CAAF will hear oral argument in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page) on Tuesday, May 13, 2014. The court will review a single 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.
Appellant 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 was kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight had left. His command didn’t believe his story, and he was soon charged. He was convicted, contrary to his pleas of not guilty at a special court-martial composed of a military judge alone, of missing movement and making a false official statement, in violation of Articles 87 and 107. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.
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.
The specific language used to charge Appellant with missing movement 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). Appellant’s counsel did not object at the time the findings were made, but later raised the issue of a variance during the post-trial process. A variance is when the offense proven at trial does not conform with the offense alleged in the charge. It is a potential 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 a published opinion, the Army CCA found no material variance in the findings. I discussed that opinion in this post, where I reviewed the two different theories of missing movement under Article 87 and explained why I think that there was a material variance in the findings and why I think that the CCA’s finding of no variance is mistaken. I’m not going to rehash my argument here because you can just read it there. However, the CCA also noted that Appellant’s defense was focused on his claim that he was kidnapped. This defense wasn’t affected by the variance, nor would it have been any more effective had the offense been charged consistent with the judge’s findings. So I agreed with the CCA’s ultimate conclusion affirming the findings.
But Appellant’s brief adds a new fact for CAAF’s consideration:
It is clear from the record that SGT Treat premised his defense strategy to the missing movement charge on demonstrating (1) that the government could not prove that Flight TA4B702 existed, and (2) that not only was there no flight on November 17, 2010, SGT Treat knew he was not leaving on November 17, 2010.
App. Br. at 11.
Appellant’s brief reproduces the following excerpt from the Defense argument on the merits:
And what happened on the 17th that is important? Well, the government has charged that Sergeant Treat missed a flight on that date. A flight that, according to all sources, never existed. It did not take off. There was no movement to miss on the 17th of November, ma’am, because that flight didn’t go anywhere. And what happened on the 17th according to Sergeant Mathis? He called Sergeant Treat and said, “We’re not leaving today. Stand down.”
There is simply no evidence with which to convict Sergeant Treat of missing a movement under Article 87 since that movement didn’t exist. We don’t even know the flight number for sure. There has been no credible evidence before this court as to what the actual the [sic] flight number was on the 17th of November. None of the witnesses knew the flight number. We don’t even know if the flight number would have stayed the same or changed when they actually flew on 19 November.
App. Br. at 12. The Government’s response is that this was a last-minute tactical decision by the Defense, where “only after it became apparent that the government was having difficulty establishing the flight’s number, did trial defense counsel then seize the opportunity to cross-examine the government’s witnesses about it and then later briefly reference this testimony during their closing argument.” Gov’t Br. at 19. But the brief focuses attention on Appellant’s “outlandish abduction story.” App. Br. at 21. Considering the kidnapping defense presented at trial, and the lack of a defense objection to the exceptions and substitutions, this case seems set for resolution on the question of prejudice.
On the underlying issue of the existence of a variance, both briefs appear to agree that this is something of an issue of first impression. Appellant’s brief asserts that “the distinction between missing movement of a particular unit versus a particular aircraft appears to be a matter of first impression for military courts.” App. Br. at 8. And the Government’s brief argues that:
It is telling that appellate defense counsel characterizes such a newly-created distinction between missing movement of a unit versus a particular aircraft “as a matter of first impression for military courts.” The very reason it may appear to be a matter of first impression” to the defense is because no military court has ever considered the “core of the offense” to exist within the descriptive means of transport and not the movement itself.
Gov’t Br. at 14. The Government’s brief gets a little punchy (calling this a “sleight of hand” argument on page 14), but ultimately the Government argues that in Article 87 “it is the missed ‘move,’ not the mode of moving, that is significant.” Gov’t Br. at 16 (quoting United States v. Graham, 16 M.J. 460, 461 (C.M.A. 1983)). However, Graham was about whether an individual movement (where the appellant deliberately missed a flight, but was not otherwise moving as part of any unit) is encompassed within Article 87. It was also a guilty plea case. This case is distinguishable on a number of levels.
But I think that the Government’s assertion that “no military court has ever considered the core of the offense to exist within the descriptive means of transport and not the movement itself” (Gov’t Br. at 14 (marks omitted)) misses the mark. In my post discussing the CCA’s decision, I noted United States v. Kapple, 40 M.J. 472 (C.M.A. 1994). In Kapple, a unanimous CMA concluded:
In this case we need not determine whether flight LH 1605 actually “moved,” because the Government presented no evidence that appellant was required to travel aboard that specific aircraft. In fact, the evidence is to the contrary. Because appellant was issued a “Category Z” ticket, he could exchange or cancel the ticket by dealing directly with the airline, without approval or intervention by any military official. If he failed to use the ticket, the Government would not be charged for the ticket, and the seat would be available to any other commercial passenger. There is no evidence that there would have been any impact on military operations if appellant had taken an earlier flight or used alternate means of travel to arrive at his new duty station on time. See United States v. Gibson, 17 MJ 143, 144 (CMA 1984) (absentee who was given ticket for commercial flight back to duty station but missed flight not guilty of missing movement). Accordingly, we hold that the Government failed to prove that appellant was required to move with a specific ship, aircraft, or unit.
Kapple, 40 M.J. at 473-474. That seems to me to be a decision based on the means of transport, and not the movement itself (particularly since the court avoids the granted issue of whether the movement itself occurred and focused instead on the means).
Ultimately, assuming the prejudice issue isn’t dispositive, CAAF’s resolution of this case will depend on whether Article 87 involves one or more theories of prosecution. Appellant styles this as an issue of first impression, but I think it more one of logical evolution. This case involves a charge of missing a specifically-identified flight, rather than missing the movement of a unit, and CAAF has recently put significant emphasis on the fact that “the military is a notice pleading jurisdiction.” United States v. Fosler, 70 M.J. 225, __ (C.A.A.F. 2011). Applying that emphasis to the notice provided by the specification in this case leads to a variance that may well reverse the conviction.
• ACCA opinion (72 M.J. 845)
• Blog post: The ACCA’s mistaken conclusion in a missing movement case
• Blog post: CAAF grants in Treat
• Blog post: Is the Army CCA treating contested cases differently?
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview