In United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F. 2011), CAAF reversed nearly 60 years of military jurisprudence and decided that a specification under Article 134 fails to state an offense if it does not allege a “terminal element.” In United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), the court limited the application of Fosler by finding that in the context of a guilty plea, such a specification is still defective, but that the protections provided by a military plea inquiry are adequate to avoid material prejudice to a substantial right. But in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), the court expanded Fosler (where the appellant objected at trial) to include situations where no objection is raised at trial, ruling that if the government does not cure the lack of notice caused by the defective specification during the trial, despite the lack of objection, the error materially prejudices the accused’s right to notice and the conviction must be set-aside.

The court’s decision in Humphries was a vindication for those (like our Colonel Sullivan) who wondered how the court could deny relief in Ballan when Rule for Courts-Martial 907 states that failure to state an offense is a nonwaivable ground for dismissal, and that “a charge or specification shall be dismissed at any stage of the proceedings if . . . . the specification fails to state an offense.” While CAAF rejected the edict of this provision in Humphries – eschewing automatic reversal and instead conducting a plain-error analysis – the court embraced the practical consequence of the RCM in its decision dismissing the charge.

But there is a hazard in Humphries.

American jurisprudence penalizes the failure to object at trial. In 2009, writing for a seven justice majority of the Supreme Court, Justice Scalia explained:

If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. …

If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.

This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. … And of course the contemporaneous-objection rule prevents a litigant from ‘sandbagging’ the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.

Puckett v. United States, 556 U.S. 129, 134-135 (2009) (internal citations and quotation marks omitted). This contemporaneous objection rule is well-recognized in military jurisprudence, and is embodied in Military Rule of Evidence 103. Failure to object at trial either waives the error (prohibiting later relief) or forfeits the error (permitting relief only after increased scrutiny). See United States v. Olano, 507 U.S. 725 (1993); United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). In the federal system, that increased scrutiny turns on the question of prejudice, specifically whether the error “affected the appellant’s substantial rights.” Puckett, 556 U.S. at 129. In courts-martial, the question is muddied by the fact that Article 59(a) requires a finding of “material prejudice to a substantial right of the accused,” but the underlying principles of forfeiture or waiver due to failure to object are the same.

However, the error is not the prejudice (unless the error is in the narrow class of  “structural errors”). See Puckett, 556 U.S. at 142. See also The right to get away with it. Judge Ryan’s majority opinion in Humphries clearly explains that in the case of a defective Article 134 specification, the error (omitting elements on the charge sheet thereby failing to state an offense) is distinct from the prejudice (lack of notice of the terminal element(s)). Humphries, slip op. at 20. Moreover, the court makes it clear that the appellant has the burden of demonstrating both the error and the prejudice. Humphries, slip op. at 12.

This burden – that the appellant must demonstrate the prejudice in cases involving plain error – is clearly established in Supreme Court precedent:

When the defendant has made a timely objection to an error and Rule 52(a) [preserved error] applies, a court of appeals normally engages in a specific analysis of the district court record-a so-called “harmless error” inquiry-to determine whether the error was prejudicial. Rule 52(b) [plain error] normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. … This burden shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error “does not affect substantial rights” (emphasis added), Rule 52(b) authorizes no remedy unless the error does “affec[t] substantial rights.”

Olano, 507 U.S. at 734-735 (citations omitted) (emphasis added). But this rule has an uncertain pedigree in military jurisprudence. Last century, CAAF ruled that “if the errors were of a constitutional dimension, the test is whether the reviewing court is able to declare a belief that it was harmless beyond a reasonable doubt.” United States v. Adams, 44 M.J. 251, 252 (C.A.A.F. 1996) (internal quotation marks omitted). However, Adams was a case with preserved error (the appellant objected at trial). Nevertheless, two years later CAAF ruled that in a plain error analysis, where constitutional error is at stake, “the burden shift[s] to the Government to show that the error was not prejudicial.” United States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998) (citing Adams, 44 M.J. at 252). Then, for more than a decade, CAAF repeatedly cited Powell for the principle that in a plain error analysis of a constitutional error, the burden shifts to the government to disprove prejudice beyond a reasonable doubt. See United States v. Carpenter, 51 M.J. 393 (C.A.A.F 1999); United States v. Avery, 52 M.J. 495, 498 (C.A.A.F. 2000); United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005); United States v. Brewer, 61 M.J. 425, 430 (C.A.A.F. 2005); United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 2009); United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011).

