The cases, all convictions in accordance with the pleas of the accused, and all unpublished decisions are:
- United States v. Scaringello, No. 201100192
- United States v. Simmons, No. 201100044
- United States v. Thaxton, No. 201100261
Each follows the reasoning of prior cases, essentially that: (1) the accused was on notice, considering the greater tolerance exercised when a specification is first challenged on appeal, because of the pretrial agreement, the assistance of counsel, and the explanation of the elements by the military judge, and (2) even if he was not on notice, he consented to a major change when the military judge informed him of the elements of the otherwise uncharged offense (which was implicitly referred by the convening authority’s acceptance of the pretrial agreement).
This brings the post-Fosler, missing terminal element, guilty-plea affirmation total to
9 (8 NMCCA, 1 ACCA). Correction: total of 6, all NMCCA. An additional 2 contested cases were reversed by NMCCA on Fosler grounds.
Additionally, the NMCCA released its (also unpublished) opinion in an interesting Jones non-trailer. United States v. Rauscher, No. 201000684, involves an accused who was charged with assault with intent to commit murder, in violation of Article 134, but was convicted of aggravated assault, in violation of Article 128, as a lesser included offense. The NMCCA found that based upon the facts of the case, and specifically the discreet facts alleged in the specification at issue, the LIO was proper, and affirmed the conviction. Of note, the 134 specification did not state the terminal element…