CAAF decided United States v. Gaskins, No. 13-0016/AR, 72 M.J. 225 (Gaskins IV) (CAAFlog case page) (link to slip op.), on Thursday, May 23, 2013, finding that the Army CCA did not abuse its discretion in ordering a sentence rehearing after the Government lost a Defense sentencing exhibit, but that the CCA erred when it found that the Appellant waived the Government’s failure to plead the terminal element of the Article 134 specification, and also finding that this failure materially prejudiced a substantial right of the Appellant. CAAF reverses the ACCA in part, sets aside the sentence, and remands the case to the CCA for a sentence reassessment.
Judge Ryan writes for the court, joined by Judge Erdmann and Senior Judge Effron. Judge Stucky writes separately, concurring in part and in the result. Chief Judge Baker also writes separately, concurring in part and dissenting in part.
Army Staff Sergeant Gaskins was convicted, in February, 2008, by a general court-martial composed of members with enlisted representation, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, UCMJ, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge. But Defense Exhibit A – a sentencing exhibit consisting of the Appellant’s “good soldier book” – went missing and wasn’t included in the record of trial. That omission began an appellate odyssey that, even now, will continue (since CAAF remanded the case to the CCA for a sentence reassessment).
First, a three-judge panel of the Army CCA heard oral argument, but then the entire court issued a published opinion ordering a DuBay hearing “to determine whether substantial matters were omitted from the record and, if so, whether it is incomplete under Article 54, UCMJ.” United States v. Gaskins, 69 M.J. 569, 570 (A.Ct.Crim.App. 2010) (en banc) (Gaskins I). Notably, all three of the judges who participated in the oral argument dissented from the CCA’s opinion in the case (and we remarked about the dissenting opinion this post).
Then, as discussed in this post, in response to a defense petition for extraordinary relief, “CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.” The case returned to the ACCA, which issued a second en banc opinion (Gaskins II) (unpublished), setting-aside the sentence and authorizing a sentence rehearing. Again there were dissents, and again the Appellant sought extraordinary relief from CAAF, but this time it was denied and the sentence rehearing was conducted in October 2011, resulting in an approved sentence of confinement for nine years, total forfeitures, reduction to E-1, and a dishonorable discharge.
Finally, in July 2012, the ACCA summarily affirmed the findings and sentence (Gaskins III). About ninety days later, CAAF granted review of two issues:
I. Whether the Government’s loss of a sentencing exhibit rendered the record of trial incomplete under Article 54, UCMJ, resulting in a jurisdictional limitation on the sentence to one no greater than that which could be approved for a non-verbatim record.
II. Whether Appellant waived the failure to plead the terminal element of the Article 134 offenses by his failure to raise that issue at the sentence rehearing, and if not, whether those charges should be dismissed because the Government failed to plead the terminal element.
The Appellant’s argument before CAAF was that the loss of Defense Exhibit A resulted in an incomplete record that requires either a complete rehearing on the merits or a limitation on the sentence that may approved to that which “could be adjudged by a special court-martial, except that a bad-conduct discharge, confinement for more than six months, or forfeiture of two-thirds pay per month for more than six months, may not be approved.” R.C.M. 1103(f). The Government also argued R.C.M. 1103, but it asserted that a sentencing rehearing is authorized. Judge Ryan and the majority see things differently:
The problem with both parties’ reliance on R.C.M. 1103 is that the provisions they point to are limited in their application, by R.C.M. 1103’s express terms, to instances where a verbatim transcript cannot be prepared. Id. In this case, the transcript is verbatim, but the record was otherwise incomplete prior to the Appellant’s clemency submission because a defense sentencing exhibit was missing.
