U.S. v. Turner, 79 M.J. 401

First Principles: Constitutional Matters: Double Jeopardy

1. the Sixth Amendment provides that an accused shall be informed of the nature and cause of the accusation against him; further, the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, and no person shall be subject for the same offense to be twice put in jeopardy
2. when an accused servicemember is charged with an offense at court-martial, each specification will be found constitutionally sufficient only if it alleges, either expressly or by necessary implication, every element of the offense, so as to give the accused notice of the charge against which he must defend and protect him against double jeopardy

First Principles: Constitutional Matters: Due Process

1. the Sixth Amendment provides that an accused shall be informed of the nature and cause of the accusation against him; further, the Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law, and no person shall be subject for the same offense to be twice put in jeopardy

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. although in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense

Core Criminal Law Subjects: Crimes: Article 81 - Conspiracy Pre-2019 offenses

1. although in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense

Trial Stages: Pretrial: Charges and Specifications

1. when an accused servicemember is charged with an offense at court-martial, each specification will be found constitutionally sufficient only if it alleges, either expressly or by necessary implication, every element of the offense, so as to give the accused notice of the charge against which he must defend and protect him against double jeopardy
2. the lens through which an appellate court evaluates the sufficiency of a specification differs depending on when counsel first raised the issue; when a charge and specification are first challenged at trial, the wording will be read narrowly and interpretations will only be adopted that hew closely to the plain text; hewing closely to the plain text means that only the language contained in the specification will be considered in deciding whether it properly states the offense in question; however, a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; under the latter scenario, the specification will be viewed with maximum liberality
3. if a specification fails to state an offense, the appropriate remedy is dismissal of that specification unless the government can demonstrate that this constitutional error was harmless beyond a reasonable doubt
4. although in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense
5. a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; although failure of a specification to state an offense is a fundamental defect which can be raised at any time, specifications are liberally construed in favor of validity when they are challenged for the first time on appeal
6. although a claim that a specification fails to state an offense may be made at any time, if the claim is first raised after trial, then the deficient specification will be viewed with greater tolerance and will be liberally construed in favor of validity
7. as soon as the finder of fact announces a guilty verdict regarding a facially deficient specification, the trial has ended, and the liberal construction and greater tolerance standards apply
8. what it means to liberally construe a specification in favor of validity and to view it with greater tolerance is to view the specification with maximum liberality; when a failure to state an offense claim is first raised after trial, the claim will fail absent a clear showing of substantial prejudice to the accused - such as a showing that the specification is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had
9. in this case, where the government sought to charge appellant with the offense of attempted premeditated murder, one of the elements of the completed offense of premeditated murder under Article 118, UCMJ, was that the killing was unlawful; however, the specification on the charge sheet failed to explicitly allege that the attempted killing was unlawful (and also failed to cite Article 118, UCMJ, in the text of the specification); because this element of the completed offense of premeditated murder was not alleged expressly, in order to state an offense, the specification had to allege that the killing was unlawful by necessary implication such that appellant would have been aware of the nature of the underlying target or predicate offense; in analyzing whether the specification here failed to state an offense, because the claim was first raised after trial, the deficient specification is viewed with greater tolerance and is liberally construed in favor of validity; when viewed with maximum liberality, it is a reasonable construction of the charged language (“did … attempt to kill with premeditation by Specialist [C.S.G.] by means of shooting her with a loaded firearm, causing grievous bodily harm”), that appellant was being charged with the offense of attempted premeditated murder (i.e., an unlawful killing); although a deployed soldier may lawfully use force to kill an enemy combatant, here the specification notified appellant that he was charged with an attempt to kill a fellow soldier (an unlawful target), and not an enemy combatant, and that the attempt occurred in the United States, and not on a battlefield; as such, the unlawfulness element of the offense was sufficiently alleged by necessary implication

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if a specification fails to state an offense, the appropriate remedy is dismissal of that specification unless the government can demonstrate that this constitutional error was harmless beyond a reasonable doubt
2. even if the attempted premeditated murder specification failed to allege that the killing was unlawful by necessary implication, there simply is no prejudice to be found in this case, even when the stringent constitutional standard of harmlessness beyond a reasonable doubt is applied, where (1) in a pretrial motion, the defense counsel listed attempted murder as one of the charges against appellant, (2) the memo from the pretrial investigating officer listed attempted premeditated murder as one of the charges, (3) the defense counsel mentioned the charge of attempted premeditated murder in a pretrial request, in voir dire, and in his closing argument, (4) another offense listed on the charge sheet charged appellant with conspiring with his wife to murder the same victim, on that same date, at the same time and location, and with the same overt act alleged, and (5) in the findings instructions, the military judge explained to the members that appellant was charged with attempted premeditated murder and that the killing of a human being was unlawful when done without legal justification or excuse; in light of these facts, there is no basis to conclude that if the government had properly included the word unlawfully in the specification, appellant would have handled his defense at court-martial any differently, that the result of the court-martial would have been any different, or that appellant would have been provided any additional protection from double jeopardy

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

1. the lens through which an appellate court evaluates the sufficiency of a specification differs depending on when counsel first raised the issue; when a charge and specification are first challenged at trial, the wording will be read narrowly and interpretations will only be adopted that hew closely to the plain text; hewing closely to the plain text means that only the language contained in the specification will be considered in deciding whether it properly states the offense in question; however, a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; under the latter scenario, the specification will be viewed with maximum liberality
2. if a specification fails to state an offense, the appropriate remedy is dismissal of that specification unless the government can demonstrate that this constitutional error was harmless beyond a reasonable doubt
3. the question of whether a specification fails to state an offense is a question of law which an appellate court reviews de novo
4. although in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense
5. a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; although failure of a specification to state an offense is a fundamental defect which can be raised at any time, specifications are liberally construed in favor of validity when they are challenged for the first time on appeal
6. although a claim that a specification fails to state an offense may be made at any time, if the claim is first raised after trial, then the deficient specification will be viewed with greater tolerance and will be liberally construed in favor of validity
7. as soon as the finder of fact announces a guilty verdict regarding a facially deficient specification, the trial has ended, and the liberal construction and greater tolerance standards apply
8. what it means to liberally construe a specification in favor of validity and to view it with greater tolerance is to view the specification with maximum liberality; when a failure to state an offense claim is first raised after trial, the claim will fail absent a clear showing of substantial prejudice to the accused - such as a showing that the specification is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had