Finally, in 2011, this questionable burden shift was quietly abandoned, when CAAF ruled that the appellant does in fact bear the burden of showing prejudice in a plain error case involving constitutional rights. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (constitutional rights to notice and to not be convicted of an uncharged offense). Humphries continues this tradition of quietly abandoning the burden shift announced in Powell, without expressly overruling it, by stating in a footnote:

To be clear, it is Appellee’s burden to prove material prejudice to a substantial right, see Girouard, 70 M.J. at 11…

Humphries, slip op. at 21, N.10 (emphasis added). But while CAAF cited Girouard for the test for prejudice in Humphries, the court retreated from the application of this test employed in Girouard, and its nearly-companion case McMurrin, by not requiring a demonstration that but for the error, the outcome would have been different. Girouard, 70 M.J. at 11 (“But for the error Appellant would not have been convicted of negligent homicide.”); United States v. McMurrin, 70 M.J. 15, 20 (C.A.A.F. 2011) (“But for the error Appellant [sic] would not have been convicted of negligent homicide.”). This too is done quietly, and in a footnote:

We disagree that [United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)] which held that the prejudice burden in the federal system requires the showing of a reasonable probability that, but for the error claimed, the result of the proceeding would have been different, controls this case…

Humphries, slip op. at 16, N.7 (marks and internal citation omitted). And so in Humphries, the burden is on the appellant to demonstrate prejudice, but he is not held to the full measure of that burden as recognized by both the Supreme Court and CAAF.

Three seminal Supreme Court cases involving plain error analysis emphasize the heavy burden that the appellant must overcome to show prejudice. In Olano, the Supreme Court made it clear that “the [plain] error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734 (emphasis added). In Dominguez, the Court required a “showing of  a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Dominguez, 542 U.S. at 81-82 (marks omitted) (emphasis added). In Puckett, the Court restated the rule from Olano, and then analyzed the government’s breach of a plea-agreement term and noted that “[t]he defendant whose plea agreement has been broken by the Government will not always be able to show prejudice, either because he obtained the benefits contemplated by the deal anyway  ( e.g., the sentence that the prosecutor promised to request) or because he likely would not have obtained those benefits in any event (as is seemingly the case here).” Puckett, 556 U.S. at 141-142 (emphasis added).

Similarly, military caselaw places a heavy burden on the appellant when he fails to object at trial. In Fisher, the Court of Military Appeals stated that “[i]n order to constitute plain error, the error must not only be both obvious and substantial, it must also have had an unfair prejudicial impact on the jury’s deliberations.” United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986) (internal quotations omitted) (emphasis added). In Riley, CAAF determined that “[improper testimony of an agent regarding the appellant’s invocation of his right to remain silent] posed a heightened risk that the members felt invited, consciously or subconsciously, to infer that a truly innocent accused has nothing to hide behind assertion of these privileges. United States v. Riley, 47 M.J. 276, 280 (C.A.A.F. 1997) (emphasis added). In Powell, CAAF explained that “the military rules have a higher threshold than the federal rules in that they require plain error to materially prejudice substantial rights.” Powell, 49 M.J. at 464 (emphasis added). And, as discussed above, in McMurrin and Girouard, CAAF granted relief for a pair of convictions of a LIO that wasn’t a proper LIO based on the fact that “but for the error Appellant would not have been convicted.” Girouard, 70 M.J. at 11 (emphasis added); McMurrin, 70 M.J. at 20 (emphasis added).

