Just a week after releasing its opinion in U.S. v. Leubecker, the N-MCCA released its opinion in U.S. v. Scaringello, No. 201100192 (Sep 20, 2011), finding that:

Even if the text of the specification [Art. 134, UCMJ, Breaking restriction] failed to reasonably inform the appellant of the terminal element, the remaining charges, the military judge’s instructions, the providence inquiry and the stipulation of fact, all at a minimum put him on clear notice that the offense alleged under Charge V necessarily implied the terminal element.

Of note, at issue in Leubecker was one specification of breaking restriction and one specification of communicating a threat.

As it did in Leubecker, the CCA cited U.S. v. Watkins, 21 M.J. 208 (C.M.A., 1986), as a primary source for the its reasoning. The court also cited U.S. v. Daniels, 57 M.J. 560, 561 (N.M.Ct.Crim.App. 2002) (“[w]hen an appellant challenges a specification for the first time on appeal, he must show substantial prejudice, demonstrating that the charge was so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.” Daniels, 57 M.J. at 561 (citing United States v. Bryant, 30 M.J. 72, 73 (C.M.A. 1990))). Daniels was not cited in Leubecker.

Our discussion of Leubecker is here.

The convening authority’s “legal nullity” also made an appearance (see U.S. v. Tarniewicz, __ MJ __; No. 201100158 (N-M. Ct. Crim. App. Aug 30, 2011).

6 Responses to “N-MCCA Affirms Another Guilty-Plea to a 134 Specification Lacking a Terminal Element”

  1. Peanut Gallery says:

    Why doesn’t the MJ just say, “The government hasn’t charged you with an actual crime. But I see that you are willing to plead guilty. Alas, what am I to do but accept your plea? Of course, I’ll give you plenty of notice. I’ll even add some elements for the prosecutor just to make sure your conviction is for a ‘real’ crime. After all, we’re here to ensure justice and the Constitution! [Queue patriotic music]”

  2. Peanut Gallery says:

    Cue, not queue.

  3. BarracksLaw says:

    134 as it relates to SD is a farce anyway. The fact that 134 is so commonly referred to as a “catch all” and requires the Government to present absolutely no evidence what so ever that alleged conduct is service discrediting flies in the face of constitutional principle. The fact the TCs flagrantly flaunt openly and directly to panels that they require no proof or evidence that conduct actually resulted in SD, only that such conduct has a tendency to be SD, should throw flags up all over the place. A tendency that something will happen does not mean that it did happen and certainly does not meet the standard of guilt beyond a reasonable doubt. Absent of any other terminal element SD amounts to “because I said so!”

  4. stewie says:

    Guess we will see, but seems to me that citing Watkins as authority post-Fosler is just plain wrong. The entire premise of that case was specifically destroyed by Fosler.

  5. Military Lawyer says:

    Agree with Stewie–Watkins is of no value after Fosler. And since when do we look outside the specification to determine if adequate notice was given? Isn’t that the whole point of a specification–to inform the accused of what he must defend against? Now we are to look at surrounding charges to determine what the gov’t is charging in a different one? I just don’t see how that works.

  6. anon says:

    Stewie and ML, CAAF seems to disagree. Re-read Fosler, which still cites to Watkins. CAAF states: “However, in contested cases, when the charge and specification are first challenged at trial, we read the wording more narrowly and will only adopt interpretations that hew closely to the plain text.3 Cf. United States v. Watkins, 21 M.J. 208, 209–10 (C.M.A.1986).”