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).