But in Humphries, CAAF finds prejudice without holding the appellant to this full burden.The court finds that the required notice of the terminal element is not “extant” in the trial record because the government failed to mention a terminal element in opening or closing, the government failed to tie any specific evidence to either terminal element, and the government argued that because the married accused had sex with someone not his wife he was guilty of “adultery” (an inaccurate statement of the law that also did not draw an objection). The majority gives little weight to the fact that the trial defense counsel argued in closing argument that the government had failed to prove a terminal element, and completely ignores the fact that the Article 32 investigator’s report did address the terminal elements (a fact noted by Judge Stucky’s dissent at page 8). The court identifies no specific facts or factors that show material prejudice, but instead finds the prejudice somewhere in the “totality of the circumstances in this case.” Humphries, slip op. at 21. This analysis and result are only possible because the court specifically disclaims the need to find a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.

Judge Ryan gives three reasons for this lesser burden in footnote 7:

Dominguez-Benitez is inapposite given that: (1) any objection by [Humphries] at trial would have been futile based on the law at the time — which also alleviates the “sandbagging” concerns noted in Puckett; (2) this is a contested case, not a guilty plea case; and (3) the rights at issue are constitutional.

Humphries, slip op. at 16, N.7 (internal citation omitted). This isn’t particularly convincing. First, the issue is not the failure to object, as that would have preserved the error (as in Fosler), and even if it were, this conflates the preservation of error with the demonstration of prejudice. Next, that Dominguez involved a guilty plea and Humphries was contested is not significant, because the “but-for” test for prejudice is embodied in military jurisprudence distinct from Dominguez (McMurrin and Girouard), and the test in Olano (“must have affected the outcome”) is substantially the same. Finally, the constitutional nature of the error just doesn’t matter to the test for prejudice, because the Powell burden shift is an inaccurate, and abandoned, statement of law.

The issue, and the hazard, are that the way for an accused to get relief under Humphries is to not raise the issue at the time of trial – to sandbag the trial court and then claim lack of notice on appeal.

Consider: Had the trial defense counsel in Humphries presented evidence that the adulterous intercourse was not prejudicial or discrediting, or sought a bill of particulars, or made the terminal elements a central theme in argument, or discussed them in pretrial motions, or objected to the specification, or to the instructions, or to the trial counsel’s inaccurate statement of the law in closing, or perhaps even had the defense raised the issue at any time before the JAG’s second certification of the case to CAAF, the court might have determined that the defense had some notice that the government had to prove either or both terminal elements. Only because the defense did none of these things, and seemingly ignored the terminal element until the very end, was the court able to find that “there is not a single mention of the missing element, or of which theory of guilt the Government was pursuing, anywhere in the trial record.” Slip op. at 21.

An argument could be made that any objection would have been futile, as Fosler had not yet been decided when Humphries went to trial. However, CAAF did not tailor Humphries (or Fosler) to address such concerns, perhaps by applying Humphries only retroactively to cases already tried, or by applying Fosler only prospectively. Instead, the court’s opinion gives trial defense counsel faced with a defective specification a reason to do nothing, waiting to complain only if the accused is convicted.

That this hazard is real is already apparent in the actions of a Court of Criminal Appeals. Just over a month before CAAF decided Humphries, the NMCCA decided United States v. Hunt, 71 M.J. 538 (N-M. Ct. Crim. App. April 30, 2012) (en banc). In Hunt, the CCA rejected a plain error challenge to a defective Article 134 specification, noting that:

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.

Hunt, 71 M.J. at 539 (citation omitted). Notably, in this pre-Humphries case, the CCA focused on the inaction of the trial defense counsel. But a month after Humphries, the CCA employed remarkably similar analysis – focusing on the things not done –  to reach the opposite result in United States v. Key, No. 201100417 (N-M. Ct. Crim. App. July 10, 2012) (unpublished):

The pretrial proceedings did not make any mention of the terminal element. During the opening statement, the Government did not mention the element nor did they mention that they were going to introduce any direct evidence that might satisfy the element. No direct evidence was put on by the Government as to the service discrediting nature of the conduct or the prejudice to the good order and discipline of the armed services. No mention of the missing element was made in the closing arguments and since this was a military judge alone trial, there were no instructions given.

