, from alleging that the accused licked the penis of a child to the accused touched the child’s penis with his hand; not only did the change alter the means of committing the offense, but the change was not fairly included in the original specification; while changing the means by which a crime is accomplished may constitute a slight error under the appropriate circumstances, those circumstances were not present here; the accused was not on notice that he would need to defend against a touching charge because it was not alleged, and a touching with the hand could have readily been argued as accidental while there is no such defense to the charge as initially alleged; given the different nature of the two offenses and the dissimilar defenses available for each, the change was not minor

Trial Stages: Appeals: Harmless / Prejudicial Error

1. RCM 603(d) provides that changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew; the plain language of RCM 603(d) does not discuss prejudice; rather, if a change is major, it provides that such change cannot be made over defense objection unless the charge is preferred anew; the practical effect is that if a change is major and the defense objects, the charge has no legal basis and the court-martial may not consider it unless and until it is preferred anew, and subsequently referred; to the extent that past precedent has required a separate showing of prejudice under these circumstances, it is overruled; absent preferral anew and a second referral there is no charge to which jurisdiction can attach, and Article 59(a), UCMJ, is not implicated

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

1. whether a change made to a specification is minor is a matter of statutory interpretation and is reviewed by an appellate court de novo
2. an appellate court applies ordinary rules of statutory construction in interpreting the RCM
3. courts must presume that a legislature says in a statute what it means and means in a statute what it says there; when the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. an appellate court applies ordinary rules of statutory construction in interpreting the RCM

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. although MCM explanations of codal offenses are not binding, they are persuasive indications of how the President, as head of the Executive Branch of Government, perceives an offense, including limitations on the Executive power that are not required by the Code or other applicable law

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. courts must presume that a legislature says in a statute what it means and means in a statute what it says there; when the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete