United States v. Mitcham, No. 201200060 (N-M. Ct. Crim. App. May 29, 2012) (unpublished opinion):

A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of one specification of conspiracy, two specifications of making a false official statement, one specification of wrongfully disposing of military property, and one specification of obstructing justice in violation of Articles 81, 107, 108, and 134…

In his sole assignment of error, the appellant alleges that Specifications 1 and 2 of Charge II, making a false official statement, fail to state an offense because the specifications do not expressly allege that the statements were made with the intent to deceive.

In this instance, we find that the element, “with the intent to deceive,” was not alleged, either expressly or implicitly. Having found error, we now address whether the error materially prejudiced the appellant.

In this case, the appellant [pleaded] guilty pursuant to a pretrial agreement. As part of his pretrial agreement, the appellant entered into a stipulation of fact in which he admitted that the statements made to Naval Criminal Investigative Service were made with the intent to deceive. Prosecution Exhibit 1 at 5. Prior to accepting his plea, the military judge accepted the stipulation of fact into evidence. Additionally, he explained the elements of each offense, to include the element that the statements were made with the intent to deceive; he defined “intent to deceive” for the appellant; the appellant acknowledged his understanding of the definition and then admitted and explained how his statements were intended to deceive. Record at 24, 32, 34. Under such circumstances, we find that the providence inquiry for Specifications 1 and 2, of Charge II provided “notice of the offense of which [the appellant] may be convicted and all elements thereof before his plea [was] accepted and, moreover, protect[ed] him against double jeopardy.” Ballan at 35. Accordingly, the appellant suffered no prejudice from the failure to allege the “intent to deceive” element.

44 Responses to “NMCCA affirms guilty plea to Article 107 specifications lacking an element”

  1. stewie says:

    so one assumes next we will find a service court finding no prejudice for failure to state an offense in a contested 107 case so that we can put the final nail in failure to state an offense as a threshold issue like jurisdiction.

  2. Just Sayin' says:

    Well, you all know that elements of the offense are really more “guidelines” right????

  3. Peanut Gallery says:

    R.C.M. 907(b)(1)(B): A charge or specification SHALL BE DISMISSED AT ANY STAGE OF THE PROCEEDINGS if the specification fails to state an offense. 

    This is a nonwaivable ground for dismissal. 

    On the other hand, a speedy trial violation — presumably a waivable ground — requires dismissal of the charge and spec under R.C.M. 707, regardless of whether the accused objects.  

    So we are now in the paradoxical universe where a nonwaivable ground for dismissal can be forfeited by failure to object, but a waivable ground requires dismissal regardless of objection.  

    The lesson here is that if you plead guilty, the appellate courts will give you the Rooster Cogburn treatment: “Ain’t nothin’ I can do for ya, son!”  


  4. Dew_Process says:

    PG – alternatively, you are now setting up a boat-load of IAC claims!

    This is another case which involves the “litigation of fiction” in order to sustain a conviction.  Busting a few of these cases would bring pressure on the SJA’s involved who in turn might force their MJ’s to pay closer attention to drafting specs.  But then again . . . .

  5. Peanut Gallery says:

    DP, I thought the same thing.  SCOTUSblog has a link to an ABA Journal article about 2 recent SCOTUS opinions dealing with IAC in guilty pleas.  It appears that courts should closer scrutinize the extent to which an accused participates in his/her plea.  Whether that logic extends to potential objections remains to be seen. 

    But I still fail to see how one can forfeit a nonwaivable issue.  To me, nonwaivable is a fancy Anglo-Latin term for “you don’t have to do anything to preserve this.”

  6. stewie says:

    Well…technically, they aren’t saying you waived it as much as they are leaning on the yes, there is error (thus not waived) but no prejudice.

    Of course, “SHALL BE DISMISSED” seems like a fancy Anglo-Latin term for…well…shall be dismissed.

  7. Peanut Gallery says:

    Stewie, you’re correct.  There is a difference between the error and the harm.  But it’s hard to prove harm when the courts keep relying on the fact that there was no objection to show that the error was harmless.  I’m just following their rabbit trail and trying to figure out how to get out of their circular logic. 

    Nonwaivable = no need to object.

    Error = failure to state offense.

    Prescribed remedy = dismissal, no objection necessary (see “nonwaivable” above).

    Standard of review = plain error due to failure to object.

