U.S. v. Gleason, 78 M.J. 473

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

1. if conduct by an accused does not fall under any of the listed offenses for violations of Article 134, UCMJ, in the MCM, a specification not listed in the Manual may be used to allege the offense; however, the government may not charge a novel offense if the offense is otherwise listed as an Article 134, UCMJ, offense; in other words, if an offense is already listed inside Article 134’s framework, it may not be charged as a novel general disorder offense
2. in determining whether appellant’s novel specification under Article 134, UCMJ, alleging interference with his assault victim’s ability to place an emergency call to the police fell under a listed offense under Article 134, UCMJ, the allege conduct must necessarily be viewed within the circumstances in which it arose; in determining whether the alleged conduct already fell under a listed offense, the focus is on specific conduct committed under specific circumstances; in analyzing conduct alleged in novel specifications, a relatively broad approach is used and a court need not confine itself to an element-by-element comparison between the drafted offense and the offense listed in the MCM
3. the President’s explanation of the listed offense of obstructing justice under Article 134, UCMJ, includes obstructing justice by means of intimidation or force or threat of force delaying or preventing communication of information relating to a violation of a criminal statute of the United States to a person authorized by a department, agency, or armed force of the United States to conduct or engage in investigations or prosecutions of such offenses; in this case, the circumstances are that appellant assaulted and pointed a gun at his victim and took her phone moments before she tried to place an emergency call to the police; the nature of the acts leading to appellant taking the victim’s phone and telling her she was not going to be calling anyone suggests appellant was by intimidation and by force or the threat of force delaying or preventing communication of information to police relating to an assault; this conduct falls squarely within the President’s explanation of the obstruction of justice offense; furthermore, by using a novel specification, the government relieved itself of having to prove the second and third elements of obstructing justice, and in doing so, the government in effect improperly reduced its burden of proof; such an outcome illustrates the reason for the policy preventing offenses listed under Article 134, UCMJ, from being charged as novel offenses and cannot be countenanced
4. a novel specification in violation of Article 134, UCMJ, that charged appellant with interfering with his victim’s emergency call to the police after appellant assaulted and pointed at gun at her and took her phone, failed to state an offense because the offense was already listed inside Article 134’s framework as the offense of obstructing justice and was therefore barred by MCM, pt. IV, para. 60.c.(6)(c), which provides that the government may not charge a novel Article 134, UCMJ, offense if the offense is otherwise listed as an Article 134, UCMJ, offense

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

1. the President’s explanation of the listed offense of obstructing justice under Article 134, UCMJ, includes obstructing justice by means of intimidation or force or threat of force delaying or preventing communication of information relating to a violation of a criminal statute of the United States to a person authorized by a department, agency, or armed force of the United States to conduct or engage in investigations or prosecutions of such offenses; in this case, the circumstances are that appellant assaulted and pointed a gun at his victim and took her phone moments before she tried to place an emergency call to the police; the nature of the acts leading to appellant taking the victim’s phone and telling her she was not going to be calling anyone suggests appellant was by intimidation and by force or the threat of force delaying or preventing communication of information to police relating to an assault; this conduct falls squarely within the President’s explanation of the obstruction of justice offense; furthermore, by using a novel specification, the government relieved itself of having to prove the second and third elements of obstructing justice, and in doing so, the government in effect improperly reduced its burden of proof; such an outcome illustrates the reason for the policy preventing offenses listed under Article 134, UCMJ, from being charged as novel offenses and cannot be countenanced
2. the President’s explanation of the listed offense of obstructing justice under Article 134, UCMJ, includes obstructing justice by means of intimidation or force or threat of force delaying or preventing communication of information relating to a violation of a criminal statute of the United States to a person authorized by a department, agency, or armed force of the United States to conduct or engage in investigations or prosecutions of such offenses; in this case, the circumstances are that appellant assaulted and pointed a gun at his victim and took her phone moments before she tried to place an emergency call to the police; the nature of the acts leading to appellant taking the victim’s phone and telling her she was not going to be calling anyone suggests appellant was by intimidation and by force or the threat of force delaying or preventing communication of information to police relating to an assault; this conduct falls squarely within the President’s explanation of the obstruction of justice offense; furthermore, by using a novel specification, the government relieved itself of having to prove the second and third elements of obstructing justice, and in doing so, the government in effect improperly reduced its burden of proof; such an outcome illustrates the reason for the policy preventing offenses listed under Article 134, UCMJ, from being charged as novel offenses and cannot be countenanced
3. a novel specification in violation of Article 134, UCMJ, that charged appellant with interfering with his victim’s emergency call to the police after appellant assaulted and pointed a gun at her and took her phone, failed to state an offense because the offense was already listed inside Article 134’s framework as the offense of obstructing justice and was therefore barred by MCM, pt. IV, para. 60.c.(6)(c), which provides that the government may not charge a novel Article 134, UCMJ, offense if the offense is otherwise listed as an Article 134, UCMJ, offense

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error

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

1. whether a specification fails to state an offense is a question of law that an appellate court reviews de novo
2. when defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error