A divided CAAF held yesterday that a charge and specification of adultery that did not specifically allege a prejudice to good order and discipline or that the conduct was service discrediting failed to state an offense.  The holding calls into question convictions in at least 45 Fosler trailer cases and, according to a dissenting and worried Judge Baker, potentially even convictions in cases long considered final.

Fosler began, as many adultery cases do, as a contested rape case.  The accused was a lance corporal and a drill instructor at the Rota, Spain NJROTC when he was accused of sexually assaulting a sixteen-year-old high school student.  The case ended, as many of these cases do, with an acquittal of the Article 120 charge and a conviction for adultery.  At the conclusion of the government’s case in chief, the accused moved to dismiss the adultery charge (mistakenly under R.C.M. 917 rather than R.C.M. 907) for failure to state an offense.  The military judge noted that the specification was based on the sample specification in the Manual and denied the motion.  She instructed the members that they could convict the accused if they found the conduct to be prejudicial to good order and discipline or of a nature to bring discredit to the service. 

Judge Stucky, joined by Judges Erdmann and Ryan, acknowledged at the outset that longstanding precedent permitted omission of the terminal element from Article 134 specifications, and that the sample specifications in the Manual typically do not contain the terminal element.  Changes in the legal landscape, beginning with the Supreme Court case of Schmuck v. United States, 489 U.S. 705 (1989), and continuing through the Jones line of cases involving pleadings and LIOs, drove the break from precedent.  Both the majority and the dissents framed the decisional issue the same way: does the language in the sample specification necessarily imply the terminal element of Article 134 adultery?  To decide if the sample specification implied the terminal element, the court considered the language of wrongfulness, the possibility that adulterous conduct itself implies the terminal element, the force of historical practice and pleadings, and R.C.M. 307’s general provision that elements may be necessarily implied, asking if each, alone or together, implied the terminal element of Article 134.  The majority also took into consideration that the terminal element in an Article 134 charge may be met in three distinct ways; that an act might be prejudicial to good order and discipline without being service discrediting, and vice-versa.  The majority found that the sample specification does not necessarily imply the terminal element, and dismissed the charge and specification for failure to state an offense.

Chief Judge Effron and Judge Baker considered essentially the same factors as the majority, but each dissented.  Judge Baker called the holding a potential “sea change in practice and law” and correctly pointed out that other charges, such as larceny, traditionally rely on pleadings much less definite than the sample specification for adultery.  Judge Baker took the majority to task for leaving so many questions unanswered:  What will happen to the host of Fosler trailers (45 by Judge Baker’s count)?  What about guilty plea cases, since an accused can’t be convicted of a specification that isn’t an offense?  How could waiver apply?  Will this lead to several decades worth of cases being revisited on error coram nobis?  And, almost breathlessly, “[h]as Article 134, UCMJ, lost its capacity to serve as a  . . . fair and predictable tool to uphold good order and discipline? . . . Is Parker v. Levy . . . still good law?” 

Well.  I don’t know about all that.  But he’s right to marvel at the venerable century oaks of case law precedent uprooted and tossed aside, red Lexis stop signs twisted around their trunks.  And who knows what’s left of the 45 Fosler trailers.  (I know.  I should stop.)   I’m not sure it’s going to be total devastation, though; the guilty plea trailer next door to Fosler could miraculously emerge unscathed, in spite of it all.  My guess is that the government will plead the terminal element from now on–it’s already been recommended out of caution–and our practice will come back down more or less on its foundation.  Remember Prather?  You might not.  Lots of broad language that kind of blew itself out in Medina.  Time will tell.

13 Responses to “United States v. Fosler: CAAF holds Article 134 adultery sample specification fails to state offense”

  1. stewie says:

    I think the majority has a basic point. Adultery BY ITSELF is not a crime. It requires clause 1 or clause 2.
    This is mostly solved by the military judge correctly instructing, but it still treats 134 separately from other charges by not requiring the government to actually choose one of the two clauses.

    This will remedy that. Sure it is a sea change, but maybe the right answer is we should have been doing it this way all along?

    It’s not like it’s all that hard to do.

  2. Peanut Gallery says:

    Isn’t Davis really the case we’re all waiting to see? Fosler seems limited to circumstances where the accused contests the charged offense and/or moves to dismiss for failure to state an offense. Davis is the guilty plea version that will really show how far CAAF wants to take this.

  3. Cloudesley Shovell says:

    Stewie raises an interesting point. Does the gov’t have to choose between clauses 1 and 2 when charging? Or can they charge (in one specification) “prejudicial to GO&D or service discrediting” and rely on a general verdict from the members, or do the members have to agree on which clause?

