In United States v. Moya, No. 201100444 (N-M.Ct.Crim.App. Aug. 22, 2012) (unpublished), the NMCCA set-aside a conviction of indecent language in violation of Article 134, UCMJ, as failing to state an offense based on the lack of a charged terminal element, despite no objection from the accused.

The court’s reasoning follows:

Regardless of whether the appellant contested the charge or pled guilty, a charge found defective for failure to allege an offense is tested for plain error. Under the plain error analysis, the appellant shoulders the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the appellant.

Looking to the plain language contained within the four corners of the specification, we are unable to conclude that it alleges the terminal element expressly or by necessary implication. Having found error, and recognizing that it was plain and obvious error, we test for prejudice. The third prong of the plain error analysis asks “whether the defective specification resulted in material prejudice to Appellee’s substantial right to notice.” Where prejudice to a material right is rooted in notice, the record is examined to determine if the omitted element is somewhere extant in the trial record, or whether the element is essentially uncontroverted.

Here, the pretrial proceedings did not make any mention of the terminal element. The Government made no reference to the terminal element during its opening statement and did not introduce evidence on the merits that might satisfy the element. Although the trial counsel argued the terminal element during closing arguments, and the military judge instructed the panel on the terminal element, these references occurred after the close of evidence. The record lacks any indication that the appellant was on notice as to the terminal element of the charged offense prior to the close of evidence. We are convinced that the appellant’s substantial rights were materially prejudiced by the lack of notice as to what exactly he must defend against. Accordingly, the findings of guilty of the Additional Charge and the specification thereunder must be set aside and that the Additional Charge and its specification are dismissed.

Moya, slip op. at 9-10 (citations omitted). What’s missing, as I discussed in The Hazard of Humphries, is an effort to hold the appellant to his “burden to prove material prejudice to a substantial right,” (United States v. Humphries, 71 M.J. 209, slip op. at 21, n.10 (C.A.A.F. 2012) (citing United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011))) by requiring a showing that but for the error the appellant would not have been convicted, or a clear indication that this lesser burden is limited to cases tried before CAAF’s decision in United States v. Fosler, 70 M.J. 225 (C.A.A.F. Aug. 8, 2011) (ruling that failure to allege a terminal element is error).

My position on this issue isn’t without opposition, and its been noted that no appellant has received sentence relief. The NMCCA continues that no-relief trend in Moya.

8 Responses to “Another Humphries Hazard”

  1. Kirk Sripinyo says:

    The NMCCA granted two years of sentencing relief for a defective 134 specification in US v. Solomon, NMCCA No. 201100582. Available here:

    Disclaimer: I was the appellate counsel in Solomon.

  2. Michael A says:

    If the government “did not introduce evidence on the merits that might satisfy the [terminal] element,” then why not just say the evidence is legally insufficient?

  3. Phil Cave says:

    Mike, one point, and I don’t believe the court decides this way, but the Moya result could lead to a retrial, whereas a finding of insufficiency ends the case, no second bite of the apple.  In the right case the resolution could be truly meaningful.

    Sip gets the Warner award for meaningful relief.  :-) 

  4. Zachary Spilman says:

    Although we view the terminal elements as logical consequences of the facts alleged in the appellant’s obstruction of justice and disorderly specifications, we adhere to Fosler, Ballan and United States v. Humphries, and find that those specifications did not necessarily imply the terminal elements. …

    Under the third prong of the plain error analysis, the question is “whether the defective specification resulted in material prejudice to [Appellant’s] substantial right to notice.” Although the appellant has the burden of showing prejudice under a plain error analysis, this burden may be met if “[n]either the specification nor the record provides notice of which terminal element or theory of criminality the Government pursued.” Having reviewed the entire record, we are convinced that the appellant’s substantial rights were materially prejudiced by the lack of reference to the terminal elements until after the close of evidence. Although the military judge instructed the members on the terminal element of both specifications, this did not constitute adequate notice as it “did not alert [the appellant] to the Government’s theory of guilt” until after the close of the evidence. Accordingly, the findings of guilty of Charge II and the specifications thereunder must be set aside and Charge II and both specifications dismissed.

    United States v. Solomon, No. 201100582, slip op. at 8-9 (N-M.Ct.Crim.App. Jul. 31, 2012) (unpublished) (emphasis added).

    Pity I missed this one. Thanks for the heads up. Analysis to follow…

  5. Justin says:

    I was the IO who recommended adding the 134 indecent language spec, sans terminal element. 

    Perhaps I should’ve seen the Fosler train coming, but I was an SJA who relied on the MCM.  (From my report, however: “During his assault of [EB], the accused orally used language that was indecent and prejudicial to good order and discipline or service discrediting.”  See United States v. Humphries, 71 M.J. 209, slip op. at 36 (Stucky, J., dissenting)(“Appellee and his defense counsel were provided with copies of the investigating officer’s report, which spelled out the elements of the offense of adultery, including that such conduct was prejudicial to good order and discipline or was of a nature to bring discredit upon the armed forces.”))

    But enough about me…

    Do I understand Ballan correctly that, had CSSR Moya pled guilty to the indecent language offense, he would not have had a substantial right materially prejudiced by this same absence-of-terminal error?  But that, through the miracle of Humphries, he did have a substantial right materially prejudiced because he pled not guilty, for reasons known only to him and his counsel?  (The pith of NMCCA’s factual summary belies the amount and quality of evidence against CSSR Moya.)

    Especially interesting in this case, where CSSR Moya pled guilty to — and was therefore evidently not prejudiced by — an Article 134 drunk and disorderly spec that had no terminal element.

    I’m more inclined now to agree with Zachary in the Great Humphries Hazard Debate.

  6. stewie says:

    You can’t say, as the courts do, that pleading guilty is different with different rules and concerns from a contested case (which is true) and then say that they should be treated the same.

    I think it’s fairly obvious why there is a difference between guilty pleas and contested cases (even if I don’t agree that should result in no relief in the former, I still acknowledge/see the difference).

    Pleading guilty removes some of the notice concerns, pleading not guilty does not.

  7. Justin says:

    Stewie: Perhaps, but is the “removal of notice concerns” true where there are mixed pleas to erroneous 134 specs in the same case?

  8. My Take on Mixed Pleas says:

    As I read it, Humphries answers your question about mixed please, Justin.  In his dissent, Judge Stucky notes that Humphries likely had actual notice of the terminal elements:  he was represented by senior defense counsel and the IO’s report “spelled out the elements.”  The majority opinion, however, turns on constitutional notice (not actual notice).  In a contested case where there was no discussion at trial as to which theory of criminality (cl. 1 or cl. 2 or both) Humphries needed to defend against, there was no constitutional notice.  So, under the mixed pleas scenario, yes, it is possible that the guilty pleas would be affirmed (Ballan/Nealy) and the not guilty pleas thrown out (Humphries).