U.S. v. Simmons, 82 M.J. 134

Trial Stages: Pretrial: Charges and Specifications

1. the military is a notice pleading jurisdiction
2. stating on a charge sheet the date of an alleged offense with a certain degree of specificity and accuracy is required; moreover, such a step is essential to the fundamental fairness of the criminal justice process because it provides an accused with adequate and proper notice of the government’s proffer of evidence, and thereby informs the accused of what he or she needs to defend against at trial; it is the government that controls the charge sheet from the inception of the charges through the court-martial itself, and there are rules that govern when and how the government may amend the charges and specifications; the government does not have authority to ignore those rules simply because they are inconvenient; accordingly, it is the government that has both the opportunity and the responsibility to ensure that the dates in the charges and specifications align with the facts of the case so that an accused is not misled as to the offenses charged

Trial Stages: Merits: Trial Procedures › Generally

1. in this case, under the totality of the circumstances presented, because an amendment to the charge sheet after arraignment, after the government had rested its case on the merits, and over defense objection that enlarged the charged time frame of one of the offenses by 279 days was likely to mislead the accused as to the offense charged, the amendment constituted a major change under RCM 603 (from the 2016 version of the MCM) that the government was not authorized to make without withdrawing, amending, and preferring the specification anew; the extent of the change far exceeded any permissible variance previously recognized in material variance case law, and the amended dates could not be viewed as being reasonably near to the original charged dates; furthermore, the amended dates were inextricably linked with a change in the government’s theory of the case and likely affected the investigation that the defense team otherwise might have conducted, the type of evidence they otherwise might have introduced, and the nature of the cross-examination they otherwise might have conducted
2. under RCM 603 (from the 2016 version of the MCM), after arraignment, a major change may not be made to the charges and specifications over defense objection unless the charge is preferred anew, and after arraignment but before findings were announced, a military judge may permit a minor change to the charges and specifications only if no substantial right of the accused is prejudiced
3. under RCM 603 (from the 2016 version of the MCM), an amendment to a charge and specification constitutes a major change if it does not constitute a minor change, and minor changes are any except those that 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
4. even after arraignment and even over defense objection, if the government moves to change a date on a charge sheet to a different date that is reasonably near to the original charged date, this action only constitutes a minor change and is authorized as long as no substantial right of the accused is prejudiced
5. a change to an offense that extends the charged time frame beyond the “on or about” window (a range of days to weeks) constitutes a material variance, and once that determination is made, a totality of the circumstances analysis must then be conducted in order to determine whether that material variance results in a major change under RCM 603 (from the 2016 version of the MCM) because, for example, the amendment is likely to mislead the accused as to the offense charged
6. when, after arraignment and over defense objection, the government wishes to make major changes to the charge sheet, it merely needs to prefer the charges anew
7. the defense is entitled to rely on the charge sheet and the government’s decision not to amend the charge sheet prior to trial

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

1. whether a change made to a specification is major or minor is a matter of statutory interpretation that is reviewed by an appellate court de novo