    Prejudice analysis = HBRD because of failure to object.   

    Military justice practitioners = helmet fire…pink mist everywhere.   


  8. stewie says:

    My understanding is the rabbit trail is thus:

    Error: failure to state an offense
    Waivable, Y/N? N.
    Then, no need to object.
    Prejudice, Y/N? N.
    Then, no relief for appellant.

    The problem is that it should instead read:

    Error is failure to state an offense. Y/N? Y.
    Then, charges shall be dismissed.

    I think the real issue is, you have on the one hand Congress in one part saying, no relief unless prejudiced, and on the other hand saying, all failures to state an offense shall be dismissed at any stage of the proceeding.

    So which wins? Do you test failures to state an offense for prejudice and thus treat it like all/most other appeals, or are failures to state an offense treated specially. I’d argue the latter, because the language in the R.C.M. is so unambiguous and clear.

  9. Zachary Spilman says:

    But it’s hard to prove harm when the courts keep relying on the fact that there was no objection to show that the error was harmless.

    The error is harmless because the appellant is guilty. Guilty as sin. Guilty enough to survive the most brutal allocution in American jurisprudence. Guilty enough to affirmatively waive all questions of fact as they relate to any question of his guilt. And don’t forget that he did it at a discount, having received “valuable consideration” in exchange for his plea (check your PTAs – that part is usually in the first paragraph).

    To prevail with the ludicrous argument that an admittedly and unquestionably guilty man is somehow prejudiced and entitled to substantive relief because of a technical error in the pleadings – an error that was corrected by the trial judge when the elements were explained in excruciating detail and the appellant admitted to them in his own words – you will have to identify some right that was prejudiced (other than “the right to get away with it,” of course). 

    Good luck with that.

  10. stewie says:

    Not to be trite but, so?
    Either the words shall be dismissed mean something, or they don’t. Why is your analysis any different if it turns out we didn’t have jurisdiction? After all, he’s REALLY guilty.

  11. Zachary Spilman says:

    I made enough of a mess of that issue (RCM 907(b)) already, stewie. See this discussion.

  12. John Harwood says:

    I may just be sentimental, old school, or whatever you’d call it, but IMHO when the sovereign undertakes to deprive a man of his liberty, they have to get it right.  The accused’s factual guilt is irrelevant to this – either the charge and spec the gov’t drafted alleges an offense under the Code, or it doesn’t.  If it doesn’t, then no amount of cure by the trial judge during the Care can fix that.  The remedy is to dismiss the spec.  If the trial process is far enough down the line that the dismissal is with prejudice, then tough luck for TC.  If it’s not, then they have a chance to cure their error.

    Is a bit of professionalism and accuracy too much to ask?

  13. Kim Jong-Un says:

    When I tell all of my subjects that they SHALL bow down before a portrait of my dear grandfather, they do.  There is no SHOULD, nor is there a MAY.  In my studies at Kim Jong-Il University School of Military Law, we learn that a specification SHALL be dismissed at any stage of the proceedings, even in the absence of an objection.

  14. Phil Cave says:

    In the RCM 103 discussion the President notes that Congress have defined that “shall is used in the imperative sense.”  1 U.S. Code Sec. 1(28).

    As an Ensign going through initial officer training I was taught that “shall” means it will be done or not done, no ands ifs or butts.  And that “may” did allow some discretion.  See 1 U.S. Code Sec. 1(29).  At the time we were being taught certain code words (oooops, pun intended).  Other code words included seniors suggest, juniors recommend, etc., etc., etc.

    There are many places in the RCM where a party (see RCM 103(16) “shall” do something.  These shall’s are often-times ignored.  The ignorance is not enforced.  So why is it surprising that we are in a situation where shall means may.

    Because I think this is a reasonable conclusion as to FSO in a GP case.  This calls for an appropriate amendment, in a GP case.

    [Text]  The specification fails to state an offense, and in the case of a guilty plea to an alleged defective specification, the Convening Authority has not yet acted to approve or disapprove the findings and sentence.”  [End Text].

    Why do I disagree with the Court and the apparent willingness to ignore the plain language of the rule.  Well, the court is supposed to enforce the law and rules.  When the appellate courts come to be perceived as consistently giving the government a pass, the government is educated that they don’t need to follow the rules, and there’s a domino effect.  This is legal socialization, that’s how we educate people.  Gone are the days when we get the opinion that says that the government needs to follow the rules or else, and then there is an actual or else.  And, well, the client might not get retried.  Because of the appellate delays maybe there’s a chance the client might not get retried.  If that happens there’s a chance at back-pay.

