U.S. v. Shafran, 85 M.J. 420

First Principles: Constitutional Matters: Due Process

1. due process requires that a person have fair notice that an act is criminal before being prosecuted for it

Core Criminal Law Subjects: Crimes: Article 134: General Article Offenses on/after 1 Jan 2019

1. an unenumerated Article 134, UCMJ, specification must allege unlawful or wrongful conduct

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Offenses on/after 1 Jan 2019

1. an unenumerated Article 134, UCMJ, specification must allege unlawful or wrongful conduct
2. a specification of an unenumerated offense under Article 134, UCMJ, prohibiting conduct to the prejudice of good order and discipline or service discrediting conduct may satisfy the requirement of alleging unlawful or wrongful conduct by expressly using a word such as "wrongfully" or "unlawfully" to distinguish criminal conduct from conduct that otherwise might be innocent
3. a specification of an unenumerated offense under Article 134, UCMJ, prohibiting conduct to the prejudice of good order and discipline or service discrediting conduct may satisfy the requirement of alleging unlawful or wrongful conduct by describing facts that would satisfy each of the elements generally required for the same offense under state and federal criminal laws
4. in this case, where a specification of an unenumerated offense under Article 134, UCMJ, alleged that appellant provided alcoholic beverages to a person under the age of 21 in the presence of junior enlisted members and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit to the armed forces, but failed to expressly include the words "wrongful" or "unlawful," when read "maximum liberality," such words are implied and the specification sufficiently stated an offense
5. with regard to unenumerated offenses charged under Article 134, UCMJ, the government could avoid appellate disputes about whether a charge failed to allege an offense by expressly including words of criminality such as "wrongfully" or "unlawfully" in a specification; and similarly, the defense in the future could avoid the application of the maximum liberality standard for assessing a specification on appeal by raising an objection to the specification at trial

Trial Stages: Pretrial: Charges and Specifications

1. due process requires that a person have fair notice that an act is criminal before being prosecuted for it
2. with regard to unenumerated offenses charged under Article 134, UCMJ, the government could avoid appellate disputes about whether a charge failed to allege an offense by expressly including words of criminality such as "wrongfully" or "unlawfully" in a specification; and similarly, the defense in the future could avoid the application of the maximum liberality standard for assessing a specification on appeal by raising an objection to the specification at trial

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

1. when an appellant challenges the sufficiency of a specification for the first time on appeal, an appellate court assesses the validity of the specification with maximum liberality
2. when reading a specification with maximum liberality, an appellate court may find terms to be implied