Published NMCCA opinion affirms finding of guilty to a Art. 134 specification without an expressly-alleged terminal element in a contested case
The end of Fosler continues apace, with a published en banc opinion from the NMCCA yesterday, in United States v. Hunt, No. 201100398. The case, which was tried before members in May 2011, involves attempted disobedience of a lawful general order, disobedience of a general order, and a specification of communication of a threat in violation of Article 134 that read:
In that Corporal Kalvin D. Hunt, U.S. Marine Corps, Marine All Weather Fighter Attack Squadron 225, Marine Aircraft Group 11, Third Marine Aircraft Wing, Marine Corps Air Station Miramar, California, on active duty, did, at Naval Medical Center, San Diego, California, on or about 8 July 2010, wrongfully communicate to Lieutenant [H], U.S. Navy, a threat, by saying to him, “You better back the [fxxk] up Lieutenant, or I’ll kick your ass too,” or words to that effect.
There was no objection at trial to the missing terminal element. The court ruled unanimously against the appellant, with two concurring opinions. The majority found error, with Chief Judge Reismeier writing, “Looking to the plain language contained within the four corners of the specification, we are unable to conclude that the specification alleges the terminal element expressly or by necessary implication.” Slip op. at 3. However, with an implicit warning to trial defense counsel, the majority finds no prejudice:
The appellant has the burden of demonstrating prejudice. On this record, the appellant has failed to meet that burden. In fact, we can discern nothing from this record other than full awareness as to the crime alleged and the elements supporting that crime. There was no request for a bill of particulars, no argument as to whether the elements were supported, no surprise stated or objection raised when the elements were provided to the members in instructions before counsel arguments, no confusion or indication that the defense was misled by the pleadings, and no claim, prior to the pleadings before this court, that the specification was in any way defective. Proof of prejudice, in the air, so to speak, is insufficient to support a conclusion that the plain error test has been satisfied. Were we to conclude otherwise, we would be forced to embrace a presumption of prejudice because of speculation that, perhaps, a different trial tactic may have been employed, or a different trial scenario might have taken shape but for the error, a conclusion wholly unsupported in the law of plain error.
Slip op. at 3 (internal citation omitted). The concurring opinions find no error, determining that the terminal element is necessarily implied. Senior Judge Perlak writes that, “the specification in this case is sufficient and in fact is archetypical in alleging conduct to the prejudice of good order and discipline, absent some nascent requirement to say those exact words (or some paraphrasing of same).” Slip op. at 5. Judge Beal, noting the lack of objection at trial, provide further analysis that, “under these circumstances I see no interference with the appellant’s rights to due process, notice, or protection against double jeopardy. Accordingly, I would eschew the standard espoused in Fosler and adopt the standard stated in Watkins of liberally construing the specification in favor of validity.” Slip op. at 6.