Slip op. at 11. Because the transcript is verbatim, “R.C.M. 1103(f)’s limiting provisions are inapposite.” Slip op. at 12. Judge Ryan further explains that Article 54 does require a complete record, but nothing limits the ability of a court of criminal appeals to remedy an error in the assembly of a complete record. Such a remedy may include remanding for a rehearing on just the sentence in order to create a complete record of the sentencing hearing:
Where the CCA exercises its authority to order a rehearing on sentence, the record of the rehearing, in concert with the record on findings, constitutes the complete record for review by the convening authority and the CCA, as required by Articles 54 and 66, UCMJ. While R.C.M. 1103(f) does not apply to an incomplete record, it would make little sense to permit a rehearing on findings to create a new record of trial as a remedy for the absence of a verbatim transcript, but not permit a rehearing on sentence to seek to cure any prejudice suffered from a missing sentence exhibit.
Slip op. at 13-14. But the circumstances also matter to the majority, and Judge Ryan notes the factors that help CAAF find that the ACCA’s remedy of a new sentencing hearing “was appropriate under the circumstances.” Slip op. at 14.
We note that a CCA may order a rehearing where it sets aside a sentence adjudged by a lower court and approved by the convening authority. We further note that, on rehearing, the military judge took extra care to craft remedial measures that sought to cure any prejudice Appellant may have suffered from the absence of DE A. She ruled that any victim-impact evidence in aggravation would be time-limited to the date of the original presentencing hearing. She further ruled that TS could not testify, allowing only a stipulation of expected testimony from TS’s mother. Moreover, we consider the fact that, on rehearing, Appellant’s original sentence, awarded by members who had had every opportunity to review DE A — confinement for twelve years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge — was reduced by three years’ confinement as indicative that the ACCA’s remedy was nonprejudicial in this case.
Slip op. at 14-15 (citations omitted). Judge Ryan concludes her analysis by highlighting the absence of a statutory or regulatory requirement for “a particular remedial measure to address an incomplete record in a general court-martial, [so] we hold that the ACCA did not abuse its discretion in ordering the rehearing.” Slip op. at 15.
Then the majority turns to the defective Article 134 specification, in a perfectly-captioned section:
IV. HUMPHRIES ISSUE
Humphries issue indeed. In United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F. 2011), CAAF reversed nearly 60 years of military jurisprudence and decided that a specification under Article 134 fails to state an offense if it does not allege a “terminal element” (i.e., either that the conduct was prejudicial to good order and discipline, that it was of a nature to bring discredit upon the armed forces, or both). In United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), the court limited the application of Fosler by finding that in the context of a guilty plea, such a specification is still defective, but that the protections provided by a military plea inquiry are adequate to avoid material prejudice to a substantial right. But in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), the court expanded Fosler (where the appellant objected at trial) to include situations where no objection is made at trial, ruling that if the Government does not cure the lack of notice caused by the defective specification during the trial, despite the lack of objection, the error materially prejudices the accused’s right to notice and the conviction must be set-aside.
But CAAF must keep returning to this issue; explaining, clarifying, and correcting the courts of criminal appeals. In this case, the Army CCA found that, “Because it was settled law at the time of appellant’s rehearing that a failure to allege the terminal elements in an Article 134, UCMJ offense constitutes error, we conclude that appellant’s failure to raise the issue constitutes a conscious waiver.” Gaskins III, slip op. at 2. But the Government concedes that the ACCA got that wrong, and that “it was plain and obvious error for the Government not to allege the terminal element in the [Article 134] specifications.” Slip op. at 17. “The question, then, is whether the defective specification[s] resulted in material prejudice to Appell[ant]’s substantial right to notice.” Id. (quoting Humphries, 71 M.J. at 212). And unlike Tunstall and Goings – decided on the same day as this case – here CAAF finds that the error did result in material prejudice.
[W]here, as here, the Government fails to allege the terminal element, mention it during trial, or put on independent evidence of it, that the evidence of the bad acts may have been legally sufficient to prove the terminal element does not answer the altogether different question whether Appellant suffered material prejudice to his substantial right to notice and to defend himself.
Slip op. at 18. This is the big difference between this case and Tunstall and Goings, and it’s dispositive. And while these facts might sound like a legal sufficiency issue, Judge Ryan makes it clear that legal sufficiency isn’t a factor in this case (where the Appellant sexually assaulted the twelve year old daughter of a subordinate assigned as his sponsor at a one assignment, and then sexually assaulted a fellow staff sergeant who had invited him to a barbecue to meet people after he was reassigned pending investigation into the assault of the child). Rather,
Here, there was no overwhelming evidence. As the Government concedes, no direct evidence was put on to prove the terminal element.
Slip op. at 22 (emphasis in original). With these facts it’s hard for me to continue my retrospective of my post about The Hazard of Humphries, but the word overwhelming does stand out. It appears only one other time in the opinion, just a few lines earlier in a citation to the Supreme Court’s opinion United States v. Cotton, 535 U.S. 625, 633 (2002), which played a key role in CAAF’s decision in Humphries (where the majority opinion was also authored by Judge Ryan) to reject the “shall be dismissed” language of R.C.M. 907(b)(1) for a defective specification in favor of a plain-error analysis of case-specific prejudice.
While Judge Ryan does discuss all the ways that the Government didn’t present evidence to meet its burden to prove a terminal element (no mention of either clause until instructions; no direct evidence or testimony about impact; no indication from the defense), she and the majority certainly can’t say that there was no evidence to prove a terminal element (what with the aggravating sexual assaults of a fellow soldier, and another fellow soldier’s child). So, reading between the lines, there’s a possibility that the Government’s case alone, without any consideration of a Defense response, could have cured the defective pleading (cf. my analysis of Goings, where I find that “Judge Ryan ties each additional action by the Government to a reaction by the Defense”). Judge Ryan doesn’t say this, but if consideration of the strength of the Government’s case alone could cure the pleading error, then that might be something of a carving knife to my great-pumpkin.
There’s more to the majority’s treatment of Humphries and the plain error test in this case, but it’s best considered in context with the opinions in Tunstall and Goings, and will have to wait for a future post. Ultimately, CAAF finds that:
Because Appellant was never given notice of the theory of criminality the Government pursued, and no evidence was introduced on any theory, we cannot say that the errors in the Article 134, UCMJ, specifications were cured. Accordingly, we hold that the Government’s failure to allege the terminal element in Charge II and the Additional Charge was plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against. The findings of guilt as to indecent assault and indecent acts with a child in violation of Article 134, UCMJ, are hereby set aside.
Slip op. at 25 (citations omitted). But the court affirms a conviction of assault consummated by a battery as a lesser included offense to indecent assault.
In two very brief separate opinions, Judge Stucky and Chief Judge Baker both concur in part. Judge Stucky disagrees with the majority that the Appellant was materially prejudiced, noting his preference for the full, four prong test for plain error. Yet:
Having no desire to reargue the issue each time we encounter a plain error situation, and considering myself bound, as we all are, by the precedents of the Court, I will await a case in which the issue of which test to apply is squarely presented.
Concur. op. at 1. Chief Judge Baker’s dissent is even shorter, and is reproduced below in its entirety:
BAKER, Chief Judge, (concurring in part and dissenting in part):
I concur in the Court’s analysis of Issue I. With respect to Issue II, I adhere to my earlier views expressed in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting). Applying that analysis mutatis mutandis to this case involving Appellant’s indecent acts with a servicemember’s dependent and Appellant’s indecent assault of Staff Sergeant AD, I would affirm on Issue II as well.
The major issue in this case is the question of remedy for an incomplete record, and the court’s opinion (unanimous as to this issue) creates a clear rule for future cases that might suffer the same unfortunate loss of a significant exhibit. Review Officers everyone (and I’m a former Review Officer myself) will greatly appreciate this.
Note: Multiple blog posts omitted; see our case page for the full history.
• ACCA opinion (Gaskins I)
• Blog post: Judge Ham Has A Few Parting Gifts for Her Friends
• ACCA opinion (Gaskins II)
• Blog post: Some thoughts about the Gaskins writ
• ACCA opinion (Gaskins III)
• Blog post: It’s b-a-a-a-ck; CAAF grants review of Gaskins
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• CAAF argument audio
• CAAF opinion
• Blog post: Opinion analysis