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.