In U.S. v. Leubecker, No. 201100091, The N-MCCA ruled that the rule set forth in U.S. v. Fosler, 70 M.J. 225 (C.A.A.F., 2011) (an offense under Clause 1 or 2 of Article 134, UCMJ, must state the applicable terminal element) is inapplicable where the accused pleads guilty. Citing U.S. v. Watkins, 21 M.J. 208 (C.M.A., 1986), the court noted that:

the appellant entered into a pretrial agreement that contemplated guilty pleas to the General Article offenses; he received the correct statutory elements and definitions from the military judge; and he satisfactorily completed the providence inquiry. (Op. at 2)

The court also distinguished the Art. 134 specification at issue in Fosler (Adultery) from those at issue in Leubecker (Communicating a threat and Breaking restriction). Noting that adulterous conduct alone, without an element of prejudice to good order and discipline or service discrediting nature, “probably is not criminal” under the UCMJ.

If the Leubecker rule is upheld, it will likely have the biggest impact on Summary Courts-Martial, which are reviewed for legal error under Article 64, UCMJ. Most Summary Courts are guilty-plea cases, and many are conducted entirely by unit personnel and without the assistance of attorneys, resulting in specifications that, at best, track the sample language in the Manual for Courts-Martial (which does not include the terminal element).

13 Responses to “NMCCA Rules Fosler Inapplicable in Guilty-Plea Case”

  1. soonergrunt says:

    So I guess that, whatever crimes of which he may be guilty, at least Pvt. Leubecker is not trailer trash.

  2. Jim Richardson says:

    This would appear to comport with U.S. v. Watkins, 21 M.J. 208 where the essential element of “without authority” was omitted but the findings were sustained primarily because of a guilty plea and no averrment that the appellant was misled by the specification.

  3. stewie says:

    Hard to understand how a guilty plea solves a failure to state an offense issue…don’t we have case law that says you can’t plead to something that isn’t a crime?

  4. Anonymous Air Force Senior Defense Counsel with initials NM says:

    Did the trailer park burn down? Or did a bunch of tenants just get evicted?

  5. Peanut Gallery says:

    That part of Watkins is bad law. I’ll plead guilty all day long to a something ISN’T A CRIME and it won’t make it so.

  6. Random TC says:

    If the accused is notified by the MJ during providence that the elements are X,Y and terminal element, and the accused states he understands them, admits them and discusses them on the record, is the lack of the terminal element as not being written so fatal? The accused heard the elements from the MJ, why didn’t he or his counsel say at that time ” well that’s not pled, I have no notice of that, am not prepared to admit that and or combo thereof.” I agree with NMCCA that a guilty plea where the accused hears and affirms this is quite sufficient.

  7. stewie says:

    under that argument, you’d never have to worry about drafting an actual offense on the charge sheet for a guilty plea, so long as the judge saves you by giving notice of the proper elements.

    Notice has to happen at the time of charging. You can’t just wait til the trial and fix it then.

    Heck, at a contested case, why not just have the judge advise the accused of the correct elements, make sure he understands (i.e. a major change) and then just drive on?

    It’s not just a slippery slope, it’s a slippery Grand Canyon.

  8. Random TC says:

    A plea is an arms length negotiation between the accused and the CA and he enters into it with his/her counsel’s assistance. So the accused, at his plea, is unable to grasp the elements as explained by the MJ and presumably gone over with his counsel beforehand? It’s only on appeal he suddenly discovers it, lo and behold, I was misled and not on notice during my exhaustively over paternalistic guilty plea. I don’t buy it. I am all about zealous representation and on appeal it’s almost all fair for DC to argue whatever they can but a plea where he admits elements has to mean something. Contested cases are different, the accused agrees to nothing.

  9. stewie says:

    How is your argument any different from the one the government made (and lost) in Jones?

  10. Peanut Gallery says:

    Random TC, respectfully, I think you’re confusing whether there was adequate notice/due process with whether the specification states an offense. They’re distinct issues. Again, if the spec doesn’t allege a crime, then notice is irrelevant. All the due process in the world can never make a crime out of thin air.

  11. Cheap Seats says:

    Stewie/Peanut: I agree that if it doesn’t state an offense, you can’t plea to it. However, the more important part of this opinion is the distinction between adultery and threats/restriction breaking. The necessarily implied portion of Fosler is different. The guilty plea just means the court isn’t going to do the accused any favors. Still, let’s not forget the implied terminal element differences.

  12. stewie says:

    why is that a distinction?

    It’s a crime or it isn’t, I’m not buying the “without the terminal element” adultery isn’t a crime but threats are argument, according to Fosler, NEITHER is a crime without the terminal element under the UCMJ.

  13. Cheap Seats says:

    Stewie – I completely understand your argument, although I don’t agree that Fosler is that broad. CAAF will have to decide whether, in this case, the language “necessarily implies” the terminal element. I don’t think it is a slam dunk for either side. I guess that is why the Code 45/46 folks get paid the big bucks. Should be an interesting case to follow.