CAAF is considering the impact of a variance in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page). A variance is when the offense proven at trial does not conform with the offense alleged in the charge. It is an issue when findings are made by exceptions and substitutions (exceptions are when words are deleted from the language of the specification; substitutions are when words are added).
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 (prejudicial) 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 Army CCA found no material variance, but it also concluded that even if the variance was material then it was not fatal because it did not prejudice the appellant (due to the nature of the defense he presented at trial). I discussed the CCA’s published opinion in this post, where I disagreed with its finding of no material variance, but I agreed with its conclusion on the issue of prejudice. CAAF’s review will determine which (if either) interpretation is correct.
Now the Air Force CCA joins the variance debate with a published opinion in United States v. Mandy, 73 M.J. 619, No. 38227 (A.F.Ct.Crim.App. Apr. 10. 2014) (link to slip op.). The appellant – a captain – was convicted of numerous offenses including malingering in that he:
[D]id, at or near Franklin, Tennessee, on or about 21 March 2012, for the purpose of avoiding his duty at Eglin Air Force Base, intentionally injure himself by lacerating his left knee.
Slip op. at 3. But the members made findings that excepted the words “intentionally injured himself by lacerating his left knee,” and substituted the words “feign disability by exaggerating the extent of the injury to his left knee.” The Defense did not object to this change (though it did object to a change the members made to a different charge), and the AFCCA considered this change under the plain error test. The court finds that it is both material and fatal (prejudicial), and dismisses the finding.
The CCA notes that “the statutory language of Article 115, UCMJ, provides for two distinct forms of malingering: feigning illness or injury, or intentionally inflicting self-injury.” Slip op. at 6. Because only the intentionally-inflicting theory was before the members, “the appellant’s conviction of malingering by feigning disability was a conviction of a crime different from the specification that he was expected to defend himself against before the members.” Slip op. at 6. Somewhat ironically, the Prosecution actually withdrew language that alleged the feigning-disability theory before trial. Because of this withdrawal, the CCA concludes that “the appellant was no longer charged with this different theory and was no longer on notice that he needed to defend against it until the military judge’s instructions.” Slip op. at 8.
The CCA then reasses the sentence but provides no relief (the appellant was also convicted of unauthorized absence, two specifications of willfully disobeying a superior commissioned officer, and one specification of dereliction of duty, and he was sentenced to a dismissal and confinement for two years; the convening authority then reduced the confinement to one year).