CAAF will hear oral argument in the Coast Guard case of United States v. Reese, No. 17-0028/CG (CAAFlog case page), on Tuesday, March 14, 2017, at 9:30 a.m. Two granted issues challenge the wording of the charges; the first based on a change made during the trial and the second based on the omission of words of criminality from a specification under Article 134:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

Aviation Maintenance Technician First Class (E-6) Reese elected to be tried by a military judge alone. Reese pleaded guilty to numerous offenses but he pleaded not guilty to other offenses including allegations of sexual abuse of a four year old boy, EV. Reese was also charged with engaging in service discrediting conduct in violation of Article 134 for telling the boy to keep quiet about the alleged sexual abuse.

The military judge acquitted Reese of some of the contested specifications, however he convicted Reese of sexual abuse of a child in violation of Article 120b(c) (2012) and of the 134 offense. Sexual abuse of a child occurs when an accused commits a lewd act upon a child. Lewd act is a legal term of art encompassing a fairly wide range of sexual activity. See Article 120(b)(h)(5).

The prosecution alleged that Reese committed a lewd act upon the boy by licking the boy’s genitals. The prosecution attempted to introduce, under the residual exception to the hearsay rule, out-of-court statements made by the boy to his parents that alleged licking, however the military judge denied the prosecution motion. Subsequently, and two days before trial, the boy was deposed and he “denied that appellant had committed any of the charged acts. . . . [instead, he] testified that appellant had touched his penis with appellant’s hand.” App. Br. at 7. The boy also testified at trial and his testimony was consistent with the deposition.

Having charged a specification that alleged licking and not touching, but with testimony that claimed touching but not licking, the prosecution moved to amend the specification to conform with the testimony. Reese’s defense counsel objected, but the military judge granted the motion on the basis that it constituted a minor change because “there is no additional or different offense alleged.” App. Br. at 8 (quoting ruling). The military judge then allowed the defense a continuance and permitted it additional cross-examination of the boy. The Coast Guard CCA affirmed the change. The first granted issue challenges this ruling and the decision of the CCA.

Reese was also charged with a violation of Article 134 in that he:

did make a statement to [EV], a four year old child [DOB January 7, 2009], to wit: “that if he [EV] told anyone what he [Aviation Maintenance Technician First Class Shane E. Reese] had done to him [EV] that Uncle Shane and Aunt [JR] would go to jail” or words to that effect, and that such conduct was of a nature to bring discredit upon the armed forces.

App. Br. at 17 (changes in original). This specification does not allege any words of criminality such as wrongfully. Reese’s defense counsel did not object to the language of the specification. The Coast Guard CCA affirmed, applying its decision in United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016) (discussed here), in which it held that such words of criminality are not necessarily required under Article 134.

Reese’s brief to CAAF asserts that the amendment to the Article 120b specification was a major change (and not a minor change) because “changing the means of committing an offense adds a substantial matter not included in the preferred charges.” App. Br. at 13 (citations omitted) (emphasis in original). A major change is one that “add[s] a party, offenses, or substantial matter not fairly included in those previously preferred or are likely to mislead the accused as to the offenses charged.” R.C.M. 603(a). A major change may not be made after arraignment without the consent of the accused.

Reese’s brief also argues that he was prejudiced because:

[T]he military judge permitted the amendment after appellant had announced his choices regarding forum and pleas. Appellant and his counsel made their tactical choices based on EV’s deposition which contrasted starkly with the facts alleged in the charged offenses.

App. Br. at 14. The military judge’s ruling permitting the change, however, included the observation that the trial testimony was “foreseeable based on pre-trial proceedings.” App. Br. at 9 (quoting ruling) (annotation omitted).

The Coast Guard Appellate Government Division’s brief emphasizes that:

nothing about changing the specification from licking with the tongue to touching with the hand changed the way Appellant presented a defense.

Div. Br. at 13. This seems to be a significant point, and Reese’s brief doesn’t explain how his defense would have been different if the specification alleged touching (consistent with the pre-trial deposition) rather than licking (consistent with the hearsay statements by the boy to his parents).

For the 134 offense, Reese’s brief quotes from the dissenting opinion of Judge Bruce in the Coast Guard CCA’s consideration of this issue in this case:

The act of speaking to a child is not conduct that is ordinarily criminal. Even saying something to a child that makes the child uncomfortable or fearful would not ordinarily be criminal. Alleging that the conduct was service[-]discrediting . . . is a necessary element, but it does not add much in terms of what about Appellant’s conduct was criminal, rather than innocent, or what culpable state of mind the Government is alleging. Words of criminality in the specification would provide some assurance that the court-martial would not convict without considering whether Appellant had a culpable state of mind and whether his conduct might be innocent or justified

App. Br. at 22 (marks in original). But the brief also makes the strange argument that the specification is deficient because it doesn’t allege the related enumerated offense of obstruction of justice:

In using a novel specification for conduct addressed by a listed offense, the government lightened its burden and only had to prove that appellant did certain acts and that, under the circumstances, his conduct was of a nature to bring discredit upon the armed forces rather than prove the second and third elements of obstructing justice beyond a reasonable doubt.