Key, slip op. at 10. In Key the NMCCA totally reverses course from Hunt, and focuses on the inaction of the government. Both Hunt and Key were tried pre-Fosler, and both involve defective 134 specification. But in Hunt the CCA looked for some indication that the result would have been different had the specification not been defective, while in Key the court looked for some action by the government that might alleviate the error.

This fixation on the government in a plain error prejudice analysis, led by CAAF’s decision in Humphries, only breeds inaction by the defense, since had the defense raised the issue of a defective specification, or presented an aggressive defense of the terminal elements, it would have prompted a government response, undercutting the basis for relief.

In 2002, Chief Judge Crawford reminded the majority of CAAF that “the Supreme Court has time and again emphasized that preventing sandbagging is critically important in determining whether to notice plain error.” United States v. Baker, 57 M.J. 330, 338 (C.A.A.F. 2002) (Crawford, C.J. dissenting). The Hazard of Humphries is the disregard of those words.

Case Links:
AFCCA’s first opinion
AFCCA’s second opinion
Appellant’s (government) brief
Appellee’s brief
Cross-appellant’s brief (Fosler issue)
Cross-appellee’s (government) brief (Fosler issue)
Oral argument audio
Blog post: Argument recap
CAAF’s opinion
Blog post: Opinion analysis
Blog post: The Hazard of Humphries

8 Responses to “The Hazard of Humphries”

  1. Dew_Process says:

    Great analysis ZS, thanks.  But for those of us defense “hacks” [with all due respect to Rumpole] who have objected to the lack of a “terminal element” being charged, long before Fosler, (which includes Fosler’s own counsel), then why isn’t the failure to object simply IAC? 

    Now, I agree, the defense can’t just sit on their arses and then go, “oh my, we’ve got a Fosler error here,” but if one [meaning DC] moves for a BOP, moves to dismiss for failing to state an offense, and then objects and tells his/her client NOT to answer the MJ’s Care inquiry as to a so-called “terminal element” since there’s no reason to since it was never charged, where does that get you?  Oh yes, I know that then the MJ will reject the plea in 99.9999% of all cases, but, the issue is preserved. 

    In a NG plea situation, then the burden is clearly on the government, but concepts of “waiver” would seem to dictate that the DC must do something to preserve the issue.  But of course, the ugly head of IAC is not something that the military justice system wants to emphasize.

    I think perhaps that we’re looking at this issue from opposite sides of the same coin.  The “pink elephant” in the courtroom is the defense counsel who doesn’t [didn’t] object to the lack of a terminal element, which when you get down to basics, is an IAC issue.

    Fosler was not a fluke.  That issue had been floating around the military defense community for some time and was reinforced by footnote 3 of U.S. v. Miller, 67 MJ 385, 387 (CAAF 2009).  It first surfaced in Deller, 12 CMR 165 (CMA 1953), and was reinforced in Fout, 13 CMR 121, 124 (CMA 1953) [see also, Callaway, 21 MJ 770, 775-76 (Army CMR 1986)].  When I first became a SDC in 1978 [yes, I am that old!], we were taught to always contest 134 specs that did not allege “terminal elements,” so we did — to no effect of course in 99.999% of our cases.

    I agree 100% with your “sandbagging” argument — but that only reemphasizes the duty of DC to raise the issue after arraignment.  While the government has always had the burden of alleging all of the elements in a Specification, when they don’t, the real question in my mind is, who is to blame, the person drafting the charges or the obtuse DC who doesn’t contest the lack of a terminal element?

