NMCCA issues this interesting published opinion yesterday. United States v. Miles, 71 M.J. 671, No. NMCCA 201100578 (N-M. Ct. Crim. App. Oct. 17, 2012).  While the opinion addresses several issues, it is probably published due to its consideration of what it terms “a matter of first impression”:  whether use of the disjunctive to connect prejudice to good order and discipline and of a nature to discredit the armed forces results in a defective Article 134 specification.  No, rules NMCCA in a unanimous opinion authored by Judge Modzelewski.

The court first considered whether the verdict was ambiguous, rendering appellate review impossible.  This question, the court reasoned, turned on “whether clauses 1 and 2 of Article 134 represent different elements and therefore establish two separate offenses, or whether those clauses are merely different theories of liability under which an accused can be found guilty of the same crime.”  The latter, ruled NMCCA: “clauses 1 and 2 of Article 134 are two different theories of liability under which an accused can be found guilty for one crime. While charging in the disjunctive is disfavored, under Article 134, it does not automatically render the specification fatally defective.”

The court continued, “When the charge presents multiple or alternate theories of liability, a general guilty verdict to the charge attaches a guilty verdict to all of the theories.”

Next, the court considered whether the spec was insufficient to protect the accused from double jeopardy. No, ruled NMCCA:

Here, the specification alleged that the appellant possessed child pornography at a particular time and location and that the “conduct was prejudicial to good order and discipline or likely to bring discredit upon the armed forces.” As such, the specification provided the appellant both with ample notice of the conduct that he was to defend against and with notice that he must defend against two theories of liability. Moreover, the specification clearly protects the appellant against double jeopardy. We find that the charge and specification properly state an offense.

7 Responses to “Interesting published NMCCA opinion on pleading Article 134 terminal elements in the disjunctive”

  1. Zachary Spilman says:

    Except that it states two offenses, a principle particular clear to the NMCCA after the embarrassing reversal in United States v. Stewart, 71 M.J. 38 (C.A.A.F. 2012). As I wrote back in March:

    The tragedy is that CAAF’s resolution turns on the amateurish charging decision of the government, rather than any of the other significant issues presented by this case (which included the important question of the proper role of the military judge in determining the availability of the defense of consent). The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled (see, for example, the United States Attorneys’ Manual entry on the subject), and a court-martial is specifically authorized, by R.C.M. 918, to return findings with exceptions. The use of the word “or” in place of “and” doesn’t just make a specification duplicitous, it creates a potential referral (i.e., jurisdictional) issue as the court-martial cannot know which facts were the basis for the “reasonable grounds to believe that an offense triable by a court-martial has been committed,” as required by R.C.M. 601(d)(1).

    I don’t see any discussion in the NMCCA’s opinion in Miles that addresses the referral issue. Since the specification alleged one legal principle or another, there’s no way to tell which one was the basis for the decision to refer this case to a general court-martial.

  2. Devin Winklosky says:

    We have been beating this topic around at the schoolhouse ever since (dare I say the name?) Fosler.  Fascinating that NMCCA comes down on the side of relative ambiguity.  Arguably, even CAAF isn’t quite sure as evidenced by this language from Humphries:

    This is particularly problematic in the context of an Article 134, UCMJ, offense, which allows several theories of criminality . . . .  Neither the specification nor the record provides notice of which terminal element or theory of criminality the Government pursued in this case.

    United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).  Is CAAF saying there is more than one terminal element?  Or are they saying there is only one terminal element but multiple theories of liability?  Although the latter seems to be the most consistent reading of Humphries, perhaps a rewrite of the MCM on this issue is in order (hint, hint).
    A related issue involves duplicity — if the terminal element is a single element but contains separate theories, then SD and PGOD shouldn’t be charged in separate specifications since they are the same element (just different theories of committing the same crime — hmmm…multiplicity?).  If, however, they are actually separate elements, then they can be charged in separate specifications and the accused can be convicted of both — which is how practitioners have been charging it heretofore.  We have not seen the last of this. 
    I prefer COL Masterton’s approach in the Army Lawyer — charge in the conjunctive, prove in the disjunctive (it’s a mantra of AUSAs everywhere).  This informative and concise article is available here:

  3. Zachary Spilman says:

    We have not seen the last of this.

    Indeed Sir, and it’s too bad. I thought these issues were cleared up earlier this year, as discussed in my analysis of Stewart, and my comments to that post, particularly the distinction of the three parts of Article 134 being three different offenses:

    The three clauses of Article 134 constitute “three distinct and separate parts.” United States v. Frantz, 2 C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953). Violation of one clause does not necessarily lead to a violation of the other clauses. For example, “disorders and neglects to the prejudice of good order and discipline” is not synonymous with “conduct of a nature to bring discredit upon the armed forces,” although some conduct may support conviction under both clauses. This is particularly true of clause 3. See, e.g., United States v. Martinelli, 62 M.J. 52 (C.A.A.F.2005) (detailing significant additional steps required to obtain a conviction under clause 3, as compared with clauses 1 and 2).