    Why do I philosophically agree with Mitcham.  Because, if the objection was raised at any time prior to the CA action, I would hope (although am not 100% certain this would happen) that the SJA would have the charge or charge(s) retried.  If that specification was one of a few others, they could dismiss the one without prejudice and approve the rest and the sentence.  Tally ho, a new and second trial and a new and second consecutive sentence.  So, most of us know that if there was a real problem and the motion was raised we’d be back at the start, and maybe this time without a reasonable PTA.  So, assuming   (although am not 100% certain this happens) the defect is explained prior to the plea by the defense counsel, and the client is willing to go forward, why bounce the case.  Presumably the same reasons for a plea would apply if the charges are withdrawn and re-referred.

    So, Mitcham is the right result but not a legally correct result, (although am not 100% certain this will happen), the RCM is amended.


  15. Phil Cave says:

    Congress “has”

     happen), until the RCM 

  16. Peanut Gallery says:

    Zack, please choose any reason other than “he’s guilty anyway.”  Such an ends-justify-the-means model of criminal justice would set us back 200 years.  Why not tie him to a boulder and toss him into a pond?  If he dies, he’s innocent.  If he survives, he’s “guilty as sin.” 

    Besides, guilty of what?  According to the proscution, he’s guilty of making a false statement without any intent to deceive.  If that’s a crime, then the next time your wife asks you if that dress makes her look frumpy, you might want to pull out your trusty 31(b) rights advisement card.   

  17. stewie says:

    I guess I go back to the idea that failure to state an offense is pretty much the same as failure to establish personal jurisdiction, it’s a failure to establish subject-matter jurisdiction. You’ve not charged an actual crime.
    Two sides of the same coin to me, and none of us would argue that if you don’t have jurisdiction over the person that it could be cured at the GP. Even if he were guilty as sin. Of course that doesn’t matter either because now we have cases that have applied this must be prejudice argument to a contested Art 134 case, and I suspect it will eventually be expanded (or tried) to any contested case.

  18. Just Sayin' says:


    couldn’t disagree more.  if we start saying “it’s okay for the government to be negligent because, well, he’s guilty” we may as well just give up all together.

    Government has the burden to get their shit together, and if a few guilty people walk it may serve as a lesson to do just that.

  19. Zachary Spilman says:

    OK, I’ll bite.

    [W]e find that the providence inquiry for Specifications 1 and 2, of Charge II provided “notice of the offense of which [the appellant] may be convicted and all elements thereof before his plea [was] accepted and, moreover, protect[ed] him against double jeopardy.

    What more, exactly, do you want?

  20. Just Sayin' says:

    The fact that he acknowledged his guilt in the providency inquiry doesn’t change the fact that the charges were misdrafted.

  21. Peanut Gallery says:

    Guilty pleas only admit factual guilt. 

    And there are cases holding that you can’t look to the evidence produced at trial to fill in the voids in a deficient specification.  Otherwise, let’s just dispense with charging.  At the very least, we can do away with specifications.  Funny word, “specification.”  It has the root “specific.”  From now on, no specifics required.  Just “Charge X – Violation of Article Y.”  That’s all the due process we need.  Right? 

    DC: Your honor, the defense requests a Bill of Nothing In Particular. 

    MJ: Very well, granted.  Government response?

    TC: Your honor, the accused is charged with violating the UCMJ.

    MJ: Thank you.  Let’s proceed to sentencing. 

  22. stewie says:

    How about this:

    MJ: Counsel, I see that the charges fail to state an offense. Government, would you like to make a major change to add the requisite element?

    TC: Yes, Your Honor.

    MJ: Defense, do you agree to this major change?

    DC: Since we would like to keep the benefit of the deal, yes Your Honor, we do.

    MJ: Accused, do you agree to this major change? Understand, if you don’t I would be forced to dismiss this charge without prejudice, but the government could just bring it back to another court-martial.

    ACC: Yes Your Honor, I agree.

    MJ: OK, Government, your motion is granted. Make the pen and ink additions to the charge sheet.

    GP Goes on as normal.

    THAT’s what more I exactly want. Problem solved, rules followed.

