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