CAAF decided the Coast Guard case of United States v. Reese, 76 M.J. 297, No. 17-0028/CG (CAAFlog case page) (link to slip op.), on Wednesday, June 14, 2017. The court dismisses two charges after concluding that the conviction on the first (alleging sexual abuse of a child) was the product of an improper major change during the trial, and that the second charge failed to state an offense. The decision of the Coast Guard CCA is reversed and the case is remanded for reassessment of the sentence or a sentence rehearing.

Chief Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

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 sexual abuse of a four year-old boy in violation of Article 120b (2012), and to 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 convicted Reese of both of these offenses.

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 120b(h)(5). Reese was charged with licking the boy’s genitals, but in a deposition two days before trial the child said that Reese did not lick his genitals but rather merely touched his genitals with his hand. The child testified to the same at trial two days later. The prosecution then moved to amend the charge to allege touching rather than licking, and the military judge permitted the amendment over the defense objection.

In the ruling permitting the change, the military judge concluded that it was a minor change. A minor change includes “those [changes] necessary to correct inartfully drafted or redundant specifications; to correct a misnaming of the accused; to allege the proper article; or to correct other slight errors.” Slip op. at 5 (quoting R.C.M. 603(a) Discussion) (modification in original). Chief Judge Erdmann explains that:

We have previously held that a change is minor so long as “no additional or different offense is charged … and if substantial rights of the defendant are not prejudiced.” United States v. Sullivan, 42 M.J. 360, 365 (C.A.A.F. 1995) (internal quotation marks omitted) (citations omitted).

The first prong usually is satisfied if the charge is altered to allege a lesser-included offense….

… The second prong is satisfied if the amendment does not cause unfair surprise. The evil to be avoid-ed is denying the defendant notice of the charge against him, thereby hindering his defense prepa-ration.

Id.

Slip op. at 5. A change that is not minor is a major change, and a major change “may not be made over the objection of the accused unless the charge or specification affected is preferred anew.” R.C.M. 603(d).

CAAF finds that the change here was not a minor change:

The defense’s primary arguments that the change was major are that it altered the means of committing the offense and that the change was not fairly included in the original specification. We agree. . . . While changing the means by which a crime is accomplished may constitute a slight error under the appropriate circumstances, those circumstances are not present here.

Slip op. at 6. CAAF also finds that because the change was not minor, there does not need to be a showing of prejudice to justify the reversal of the conviction:

The plain language of R.C.M. 603(d) does not discuss prejudice. Rather, if a change is “major,” it provides that such change cannot be made over defense objection unless the charge is “preferred anew.” The practical effect is that if a change is major and the defense objects, the charge has no legal basis and the court-martial may not consider it unless and until it is “preferred anew,” and subsequently referred. See R.C.M. 201(b)(3). To the extent our precedent has required a separate showing of prejudice under these circumstances, it is overruled: absent “preferr[al] anew” and a second referral there is no charge to which jurisdiction can attach, and Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012), is not, in fact, implicated.

Slip op. at 8. This is a significant holding that functionally means that a major change is a structural error. A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Johnson v. United States, 520 U.S. 461, 468 (1997) (quoting Arizona v. Fulminante, 449 U.S. 279, 310 (1991)). Structural errors mean automatic reversal. But there are precious few structural errors:

We have recognized that most constitutional errors can be harmless. . . . Indeed, we have found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases.

Neder v. United States, 527 U.S. 1, 8 (1999) (marks and citations omitted). CAAF’s decision in this case functionally (though not explicitly) makes an objected-to major change a structural error.

Curiously, Chief Judge Erdmann’s opinion suggests that the delay in making the change was a significant factor in the court’s decision:

Despite learning that its evidence on this charge was not legally sufficient two days before trial, for some reason the government chose not to amend the charge. There is no dispute that the government controls the charge sheet and that Reese was on notice that he had to defend against an allegation that he licked the complaining witness’s penis. The defense was entitled to rely on the charge sheet and the government’s decision not to amend the charge sheet prior to trial.

Slip op. at 7. This fact, however, simply doesn’t matter. There was no way for the prosecution to amend the charge because a major change requires either the consent of the accused or a new preferral and referral (a factor essential to the court’s determination of the prejudice issue). Under the circumstances of this case the Government did not decide “not to amend the charge sheet,” but rather it was prohibited from amending the charge sheet.

Nevertheless, CAAF’s holding presumably means that Reese may now be charged with the offense of sexual abuse of a child by touching, thought that’s not entirely clear. CAAF does order the affected specification dismissed, but it does not do so with prejudice. See slip op. at 10. CAAF also only authorizes a sentence rehearing, though such rehearings may be combined with trials on new charges. See R.C.M. 801(a)(3). But cf. United States v. Carter, __ M.J. __ (C.A.A.F. Jun. 5, 2017) (CAAFlog case page) (affirming dismissal with prejudice where rehearing not explicitly authorized).

