Last week, NMCCA issued this published en banc opinion analyzing Fosler in the context of a guilty plea breaking restriction case in which the spec’s sufficiency wasn’t challenged at trial.  United States v. Hackler, __ M.J. __, No. NMCCA 201100323 (N-M. Ct. Crim. App. Dec. 22, 2011) (en banc).  Judge Flynn wrote for the majority.  Chief Judge Reismeier, joined by Senior Judge Maksym, joined in the majority opinion but wrote separately to provide an extended analysis of the post-Fosler state of the law.  Judge Perlak concurred in the result, concluding that it was sufficient for his resolution of the case that a breaking restriction spec necessarily implies prejudice to good order and discipline.

4 Responses to “NMCCA’s hack on Fosler”

  1. stewie says:

    If it’s necessarily implied for guilty plea cases why isn’t it necessarily implied for not guilty plea cases? Oh wait, Fosler explicitly says it isn’t. I don’t get the logic behind the distinction, either it is or isn’t necessarily implied. It can’t be both. All else is simply manuvering to save as many cases as possible from what is admittedly a sea change in the law.

  2. Socrates says:

    I think I agree with Stewie.  (Weird analogy to an element: but a fetus is either a person or it isn’t.  It shouldn’t matter whether or not the mother wants it.  Likewise, an element is either viable or it isn’t – regardless of whether or not the court wishes to affirm its life)

    Judge Reismeier argues that the charging error or omission is not error, but instead, a “legal conclusion” about a drafting mistake and implicitly urges a judicial ‘sliding-scale’ to weigh the significance of the difference between the prosecutor’s words on the charge-sheet and the actual statutory language.  This seems intuitive and logical.  But the manner and timing of the drafting mistake actually make it WORSE than trial “error.”

    In federal court, a guilty plea traditionally constitutes a waiver of a defendant’s right to appeal a conviction on grounds other than jurisdictional violations.  But a claim that an indictment charges a non-offense is NOT waived by a guilty plea, because such a claim asserts a jurisdictional defect that goes to the power of a federal court to try a defendant.

    I guess military law really is different.  And I’ll go back and review the military pedigree on this issue, with the help of CAAFlog commentators…

    Although, similar to Judge Reismeier, one can see these drafting mistakes as a mere “formalistic” problem, and conclude, as Judge Sotomayor did while on the 2nd Circuit in United States v. Maloney, 287 F.3d 236, (2nd CIR, 2002):

    “[a charging defect defense]…inherently addresses the form of an indictment and protects against issues of confusion, pretrial notice, and jury compromises which are not implicated in this case. Raising such formalistic errors in framing an indictment to the level of jurisdictional defects exalts form over substance without providing any additional substantive benefit.”

    But, like Stewie, I’m stuck on the fact that an actual, independent element is at stake.

  3. stewie says:

    Ignoring the abortion analogy…I think at the end of the day this is all artifice. We have clear law that says failure to state an offense isn’t waived by a GP. We have clear law that says if you don’t include the terminal element in 134 cases then you have failed to state an offense.
    I’m not a rocket scientist, but…

  4. Dew_Process says:

    Stewie – I agree with one caveat.  I don’t think all of this is a “sea change in the law.”  Procedure in how valid specifications are drafted, yes.  Those of us who began practicing military justice under the 1969 MCM, noted that it contained language holding that the “terminal elements” in 134 specs were indeed “elements,” and in US v. Fout, 13 CMR 121 (CMA 1953), the Court held that all “elements” must be alleged.  The Air Force at least, interpretted that to mean that the terminal elements must be alleged in the spec.  Check out the language of the specs in US v. Yeast, 36 CMR 890, 894-95 (AF CMR 1966), rev. denied 36 CMR 541 (CMA 1966) [133 offenses].

    Somewhere along the line, the CMA/CAAF drifted into the “fairly implied” concept; somewhere along the line, defense counsel stopped moving to dismiss specs that didn’t allege the terminal element and now we’ve got Fosler and its progeny.  The “fix” is simple — allege the terminal element in the Spec.

    Along that line, the Army CMR decided an important case, US v. Buswell, 45 CMR 742 (ACMR 1972), which examined the sufficiency of specs and concluded that the burden was on the government to demonstrate that the specification states an offense, not on the Accused to show that it doesn’t. Id. at 747.

    Here, I don’t think this can be termed a “drafting mistake.”  It was a conscious decision by the Spec’s drafters simply to not include an actual element of the offense — afterall, the members are instructed that it’s an element under Art. 134.