    If the gov’t has to choose, do all 134 offenses now have to be charged twice, one specification alleging prejudicial to GO&D, and the other alleging service discrediting conduct? Does the judge then have to instruct the members it’s either or?

    Another possibility is two trials. The gov’t could first prosecute on a clause 1 GO&D theory, and if the trial results in an acquittal, the gov’t could charge again at a fresh trial on a clause 2 service discrediting theory. They are, after all, two different charges with different elements, even though the underlying conduct is the same.

    The fallout will be interesting.


  4. Dew_Process says:

    Once upon a time… we all litigated this issue per U.S. v. Fout, 13 CMR 121 (CMA 1953), to include the fact that a GP could not “waive” the defect. The “waiver” issue was changed in U.S. v. Watkins, 21 MJ 208 (CMA 1986), in the context at least of AWOL specs.

    Under the 1969 MCM, para.213(d), clauses 1 & 2 of Art. 134, were designated an “element of proof,” hence the argument that they had to be alleged. For a while, the AF at least pled both Art. 133 & 134 by adding the “prejudicial to good order and discipline” language. Cf. U.S. v. Yeast, 36 CMR 890 (AF Bd.Rev.), rev. den. 36 CMR 541 (1966).

    What goes around….

  5. Dew_Process says:

    Admiral, what about collateral estoppel of the underlying conduct? And, are you not just inviting litigation involving the scope of a Bill of Particulars? I’m not necessarily disagreeing with your thoughts, just tossing out some thoughts.

  6. RY says:

    Admiral, in light of recent case law at CAAF, I’ve also thought Cl 1 & 2 are different. However, the gov’t can charge in the alternative and charging Cl 1 or 2 is effectively the same thing. Requiring separate charges elevates form over substance. The issue is notice and if the charge alleges Cl 1, 2 or either one, I think it’s good enough.

    As for Davis, I have no doubt CAAF sees a GP as sufficiently remedying the matter. As long as the inquiry establishes Cl 1, 2, or 3, the GP waives the notice deficiency.

  7. Cloudesley Shovell says:

    Dew, et al. There are certainly issues with the two separate trials thing, I was just throwing ideas out there on the consequences of the decision.

    With regard to my first point, charging clauses 1 and 2 in a single spec, that could easily lead to Walters/Seiders issues, since absent special findings there’s no proof that all the members agreed on an element.

    Charging clause 1 and clause 2 as separate specs on the same charge sheet and letting the members sort it out with appropriate instructions may be the best bet in the short term. Of course, the same conduct could validly be a violations of both clause 1 and clause 2, so is it a multiplicity issue or an unreasonable multiplication of charges issue? Different elements, so likely a UMC issue.

    It will be an interesting year or two before it all gets sorted out.

  8. LexArma says:

    “My guess is that the government will plead the terminal element from now on–it’s already been recommended out of caution–” It just did.
    I just got an amended CS with the Clause 1 and 2 terminal elements typed on (added to) it…

  9. Random TC says:

    I don’t see the sky falling for the Govt. We have been charging PGOD or SD ever since this came up a while back out of an abundance of caution. And to the Govt hacks who cry out “why change and have to prove a new element?” Big deal, PGOD or SD is easy as pie to provide evidence on. It is not like adding something that I now have to go out and gather evidence from digital analysis or get from an expert. Add it, he pleads to it, no big deal. Add it, it’s contested, you put on some relatively easy evidence. It is not like they cut speedy trial to 30 days. Add it and move on.

  10. Terminal velocity says:

    The SD/prejudicial to GOD element can inure to the benefit of the G since it provides a door to bring in evidence in aggravation on the merits. For example, in an adultery where the cuckolded spouse is a member of the same unit as the accused, the G can bring in the members of the command to talk about how it decreased morale in the unit and undermined unit cohesiveness. I think one of the results of this case may be TC becoming much more savvy in leveraging the terminal element to get around MRE 401/403 objections, instead of dismissing the terminal element as a pro forma afterthought.

  11. Not me says:

    I actually thought the exact thing as Vt. This may look like a boon to DC at first, but only if you have a very careless or stupid TC. MRE 403 objections will be very difficult to sustain when TC says, “Your Honor, in light of Fosler not only are we required to charge this element, but we also must prove it.”

  12. Ama Goste says:

    My thoughts also, TV and NM.

  13. stewie says:

    It’s a temporary boon, soon to ripen into a bitter fruit.