Last October the Army CCA issued a published opinion in United States v. Treat, 72 M.J. 845, No. 20110402 (A.Ct.Crim.App. Oct. 25, 2013) (link to slip op.). Treat is a contested missing-movement case where Appellant was charged with missing the movement of a specific aircraft (“Flight TA4B702”) but was convicted by the military judge of missing the movement of a unit (“the flight dedicated to transport Main Body 1”). Appellant complained that this created a material fatal variance, but the CCA rejected this argument because “[t]he theory of the case, however, remained the same.” Slip op. at 5.
When I wrote about the case in this post last November, I argued that 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. Because of this, I felt that the CCA’s conclusion that there was no material variance was mistaken.
CAAF’s going to determine if I got this one right:
No. 14-0280/AR. U.S. v. Michael L. TREAT. CCA 20110402. Review granted on the following issue:
WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF APPELLANT’S DUE PROCESS RIGHT TO NOTICE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.
Briefs will be filed under Rule 25.
Though, it’s worth mentioning that I could be both right and wrong in my analysis of this case, as I concluded:
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.