And now for the metaphysics report:  NMCCA held today that the government need not prove that a federal statute exists for an accused to be found guilty of an Article 134(3) offense of violating the federal statute.  NMCCA’s published opinion is available hereUnited States v. Hickerson, __ M.J. __, No. 201100111 (N-M. Ct. Crim. App. Oct. 31, 2012).  I’m still trying to figure out if the opinion is actually some sort of weird Halloween gag.

Judge Ward wrote for a unanimous panel.

27 Responses to “To be or not to be: NMCCA holds that the federal statute’s existence isn’t an element of an Article 134(3) offense”

  1. casual reader says:

    Only in the military could an appellate court totally ignore an element of an offense.  Basic statutory construction — every word has a meaning.  The members, by their actions, knew that.  Using the court’s reasoning, one need not establish the victim is a minor to prove sexual intercourse with a minor.

  2. Just Sayin' says:


  3. Zachary Spilman says:

    It’s inexplicable that they did this, considering the following discussion about why it doesn’t matter in this case:

    But even if we were to find error, we are convinced any such error was harmless. Although the military judge may have thought otherwise, he could have taken judicial notice of the statute, even over defense objection, and instructed the members accordingly. Additionally, there was no dispute at trial that this federal statute existed at the time of the offenses. The defense raised a perfunctory objection solely because the Government had rested its case. Last, the military judge’s solution inured to the appellant’s benefit. By refusing to take judicial notice, he left the issue of whether the statute existed for the panel to decide.

    Slip op. at 5. Isn’t anything beyond what is required to resolve the case at hand (meaning the entire discussion of the elements issue) dicta?


  4. Peanut Gallery says:

    As Justin Verlander said, “wow.”

  5. ConLaw says:

    A few million bucks of savings here for a president who will consolidate these kangaroo courts and staff them with three or five real judges.

  6. Gene Fidell says:

    I’m not sure what you are suggesting, Con, but I do think that, whoever wins on Tuesday, there will be both pressure and an opportunity to take a hard look at ways to economize in the administration of military justice. Multiple law schools? Multiple intermediate appellate courts? Underutilized trial courtrooms? What, if anything, would CAAFloggers BRAC if they had the chance?

  7. No Kool-Aid says:

    So who do they call to prove the statute exists?  A Senator?  A Congressman?  The President? I have charged federal statutes about three dozen times and never had to prove its existence.  Following your arguments, I guess the G also has to prove that every charge on the charge sheet under the UCMJ also existed at the time of the offense. “Your honor we move for a 917.  The G never presented evidence that Article 112a was in existence….”  Come on people.

  8. Mike "No Man" Navarre says:

    I [hate WordPress sometimes]. I am with Zee. Why refuse to take judicial notice and then introduce evidence on the point? Curious to see if anyone thinks taking judicial notice after deliberations began would be error–I have not trolled Lexis on this point. Seems like a harmless error case if there isn’t some nugget prohibiting that.

  9. Just Sayin' says:

    Perhaps because in your cases there was no legitimate question as to the statute’s existence, whereas in this case there may have been.  However, to answer your questions:
    a. Get legislative history of statute.  Thomas law is a good source, as are those out of date hard copy stautes in every law library.
    b. Introduce evidence of legislative history before judge.
    c. Ask judge to take judicial notice that statute was in effect at time of offense.
    Taking judicial notice or entering evidence after the closing of the government’s case is not proper procedure.  Maybe procedure doesn’t matter in the JV bull pen of mil just, but it sure as hell matters in the real world.  But then, this is what you get when only 5 contested trials qualifies you as an “expert”.

  10. No Kool-Aid says:

    “Taking judicial notice or entering evidence after the closing of the government’s case is not proper procedure.”  Based on what?  “Just sayin” something over and over again don’t make it true. 

  11. Mike "No Man" Navarre says:

    I think the question on judicial notice is timing.  Court take judicial notice of statutes all the time, and are required to do so in some cases.  