The second granted issue challenged the Coast Guard CCA’s application of its own decision in United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016) (discussed here), in which it held that words of criminality are not necessarily required for a specification under Article 134. CAAF, however, does not address that issue. Rather, it finds that the specification failed to state an offense because it omits elements of the enumerated Article 134 offense of obstruction of justice.

Chief Judge Erdmann explains that:

The government referred a “novel” Article 134, UCMJ, charge against Reese, which alleges in pertinent part that Reese made:

a statement to [EV], a four year old child …, to wit: “that if he [EV] told anyone what he [Reese] had done to [EV] that [Reese and his wife] would go to jail” or words to that effect, and that such conduct was of a nature to bring discredit upon the armed forces.

. . . The government concedes that the specification was intended to charge the offense of obstructing justice and Reese points out that pt. IV, para. 96 of the MCM already contains an offense of “Obstructing justice” which lists four elements.

Slip op. at 8 (brackets in original). Chief Judge Erdmann notes that “by using a novel specification, the Government relieved itself of having to prove the second and third elements of obstructing justice.” Slip op. at 10 n.6 (quoting CCA diss. op. of Bruce, J.). This rendered the specification insufficient to state an offense:

Part IV, para. 60.c.(6)(c) prohibits the government from using a “novel” specification to allege an Article 134 offense that is already listed inside the article’s framework. That is exactly what the government did in this case and we adopt the President’s persuasive interpretation of Article 134 on this point. Accordingly, the Additional Offense was barred by pt. IV, para. 60.c.(6)(c) and therefore fails to state an offense under the UCMJ.

Slip op. at 10. The Manual provision at issue was combined with para. 60.c.(6)(a) by Executive Order 13,740 of September 16, 2016 (discussed here) and reads in relevant part:

If conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 61 through 113 of this Part), a specification not listed in this Manual may be used to allege the offense.

Fundamentally, because the specification was intended to allege obstruction of justice, and obstruction of justice is an enumerated Article 134 offense, the specification was required to include all of the elements of that offense.

As with the sexual offense, CAAF’s finding that the 134 specification failed to state an offense (as opposed to, say, finding the evidence legally insufficient to support the conviction) presumably means that Reese may now be charged with the offense of obstruction of justice, but that’s also not clear for the same reasons as discussed above.

Ultimately, however, there are two significant holdings in this opinion.

The first significant holding is that there is no requirement to show prejudice in the case of an objected-to major change because “if a change is major and the defense objects, the charge has no legal basis and the court-martial may not consider it unless and until it is ‘preferred anew,’ and subsequently referred.” Slip op. at 8. The practical consequence of this will likely be that defense counsel will always object to any change, preserving the issue in case the change is later found to be a major one.

The second significant holding is that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense.

Case Links:
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Appellate Gov’t Div.) brief
• Blog post: Argument preview
Oral argument audio 
CAAF opinion
Blog post: Opinion analysis

9 Responses to “Opinion analysis: A major change becomes a structural error in United States v. Reese, No. 17-0028/CG”

  1. Scott says:

    I had the chance to attend the arguments for this case.  The CG Gov counsel had a rough time. 

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

    If only I could make a living with a crystal ball….
    CAAF dismissed both charges at issue and authorizes only a sentence reassessment or sentence rehearing on the remaining charges and specs appellant was found guilty of.  Double jeopardy applies.  The government could have, and should have, withdrawn the “licking” charge and preferred anew a “touching” charge.  Could this have been accomplished in time for trial within 2 days?  Absolutely not.  But the Government can make a motion for a continuance based on the circumstances of the deposition, and would’ve been granted.  At least if the government had followed the rules, it could have still pursued the “touching” charge.  Now they’re done.  As CAAF noted in a footnote, had the defense made a motion for a finding of not guilty, the defense would’ve won (an observation I made on 8 March).

  3. Zachary D Spilman says:

    Double jeopardy is based on the offense, Tami. Since the Article 134 specification failed to state an offense, there was no jeopardy.

    As for the alleged sexual abuse of a child, CAAF avoided a prejudice analysis by finding that the offense was uncharged:

    absent “preferr[al] anew” and a second referral there is no charge to which jurisdiction can attach. . . 

    Slip op. at 8 (emphasis added). No charge, no jeopardy.

  4. JustAnotherADC says:

    Z – jeopardy analysis doesn’t matter if no rehearing is authorized on findings. There is no such thing as an “other trial,” and if there is, it is a type of rehearing which must be authorized.  Your persistence otherwise notwithstanding. (Hello bear, see poke.)

  5. Zachary D Spilman says:

    I do note the rehearing on findings issue in my opinion analysis, JustAnotherADC

    As for an other trial, CAAF’s decision to avoid the issue entirely in Carter (CAAFlog case page) leaves it as at least an open question. CAAF’s decision in Carter is also remarkably hard to justify, least of all for service members whose convictions were reversed on similar grounds (no terminal element) but who were charged again and had their convictions affirmed. 