  23. k fischer says:


    I’m thinking that you have the makings of a great military judge, cut from the same cloth as Judge Pohl and Judge Osborn.


  24. Tami says:

    If only the PTA had a deal-savings clause….

  25. Zachary Spilman says:

    Didn’t we cover this territory in United States v. Ballan, a case in which every CAAF judge agreed that MM2 Ballan – who pleaded guilty to specifications lacking an element, thereby failing to state offenses – was not entitled to relief?

    I do think there’s a significant difference between this case and the CCA’s opinions in United States v. Hunt, No. 201100398, __ M.J. __ (N-M. Ct. Crim. App., April 30, 2012) (en banc), and United States v. Boyer, No. 201100548 (N-M. Ct. Crim. App., May 22, 2012) (unpublished opinion), in which it affirmed guilty findings to defective specifications in contested cases. But notice pleading is a matter of due process (and double jeopardy), and it’s hard to say that some such errors are not at least forfeited by failing to raise them and then pleading guilty.

    Finally, yes the President promulgated a rule (RCM 907(b)), pursuant to his authority from Congress under Article 36, that says that such a specification “shall be dismissed.” But Congress also placed a significant limitation on appellate relief in Article 59:

    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.

    Moreover, a strikingly similar limitation exists in the Federal Rules of Criminal Procedure (in the form of the “plain error rule”, which is a “restatement of existing law“). Of note, the President’s rulemaking authority under Article 36 contains a reference to, and a requirement to try to utilize, rules like the Federal Rules of Criminal Procedure.

    So, wining the argument that “shall be dismissed’ means “shall be dismissed” requires that the President’s rule (promulgated under Congressional authorization) prevail in a struggle against a clear and contrary provision actually passed by Congress itself and supported by common law principles of appellate relief.

    “Good luck with that.”

  26. stewie says:

    Zach, you act like it’s always been one way. Yes, we have a very recent ruling from CAAF, in response to a different recent ruling from CAAF that caused all sorts of consternation.
    That doesn’t “settle” anything. Congress delegated to the President the power to make rules. Article 36a said, where practicable, which means no we don’t just look to the FRCPs and say, ok well, we are done here.
    The President then specifically created a rule that was more beneficial to accused than the FRCPs. And there’s a long history supported by a lot of rulings and “legal principles” that sometimes, we don’t look like the FRCPs.
    But I ask again, what about jurisdiction? Does an accused have to show prejudice for a defect in jurisdiction? I know you would agree the answer is, no, of course not. So why would it be any different when the government charges something that is not a crime?
    For some errors, the President, effectively, has already decided there is prejudice by mandating that those errors SHALL require dismissal. So, you propose a conflict between Congress and the President, but it is not necessarily true that there IS a conflict between Congress and the President.
    One can have a general rule requiring prejudice, and exceptions to that rule, which can occupy the same legal and logical space.

  27. Zachary Spilman says:

    But I ask again, what about jurisdiction? Does an accused have to show prejudice for a defect in jurisdiction? I know you would agree the answer is, no, of course not. 

    Well, abandoning strictly-military jurisprudence for a moment, “it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction” (Baker v. Carr, 369 U.S. 186, 200 (1962)), so we’re talking about fundamentally different things. Lack of jurisdiction means the court lacked the authority to hear the case. See, e.g., Assessors v. Osbornes, 76 U.S. 567, 575 (1869). So, the matter of prejudice is irrelevant to the question of jurisdiction. See, e.g., United States v. Cotton, 535 U.S. 625, 631 (2002) (“Freed from the [question of jurisdiction], we proceed to apply the plain-error test…”).

    So why would it be any different when the government charges something that is not a crime?

    I just don’t agree that the government charged something that isn’t a crime here. Rather, it failed to properly charge a crime. But the accused came forward and admitted to a crime, and the trial judge ensured that he was on notice, that his plea was voluntary and accurate, and that he was protected against double jeopardy. So, other than the RCM, what’s the problem?

    And if the problem is just the RCM, then see my last comment, above.

  28. stewie says:

    No, failing to properly charge a crime IS charging something that isn’t a crime.
    By your logic, if I forget to put the word wrongfully in a drug charge, or I forget to put the words without leave in an AWOL charge, I haven’t charged something that isn’t a crime, I’ve just failed to properly charge a crime. It’s a distinction without a difference.
    So, you have a failure to charge a crime, which means the court does not have the authority to hear the case anymore than if they didn’t have jurisdiction.

