The Air Force Court today issued this 2-1 opinion ruling for the defense in a Fosler-ish Article 62 appeal.  United States v. Brissette, Misc. Dkt. No. 2011-07 (A.F. Ct. Crim. App. Dec. 19, 2011).  Judge Harney wrote for the majority joined by Chief Judge Orr.  Judge Roan dissented.

Brissette arose from an Article 134 indecent acts with a minor spec that didn’t allege any of Article 134’s three clauses. After arraignment — and after Fosler was argued at CAAF but before it was decided — the government moved to amend the spec to add that the conduct was of a nature to bring discredit on the armed forces.  The military judge granted the motion over defense objection.  The accused was convicted of the spec with certain exceptions.  CAAF announced its Fosler decision after trial but before the record had been authenticated.  The defense moved that the military judge reconsider his earlier ruling.  He did and concluded that in light of Fosler, the addition of the “of a nature to bring discredit on the armed forces” language was a major change made post-arraignment over the accused’s objection.  The military judge dismissed the spec without prejudice.  The government appealed.

Today, AFCCA affirmed the military judge’s ruling.  First, the court held that the spec was to be scrutinized strictly because the defense had challenged it at trial:  “trial defense counsel challenged the specification when he objected to the Government’s motion to add the terminal element.  In arguing that the amendment would constitute a major change requiring that ‘the Article 32 be reopened,’ trial defense counsel substantively complained of the same defect as that in Fosler — the charge and specification, as drafted, did not implicate the terminal element, and thus did not provide him with adequate notice as to what he must defend against.”  Brissette, Misc. Dkt. No. 2011-07, slip op. at 4.

The key question in the case, the majority observed, was “whether the terminal element was implied” by the original specification.  The majority rejected the argument that the language “engaging in indecent acts with a minor” necessarily implies Article 134’s “of a nature to bring discredit upon the armed forces” clause.  The majority reasoned:

Alleging that the conduct was “indecent” and committed with a person not yet 16 years old does not expressly “set forth” that the Government would try to prove at trial that the acts alleged resulted in some discredit to the Air Force or the armed services at large.  Surely, one may intuit that the public would generally disapprove of the acts alleged here, and extend some of that disapproval to the Air Force, insofar as the appellee was affiliated with it.  Intuition, however, does not deliver notification, by necessary implication or otherwise, of what element(s) the appellee must defend against.

Id., slip op. at 5-6.  The majority continued:

We are further compelled to disagree that the specification’s allegations sufficiently narrowed down the realm of possible terminal elements the appellee could have been expected to defend against; even if the terminal element(s) could be implied, nothing in the specification indicated which one(s) did.  Arguably, the conduct described could be either conduct prejudicial or service discrediting, or both.  An inescapable point of Fosler is that the appellee had a right to know which.  Fosler, 70 M.J. at 230.

Id., slip op. at 6.

Judge Roan disagreed, concluding that the original specification necessarily implied clause (1) or clause (2) of Article 134:

Based on the explicit misconduct detailed in the specification, I have no difficulty concluding the appellee was given fair notice of both the express and implied elements that he had to defend against.  The specification identifies the purported victim, details the indecent acts he is said to have engaged in, states the extensive time frame the indecent acts were said to have occurred, alleges that the purported victim was under 16 years of age, and indicates the appellee’s military affiliation. Unlike an act of adultery, which standing alone does not constitute an offense under the UCMJ, few could seriously argue that a specification charging an adult male noncommissioned officer with touching a young girl for the purpose of gratifying his sexual desires fails to notify him that such conduct is prejudicial to good order and discipline or of a nature to bring discredit on the armed forces.

Id., slip op. at 7 (Roan, J., dissenting). Judge Roan continued:

Much as a military judge instructs a court-martial panel not to divest themselves from the use of their common sense and knowledge of the ways of the world when evaluating evidence, the same must be said when determining whether an accused alleged to have committed crimes akin to being called a pedophile would know that such acts were also service discrediting.  . . .  The very definition of indecency implicates the morals of society, clearly an indication that appellant’s conduct, as alleged, would call the Air Force into disrepute and thereby be service discrediting if he were convicted.  Hewing closely to the offense specifically charged, the specification fairly informs the appellant of the charge against him, enables him to prepare a defense, and protects him against the possibility of double jeopardy.

Id., slip op. at 8 (Roan, J. dissenting).  He added in a footnote:  “This is not to say that Clause 2 is per se included in an allegation of indecent acts with a minor.  The Government, of course, must always prove beyond a reasonable doubt that the appellee’s conduct was of a nature to discredit the armed forces.  Rather, the issue is simply whether that element is necessarily implied in the charged offense.”  Id., slip op. at 8 n.6 (Roan, J., dissenting).

3 Responses to “AFCCA rules for defense in Fosler-ish Article 62 appeal”

  1. Zachary Spilman says:

    The opposite from what Judges Brand, Gregory, and Weiss concluded in United States v. Wilson, No. 37486 (A. F. Ct. Crim. App., December 15, 2011).

  2. RY says:

    ZS – in fact Judge Roan uses some of Wilson’s language verbatim.  Interesting side note – Wilson included Judge Brand, although the decision was published over 2 months after she went on terminal leave and surrendered the C.J. spot to Judge Orr.  In this opinion, Chief Judge Orr sides with the Appellee.  So there’s a split on the court with more judges apparently favoring the government on this issue.  How does the Court decide whether to hear the matter en banc?  It would seem prudent for the government to ask for it.

    On the substance side, the AFCCA seems to be treating Fosler cases like it has drug cases (i.e., as if there’s no change in law) and will likely get many of them back from CAAF.  To say Cl 1 or Cl 2 is implied and then say it’s a separate element is contradictory and, IMHO fundamentally misconstrues Fosler and CAAF’s recent case law re: elements.  As the majority in Brissette says, it’s about assuring the accused which element he is defending against: Cl 1 or Cl 2.  You need to know which one.  Further, I’m not sure how a CCA can conduct a Art 66 review without knowing which element members convicted him of, Cl 1 or Cl 2.  After Fosler, they’re not just alternative theories, they’re alternative offenses.

  3. Phil Cave says:

    In United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011), CAAF finally endorsed, IMHO, Article 134 offenses as absolute liability offenses.[1]  They, IMHO, removed any pretense that the prosecution had to present evidence BRD on the elements of GoD/SD.  That is consistent with the Manual and Article 134 pleading practice as it existed pre-Fosler. While rejecting a per se or presumption SD approach in Phillips, they applied such.  I suppose I’m channeling the Ryan/Erdmann dissent.  

    So now, we have a situation where it has to be plead, but if it’s not it might be implied, but it still doesn’t have to be proved.  As to the GoD I don’t see that for Brissette.  There doesn’t appear to have been any evidence of an impact on the military other than the accused being an active duty member.  But in light of Phillips, I do see SD, and so Judge Roan’s dissent would be partially right?  So could they affirm on the basis that the conduct was SD using Judge Roan’s approach combined with Phillips

    As a cynic might say, if they don’t have to prove it, why should they have to plead it.  

    ZS On Wilson, there the accused did not object at trial?  At least with Brissette we have the defense objecting so the heightened standard of review.

    [1]  See United States v. Green, 55 M.J. 76, 85  (C.A.A.F. 2001)(Gierke, J., dissenting).