    Fosler’s lawyer contested the lack of a terminal element and thus, the result in that case was correct.  In cases where there’s no terminal element alleged and NO defense objection or demand for a BOP, imho the proper focus is (or shoud be) on IAC.  Just my 2 cents.

  2. stewie says:

    as someone who’s been on both sides, and is currently sitting on the government’s side, to me the government is to blame, because it’s the government who has the ultimate burden of properly charging the accused of a crime.

  3. Zachary Spilman says:

    why isn’t the failure to object simply IAC? 

    Because the standard for IAC is so high (as it should be): “In order to establish deficient performance in a claim of ineffective assistance of counsel, an appellant must establish that counsel’s representation amounted to incompetence under prevailing professional norms.” See, for example, United States v. Rose, 71 M.J. 138, 143 (C.A.A.F. 2012). If counsel was fully aware of the terminal elements (as was certainly the case), where’s the incompetence (not stupidity or foolishness, but full-blown incompetence)?

    to me the government is to blame

    Blame for what? The bad specification, sure, but what if the bad specification caused no meaningful prejudice? I’m not saying that Humphries doesn’t get relief if CAAF uses the proper test and requires a showing that the error must have affected the outcome (for starters, I haven’t seen the record), but the majority claims that “the material prejudice to the substantial right to constitutional notice in this case is blatantly obvious.” Humphries, slip op. at 21, N.10. So why not use the proper test for prejudice? Or, as my middle school math teacher said, why not show the work?

    I can hazard a guess to my own question, and make an educated guess about the record at the same time, based on the fact that Judge Stucky’s dissent makes this same point:

    To show prejudice, Appellee would have to demonstrate that the error — the lack of notice — impaired his ability to defend against the specification such that it had an unfair prejudicial impact on the factfinder’s deliberations. This he has not done. Appellee has not alleged either that he lacked such notice or that his ability to defend against the adultery allegation was impaired. If Appellee has the burden of demonstrating that the failure of notice somehow impaired his ability to defend against the specification, we should require, at a minimum, that he allege that it did so.

    Humphries, Stucky, J. diss., slip op. at 7. I suspect that the record doesn’t support relief using the proper test. If it did, the majority would have responded to this criticism from Judge Stucky. 

    There are plenty of folks who believe that the result in Humphries is the right one, and I don’t have a problem with that (after all, I’ve made my share of results-oriented arguments). My problem is with the shortcut the court takes to get there, and the hazard it poses.

  4. stewie says:

    The fact of the matter is that they’ve given practical relevance to the rule I and others and you have discussed even if they, for reasons that escape, have decided to not give it full legal weight. Its a principle thang…you should actually charge an actual crime that is actually in the manual.
    Sometimes prejudice ain’t all that important and is easy to show. The government doesn’t have to work hard to get the spec good enough to state an offense, heck you don’t even h ave to follow the model spec, but oh by the way there is one.
    as government, if I screwed up a spec, and I have, and it got caught on appeal, my thoughts wouldn’t be, why didn’t defense see it too, it would be, why did I miss up so much that I couldn’t even get the spec right?

  5. Clearly, Blatantly, and Obviously says:

    Great analysis, Zach.  I was also struck by footnote 10.  If the prejudice really was so “blatantly obvious” in this case, then why not explain it for the rest of us?  Or, at a minimum, the majority could have at least responded to Judge Stucky’s point about how Humphries did not allege that he lacked notice or that his ability to defend against the adultery allegation was impaired.  In end the end, maybe this really was an outcome-based decision. 

  6. Dwight Sullivan says:

    Humphries doesn’t  promote sandbagging.  Nor is Humphries some sort of radical departure from the federal civilian approach.  Rather, the case is a roadmap showing CCAs how to work their way through Fosler trailers.  The CCAs have already been using it for that purpose.  And (to the best of my knowledge), so far, it hasn’t even cost the government an ounce of sentence relief.

