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.

16 Responses to “Published NMCCA opinion affirms finding of guilty to a Art. 134 specification without an expressly-alleged terminal element in a contested case”

  1. stewie says:

    CAAF has two options, overturn this ruling, or overturn Fosler because you can’t take the specified reasoning behind Fosler and say it was simply about the accused showing prejudice in that case. It was clearly about notice.

  2. Zachary Spilman says:


    Not to say overturning Fosler would be a bad thing, but…

    Art. 59. Error of law; lesser included offense

    (a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

  3. stewie says:

    so failure to state an offense must first materially prejudice the substantial rights of an accused?

  4. stewie says:

    To state another way, Fosler specifically said the terminal element is an element, just like any other element, that it is not in fact “necessarily implied” and thus it has to be pled and proven just like any other element to any other charge.
    So, if that reasoning remains, then why can’t one extend this to any offense missing an element where the defense does not object? If we are going back to “necessarily implied” and thus the terminal element does not have to be pled and proven, then arguing that you can’t get relief unless you object makes more logical sense.
    Thus, either you overturn Fosler, or  you overturn this ruling, the two cannot logically co-exist.

  5. Zachary Spilman says:

    so failure to state an offense must first materially prejudice the substantial rights of an accused?

    I think the better question is: Doesn’t an uncorrected failure to state an offense necessarily materially prejudice a substantial right of the accused?

    As vulnerable as this opinion is to Fosler, there’s the more recent Ballan to consider:

    There was no prejudice to the substantial rights of Appellant; this case, involving a defective specification and a proper plea inquiry, is distinguishable from a contested case involving a defective specification. In cases like this one, any notice issues or potential for prejudice are cured while there is still ample opportunity either for a change in tactics or for the accused to withdraw from the plea completely—not to mention that the military judge must, sua sponte, enter a not guilty plea to the affected charge and specification where he has found a plea improvident. See R.C.M. 910(h)(1) (allowing an accused to withdraw a plea of guilty); R.C.M. 910(h)(2) (requiring the military judge to enter a plea of not guilty when the accused makes statements inconsistent with a guilty plea). In a contested case, on the other hand, there is no equivalent, timely cure that would necessarily be present in every properly conducted court-martial.

    United States v. Ballan, 71 M.J. 28, 35-36 (C.A.A.F. 2012)

  6. Caveman96 says:

    I continue to be amazed at the courts’ gymnastics to repair a government mistake (be it by the drafters or the TCs who relied on it). Whatever has to be done to keep guilty folks from going free, I guess.

    So not only do we now have non-waivable and waivable failures to state an offense, but also failures to state an office that require prejudice and those that do not? 

  7. stewie says:

    Well, it’s the same question in my mind, just ask from the opposite direction. It’s per se more or less, thus you shouldn’t have to do anything to prove prejudice, i.e. object.
    Ballan does just makes the point again. Particularly the last sentence.

  8. publius says:

    Looking to the plain language contained within the four corners of his statement, I am able to conclude that Cpl Hunt has a way with words.

  9. Phil Cave says:

    My initial reaction is that judges Perlak and Beal have it right, on the facts of this case.  While it would have been better to add, “which conduct was to the prejudice of good order and discipline,” that’s getting truly hypertechnical on the facts of this case.

    There is a lesson here.  This case was tried in May 2011, and Fosler was decided in August. But . . ..

    The case was argued 14 May 2011.
    The petition and the issue was granted on 9 February 2011, reasonably well before trial.  (And if I may, My Liege Dwight Sullivan posted on CAAFLog the case that day.)
    The case was argued 16 May 2011, after the trial.

    If you are doing your daily reading and listening to the oral arguments the issue should of been on both parties scopes. That means the parties should have been aware of the specific issue before trial.  The government didn’t take action, relatively simple it seems to me, of amending the charge or if the defense objected, prefer a new charge.

    I’m not sure, but I suspect a fair percentage of the trailer park happened as a result of charging decisions post-February 2011.  This seemed an easy fix after February 2011, and it wouldn’t have taken a lot of work.

    I don’t ding the DC because why was the DC not entitled to rely on the non-waiver rule and take a legitimate call that the issue wasn’t waived and that it might get relief on appeal.  I am definitely not a fan of litigating for appeal, but here  . . .

    To mimic Zach, I predict CAAF will affirm on the concurring opinions of Perlak and Beal, assuming they grant a petition. 

  10. Phil Cave says:

    Sorry, trial was 14 May, not argued then.

  11. k fischer says:


    Seeing how he was not charged or convicted of assault, I guess the Lt. took the advice off Kalvin (with a “K” no less) and backed the f*&% off.  In addition to the disobeying a lawful order, he was also convicted of attempted disobedience of a lawful order.  How does one attempt to disobey a lawful order?  I hope it was something substantial because it really sounds like a bunch of bs. 

    And why wasn’t this Marine charged with assault?  His threat was that he would kick the Lt.’s ass, “too.”  That implies that he already kicked another person’s ass.  Was this particular ass-kicking self- defense?  Anyone have the background on this case?  It appears quite interesting, indeed. 

    I notice that the charge occured at the base hospital.  Perhaps this incident centered around an unwanted prostate exam.  I recently turned 40 and wanted to communicate a threat to my medical provider during my health screen.

    Phil, speaking off litigating for appeal, I had a case in front of Judge Pohl who brought to the parties’ attention that the Government failed to allege the act to further a conspiracy in a conspiracy charge.  By that point, the cat was out of the bag, and I brought a motion to dsimiss the charge in a two charge case.  I brought up that same point that I would have preferred to bring this motion after trial, if required.  Judge Pohl said, “Well, I don’t know whether that would be successful.”

    By the way, anybody see the Miami Herald article on Judge Pohl?  It is really complimentary and hit the nail on the head.

  12. justsomeguy says:

    Not so sure how much can be made of this case.  It is not much different than any number of NMCCA opinions since Fosler and before Ballan where they affirmed convictions related to traditional violations of good order and discipline; breaking restriction, etc.  

    Of course if he prefaced his “conversation” with the Lt using “No disrespect Sir, but….”  he would be just fine.

  13. publius says:

    “…too” is definitely the best part.  What else went on in that examination room?

  14. justsomeguy says:

    Looks like he has more to worry about than this ruling.  Assuming there is not more than one Kalvin D. Hunt having issues after treatment Naval Hospitals.

  15. publius says:


  16. Christian Deichert says:

    That was a great article on Judge Pohl.  Still my favorite military judge.

    On Hunt’s post-service nekkid driving rampage…wow.  Obviously some issues there.