    An accused must be given notice as to which clause or clauses he must defend against. As we explained in the context of a guilty plea: “[F]or the purposes of Article 134, UCMJ, it is important for the accused to know whether [the offense in question is] a crime or offense not capital under clause 3, a ‘disorder or neglect’ under clause 1, conduct proscribed under clause 2, or all three.” Medina, 66 M.J. at 26. This requirement was based on fair notice. See id. Principles of fair notice require the same in contested cases.

    United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011).

    Now, as I noted in that comment, an Article 134 specification that alleges two parts conjunctively is duplicitous, but the sole remedy for a duplicitous specification is severance, and failure to object at trial waives the issue. R.C.M. 906(b)(5). 

    But an Article 134 specification that alleges two parts disjunctively has deeper problems, like the jurisdictional issue. Unless the act of referring a case to court-martial is not meaningful, or is not quasi-judicial, or is not independent of the prosecution.

    At least, it shouldn’t so consistently remind me of the trial from Alice in Wonderland: “Sentence first, verdict afterward.”

  4. Devin Winklosky says:

    Two additional comments — First, in my last comment I meant to say that charging Clause 1 and 2 in separate specifications (contending they are separate crimes) is how some practitioners have approached the issue heretofore.  The practice I have seen most often, though, is to charge both in the same specification as they did in Miles.
    Second, if CAAF reviews Miles, perhaps there will be a renewed look at the actual text of the statute and its legislative history.  The (archaic sounding) statutory text reads:

    Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

    Do the elements enumerated in the MCM (and referenced by the Miles court) match the statutory text?  Moreover, Clause 1 has been around since 1775 and the Articles of War, but Clause 2 is significantly younger, arising circa 1916.  Thus, did Congress intend to address two distinctly different types of criminal conduct (and not merely two theories of the same conduct)?  I’m asking rudimentary questions here, but CAAF could expound on the analysis and the President could fix through greater clarity in the MCM.

  5. Peanut Gallery says:

    Gentlemen, the issue was [tersely] addressed back in August in United States v. Lucas (NMCCA 201100372).  See slip op at *11-12.

  6. Dwight Sullivan says:

    Devin, thanks for your (as always) thoughtful comments.  The very limited rationale for Congress adopting the service discrediting language is discussed in Homer Moyer’s invaluable Justice and the Military and was addressed by CAAF in Phillips.  Mr. Moyer observes:

    Clause 2 was added to the general article (in 1916) at the urging of the Judge Advocate General of the Army.  When asked by a member of the Military Affairs Committee what the purpose of the language was, the Judge Advocate General responded:

    That was inserted for a single purpose.  We have a great many retired noncommissioned officers and soldiers distributed throughout the body of our population and a great many retired officers.  If the retired officer does anything discreditable to the service or to his official position we can try him . . . for “conduct unbecoming an officer and a gentleman.”  We cannot try the noncommissioned officer or soldier under that article, nor can we try him for conduct prejudicial to good order and military discipline; becuase the act of a man on the retired list, away from any military post, cannot be reasonably said to affect military discipline.

    [end of quotation and sub-quotation]

    CAAF had this to say about that in Phillips:

    Appellant asserts that the language now found in clause 2 first entered military law for a single purpose: to subject noncommissioned officers on the retired list to criminal sanctions. Since its enactment in 1916, as a clause of Article of War 96, it is clear that the provision has never been so restricted by its text or in practice. It has been applied to active-duty personnel from very early times. See C.M. 139139 (1920) (soldier deserting and abandoning wife without cause or excuse), cited in Digest of Opinions of the Judge Advocate General of the Army, 1912–1940 348 (1942); see also United States v. Parkman, 4 C.M.R. (A.F.) 270, 278, 281 (A.F.J.C.1951); United States v. McDonald, 10 B.R. 61, 63 (A.B.R. 1939); United States v. Klima, 4 B.R. 45, 46 (A.B.R.1932). With no statutory text to the contrary, we decline to overrule almost a century of precedent.

    United States v. Phillips, 70 M.J. 161, 165 (C.A.A.F. 2011).

  7. Dew_Process says:

    While the “Discussion” of RCM 307(c)(3) [Discussion, para (G)(iv), seems to prohibit disjunctive pleading, its genesis goes back much longer.  In US v. Autrey, 30 CMR 252, 253 (CMA 1961), the Court noted:  “It is settled law that an offense may not be charged in the conjunctive or the disjunctive. Manual for Courts-Martial, United States, 1951, paragraph 28b. . . .” but went on to describe the limited circumstances of conjunctive pleadings, e.g., where the “res” constitutes numerous items.  The issue has always been, unless challenged pre-trial, waiver.