Captain Thomas, U.S. Army, was convicted by a general court-martial of fraternization, orders violations, and obstruction of justice. He pleaded guilty to most of the offenses (violating a lawful general order, violating a lawful order, one specification of fraternization, and obstruction of justice, in violation of Articles 92 and 134). But he pleaded not guilty to two specifications of fraternization in violation of Article 134. He was tried by members on those two specifications, convicted of both, and then sentenced by the members to a dismissal.
But like so many other Article 134 specifications, the two fraternization specifications failed to expressly allege the necessary (“terminal”) element that Appellant’s conduct was prejudicial to good order and discipline or that it was of a nature to bring discredit upon the armed forces. In a per curiam opinion dated January 29, 2013, the Army CCA recognized that the missing element was error, but found no prejudice because Appellant pleaded guilty to a third specification of fraternization that also omitted the terminal element. The court reasoned, “Here, we find that the providence inquiry and discussion of the elements and instructions as to Specification 3 of Charge VII fully and adequately informed appellant so that he was on notice of the terminal elements for Specifications 1 and 2.” Slip op. at 3. The CCA then affirmed the sentence.
But CAAF reverses in a summary disposition dated July 2, 2013:
The military judge’s identification of clauses 1 and 2 of Article 134, UCMJ, during the providence inquiry did not place Appellant on notice of the government’s theory of liability for the contested fraternization specifications. At most, the providence inquiry merely made Appellant generally aware of the law, which does not provide notice of the terminal element.
CAAF sets aside the findings of guilty to the two contested specifications, and remands for further action by the CCA (dismiss and reassess the sentence, or authorize a rehearing). Chief Judge Baker dissents, citing his dissents in Fosler and Humphries (and reminding me of this discussion of stare decisis at CAAF).
This case is notable for the things unsaid. Defense counsel assisted Appellant as he pleaded to two violations of Article 134 (fraternization and obstruction of justice) and explained in his own words how his conduct violated an uncharged terminal element. And trial counsel listened intently throughout. But then there was a contested trial, before a panel of at least five officers, about two more violations of Article 134, during which the uncharged element was apparently all-but ignored. We know that the Defense didn’t focus its efforts on disproving a terminal element (because that would have allowed CAAF to affirm by applying Tunstall), nor did the Defense use argument or cross examination to rebut Government evidence that proved a terminal element (because that would have allowed CAAF to affirm by applying Goings). Perhaps the Government concedes that no direct evidence was presented to prove a terminal element (and CAAF reverses in accordance with Gaskins), but we can’t say for sure.
The only thing that is certain is that the Defense remained relatively passive during the contested portion of this trial, and did not aggressively attack the circumstances that criminalized the Appellant’s improper relationships with enlisted service members. We know this because if there had been a zealous defense that addressed the terminal element at trial, CAAF would have affirmed.
But there’s more. The Defense didn’t object to the missing element at trial (if it had, Fosler requires reversal). So the error of the missing element was forfeited, meaning that the appellate courts review for plain error which requires (1) error, that is (2) plain or obvious, and (3) materially prejudiced a substantial right of the accused (and maybe (4) seriously affects the fairness, integrity, or public reputation of the proceedings). And when an error is forfeited at trial, the Defense has the burden of persuasion on appeal. Yet look at the issue before CAAF:
Whether a providence inquiry can cure the prejudice from the Government’s failure to allege the terminal element of two contested Article 134, UCMJ, specifications.
The prejudice appears to be presumed. Wild.