  29. Just Sayin' says:

    or if you forget to put the words “without consent” in a sexual assault charge…

  30. Zachary Spilman says:

    you have a failure to charge a crime, which means the court does not have the authority to hear the case anymore than if they didn’t have jurisdiction

    SCOTUS says otherwise: “[I]t is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Hagans v. Lavine, 415 U.S. 528, 542 (1974) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946) (citing Swafford v. Templeton, 185 U.S. 487, 493-494 (1902); Binderup v. Pathe Exchange, 263 U.S. 291, 305-308 (1923); Illinois Central Railroad Co. v. Adams, 180 U.S. 28, 21 (1901); Geneve Furniture Mfg. Co. v. S. Karpen & Bros., 238 U.S. 254 (1914))).

    More importantly, if the failure to state an offense deprives a court of jurisdiction, then the accused cannot plead double jeopardy in defense of any charges brought at a retrial for which he was acquitted at the first trial. SCOTUS says this isn’t true either. See Benton v. Maryland, 395 U.S. 784, 797 (1969) (citing United States v. Ball, 163 U.S. 662 (1896)).

    Failure to state an offense is not jurisdictional; it does not make the judgment void, only voidable.

  31. Caveman96 says:

    No one’s saying that failure to state an offense constitutes a lack of jurisdiction.  But it is like a lack of jurisdiction in that without there having been a crime charged, there is nothing for the court to properly hear.

  32. stewie says:

    1. Citing Supreme Court jurisprudence for civilian cases is not always quite on line with how things work in courts-martial, in other words, we cannot “abandon strictly military jurisprudence for a moment.”
    2. Failure to state an offense may not be exactly like jurisdiction, but up until this recent line of cases, we have not treated them as voidable, but void. (Thus going back to point 1, CMs are different). We apparently STILL treat them as void for contested non 134 cases. It’s an open question as to whether we are going to STILL treat them as void for contested 134 cases since CAAF hasn’t taken up the most recent CCA cases that suggest otherwise.
    3. What do we make of the requirement that major changes must/shall (there goes that word again) be agreed to by the Accused after arraignment, and isn’t adding the requisite missing element by definition a major change? I assume your argument is, well, that’s another Presidential rule so we don’t care?
    4. I go back to two things you’ve said previously, once in this thread, once when talking about Fosler:
    “The error is harmless because the appellant is guilty.”
    “Of course, Chief Judge Baker’s dissent in Fosler asked “can an accused plead guilty to a specification that does not state an offense?” Fosler, 70 M.J. 225, 246 (C.A.A.F., 2011) (Baker, J., dissenting). For now the answer is yes.” Then you said it was failure to state an offense, but it’s ok because it makes common sense. Now you are saying, nah, it’s not REALLY failure to state an offense, it’s just stating an offense improperly. As JS playfully said above, it’s as if you forgot to add without consent in a sexual assault charge. Now, he’s talking about the new 120 but under the old 120 and adding your analysis, that wouldn’t necessarily be a problem for the government.
    Those two combine to make me ask ok, so at this point, does the government have no obligation, and serve no penalty for failing to state an offense? If the Accused being “really guilty” is to be part of the calculation, then why would we overturn a contested conviction where the evidence is heavy simply because the government didn’t state an offense and the Accused didn’t object and let’s say the MJ reads the correct elements in his instructions to the panel so that the panel heard and considered all of the proper elements?
    It seems to me, you’ve taken (and quite frankly the service courts and to a lesser extent CAAF) a results orientated approach to the law, as opposed to following the rules and going where they clearly lead. I mean this isn’t a confusing issue, or a complex one, charge the offense properly or dismiss the charge. It’s a simple rule. Yet, because the government can’t apparently follow this simple rule, we create this idea that even though the rule clearly says failure to follow it is terminal, we are going to try to save it as much as possible, instead of holding the government and saying, hey, get it right.
    Lastly, I don’t think failure to state an offense being equivalent or analogous to lack of jurisdiction means an accused has suffered double jeopardy. The solution to failure to state an offense is dismissal but I don’t believe it requires that dismissal to be with prejudice. The whole point is that the offense was never an offense to begin with.
    I think you quote a lot of SCOTUS, but you seem to not as much quote CAAF/CMA. To be fair, CAAF and the Service Courts seem to be ignoring prior law too to reach a “pragmatic result.” After all, as then-Judge Baker complained, Fosler was a “sea-change” and government would have to adjust significantly. To which I respond, so what?