  12. Ex TC says:


     The question of what to BRAC is dangerous. BRAC a brig or confinement facility and lots of miljus collapses. Look at NSA Pensacola, which use to do a huge USN and USMC business, in their wonderful old circular courtroom that use to be a powder magazine. BRAC a brig and it instantly dries up, to much of a headache for PTC or SPCM confinement. It becomes a whirlpool you cannot escape from. BRAC a brig, cases go down, judge billets go away, TC billets go first, then experience….. and before you know it you are conduct voir dire on a MJ with his SRB documents about his marriage. 

    Though I think that the app world could be consolidated with much savings, a purple court with purple litigators. My two cents.         

  13. Just Sayin' says:

    Judicial notice is evidence.  Once the case has been closed and deliberations begun, it is generally understood that admission of further evidence is inappropriate.  At least that’s how we practice in the real world.

  14. Gene Fidell says:

    Judicial notice can be taken at any time provided the court gives the parties notice and an opportunity to be heard. Fed. R. Evid. 201; Mil. R. Evid. 201. For an example of judicial notice being taken while a case was at the Supreme Court see Massachusetts v. Westcott, 431 U.S. 322 n.2 (1977) (per curiam).

  15. Phil Cave says:

    Not in favor of consolidating Brigs any more than already being done.
    Personally I think they might have saved money by adding a couple of D-Cells to the local MP/PMO station – IMHO for the short termers.
    It leaves pretrial detainees to the mercy of civilian jails, many of which have significant problems. 

  16. Phil Cave says:

    It appears that the parties in Mass were given notice at some point during the Supremes litigation.  Was that done with NMCCA, or is that put into the opinion later?  In other words, reading fn. 2. I have the impression it was sort of briefed. 

  17. Gene Fidell says:

    Yes, the Supreme Court gave the parties a chance to take a position on whether JN should be taken.

  18. stewie says:

    When using clause 3, you are saying there are two elements:

    1. the accused did some act
    2. that act was in violation of Federal (or State) law that is assimilated under 134, clause 3

    So it is difficult to see the argument that you don’t need to provide SOME evidence, if nothing else a copy of the law for the panel to see (obviously the best way is judicial notice).

    I don’t think judicial notice has to happen prior to the close of the government’s case, just prior to the taking of evidence, because the question is, did the fact-finder receive any proof on an element. If they received none, which appears to be in this case, the fact that the defense did not “contest” it is irrelevant, they aren’t required to contest an element, the government is required to prove it.

    I’m sure there are all sorts of times when the MJ could take judicial notice of a fact, but when it is required to meet an element, then the question switches from could to did?

    While I appreciate the government help as someone who routinely makes mistakes on the government side (and who doesn’t?), the reality is this was an easy fix for the government, and the appellate court should make them pay for not doing it.

    Now, having said that, in this case, they appear to have also charged clause 1 and 2 in the charge, so even if they lose on clause 3, assuming they put on evidence of PGOD or SD, they should still win, and THAT’s what the court should have focused on instead of establishing precedent that you don’t even have to bother with showing an assimilated statute even exists.

    Because now you have a situation where you just have to prove an act occurred and convince a panel it’s probably illegal somewhere.

  19. Just Sayin' says:

    Stewie, you are more eloquent than I am on this point.  I shouldn’t have said prior to the close of the gov. case because of course JN can still be taken during defense, rebuttal, and I’d argue even prior to issuing of jury instructions.  But I still have an issue with the idea of taking judicial notice of an element of the offense during deliberations.  It’s one thing to take notice during an appeal, but I am not aware of a single instance in which it was permitted mid-deliberations.

  20. stewie says:

    Well, i wasn’t that eloquent because I said prior to the taking of evidence, and I meant to say prior to the close of taking of evidence.

  21. Dew_Process says:

    “CCA” is obviously an acronym for “Courts of Criminal Affirmances!”  Using logic more twisted than a pretzel, ignoring 2 centuries of “Due Process” / Notice pleading (to include proving what you plead), the “Court” here reaches its desired result, affirming the conviction.

    Taking judicial notice during deliberations violates both Due Process and the right to the effective assistance of counsel.  Due Process (where the accused objects) because it is “evidence” admitted after proof has closed and thus, no opportunity for the defense to contest such.  The right to counsel because either defense counsel has commented on the absence of such evidence during summation, or if initially silent on the matter, precluded from addressing it after deliberations have begun and more proof “admitted.”