App. Br. at 24. While the preemption doctrine prohibits application of Article 134 to conduct covered by the other punitive articles, see ¶ 60.c.(5)(a), Part IV, MCM (2016), it doesn’t apply internally within Article 134 (particularly considering that the President’s enumeration of an offense under Article 134 doesn’t actually create an offense but rather merely establishes the maximum authorized punishment for a particular means of violating Article 134).

The Coast Guard Appellate Government Division responds rather weekly that:

In this case, the other charges on the charge sheet provide context to the Specification that supplies any missing aspects of the intent or wrongfulness elements: “what [Appellant] had done to EV” was to sexually abuse him.

Div. Br. at 21. The Division also argues:

In this case, the Specification as charged and as defined by its surrounding context gave Appellant ample notice of the criminality of his conduct: (1) he sexually abused EV, which he believed could result in his going to jail; (2) afterwards, he told EV that if EV told anyone what Appellant had done, Appellant and Appellant’s wife, both of who were beloved by EV would “go to jail,” and (3) the statement was couched in an if-then dichotomy, so as to affect EV’s behavior by expressing that there would be a highly undesirable consequence, which could be prevented by the child’s silence. As charged, there would be little room for Appellant to be confused or mistaken about whether such conduct was criminal. Like in Ashby and Sullivan, the conduct in this case is so egregious that any reasonable servicemember would know that it is service discrediting.

Div. Br. at 27. It’s hard to tell what makes this obviously criminal – the nature of the underlying act or the if-then dichotomy. But either way the Division’s argument seems to be that Reese’s statement to the child was punishible because it was wrongful, despite the fact that wrongfulness was not alleged.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard Appellate Gov’t Div.) brief
Blog post: Argument preview

27 Responses to “Argument Preview: Reviewing the mid-trial amendment of one specification, and the sufficiency of another, in United States v. Reese, No. 17-0028/CG”

  1. Bill Cassara says:

    Disclaimer: I am appellant’s counsel in Reese.  Zach, I think you miss a crucial point in the argument. The amendment was made after arraignment and, indeed, near the end of trial.  It is clear that forum selection (made the morning of trial) was done because of the way the case was charged.  Had it been charged as the amended spec, forum would likely have been different. 

  2. Zachary D Spilman says:

    I get that Bill, though it’s not clear why the language of the charge had such an impact on forum selection. But I predict that during oral argument CAAF will be more interested in how the defense presentation would have been different regardless of forum.

  3. Julie Caruso Haines says:

    Disclaimer:  I work for Bill and represent Reese with him.  2 points:  1) The gov’t did not charge the offense in the alternative, thereby putting all its eggs in 1 basket, and then later had the chance to perfect its case when the alleged victim’s testimony utterly failed to conform to that spec.  If the gov’t can perfect its case well after the midway point of trial and after the alleged victim testifies, then is there ever a time in trial when it’s too late to make a change? 2) I respectfully disagree with the characterization that we argue that the spec is deficient because it doesn’t allege obstruction of justice; what’s strange about that?  What’s strange is that the gov’t either inartfully drafted the spec or knew it didn’t have the proof for obstruction of justice. 

  4. Dew_Process says:

    Why would the appellant here tip his hand publicly as to the why? One thing that jumps out is that by allowing the government to change the Spec from “licking” to “touching,” after originally preferring the Spec as a “licking” charge, and considering the government’s attempts to use the Residual Hearsay rule to use the parents as surrogate witnesses, is that a good argument can be made that (a) the boy was “coached” somewhere along the way as what to say; or (b) the parents animus infected the boy’s version of events – both of which are unlikely to sway a MJ, but might – depending on whatever else the defense had, sway some members.
    A male licking a 4 year old boy’s penis is per se “lewd,” while a touching of it is in most cases going to be contextual, e.g., was he bathing the child or what.  And I think this is why this is a “major” change to the Spec.  How could the Accused not be misled by this charging flip-flop? The nature of the alleged misconduct, i.e., the actus reus is quite different imho.

  5. Zachary D Spilman says:

    I reads the briefs and I writes my previews. 

  6. Da Real Deal says:

    What a joke.  Reversed.  Bet the house.

  7. Tami a/k/a Princess Leia says:

    Major change and failure to state an offense.  I see a reversal.

  8. Tami a/k/a Princess Leia says:

    I would think that a motion for a finding of not guilty would have been made, and would’ve been successful, had the government been forced to stick to the act alleged, “licking.”