  33. stewie says:

    Thank you Caveman, I thought maybe I was being really unclear, which giving my tendency towards verbosity and bad writing was/is a real threat.

  34. Caveman96 says:

    This whole area of the law is just frustrating.  Look at the mess we now have just because the service courts weren’t willing to toss out improperly charged convictions in the wake of Fosler.  So, for the sake of saving a few dozen defective convictions, we’ve now crippled what used to be a bedrock principle of military jurisprudence.  But hey, whatever we have to do to save every conviction, right?!?

  35. Zachary Spilman says:


    1. I’m relying on Federal precedent on this issue because the Court of Military Appeals in 1986 said: “we choose to follow the rule of most federal courts of liberally construing specifications in favor of validity when they are challenged for the first time on appeal.” United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986). 

    2. Watkins also said that a defective specification (Article 86, in that case), pleaded to and not challenged until appeal, will not be set-aside unless it “cannot within reason be construed to charge a crime.” Watkins, 21 M.J. at 210. That sure seems like the CMA is saying this is voidable, not outright void, and I’m sure you’d agree that a case from 1986 is not part of “this recent line of cases.”

    3. I’d say the major change issue is a due process protection similar to the failure to state an offense issue. But a major change challenged for the first time on appeal is tested for plain error. United States v. Girouard, 70 M.J. 5, 8 N.4 (C.A.A.F. 2011). Even if there is an objection, caselaw still recognizes the need to test for prejudice. United States v. Moreno, 46 M.J. 216, 219 (C.A.A.F. 1997) (Sullivan, J. concurring) (“I would hold that a major change occurred in this case … Nevertheless, I see no prejudice in this case and would affirm.”). Finally, if we consider a major change from the perspective of a fatal variance, we see that, “From the earliest days of this Court, we have held that to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009).

    4. “The error is harmless because the appellant is guilty.” I said quite a bit more in that comment, and deliberately so. It’s a colloquial restatement of CAAF’s analysis from Ballan. It’s not “a results orientated approach to the law, as opposed to following the rules,” it’s a pragmatic application of the rules, including that pesky common-law and Congressionally-explicit requirement for “material[] prejudice[] [to] the substantial rights of the accused.” Article 59, UCMJ.

    Again and again we keep coming back to the question of prejudice as a barrier to relief, despite that pesky RCM…

    But, looking at it differently, perhaps the CCA here should have tested whether the two specifications of making a false official statement, that did not expressly allege that the statements were made with the intent to deceive, could “within reason be construed to charge a crime.” Had they found so, and affirmed based on that, I suspect it wouldn’t be a particularly controversial decision.

  36. stewie says:

    will not be set-aside unless it “cannot within reason be construed to charge a crime.”

    What do you think you have when you are missing an element? How can you find that a charge could “within reason be construed to charge a crime” if it is missing an entire element?
    Do we now have important elements and not important elements? You tell me, what would have to be missing for it to clearly be failure to state an offense? Why couldn’t the judge just fill in the missing piece under your approach regardless?
    Why have failure to state an offense at all? Why not just have MJs fill in any gaps? After all, notice prior to the day of trial doesn’t seem to be a big deal anymore.
    Results oriented or pragmatic application of the rules is like saying donut filled with jelly vs jelly-filled donut.

  37. Dew_Process says:

    JURISPRUDENCE 101:  If an appellate court is convinced for whatever reason that the accused is guilty, they will apply every known legal fiction to affirm the conviction.

    JURISPRUDENCE 102:   If no known legal fictions exist as precedent to affirm the conviction of an obviously guilty accused, an appellate court is free to create and apply a new legal fiction in order to affirm the conviction.

    It seems to me that the deeper jurisprudential question is this:  what is the proper role of an appellate court in criminal appeals?   If they are simply arms of the government to ensure that convictions, absent some truly egregious constitutional violation, are affirmed (as most CCA’s demonstrate), then they are not truly “courts” but rather “supervisors” of prosecutions. 

    If however, they are truly independent courts, i.e., “judicial” bodies, then their primary role is to ensure that an accused was convicted where the prosecution followed the rules that its own sovereign created versus not following the rules in order to secure a conviction.

