Here’s a link to a published decision that NMCCA released today.  United States v. Fosler, __ M.J. ___, No. NMCCA 201000134 (N-M. Ct. Crim. App. Oct. 28, 2010).  Chief Judge Reismeier wrote for a unanimous panel.

Fosler involves an adultery spec in which the government failed to allege the terminal element.  Here’s the issue and ruling in a nutshell:

The question presented is whether concepts of fair notice and the holdings of Medina,[1] Miller,[2] and Jones[3] require a departure from 60 years of precedent established by the Court of Appeals for the Armed Forces[4] regarding the requirements of pleading Article 134 offenses.  We conclude that they do not.


[1] 66 M.J. 21 (C.A.A.F. 2008)

[2] 67 M.J. 385 (C.A.A.F. 2009)

[3] 68 M.J. 465 (C.A.A.F. 2010).

[4] Formerly called the Court of Military Appeals.

Under that well-established case law, NMCCA holds, the failure to allege the terminal element in an Article 134 spec doesn’t matter.  NMCCA explains that “[c]onsistent with the holdings of Medina, Miller, and Jones, an accused is provided notice of” the conduct prejudicial to good order and discipline and service discrediting “theories of liability when charged with an Article 134 violation.”

5 Responses to “New published NMCCA decision on omitting terminal element in Article 134 spec”

  1. Anonymous says:

    A sane decision. Although with all the typos and spacing problems it’s possible that this is a draft opinion and the real one says something completely opposite.

  2. Mike "No Man" Navarre says:

    Having not read the opinion or the facts, and reserving the right to change my mind for anyu reason, the rationale on its face appears reasonable. Though, if this was an assimilated crime, again havemt read it, I could see the argument that one would look to the statute elements and not be immediately on notice of the 134 element.

  3. anon says:

    One less case for the Navy JAG to cert

  4. Anonymous says:

    I thought the jurisprudence was that you had to add on PGOD and Service discrediting? Or is that only when you are charging solely under Clause 3? Certainly you have to add it then.

    But we are assuming here that in every straight Art 134 case we charging both, even though sometimes only one clause applies?

  5. Friend says:

    I believe the rationale only applies for existing Art 134 offenses where it seems, as best as I can draw from this case, that notice is almost inherent in the charging. On the other hand, unique offenses invented by the gov’t charged under Cl 1 and 2, very well may require the opposite for the law cited. A trap for both sides to be wary of IMO.