  9. Zachary D Spilman says:

    Triggering double jeopardy for the touching, Tami a/k/a Princess Leia?

  10. Dew_Process says:

    Zach – not speaking for Tami a/k/a, but most likely “yes.” If the government knew via the pre-trial deposition of the “touching” but not “licking,” testimony by the complaining witness, they’ve waived the point for Former Jeopardy purposes. It was an unsworn, un-preferred, un-investigated, un-referred Specification that could have been charged.

  11. Zachary D Spilman says:

    Hang on, Dew_Process. You’re saying that double jeopardy is triggered by something that could have beenbut wasn’t – charged? You got any precedent for that?

    If, as Reese’s brief claims, “changing the means of committing an offense adds a substantial matter not included in the preferred charges” App. Br. at 13 (citations omitted) (emphasis in original), then how was he in jeopardy?

    Oh sure, there’s the time, trouble, and expense of a second trial. But there’s also Mil. R. Evid. 804(b).

  12. Tami a/k/a Princess Leia says:

    Zachary D Spillman, yes, double jeopardy would be triggered and preclude a second prosecution for the act.  Government had an opportunity to charge the “touching” in the alternative but chose to put all its eggs in one basket by solely charging “licking.”

  13. Zachary D Spilman says:

    Your logic on this double jeopardy issue seems to be that since he wasn’t charged with touching, and so couldn’t be convicted of touching, he can never be prosecuted for touching. That sounds a lot like no jeopardy rather than double jeopardy.

  14. k fischer says:

    Read this opinion and let me know if this is precedent that answers the question you pose. 

    The Double Jeopardy Clause is no less offended because the Government here seeks to try petitioner twice for this single offense, instead of seeking to punish him twice as it did in Braverman.34 “If two offenses are the same . . . for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.” Brown v. Ohio, supra, 432 U.S., at 166, 97 S.Ct. at 2225. Accordingly, even if the numbers allegation were “dismissed,” we conclude that a subsequent trial of petitioner for conducting the same illegal gambling business as that at issue in the first trial would subject him to a second trial on the “same offense” of which he was acquitted.
    Sanabria v. U. S., 437 U.S. 54, 74 (1978)

    Similar to the relationship between the Government’s indictment in Sanabria, Reese was charged with sexual abuse of a child by licking.  The Government proved got the conviction for touching of the hand.    Provided CAAF finds this is a major change and a fatal variance, then I think the CG will be in the same position as the Government in Sanabria, whichindicted the appellant for operating an illegal gambling business assimilated under Mass law. and charged that it was illegally engaged in horse betting.  It attempted to prove that the Defendant was engaged in an illegal numbers business.  The Court did not allow them to introduce evidence of that, then acquitted him of the horse betting charge.  They attempted to retry the accused using the numbers evidence, and the SC said it was barred by double jeopardy.
    With Reese, the Government charged licking, which got dismissed.  If CAAF says that it was error for the MJ to allow the Government to move forward on the touching because it was not charged, then wouldn’t that be similar?
    Oh, and there is something in the MCM about all known offenses should be ordinarily referred to one court martial or something.  Rule 601.  I don’t know.  Reece’s first step is to get over the hump of it being a major change that violated his right to due process.  But, I think a good argument could be made under Sanabria that double jeopardy bars a second court-martial. 
    And, if Former TC, a.k.a. “Sir” has jumped over to reading this thread, this is what we lawyers like to refer to as a “technicality.”

  15. Zachary D Spilman says:

    The preference for combining all known charges in one court-martial is found in some non-binding discussion sections in the MCM, but not in any actual rule. So – like the pirate code and the Ferrengi rules of acquisition – it’s really just an aspiration.

  16. Zachary D Spilman says:

    As for Sanabria:

    In deciding whether a second trial is permissible here, we must immediately confront the fact that petitioner was acquitted on the indictment. 

    437 U.S. at 64 (emphasis added). 

    No acquittal for Reese.

  17. k fischer says:

    Bro, Reese would have been acquitted if the MJ had denied the Government’s motion to amend the charge, right?  So, if CAAF determines that was a major change that violated the Accused’s right to due process and reverses, then wouldn’t that be the effect of an acquittal?  I mean, he was de facto not guilty of the offense as it was charged prior to the amendment.
    But, maybe the Government will argue US v. Lee (I think). I don’t know.  This is too complex for me.

  18. stewie says:

    Rule56:  Pursue profit; women come later

  19. k fischer says:

    Rule 15 got me through basic training.

  20. Philip D Cave says:

    The requirement used to be in the RCM.  I forget if it removed in 85 or 95 and put in Chap5 for NJP.  It was a rule once.