    That pontification aside, I return to my earlier comments about IAC.  In light of SCOTUS’s recent attention to this issue [see, e.g., Missouri v. Frye, 132 S.Ct. 1399 (2012)], would not an effective [prepared] counsel, used the government’s defective pleading to the advantage of his client?  At a minimum, DC could have used that to try and negotiate a more favorable PTA and consent to the “pen and ink” amendments suggested above.  Or, DC could have moved after getting the PTA, to dismiss those specifications for failing to state an offense, viz., that they were legal nullities, and thus could not affect the PTA?  More risky, yes – but depending on the MJ, perhaps viable.  Or, waited until jeopardy attached and then moving to dismiss for FSO.

    Somewhere, somehow the DC needs to shoulder some responsibility here.  Yes, it is the government’s “duty” to draft proper charges, but when they don’t, to ignore the responsibility of a DC to utilize that fact on his/her client’s behalf is really where this train gets derailed – especially where the DC allows his/her client to colloquy to uncharged “elements” that correct prosecutorial failures.

    Just my 2 cents!

  38. stewie says:

    You make good points. I generally think the government should be the first to shoulder responsibility in this case, but you are right that DC don’t go blameless here at all.
    Of course, at this point, the only one bearing the burden is the Accused.

  39. Phil Cave says:

    DP my friend, how do we know the DC didn’t do that?
    Could be because the charges weren’t amended before they strolled in?

    Query.  I’m negotiating a PTA.  I go to the TC and say let’s talk?  AND IT’S ALL 410 right?  And the TC says, of course.  Well we think this is worth, six months, no more, blah, blah, blah.  TC says, nope I’ve got a slam dunk.  DC says you’ve got problems with the charge so you haven’t got a slam dunk.  At what stage does the DC disclose, and is it 410 protected that the charge is defective in that disclosure?  Keep in mind that there’s still some ambiguity in applying Kastigar (immunity disclosures) to 410 issues.

    Now, big case, lots of out of town witnesses, you’ve been struggling to get a PTA.  It’s the afternoon before trial.  Can I have a PTA?  No you are too late our witnesses are here.  Can I have a PTA your charges are defective?  No, what’s defective — oh ^%$&%$*.  That’s OK, we’ll get them referred tomorrow, you’ll waive the 5 days because its real inconvenient and expensive to bring them back, won’t you.  No!  Here you are in a position to leverage the error. 

  40. Zachary Spilman says:

    Mr. Cave: Why do it the afternoon before trial? Why not right after losing the 917 motion at the conclusion of the government’s case?

    Stewie: Watkins, which gave us that rule, involved an unauthorized absence specification that didn’t state that the absence was without authority (a significant element in it being “unauthorized”). The NMCCA and the CMA both affirmed.

    DP: I’m not aware of any military case that finds (or even discusses) IAC for failure to object to a defective specification.

  41. Phil Cave says:

    ZS, no particular reason.  Either place or somewhere in between might be good for leverage.

  42. Dew_Process says:

    ZS:  I’m not either, but stay tuned.  I just litigated a DuBay hearing where we litigated the DC’s failure to move to dismiss 2 Art. 134 Specs that didn’t allege a terminal element in specs alleging indecent acts with a child under age 16 — especially where they plead not guilty to them, but the Accused was convicted of such.  Prior to all of the Fosler litigation, it probably would not have risen to the level of IAC and even if it somehow did, demonstrating prejudice would be virtually impossible.

    But, under Fosler the failure to challenge those specs is clearly “deficient performance” under Strickland and the “prejudice” is the combined effect of having been convicted of those offenses, been sentenced for those convictions and ultimately having to register as a Sex Offender.  There could be no tactical or strategic reason to go to trial on those specs that could possibly benefit the Accused — especially in a case where the Defense rested after the government’s case without putting on any defense.

    But, to come full circle from a logic perspective, there probably aren’t any cases because of the concept discussed on this thread that defective specifications that fail to state an offense could be challenged at any time.  That principle now appears to have been judicially castrated, so rather than rely solely on Fosler, we also moved that the DuBay military judge dismiss them as it is clearly a “stage of the proceedings” who in turn summarily declined to do so since he didn’t think that the Remand Order gave him that authority.

  43. John Harwood says:

    I like bright lines.

  44. stewie says:

    Where do you stand on loud noises?