    Again to the best of my knowledge, Humphries hasn’t been applied to a single case that was tried post-Fosler.  Humphries has thus far been applied solely in a context where if the trial defense counsel had objected at trial that the Article 134 specification failed to state an offense, the military judge would have been compelled to rule against the defense.  In that context, a plain error test can’t apply a “changes the outcome” criterion without its becoming a self-defeating Catch-22.  Nor do the civilian federal courts apply the plain error standard that way.  If they did, relief would never be available under Johnson v. United States, 520 U.S. 461 (1997), since the district court would always be constrained to rule against the defendant if he or she were to make a challenge “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal.” Id. at 468.  Yet federal courts sometimes provide relief in just such scenarios.  See, e.g., United States v. Smith, 448 Fed. Appx. 340 (4th Cir. 2011) (per curiam); United States v. Summers, 448 Fed. Appx. 337 (4th Cir. 2011) (per curiam); United States v. Hereimi, 396 Fed. Appx. 443 (9th Cir. 2010) (mem.); United States v. Pearson, 553 F.3d 1183 (8th Cir. 2009); United States v. Davis, 538 F.3d 914 (8th Cir. 2008).  Johnson would be meaningless unless relief was available in such circumstances. 

    Humphries fits comfortably within federal jurisprudence applying the plain error test where the law changed between trial and appeal.  It provides no incentive to sandbag because the opinion notes that it arises in a context where the military judge would have been required to rule against a challenge to the spec had it been made.  See Humphries, n.7  (“any objection by Appellee at trial would have been futile based on the law at the time—which also alleviates the ‘sandbagging’ concerns noted in Puckett, 556 U.S. at 134”).

    The post above nevertheless argues that Humphries “gives trial defense counsel faced with a defective specification a reason to do nothing, waiting to complain only if the accused is convicted.”  The post then opines, “That this hazard is real is already apparent in the actions of a Court of Criminal Appeals.”  No, it isn’t.  The post discusses the different outcomes in NMCCA’s Hunt and Key decisions.  But, as the post notes, both were pre-Fosler cases.  Thus, these decisions do not and cannot make apparent that the purported “hazard is real.”  Humphries didn’t incentivize the counsel in either Hunt or Key not to challenge the Article 134 specs in those cases.  And we know that, since Humphries hadn’t been decided when those counsel didn’t object.
    The danger of sandbagging throughout the military justice system is overblown.  The wise trial defense counsel wins everything he or she can at the trial level.  I believe that all of the appellants who have prevailed on Humphries claims on appeal have won a sum total of zero sentence relief.  Why would a trial defense counsel sandbag and hope to win on appeal — probably long after the client has already served all of his confinement and is on appellate leave — rather than attempting to win a reduced sentence when it actually matters?

    Once the Fosler trailers have worked their way through the system, no one will even remember Humphries.  It certainly won’t be affecting military trial defense counsel’s behavior in the years to come.  

  7. Zachary Spilman says:

    I agree that “the wise trial defense counsel wins everything he or she can at the trial level.” And while there hasn’t yet been sentence relief for a Humphries trailer, Humphries himself will likely receive relief (though he may have received that relief anyway). But the lack or infrequency of sentencing relief doesn’t detract from the impact of the decision.

    Humphries is analogous to Johnson v. United States, 520 U.S. 461 (1997), though the CAAF majority cites Johnson only in passing. In Johnson, the Supreme Court considered a change in caselaw that made the materiality element in a perjury prosecution a question for the jury to decide, vice the judge. Johnson was tried before the change, and materiality was decided by the judge, but her appeal was litigated after the change and she appealed because the jury didn’t decide that element. The Supreme Court reviewed the issue for plain error, which it found, but didn’t decide whether the error was prejudicial because it found that even if it were prejudicial, “it does not meet the final requirement of Olano. … [that] the forfeited error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Johnson, 520 U.S. at 470. In denying relief, the Court noted that “the evidence supporting materiality was overwhelming.” Id. at 471.

