United States v. Sutton, No. 09-0458/AF. Judge Erdmann for a unanimous court.  More later.

14 Responses to “CAAF holds specification fails to state an offense”

  1. John Harwood says:

    Wow, the very rare full dismissal from CAAF. Nice work, Appellate Defense Counsel.

  2. Cap'n Crunch says:

    Writing was on the wall on this one. The MJ identified this issue and flagged it for the government. The government apparently didn’t catch the drift of the MJ. Careful specification drafting (and research) prior to charging would have avoided all of this. My guess is someone got themselves in a hurry.

  3. Anon says:

    So can’t the Govt prosecute a court-martial now for the right charge (indecent liberties with a child)?

  4. Tami says:


    He can’t be prosecuted again because of double jeopardy.

  5. Anon says:

    Aware of double jeopardy…but isn’t a charge/spec that fails to state an offense just a nullity?

  6. Tami says:

    No, it isn’t a nullity.

  7. Anonymous says:

    He was never charged with the correct charge so how is it double jeopardy?

    Don’t you have to be in jeopardy of that particular charge the first time?

    He wasn’t apparently.

  8. Anonymous says:

    A specified issue, no less.

  9. Anonymous says:

    Tami – can you cite support for that assertion? I see the logic in Anon’s post – if the specification does not state an offense then what was the legal jeopardy? If he was in jeopardy, then why is there not an offense? The argument that his reprosecucution is barred seemingly undermines the ruling that the charge itself is a nullity – which is not logically consistent.

  10. Tami says:

    The 5th Amendment, Article 44, UCMJ, U.S. v. Wilson, 420 U.S. 332 (1975). R.C.M. 307(c)(3) requires the gov’t to put an accused on sufficient notice of the crime so that the accused can defend himself and he is protected against double jeopardy.

    A second prosecution would place him in jeopardy a second time for the same crime under the same set of facts, in violation of the 5th Amendment. The court heard evidence, made a decision that he was guilty, and sentenced him. The Government doesn’t get a second bite at the apple when the Government screwed up the case by failing to put the defense on notice of the actual crime. It’s like “invited error.” The gov’t is required to get the charging and notice right the first time.

  11. Nancy Truax says:

    R.C.M. 810(a) sets out procedural rules for “rehearings in full and new or other trials.” R.C.M. 810(e) defines an “other trial” as “another trial of a case in which the original proceedings were declared invalid because of lack of jurisdiction or failure of a charge to state an offense.”

  12. Tami says:

    R.C.M. 810 does not give authority to try him a second time. If the trial judge had granted the defense motion to dismiss for failure to state an offense, then there would not be double jeopardy, and he could be retried. R.C.M. 907(a). Then R.C.M. 810(a) procedures apply. But in this situation, there was a trial of the general issue of guilt, and on top of that, he was found guilty and sentenced.

    There are several types of DJ–one of them prohiits multiple trials on the issue of guilt. In this case, he’s already been put through a trial once, and since it’s the government’s “fault” the conviction and sentence got thrown out on appeal, the government doesn’t get another chance. 5th Amendment. Why should the gov’t get another chance to perfect its case?

    The goverment also doesn’t get to do a “bait and switch” in the middle of trial. What the gov’t did by switching theories during the trial was a major change under R.C.M. 604. Since the defense objected, the gov’t would have been required to withdraw and reprefer, which they could not do since evidence had already been introduced on the issue of guilt. R.C.M. 604(b). Again, double jeopardy applies. Article 44.

    I understand it’s offensive that this guy gets away with a crime because of a “technicality.” But our founding fathers thought it was more offensive to allow the gov’t, with all its resources, to keep going after people again and again for the same crime, and that’s why it’s in 5th Amendment that “nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb.”

  13. Anonymous says:

    I don’t think anyone disagrees with you about the principle of “technicalities.”

    The disagreement is that for some of us, this simply does not appear to be a case of double jeopardy.

    Since one “offense” can violate multiple different Articles, you seem to be saying if someone is tried for violating one article, has his charges to that offense dismissed (not found not guilty by a fact-finder but dismissed) because of failure to state an offense or say legal insufficiency, that the government is barred from trying them for violating a different article he was never charged with and never in jeopardy of.

    Folks have cases overturned all of the time for errors and those cases lead to new trials. They usually get overturned after guilt and after an appellate court has found an error by the government.

    I’d agree with you if he’d been found not guilty of a valid offense. He couldn’t be re-tried on that offense as we often see in divers occasions cases.

    But I don’t see how this is barred by double jeopardy when he was found guilty, retrials in that situation happen routinely.

  14. Anonymous says:

    Can you provide some support for your argument that 810(a) only applies when the judge rules at trial that there is a failure to state an offense and not when an appellate court does it?

    Because there just doesn’t seem to be any evidence of that distinction that I can see.