The Judge Advocate General of the Army today certified a case in which ACCA had applied a Fosler/Humphries analysis and set aside two indecent acts convictions:

I.  WHETHER, IN LIGHT OF UNITED STATES V. COTTON, THE ARMY COURT APPLIED THE INCORRECT TEST IN DETERMINING WHETHER THE FAILURE TO PLEAD THE TERMINAL ELEMENT PREJUDICED APPELLANT BY FAILING TO EVALUATE WHETHER THE EVIDENCE AS TO THE TERMINAL ELEMENT WAS OVERWHELMING.

II.  WHETHER THE GOVERNMENT’S FAILURE TO PLEAD THE TERMINAL ELEMENT PREJUDICED APPELLANT.

United States v. Swift, __ M.J. __, (C.A.A.F. Jan. 28, 2013).  ACCA’s opinion setting aside the findings and sentence while authorizing a rehearing is available hereUnited States v. Swift, No. ARMY 20100196 (A. Ct. Crim. App. Nov. 29, 2012).

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