With its recent opinion in United States v. Roberts, No. 20090716 (14 October 2011), the Army CCA joins the Navy-Marine Corps CCA in the post-Fosler affirmation party for Article 134 specifications lacking the terminal element where the accused did not challenge the specification at trial and pleaded guilty.

Like the N-MCCA’s seven similar opinions to date, the ACCA relies heavily on United States v. Watkins, 21 M.J. 208 (C.M.A., 1986) for the principle that “a charge or specification first challenged after trial … is viewed with greater tolerance than one which was attacked before findings and sentence …[and] is liberally construed and will not be held invalid absent a clear showing of substantial prejudice to the accused—such as a showing that the indictment is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. Roberts, Slip Op. at 4 (internal citations omitted).” The offense at issue in Roberts is breaking restriction.

For those who can’t access the ACCA’s case page, the opinion is also available here: United States v. Roberts, ACCA 20090716.

The petition for CAAF review of Leubecker is still pending.

In related news, I just listened to yesterday’s oral argument at the N-MCCA in United States v. Hackler, which considers this very issue (now argued, I believe, for the first time). The offense in Hackler is also breaking restriction. The audio is available here.

Arguing for the appellant, counsel first argued that the court should not liberally construe the specification (the Watkins rule) despite the appellant’s guilty plea, and second that even with a liberal view, the conviction should not be affirmed. That argument met with immediate hostility from the panel, who focused on whether the appellant waived the error by his plea-bargain and pleas (and probed the standard of review to be applied), and sounded plainly skeptical (“give me an example … where breaking restriction would not axiomatically be prejudicial to good order and discipline”). The response (“it just isn’t”), was somewhat unsatisfying. (rec. at 12:05).

The appellant’s ultimate argument appeared to be that he only entered into the plea agreement because he could not have prepared for trial without knowing the government’s theory of criminality, and thus took advantage of the opportunity to reduce his liability by a plea. This led to questioning of what in the record supports this theory, which caused the appellant’s counsel to state: “it would be unfair to look to the record.” (rec. at 16:58). This, he argued, is because the long-standing practice of omitting terminal element makes the objection meritless, and thus inconsequential; trial defense counsel had no reason to challenge the specification (The argument never addressed whether the plea was somehow involuntary or coerced.)

The panel tried to apply this argument (must disclose the theory of criminality on the charge sheet) to a different offense (larceny) and alternative theories of criminality therein (taking vs. withholding), leading appellant’s counsel to argue that a larceny specification is open to similar attack.

However, the appellant got some traction with the argument that the plea did not amount to a major change because the military judge did not discuss the need for a change with the appellant.

The government opened with the ways Hackler is different from Fosler (breaking restriction, not adultery; guilty plea; no objection). The panel focused on the importance of the objection, or lack thereof, and the government cited to the many citations to Watkins in Fosler, to emphasize the continued vitality of Watkins.

The government also argued for a plain-error standard of review (and the corresponding analysis for prejudice), noting the lack of an objection at trial. This led to a practical consideration of whether the court should look, on a case-by-case basis, to the sufficiency of the notice provided by the specification under the circumstances.

But the panel kept returning to the significance of Fosler, as perhaps a last-word rebuke to the long practice by the Government of omitting the terminal element, and the government kept emphasizing the significant of the objection at trial in Fosler, and how that limits CAAF’s ultimate opinion.

In rebuttal, the appellant returned to the concept that, because the terminal language was widely-regarded as “mere surplusage,” the appellant couldn’t be expected to have objected. Further, the appellant continued to argue the significance of Fosler, so much so that the panel wondered if the appellant wasn’t arguing that Fosler must be applied retroactively, regardless of finality of conviction. The appellant’s counsel, for obvious reasons, distanced himself from this point.

The argument, which was just under an hour, was very good and is worth listening to.

9 Responses to “ACCA joins the post-Fosler party, and N-MCCA turns up the music”

  1. stewie says:

    “the plea did not amount to a major change because the military judge did not discuss the need for a change with the appellant.”

    This is absolutely true and if the CAAF decides to disagree with the Service Courts it is on something like this that they will hang their hat on.

  2. Peanut Gallery says:

    2 points:

    -Hackler is the third case in which NMCCA heard argument on this issue. See Rheel and Redd.

    – You’re being a bit unfair to ADC. In response to the “breaking reatriction is axiomatically PGO&D” question, he also said that just because the accused’s conduct IS PGO&D doesn’t mean it’s IMPLIED in the spec. There is a very real distinction there.

  3. Zachary Spilman says:


    Thanks. I don’t remember listening to Rheel and Redd, but I guess I now have something for the ride on to base tomorrow (good thing too – my public radio station is in the middle of a fund drive).

