The Air Force Court of Criminal Appeals today issued its first post-Fosler Fosler decision. United States v. Martinez, No. ACM S31779 (A.F. Ct. Crim. App. Oct. 27, 2011). It appears to be a published decision, but its electronic file name includes a “u,” which is typically used to designate an opinion as unpublished. That ambiguity should be resolved once the opinion is posted on AFCCA’s website.

The case included a conviction to an Article 134 reckless endangerment offense based on the accused’s guilty plea. The reckless endangerment spec didn’t include an Article 134 terminal element. AFCCA upheld the conviction, holding that “appellant’s case is distinguishable from Fosler.” Id., slip op. at 5. The court noted the critical distinction that while the Article 134 spec in Fosler was challenged before findings, “this case involves a guilty plea to an unchallenged specification.” Id.

AFCCA reasoned that “[f]ailure to object to the issue of a specification’s legal sufficiency does not constitute a waiver [of] any such legal sufficiency.” Id., slip op. at 4. But, quoting one CAAF opinion and citing two more — including United States v. Watkins, 21 M.J. 208 (C.M.A. 1986) — the court stated that specs “challenged immediately at trial will be viewed in a more critical light than those which are challenged for the first time on appeal.” Id.

AFCCA determined that both the prejudicial to good order and discipline and service discrediting terminal elements were “necessarily implied” by the reckless endangerment spec’s language. Id., slip op. at 5.

The specification alleges that the appellant, while at Camp Bucca, Iraq, “wrongfully and recklessly . . . point[ed] a loaded Beretta M-9 at [A1C DV] and place[d] the decocking/safety lever in the fire position, [and that his] conduct [was]likely to cause death or grievous bodily harm to [A1C DV].” Without any other information about the attendant circumstances, the ordinary understanding of this language necessarily implies the concepts inherent in clauses 1 and 2 of Article 134, UCMJ, and thus can be interpreted to contain the terminal element. In a deployed wartime environment, there can be few offenses more obviously prejudicial to good order and discipline than one military member pointing a loaded firearm at another fellow Airman to the risk of grievous bodily harm or death. Similarly, the language of this specification necessarily implies that the conduct is of a nature to bring discredit upon the armed forces, as this reckless and risky conduct clearly has a tendency to bring the Air Force into disrepute or tends to lower it in public esteem. Therefore, this charge and specification are sufficient as they allege every element of the Article 134, UCMJ offense expressly or by necessary implication, and fairly informed the appellant of the charge against which he must defend.

Id., slip op. at 6 (alterations in original).

AFCCA also reasoned that “the appellant received further information about the nature of the charge prior to and at his court-martial,” observing that the accused entered into a stipulation of fact that “contained specific information about the terminal elements implied within the charged language. The appellant stipulated that his conduct was prejudicial to good order and discipline” and “would, if known to the general public, tend to lower the esteem of the armed forces.” Id. Also, during the Care inquiry, the military judge advised the accused about the terminal elements and the accused admitted that his conduct satisfied them.  Id., slip op. at 7.

Judge Harney wrote for a unanimous panel.

4 Responses to “AFCCA affirms in guilty plea Fosler trailer case”

  1. Zachary Spilman says:

    3 out of 4 courts… when will the CGCCA make it unanimous?

  2. ry says:

    “Judge Harney wrote for a unanimous panel”
    For the AFCCA, “Is there any other kind?” (think Few Good Men).
    I may be wrong but the last non-unanimous AFCCA opinion was U.S. v. Rose, on remand, en banc over 16 months ago. I don’t know if anyone tracks CCA comparisons, but I’m betting AFCCA is dead last on dissents. Curious, no?

  3. Phil Cave says:

    They may not need to. Not sure if they have such an issue there?

  4. anon says:

    Maybe I’m wrong but I thought the Supreme Court rejected the notion of intermediate standards of review in Kumho Tire. So if its not objected it is de novo review. . . with less deference?