Some months ago I predicted that United States v. Fosler, 70 M.J. 225 (C.A.A.F., 2011), is “a case with a very short lifespan.” It’s too early to see just how wrong I was, but the list of Fosler trailers continues to grow with last month’s grants.
However, counsel practicing before the N-MCCA remain on the cutting edge (Fosler was a Marine Corps case, after all), boldly seeking the next radical theory to challenge the conventional wisdom. Alas, in a recent opinion, the N-MCCA stands firm. The court finds that where an accused pleaded guilty to attempts to commit violations of Article 134, in violation of Article 80, it was unnecessary to allege terminal elements in the specification because, in part, “there is no legal requirement to overtly plead, or otherwise include by necessary implication, the particularized elements of the target offense, for attempts.” United States v. Sokolis, No. 201100415, slip op. at 2-3 (N-M Ct. Crim. App., December 27, 2011).
Of course, the N-MCCA also affirmed the findings in Fosler.