  21. Zachary D Spilman says:

    Subject to jurisdictional limitations and at the discretion of the convening authority, charges against an accused, if tried at all, ordinarily should be tried at a single trial by the lowest court that has power to adjudge an appropriate and adequate punishment.

    ¶ 30g, Manual for Courts-Martial (1969).

    Subject to jurisdictional limitations and at the discretion of the convening authority, charges against an accused. if tried at all, ordinarily should be tried at a single trial by the lowest court that has the power to adjudge an appropriate and adequate punishment.

    ¶ 33h, Manual for Courts-Martial (1969).

    While those were technically rules, the language is toothless. 

    In the 1984 revision this language was moved to the discussion sections for Rules 401, 601, and 906. Since then not a rule at all. 

  22. Zachary D Spilman says:

    Here’s my simple take on why Sanabria doesn’t apply, k fischer.

    In Sanabria the accused was convicted of nothing, allowing the Court to emphasize that a “[j]udgment of acquittal, however erroneous, bars further prosecution on any aspect of the count, and hence bars appellate review of the trial court’s error.” 437 U.S. at 69. In Reese, however, there was a conviction.

    Had the military judge in Reese allowed the change from licking to touching and then acquitted Reese of the touching, then Sanabria would apply and double jeopardy would bar retrial for both licking and touching.

    But a conviction reversed on appeal doesn’t bar retrial.

    The bigger issue is whether a specification that alleges a lewd act with no further detail (no to wit:) states an offense. I think it can, subject to concerns about unfair surprise (not at issue in this case because the trial testimony was consistent with the pretrial deposition). That adds support for the argument that double jeopardy applies, but it also supports affirmation of the conviction in this case. So, since a conviction affirmed on appeal does bar retrial, maybe double jeopardy will apply after all.

  23. k fischer says:

    So, what’s the difference between a panel coming back after deliberations with a minor variance in a finding of guilty, i.e Not guilty of x, but guilty of y where y=minor variance of x, and a Judge amending a charge prior to deliberations as a minor variance.  Shouldn’t the amended spec act as an acquittal of the original spec as it was drafted?  Seems like we are elevating form over substance provided CAAF said that the amended charge was a major change.  If CAAF says its a minor change, then it’s macht nichts.
    And was there any evidence of a motive to fabricate on EV’s part given to the trial?  Because if there was, then you got a kid who said Reese licked his penis, then later said that he touched his penis over his pants?  I understand kids mix things up, but if there was a motive to fabricate, I don’t see how there wouldn’t have been reasonable doubt.

  24. Tami a/k/a Princess Leia says:

    The failure of the government to elicit any evidence of licking during the trial is what would have led to the motion for finding of not guilty, but for the government amending the spec to conform to tbe witness’ testimony.  That is the biggest prejudice in my opinion. Government can’t appeal finding of not guilty.  Next in the line of prejudice is the ability to defend the “touching.”  By alleging “licking,”  there is no justification for that, so your defense is pretty much limited to it didn’t happen.  When changed to touching, that IS justifiable, but how can you suddenly swing into that mode when your focus has been “it didn’t happen?”
    The failure to state an offense relates to the obstruction of justice that isn’t.  There is no language of criminality to put anyone on notice that simply talking to a child and saying something about jail is a crime.  MTD for failure to state an offense can be made at any time because there’s nothing to be convicted of.  While looked on less favorably when first raised on appeal, this argument can, and should, still be made.

  25. k fischer says:

    If the facts are that there was a touching, but it was not wrongful because, I’ll make something up here, the 4 year old complaining witness spilled some juice on his pants and my client brushed the liquid away and he misconstrued my hand brushing across his pants as a bad touch, then how is that inconsistent with the defense of “I didn’t lick his penis?”  As a defense attorney, perhaps I would be concerned with the SVP’s argument of “The Accused is just minimizing here!  And, the fact that he denies licking his penis, but admits wiping away liquid over the alleged vic’s genitals above his pants is proof beyond a reasonable doubt that he, in fact, licked his penis!”  And, if my client came off kind of creepy, then I might not put him on the stand even though I believe him wholeheartedly and had some pretty good evidence as to alleged vic’s motive to fabricate such an allegation. 
    But, the Accused took the stand in this case, as well as his wife, and testified that none of that happened.  So, is the argument, well, rather than testifying that nothing happened, i.e. I never even touched his penis area over his pants, he would have testified, well, I guess I did, but he was just mistaken about it?  I think your argument would be supported better had the Accused NOT testified because then perhaps he would have taken the stand.

  26. Bill Cassara says:

    Or perhaps in this case had he been charged with touching he would not have taken the stand. 

  27. Zachary D Spilman says:

    No, Tami a/k/a Princess Leia, the bigger issue is whether a specification that alleges a lewd act with no further detail (no to wit:) states an offense because if it does then the specific means of committing the lewd act (licking, touching, whatever) is surplusage.