CAAF began its analysis in United States v. Fosler with an understatement: “Historically, the express allegation of the terminal element of Article 134 has not been viewed as necessary.” United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F., 2011). Early publications did call for inclusion of a terminal element when charging an offense under the general article. See Captain P. Henry Ray, USA, Instructions for Courts-Martial and Judge Advocates, at 22 (1890). See also Colonel William Winthrop, USA, Military Law and Precedents, at 1022 (2d Ed., 1920). Over the following century this practice changed, until eventually omission of the terminal element received both Executive and Judicial sanction.

As we know, Fosler changed that.

The opinion was brazen, casting aside nearly 60 years of jurisprudence. See, e.g., United States v. Marker, 1 U.S.C.M.A. 393, (1952)). The majority finds this result compelled by its renewed interest in United States v. Schmuck, 489 U.S. 705 (1989), which adopted the elements test for lesser-included offenses under Fed. R. Crim. Proc. 31(c); yet it gives lip service to contemporaneous precedent that applied that rule to offenses under the UCMJ. See, e.g., United States v. Foster, 40 M.J. 140 (C.M.A.1994). This is in stark contract to the deliberateness of the Supreme Court in Schmuck. See Schmuck, 489 U.S. at 716 (“[the elements test] is consistent with past decisions of this Court which, though not specifically endorsing a particular test, employed the elements approach.”).

Still, Fosler is part of a larger effort to return to the principles of the elements test adopted and then abandoned so long ago; to reconcile Foster, Teters, Hudson, and the many others that constitute the “Hydra” of lesser-included offenses under the Code; to remove the “outsize pair of spectacles.” See, e.g., United States v. Jones, 68 M.J. 465, 468-469 (C.A.A.F., 2010). But Fosler risks replacing the Hydra with a Medusa. The opinion had a virtual tornado effect, with 51 remands to the courts of criminal appeals that will force the ad hoc development of practical rules to address the myriad circumstances the court of appeals neglected when it ruled only that “because allegation of the terminal element is constitutionally required and the Government failed to satisfy that requirement here, the military judge’s decision to deny Appellant’s motion to dismiss was in error.” Fosler, 29 M.J. at 233.

Since the court of appeals decided Fosler on 8 August, the CCAs analyzed and applied the case six times (by my count – please let me know if I missed any), all unpublished. The breakdown is five N-MCCA cases, and one ACCA case, as follows:

Edited to add: I overlooked the fact that the specification at issue US v. Thomas (ACCA) actually did allege the terminal element, but was potentially defective in other respects, so that case does not belong on the list. The total is 5 cases, all NMCCA.

The bright line in these cases is clear: where the accused pleaded Guilty to a defective Art. 134 specification, the conviction is affirmed based on the reasoning of United States v. Watkins, 21 M.J. 208 (C.M.A., 1986); where the accused pleaded Not Guilty, the conviction is reversed based on Fosler.

Watkins held that without a showing of prejudice (i.e., a misled accused or double jeopardy concerns), a conviction pursuant to a plea of guilty, first challenged at appeal, will not be reversed for a defective specification unless the specification is so defective that it “cannot within reason be construed to charge [the] crime.” Watkins, 21 M.J. at 210. This Watkins exception to the Fosler rule is perfectly reasonable. An accused who voluntarily and accurately pleaded guilty pursuant to a pretrial agreement, and enjoyed the benefit of that agreement, and who can show no prejudice, undoubtedly understood the offense with which he was charged (i.e., the terminal element was necessarily implied), and no justiciable interest is served by reversing that conviction on technical grounds. However, in breathing new life into this rule, the Army and Navy-Marine Courts of Criminal Appeals are now pitting the reasonableness of Watkins against the reasoning of Fosler.

The Fosler majority emphasized that the three clauses of Art. 134 are “distinct and separate,” and that:

“an accused must be given notice as to which clause or clauses he must defend against. As [the court] explained in the context of a guilty plea: ‘[F]or the purposes of Article 134, UCMJ, it is important for the accused to know whether [the offense in question is] a crime or offense not capital under clause 3, a ‘disorder or neglect’ under clause 1, conduct proscribed under clause 2, or all three.'” Fosler, 70 M.J. at 230 (quoting United States v. Medina, 66 M.J. 21, 26 (C.A.A.F., 2008)) (second and third alterations in original).

This reasoning appears to eliminate the Watkins exception, but Medina (which held that Art. 134 clause 1 and 2 offenses are not necessarily LIOs of clause 3 offenses) is not so broad as Fosler makes it appear. “[In Medina], Appellant was not advised during the plea inquiry that in addition to pleading guilty to the incorporated offenses under 18 U.S.C. §§ 2251 and 2552A, he was by implication also pleading guilty to Article 134(2) UCMJ, offenses.” Medina, 66 M.J. at 27. But in Watkins, the accused was “informed separately of the elements of each … offense by the military judge… . The military judge personally determined the accused’s understanding of the law in relation to the facts … [and] the accused here successfully completed an exhaustive providence inquiry.” Watkins, 21 M.J. at 210. Medina and Watkins present complementary analysis of the fundamental principle that the accused must understand the full meaning and effect of his plea for it to be provident. Fosler doesn’t change that at all.

This makes Fosler a case with a very short lifespan. Prosecutors have already begun to include terminal elements in specifications under clause 1 and 2. Once the present backlog of cases is resolved (presumably by the application of a few bright lines, and a handful of retrials), the need to apply Fosler will be rare, and the next edition of the Manual for Courts-Martial should eliminate application beyond. The post-Jones landscape remains easy. So far, nobody is turning to stone.

3 Responses to “The Future of Fosler”

  1. stewie says:

    a bit premature basing all of this on CCA decisions it seems to me. I’m also not sure I agree it’s reasonable. It does a few things:

    a. basically allows the MJ to cure a failure to state an offense problem by filling in the gaps for government. Why would this be limited to adultery or 134 cases? Why not say you can do it in any case. No more need to worry about proper charging, just make sure the judge fills in the gaps on guilty pleas at least.

    b. effectively makes failure to state an offense error waived by a guilty plea, so long as the judge does the government’s work for them.

    c. seems to me proper notice would be to inform the accused that the spec as written fails to state an offense, and does he/she still wish to plead guilty to what is an improper offense (and oh by the way here are the additional elements to make it proper).

    The CAAF may ratify this then again they may not. It seems to me if it were this easy, they’d have resolved a few of those remands this way instead of remanding them (I assume at least one was a guilty plea?).

  2. Peanut Gallery says:

    To piggy-back stewie’s points, if the MJ does any or all of the above, why doesn’t that constitute a major change to the charges? Absent the affirmative consent of the accused, on the record, wouldn’t a major change require new referral?

    Also, I disagree that Watkins is a reasonable exception to Fosler. No justicable interest served by reversing on technical grounds?!?! Since when is the failure to allege a crime a “technical” basis for reversal?

  3. stewie says:

    I would guess the argument would be that agreeing to plead guilty is the functional equivalent of agreeing to the major change (of course, there wouldn’t be any explicit agreement present).