    On fairness to the ADC, that’s why I included the time hack. It’s true that he said more than “it just isn’t,” but that’s really the only answer the court got to why the specification wasn’t necessarily adequate under these facts. My bias on the issue is pretty obvious by now, but that argument is just too much form over substance.

  4. Dwight Sullivan says:

    Unfortunately I don’t have time to listen to the argument tonight. But I am curious about Zack’s observation that the panel “focused on whether the appellant waived the error.” R.C.M. 907(b)(1) labels failure to state an offense as “Nonwaivable.” In Boyett — a decision cited in Fosler — CAAF cited R.C.M. 907(b)(1) in support of the proposition that a “guilty plea does not waive the defect of a specification that fails to state an offense.” United States v. Boyett, 42 M.J. 150, 152 (C.A.A.F. 1995). Can anyone provide a synopsis of what was said about waiver during the Hackler argument?

  5. Zachary Spilman says:

    One point of discussion was the standard of review to be applied: the government argued plain-error based on lack of objection, and the defense sought de novo review. Below are some of the juicer-bits:

    At the beginning of the appellant’s argument (around the 2:00 mark) Judge Maksym (I think) asks:

    “Didn’t your client, again and again and again and again, throughout the tenure of the transcript of this trial, tell us (1) how guilty he was, (2) how he wanted to be guilty, (3) articulated and understood the trial judge’s terminal element explanation, and signed a pre-trial agreement that articulated how guilty he wanted to be and was, and accepted the fruits of that agreement. How has he not waived any prospective error in this litigation?”

    The appellant answered by citing to United States v. Mayo, 12 M.J. 286, 293-94 (C.M.A. 1982) and United States v. Marker, 1 C.M.A. 393, 400, 3 C.M.R. 127, 134 (1952), to say that the appellant “couldn’t prepare a proper defense at the outset, that is if he wanted to contest this specification at trial, he would be forced, by this judicially-sanctioned practice of totally omitting the terminal element from the charge, to go to trial having no idea what the government’s theory of criminality is.”

    Judge Maksym then asked, based on other cases pre-Fosler, “wasn’t your client, and certainly his counsel, on notification at trial, that this was an area fruitful for possible attack?”

    The appellant then distinguished Miller, Medina, and Jones from Fosler.

    Then there was discussion (around the 7:00 mark) of whether plain-error review should apply, with the appellant arguing: “it’s always been a de novo review, all of the case law says this. Even in [unintelligible], this court’s opinion where it was a guilty plea, there was no plain-error review. This is a well-settled matter in our view, that if this specification is found to be defective, it’s fatally defective. There’s no plain-error review. The Government wants a plain-error review for a prejudice analysis. CAAF has never done a prejudice analysis.”

    In its turn, the government, as I discussed in my post, maintained that plain-error review applied because the appellant did not object.

    I didn’t hear any specific discussion of R.C.M. 907(b)(1), or any discussion of forfeiture vs. waiver of the error.

  6. Zachary Spilman says:

    The posted Rheel and Redd oral argument audio files are incomplete. I’ve requested complete versions. More to follow.

  7. Michael Lowrey says:


    You obviously haven’t listed to that many NMCCA oral arguments. At the 2:00 minute mark, that is indeed Senior Judge Maksym. Maksym is easily the most active judge on NMCCA when it comes to asking questions during oral arguments. He also often finds things “quaint.”

  8. Just Some Guy says:

    Just an observation but, I love how the term “appellant” is used as if the “Apellant” actually did anything at trial but sit quietly at the table while his “counsel”, trained and licensed to actually know the law, is really who they should be referring to. If the objection to the failed spec was not raised at trial is it really the appellant or the counsel who should be held accountable? Hairs are being split on when the objection was raised. At trial it is more in appellants favor, post trial less in favor of the appellant yet it is counsel who ultimately decides to object but appellant suffers the consequences if no objection is made. Seems we prefer to blame the client for choosing the wrong counsel.

    If this was medical malpractice investigation do they refer to the “patient” for causing harm or failing to do some act that caused harm or do they refer to the licensed medical professional doctor?

    Sorry…just seems that “where” the objection is raised is a legal issue that should not count against an appellant where his counsel failed to raise it and but for that failure appellants rights are either better or totally preserved.

  9. stewie says:

    COL Sullivan hits it and being on notice (assuming he was) is simply irrelevant as you cannot waive failure to state an offense barring agreeing to a major change which simply did not happen.

    If you could simply fix a failure to state an offense by making sure the accused understood the correct elements he was facing at trial, then why require a major change to have the accused’s permission post-arraignment?

    Why not simply explain it to him so he’s on notice at trial? The obvious answer is because notice is required well before trial, at the time of charging.