Lesser-included offense jurisprudence hasn’t received much attention this year at CAAF, considering the court’s game-changing series of LIO cases of recent terms past: United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (ruling that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (ruling that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010)(“returning to” the elements test for determining LIOs).

But the court makes quick work of the question presented in United States v. Rauscher, No. 12-0172/NA, __71 M.J. 225 (C.A.A.F. June 18, 2012) (CAAFlog case page) (link to slip op.):

Appellant was charged with, inter alia, assault with intent to commit murder under Article 134, UCMJ.  But the specification failed to allege the terminal element. The members found Appellant not guilty of the charged offense, but guilty of aggravated assault under Article 128, UCMJ, as a lesser-included offense. Did the lower court err in holding that aggravated assault is a lesser-included offense of an Article 134 specification that fails to allege the terminal element?

In a per curiam opinion, the court is “convinced that the specification clearly alleges every element of the offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, the offense he was convicted of.” Slip op. at 4. A footnote contains an important reminder for trial advocates:

In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute.

Slip op. at 4 N.1 (citing United States v. Hutcheson, 312 U.S. 219, 229 (1941)). That appears to be exactly what happened in Rauscher, and the court took notice of not only the lack of objection from the defense, but its apparent embracing of this legal principle:

Appellant defended against this theory throughout the trial. Appellant proposed instructions for the Article 128 offense and did not object to the instructions given by the military judge. In closing, defense counsel even asked the panel to “closely look” at Article 128 because “that’s much more aligned with what happened.”

Slip op. at 5. Still, I do think appellate defense counsel deserve credit when they can get CAAF to look at the sufficiency of a specification to state an offense that the trial defense counsel argued was the offense “much more aligned with what happened.” Especially when the court could have just let stand the CCAs opinion coming to the same conclusion.

Case Links:
NMCCA opinion
Blog post: NMCCA affirms more 134 specifications without terminal elements
Appellant’s brief
Appellee’s (government) brief
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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