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.
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.