    At that point, the defense could move for a mistrial – or, the MJ could (and should) allow further arguments by the defense to address the “new evidence.”

    All of that is fine in the abstract here, but the better approach is far simpler – go to Article 92 – if you charge someone with violating a “lawful general regulation,” you must prove that the regulation not only existed but was in effect at the time of the alleged offense.  That is basic Military Justice 101 — charging the way that they did here under Article 134, is no different.

    NKA – the “Based on what” is the constitutional principle of former jeopardy. When the government “rests” it asserts that it has completed its proof — jeopardy has not only attached, but bars over defense objection their getting another “bite of the apple.”  Contrary to the Court’s characterization, the defense’s objection was not “perfunctory.”  It was profoundly astute.  That is why a real court would not have found this to be “harmless error.”  What else was the objection for?

    Perhaps seeking en banc reconsideration on the issue that the CCA’s novel approach is in and of itself a constitutional violation, might bring some more rational thought to this matter.

    Just my 2 cents.

  22. ConLaw says:

    Gene – I would replace the CCAs with one court of intermediate appellate review, preferably but not necessarily civilian. One body of case law and, eventually, one JAG Corps for the military. Current system is absurd, and this opinion (which would fail a 1L course) is exhibit A.

  23. WWJD says:

    I kind of agree with ConLaw.  It would be interesting to compare the number of criminal appeals handled by the Circuits with the number of appellate cases handles by the CCA (along with the number of Judges/Clerks).
    But I would scrap the entire system itself.  All major cases that would have resulted in a GCM should be handled through the District Courts.  With exception to some Military specific charges which should be disposed via Article 15/Summary anyway.
    This would naturally shrink the JAG Corps – but this need not happen.  It would be nice to see more JAGs participate in Federal Cases, ideally they would “take care” of service member cases handled by the District Courts.  Military Judges should have powers similar to Magistrates – 6 year terms, and also be able to handle Civilian cases and suits.
    TL; DR – Military cases should be handled by the District Courts, the JAG Corps should still prosecute/defend these cases and more.

  24. Atticus says:

    Im out of the loop. Can someone explain the BRAC issue to me. What ar they looking to close?

  25. Bridget Wilson says:

    Gene, that reorganization would not automatically put people out of work. It would help to have a standing court system, even if we retain a legal fiction of convening each court anew. A real court system with filing systems, and clerks,etc. Heck, PACER-what a radical idea. Sitting magistrates might be a good idea. You know, the things that could help to make these courts more like well…courts.

  26. Cap'n Crunch says:

    I do not believe that we need to move the UCMJ or military justice to the federal district courts.  First and foremost, the UCMJ is a tool to keep good order and discipline.  And that means that it must be portable — to go and move where the military is, be it in Afghanistan, Iraq, Germany, Italy, or CONUS.  Military judges should be military.  But, I believe that the MJ appointment should be a terminal appointment, 5 or 8 years in duration — and you could have a pool of MJs for all the services.  That way the MJ is not beholden to anyone for his or her decisions, but you also have someone who has served (hopefully) as a TC, DC, and preferably a SJA, who has all of those perspectives prior to coming to the bench.  On appellate review, I cannot disagree that the CCA’s could not be consolidated to one sitting court for all the branches.  I think a majority of the CCA should be military, with perhaps 40% civilian (15 year terms).  And a CCA appointment for military members should likewise be terminal, 5 or 8 years in duration.  I’d see if that didn’t erase some of the “affirm at all costs” mentality that seems to exist in certain of the CCAs and instead get to a place where the facts and the law drive the results instead of the results drive the law and facts.

  27. Gene Fidell says:

    Atticus, you’re not out of the loop. I was just asking what CAAFloggers think ought to be changed or gotten rid of of consolidated in an area of austerity. If the Pentagon has any such plans on the drawing board in the military justice area, it hasn’t made them public.  

    CAAFlog, time for a new string on this subject? At the moment, we’re hitching a ride on a different topic.