  6. JustAnotherADC says:

    By refusing to accept the government’s argument that the convening authority can authorize an “other trial” without court authorization, CAAF did not avoid the issue. The effect of Carter is that any “other trial” must be authorized by an appellate court, subject to that court’s discretion and not the government’s.  This is not difficult to reconcile with other cases that were subject to retrial as the CCAs in those cases authorized the proceedings.  In Carter, they didn’t.  That’s a simple application of Atchak, as cited by the court in Carter.

  7. Zachary D Spilman says:

    I don’t read the opinion in Carter the same way you do, JustAnotherADC.

    You wrote:

    By refusing to accept the government’s argument that the convening authority can authorize an “other trial” without court authorization, CAAF did not avoid the issue. The effect of Carter is that any “other trial” must be authorized by an appellate court, subject to that court’s discretion and not the government’s. 

    But in Carter, Judge Ryan wrote:

    We decline the Government’s invitation to cast this rehearing as an “other trial,” convened pursuant to R.C.M. 1107(e)(2), where the AFCCA dismissed the charges and did not authorize a rehearing pursuant to its authority under Article 66(d), UCMJ.

    Slip op. at 5. This is the only mention of an other trial in the entire opinion. 

    The issue I see is whether an other trial is an entirely independent, de novo proceeding (as suggested in Judge Brown’s dissenting opinion at the CCA, discussed here). CAAF didn’t actually answer that question in Carter. Rather, it merely adopted the AFCCA’s divided interpretation of its first decision. It certainly didn’t say that a CCA must explicitly authorize an other trial.

    In Carter the CCA reversed the conviction because the specification didn’t state an offense and the appellant was not otherwise on notice. Ignoring issues with any statute of limitations, those facts certainly seem to allow a new charge to be preferred and referred to a totally separate court-martial without regard to the first case. A rehearing, after all, is merely “a continuation of the former proceeding, and if the original court had no jurisdiction in the case, none of the restrictions of [Article 63] apply to a subsequent trial on the same charges.” S. Rep. No. 81 486 at 27 (1950) (available here) (emphasis added). But the majority of a three-judge panel found that no subsequent proceedings were authorized.

    The distinction between a rehearing, a new trial, and an other trial is important. The UCMJ limits the maximum sentence that may be imposed at a rehearing. See Article 63. It does not include such a limitation at a new trial, which is distinguished from a rehearing by the UCMJ itself. See Article 75(a) (“new trial or rehearing”). R.C.M. 810(d) is what limits the sentence at a new trial and an other trial.

     

  8. JustAnotherADC says:

    It’s not the only time Judge Ryan mentions “other trial”: “It appears that the convening authority intended to refer to R.C.M. 1107(e)(2), which purports to grant a convening authority the ability to authorize an ‘other’ trial.” FN 2. Do you think she would say “purports” if the Court thought it actually “authorized” an “other trial”?  Judge Ryan is very careful; I doubt she was so careless as to insert that word without intending to cast doubt on the foundation of “other trials.” 
    Also, you keep talking about Judge Brown’s dissent. You haven’t talked about what the other two judges that CAAF affirmed held. Hecker says an “other trial” is only a thing at initial action. Mitchell says it’s a type of rehearing.  The language you quoted from page five is the joint language of Mitchell and Hecker that requires the remanding court to authorize a rehearing if it dismisses. Seems pretty much in line with what I said.
    The authorities you discuss reveal that there is no statutory authorization for an “other trial.” After Carter, if it exists at all, it is only allowed on remand if the court authorized it. That makes it functionally the same as a rehearing. I also doubt the government will be able to get a rehearing with a max punishment unfettered by the original sentence, merely by calling it a “purported other trial,” but we will have to wait and see for a case where the government is silly enough to try.
    I’m done responding as you seem pretty set thinking Brown’s dissent is correct. CAAF had the chance to adopt his view. It didn’t. You think that’s all explained by the CA saying “new trial” in the convening order. None of the judges at the CCA adopted that view, and CAAF doesn’t place significance on it other than noting this fact. 
    You can have the last word if you like.

     

  9. JustAnotherADC says:

    Sorry, the joint language is page 3, and you didn’t actually cite it.  Here is what CAAF says describing the decision it affirmed:
     

    “In his second appearance at the AFCCA, Appellee argued that the referral of the second trial was void because the AFCCA had previously set aside and dismissed the charge and its specifications without authorizing any further pro- ceedings as part of its remand. The AFCCA agreed:
    Senior Judge Mitchell and I hold that the con- vening authority, upon receiving the record of trial on remand from this court, was only authorized to issue a final order effectuating our previous dismis- sal of the specifications…. ”