    Of course, the fourth prong of Olano hasn’t been adopted by CAAF. Even the third prong has an uncertain history, as discussed in my post. But Johnson requires the type of penetrating analysis that CAAF didn’t do in Humphries (despite the call to action in Judge Stucky’s dissent). Had CAAF closely followed Johnson, Judge Stucky’s dissent in Humphries would have had the majority.

    The same is true of the federal cases you cite: United States v. Smith, 448 Fed. Appx. 340 (4th Cir. 2011) (per curiam), United States v. Pearson, 553 F.3d 1183 (8th Cir. 2009), and United States v. Davis, 538 F.3d 914 (8th Cir. 2008), are all cases involving application of the federal sentencing guidelines, and all involve a finding that but for the erroneous application, the appellant’s sentence would have been lower:

    “In fact, had Smith not been classified as an armed career criminal, his Guidelines range would have been lower…” Smith, 448 Fed.Appx. at 342.

    “The applicability of Guidelines § 4B1.1 substantially alters Pearson’s sentencing range.” Pearson, 553 F.3d at 1186.

    “We think that the court’s error in attaching undue importance to Congress’s view of crack in relation to powder cocaine is particularly significant here…” Davis, 538 F.3d at 918.

    United States v. Summers, 448 Fed. Appx. 337 (4th Cir. 2011) (per curiam), is also a sentencing guidelines case, but “Summers objected to his sentencing range calculation in the district court,” so it’s not apples-to-apples. Summers, 448 Fed.Appx. at 339.

    United States v. Hereimi, 396 Fed. Appx. 433 (9th Cir. 2010) (mem.), involves the application of the Supreme Court’s opinion in Skilling v. United States, 130 S.Ct. 2896 (2010), in a prosecution for honest services fraud. In Skilling, the Court invalidated Jeffrey Skilling’s conviction, concluding that “[i]t is therefore clear that, as we read § 1346, Skilling did not commit honest-services fraud.” Skilling, 130 S.Ct. at 2934. Without digging too deep, this looks like a conclusion based on legal sufficiency. In Humphries, CAAF distinguished its analysis from any question of legal sufficiency. See Humphries, Slip op. at 18, N.8. So it’s also not apples-to-apples.

    But I think the bottom line is that relief under Johnson is unusual and very difficult to obtain. Relief under Humphries (though maybe not meaningful in the sense of sentence reduction) already appears common, and there are dozens of trailers to go. So while Johnson and Humphries are analogous, the results and consequences are very different.

    Dwight Sullivan
    Nor is Humphries some sort of radical departure from the federal civilian approach. 

    There’s the rub Sir. Humphries isn’t a radical departure only because CAAF has never fully adopted the federal civilian approach for review of plain errors, nor has the court articulated a clear reason for this deviation.

  8. NW says:

    Col Sullivan:  “Once the Fosler trailers have worked their way through the system, no one will even remember Humphries.”

    Perhaps this will be true, but hopefully we won’t forget Humphries’ appellate counsel.

    Fosler and Humphries are good for the system.  Article 134 is a powerful criminal statute, one that would certainly be struck down for overbreadth in a civilian jurisdiction.  Other than a few lucky appellants convicted solely of an Art 134 offense that might see their charge(s) dismissed and won’t be re-tried, the net effect of Fosler/Humphries is to compel prosecutors to allege with more specificity and present actual evidence any alleged violation of Article 134 and not just use the termianl element as a punchline in closing argument.  In the military system, the task of drafting the specification and presenting the evidence is largely in the hands of captains and majors.  Forcing these young prosecutors to effectively draft and prove up a catch-all criminal statute is a good thing for military justice and a good “limitation” on how an incredibly broad criminal statute is wielded.

    Also, if Congress would actually show any interest in military justice other than prosecuting every allegation of sexual assault no matter how incredible, Congress could just simply take all of the “enumerated” 134 offenses and make them Articles in their own right.  Congress’ lack of real oversight over military justice is all the more reason to place some limitation on military prosecutors’ use of Article 134.