CAAF will hear oral argument in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page), on Wednesday, December 4, 2018, at 11 a.m. (after the arguments in Cooper and Briggs). The court granted review of one issue questioning whether changes to three specifications were proper:

Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

In 2012, Staff Sergeant (E-6) Stout pleaded guilty to abusive sexual contact with a child, indecent liberties with a child, and wrongful possession of child pornography, in violation of Articles 120 and 134, and was sentenced to confinement for eight years, reduction to E-1, and a bad-conduct discharge. As part of a plea agreement various other charges were dismissed. But on appeal Stout challenged his pleas and his pleas were reversed by the Army CCA in an opinion discussed here.

A rehearing was authorized, but Stout did not plead guilty again. Instead, he contested the charges. A general court-martial composed of a military judge alone convicted him of committing many more offenses than he originally pleaded guilty to committing: three specifications of abusive sexual contact with a child, two specifications of indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. Stout was then sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge (the new convictions involved things not included in the original convictions, avoiding the sentence limitation in Article 63).

The charges at the rehearing, however, were not identical to the charges at the original trial. Instead, there were “dozens of amendments to the charge sheet.” App. Br. at 4. Many of the amendments were minor (such as correcting spelling mistakes), but three changes “expanded the timeframes of Specifications 1 and 6 of Charge I, and the Specification of Charge II.” App. Br. at 4. Specifically:

For Specification 7 of Charge I,the dates were changed from “between on or about 14 January 2009 and on or about 28 January 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge II, the dates were changed from “between on or about 14 February 2009 and on or about 22 March 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126). For the Specification of Charge III, the dates were changed from “between on or about 1 November 2009 to on or about 31 December 2009” to “between on or about 7 August 2008 and on or about 3 June 2009.” (JA 126).

Gov’t Div. Br. at 7. Stout objected, asserting that the expanded time periods were a major change, but the military judge overruled the objection and the Army CCA affirmed. Argument over that objection now continues at CAAF.

Last year, in United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017) (CAAFlog case page), a unanimous CAAF explained that a major change is one where an “additional or different offense is charged … [or] substantial rights of the defendant are not prejudiced.” It further explained that because R.C.M. 603(d)  – which prohibits such changes – does not discuss prejudice, when there is a major change “there is no charge to which jurisdiction can attach” and reversal is required. 76 M.J. at 301-302. Accordingly, if Stout can convince CAAF that the military judge and Army CCA got it wrong, the affected charges will be dismissed.

Stout’s brief focuses on the length of time added by each of the three changes:

The government added anywhere from 264 to 300 days to the timeframes alleged in Specifications 1 and 6 of Charge I, and to the Specification of Charge II. Variances that far-reaching are fatal, and so changes of that magnitude must be major too. Such changes not only alter the setting of the allegations, they also preclude defenses the accused may have otherwise raised. When the window for prosecuting an offense consists of a few days, the accused may be able put forward an alibi, uncover exculpatory circumstances, or otherwise demonstrate the implausibility of the allegation. But when the window of prosecution extends for ten months, such defenses become practically impossible; no accused could reasonably account for 300 days’ worth of whereabouts. The effect of the government’s changes in this case were substantial, effectively depriving SSG Stout of a defense he may have otherwise raised. Such changes are certainly not “minor,” and they cannot persist over the accused’s objection. Reese, 76 M.J. at 302.

App. Br. at 8-9.

The Government Division responds with a claim that Stout actually had notice of the matters raised by the change:

In fact, the changes to the date ranges here correct the form of the specifications to align them with the facts developed during the Article 32 hearing in 2011. At the hearing, NL testified that she could not remember the exact dates but that her mother, MG, would remember better. (JA 125). MG testified the family lived with appellant in Watertown, New York from August 2008 to June 2009. (JA 125). Because appellant pleaded guilty to three offenses in 2012, changes to the dates were unnecessary and were never made. (JA 1, 125). Pursuant to R.C.M. 603(b), prior to arraignment the government properly made minor changes to the date range in order to correct “an inartfully drafted” specification. R.C.M. 603(a) Discussion.

Gov’t Div. Br. at 11.

The unusual procedural history of this case – where defects in the original charges including errors as simple as misspelled words were not corrected because Stout agreed to plead guilty, but the pleas were later reversed – adds complexity to an already difficult issue, but it’s hard to predict where CAAF will lay the blame for the need to change the charges after they were preferred. Stout’s reply brief, however, points the finger squarely at the prosecution:

In other words, the government must prove what it alleges. It does not get to benefit from the confusion it may sow with inadequate investigations, inaccurate pleadings, or unclear allegations. This rule applies to the timeframe of the allegations as well as the elements; while perfunctorily intoning “on or about” gives the prosecution needed flexibility, the phrase is still not a panacea for pleadings that are several months or more off the mark. When such divergence of pleadings and proof arises, the government should amend when able or prefer anew when the defense objects.

Reply Br. at 5.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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