The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled.
Subsequent reminders that charging in the disjunctive is a bad idea came in United States v. Miles, 71 M.J. 671 (N-M. Ct. Crim. App. Oct. 17, 2012) (discussed here), and United States v. Dietz, No. 38117 (A.F. Ct. Crim. App. Jul. 17, 2014) (discussed here).
Yet a recent unpublished decision from the Navy-Marine Corps CCA reveals that some folks just can’t seem to accept that alternative theories of guilt must be alleged conjuctively, not disjunctively. In United States v. Lesley, No. 201400271 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), the CCA reviewes a contested general court-martial involving a single specification of possession of child pornography in violation of Article 134. The specification charged the appellant:
with knowingly and wrongfully possessing child pornography, to wit: digital videos of a minor, or what appears to be a minor, engaging in sexually explicit conduct
Slip op. at 2 (marks omitted) (emphasis added). Appellant was convicted and sentenced to confinement for 18 months and a bad-conduct discharge.
Yet because the Government charged in the disjunctive (rather than charging in the conjunctive – possession of videos of a minor and what appears to be a minor – and letting the court-martial make findings by exceptions if necessary), the CCA concludes that the charge bound the Government to the maximum authorized punishment for what only appears to be a minor engaging in sexually explicit conduct: confinement for four months and forfeiture of two-thirds pay per month for four months (and no punitive discharge). The court then affirms only that much of the sentence. This means that the appellant will be restored to duty and will receive back pay and allowances (though he will remain automatically reduced to E-1, pursuant to ¶ 0152c(1)(b) of JAGINST 5800.7F (JAGMAN)).
The opinion identifies facts that imply that the appellant’s trial defense counsel recognized the problem with the charge in advance (as the defense asserted that the lower maximum punishment applied at sentencing), and it describes the military judge’s unusual efforts to try to fix the problem after the members returned their findings. Yet the prosecution was seemingly oblivious to the problem (not even asking for findings by exceptions).
That the Government would be caught so flat-footed is stunning, particularly since this was a general court-martial (likely with an Article 32 pretrial investigation, and definitely with Article 34 pretrial advice from a staff judge advocate), it involved a relatively senior enlisted member (a Navy E-6), and the materials were offensive enough that the defense both stipulated at trial that they “are actual child pornography within the meaning of Article 134, UCMJ” and then conceded in argument that they involved “real children.” Slip op. at 3.