The long-running case of United States v. Arriaga is headed back to CAAF on certification by the Judge Advocate General of the Air Force, with the following interesting issues:
I. Whether Appellee satisfied his burden to demonstrate that the defective specification under Article 134, UCMJ, materially prejudiced his substantial rights when he was provided actual notice of the terminal element through an Article 32 report received prior to trial.
II. Whether the Air Force Court of Criminal Appeals applied an erroneous standard of law when evaluating whether the defective specification under Article 134, UCMJ, materially prejudiced Appellee’s substantial rights by failing to consider whether the evidence on the missing element was “overwhelming and essentially uncontroverted” and by finding notice of the missing element was not extant in the record.
III. Whether this honorable court should apply the fourth prong of the plain error analysis as articulated by the United States Supreme Court in United States v. Olano, 507 U.S. 725 (1993), when assessing whether the defective specification under Article 134, UCMJ, materially prejudiced appellee’s substantial rights in this case.
I recall discussion of something similar to Issue I over the past term or two, but can’t remember where. Issue II is familiar to those who have followed the Humphries/Fosler line of cases (and this term’s analytical trio of Tunstall, Goings, and Gaskins). And Issue III got plenty of indirect attention this term: In Tunstall, Judge Erdmann writing for the majority, emphasized in a footnote that: “We have consistently rejected application of the fourth prong of Olano when addressing questions under Article 59(a), UCMJ, and do not intend to revisit that practice here.” Slip op. at 14-15 N.7. But in his concurring opinion in Tunstall, Judge Stucky explained that he “would adhere to the Supreme Court’s four-prong plain error test as set out in [Olano].” Con. op. at 2. And in his concurring opinion in Gaskins (decided on the same day), Judge Stucky practically invited this issue: “I will await a case in which the issue of which test to apply is squarely presented,” he wrote.
As for Arriaga, this will be its third trip to Judiciary Square. The AFCCA’s most recent opinion is here, and provides the extensive history which is reproduced after the jump.
This case is before this Court on remand from our superior court for a second time. A panel of officer and enlisted members found the appellant guilty, contrary to his pleas, of one specification of housebreaking and one specification of indecent assault, in violation of Articles 130 and 134, UCMJ, 10 U.S.C. §§ 930, 934. The approved sentence consisted of a dishonorable discharge, confinement for 4 years, forfeiture of all pay and allowances, and reduction to E–1. In an unpublished decision, this Court affirmed the findings, but found that the appellant’s sentence was inappropriately severe. United States v. Arriaga, ACM 37439 (A.F. Ct. Crim. App. 7 May 2010) (unpub.op.), rev’d, 70 M.J. 51 (C.A.A.F. 2011). As a result, we determined that the appropriate sentence was a bad-conduct discharge, confinement for 2 years, forfeiture of all pay and allowances, and reduction to E–1. Arriaga, unpub. op. at 11.
The Court of Appeals for the Armed Forces (CAAF) granted review of the following issues: (1) whether the appellant’s conviction for housebreaking must be set aside because housebreaking is not a lesser included offense of burglary under United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); and (2) whether the appellant should be granted additional confinement credit as relief for being deprived of his right to timely appellate review. United States v. Arriaga, 69 M.J. 433 (C.A.A.F. 2010) (order granting petition for review). By its decision issued 29 April 2011, the CAAF ruled that housebreaking was a lesser included offense of burglary, but held that the appellant was denied his due process right to speedy appellate review. Arriaga, 70 M.J. at 54–55. As a result, our superior court set aside our decision and returned the case to this Court for further action consistent with their opinion. Having considered the issue of the appellant’s right to timely appellate review in light of the CAAF’s opinion, and again having reviewed the entire record, on 16 February 2012, we affirmed the approved findings and granted the appellant an additional 51 days of confinement credit. United States v. Arriaga, ACM 37349(rem) (A.F. Ct. Crim. App. 16 February 2012).
On 16 April 2012, the appellant appealed our decision to the Court of Appeals for the Armed Forces (CAAF) on the sole issue of whether he was entitled to additional credit as a result of oppressive confinement, asserting that the Government deprived him of his due process right to a speedy trial review. In response, the CAAF ordered by summary disposition “that the portion of the decision of the United States Air Force Court of Criminal Appeals as to Charge III, Specification 2, and as to the sentence is reversed…. [T]he remaining charge and specification is affirmed.” United States v. Arriaga, 71 M.J. 347 (C.A.A.F. 2012) (mem.). The CAAF remanded the appellant’s case to this Court for further consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). As a result, we must now review whether the remaining charge and specification of indecent assault under Article 134, UCMJ, fails to state an offense because the specification does not expressly allege either terminal element. After reviewing the entire record and our previous decision in light of Humphries, we dismiss Specification 2 of Charge III.