I was in trial all last week and didn’t have a chance to review the Army CCA’s published opinion in United States v. Treat, 72 M.J. 845, No. 20110402 (A.Ct.Crim.App. Oct. 25, 2013) (op. here). But Major Bateman’s writeup at the nicely redesigned 31(b)log got my attention, and this past weekend I took a hard look at the case.

Appellant, Sergeant Treat, was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he had been kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight had left. “Not likely,” said his command. He was soon charged and then convicted, contrary to his pleas of not guilty, of missing movement and making a false official statement, in violation of Articles 87 and 107, by a special court-martial composed of a military judge alone. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

The language of the missing movement specification became an issue at trial. The Government alleged that Appellant:

did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

(emphasis added). But the military judge made findings by exceptions and substitutions. The offense of conviction states that Appellant:

did, at Bamberg, Germany, on or about 17 November 2010, through design, miss movement of the flight dedicated to transport Main Body 1 of the 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgzstan with which he was required in the course of duty to move.

(emphasis added). The Army CCA’s published opinion addresses these exceptions and substitutions as a possible “material fatal variance.” A variance is when the offense proven at trial does not conform with the offense alleged in the charge and is an issue when findings are made by exceptions and substitutions. A variance is “material” when, “for instance, [it] substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (marks and citations ommited). A material variance is “fatal” when it “(1) [puts an accused] at risk of another prosecution for the same conduct, (2) mislead[s] him to the extent that he has been unable adequately to prepare for trial, or (3) den[ies] him the opportunity to defend against the charge.” Id. (marks and citation omitted).

In Treat the CCA finds no material variance in the military judge’s findings, concluding:

While the missing movement charge in this case was perhaps inartfully drafted, referring to a particular flight number, the charge was clearly aimed directly at appellant’s purposeful missing of his unit’s flight. The defense argues that the government prosecution theory changed when the military judge excepted the flight number and substituted a description of what the flight number represented, namely the flight of Main Body 1. The theory of the case, however, remained the same, namely, that the appellant missed his unit’s flight upon which he was required to move and that he did so through his own design.

Treat, slip op. at 5 (emphasis added). But changing a charge of missing movement from missing a specific flight to missing “the flight dedicated to transport [a specific unit]” doesn’t actually keep the theory the same. Rather, it changes the theory completely, and substantially changes the nature of the offense.

Article 87 (10 U.S.C. § 887) states:

Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.

This language was once interpreted to require that when missing a ship or aircraft’s departure, the accused must actually be assigned to the crew of the ship or aircraft (reading those terms as types of “units”). The Court of Military Appeals rejected this interpretation in United States v. Johnson, 3 USCMA 174 (1953), and then again in United States v. Graham, 16 M.J. 460 (C.M.A. 1983), finding that “[r]eason does not indicate the necessity for such limitation.” Graham, 16 M.J. at 463 (quoting Johnson, 3 USCMA at 177).

But military courts have always held that the offense of missing movement requires proof that an accused was required to move with a specific ship, aircraft, or unit. See, for example, United States v. Kapple, 40 M.J. 472 (C.M.A. 1994) (finding no offense where appellant was issued a changeable commercial airline ticket, not orders to travel on a specific aircraft). Cf. United States v. Gonzalez, 60 M.J. 572 (A.Ct.Crim.App. 2004) (affirming convictions for missing specific commercial flights where appellant was forbidden from changing his reservations without prior approval from military authorities).

Article 87 also clearly states three separate types of movements that cannot be missed: that of “a ship,” “[an] aircraft,” or “[a] unit.” These three types comprise two different theories of prosecution: A unit theory and a ship/aircraft theory. Part IV of the Manual for Courts-Martial recognizes this distinction, separately defining the “mode of movement” for a “unit” and a “ship, aircraft” in paragraph 11.c.(2):

(2) Mode of movement.

(a) Unit. If a person is required in the course of duty to move with a unit, the mode of travel is not important, whether it be military or commercial, and includes travel by ship, train, aircraft, truck, bus, or walking. The word “unit” is not limited to any specific technical category such as those listed in a table of organization and equipment, but also includes units which are created before the movement with the intention that they have organizational continuity upon arrival at their destination regardless of their technical designation, and units intended to be disbanded upon arrival at their destination.

(b) Ship, aircraft. If a person is assigned as a crew member or is ordered to move as a passenger aboard a particular ship or aircraft, military or chartered, then missing the particular sailing or flight is essential to establish the offense of missing movement.

(emphasis added). So, a missing movement offense can be charged under either the “ship/aircraft theory” based on a failure to travel on a specific ship or aircraft (“you will be on that boat, mister”), or under the “unit theory” based on a failure to move with a specific group (“we’re stepping off at dawn and you will be with us, mister”).

In Treat, the Government alleged that Appellant missed the movement of a particular aircraft, “Flight TA4B702.” But the military judge convicted Appellant of missing the movement of “the flight dedicated to transport Main Body 1.” That changed the theory of the case from the ship/aircraft theory to the unit theory, because Appellant was convicted not of missing a particular aircraft (“Flight TA4B702″), but of missing whatever flight it was that moved a specific unit (“Main Body 1″).

However, the Army CCA not only finds that “[t]he theory of the case, however, remained the same,” it also implies that the theory of this prosecution – where the Government charged Appellant with missing the movement of a specific aircraft – was always the unit theory:

While the missing movement charge in this case was perhaps inartfully drafted, referring to a particular flight number, the charge was clearly aimed directly at appellant’s purposeful missing of his unit’s flight.
. . .
In light of the facts and circumstances found here, appellant’s contention that the government failed to prove a specific flight number moved at all misses the point entirely. The important thing is not whether that specific flight number left, but whether the unit’s flight took place at all.

Treat, slip op. at 5 (emphases added). This analysis would make a lot more sense if after the word’s “appellant’s purposeful missing of his unit’s flight,” were the words “regardless of the specific time or flight number.” And if the Government’s hadn’t charged Appellant with missing a specific, identified flight.

But the Government did allege a specific flight in the original language of the specification, making this a case about missing the movement of an aircraft, and the fact that “the government failed to prove a specific flight number moved at all” is exactly the issue. Considering this, the CCA’s conclusion that there was no material variance is mistaken.

But the CCA also concludes that even if there were a material variance, Appellant was not prejudiced:

Appellant is in no danger of double jeopardy in this case. The movement which appellant missed is not in dispute. Moreover, the record of trial is thorough regarding the circumstances surrounding his crimes and protects appellant from subsequent prosecution. Additionally, there is no evidence appellant was unable to adequately prepare for trial or that he was denied the opportunity to defend against the charge. Appellant’s explanation as to why he was misled at trial falls short.To the contrary, appellant was aware of the contested issue–that his unit’s flight moved without him on or about 17 November 2010. The thrust of appellant’s defense at trial was that his “abduction” prevented him from being on this flight with his unit when it departed during the deployment window.

In the court’s view, appellant’s claim of prejudice is not substantiated, and we, therefore, find no fatal variance in this case.

Slip op. at 6. The appellant’s hard-to-swallow defense of a kidnapping that prevented him from making the flight (for which he was also convicted of making a false official statement) isn’t affected at all by changing the theory of prosecution from a particular flight to a unit movement. Either way the false story leads to a conviction. So in the end, the variance is material but not fatal, and the CCA’s decision affirming the findings is the right result.

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