CAAF decided the Army case of United States v. Gleason, __ M.J. __, No. 18-0305/AR (CAAFlog case page) (link to slip op.), on June 6, 2019. The court rejects a novel specification under Article 134, concluding that it is barred by the prohibition in the Manual for Courts-Martial against charging a novel specification when the offensive conduct is already covered by an offense enumerated in the Manual. CAAF reverses the decision of the Army CCA, dismisses the specification at issue, sets aside the sentence, and remands for further proceedings.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan and Judge Maggs both dissent, each filing an opinion.

CAAF granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Article 134 criminalized three categories of conduct: “[1] all disorders and neglects to the prejudice of good order and discipline in the armed forces, [2] all conduct of a nature to bring discredit upon the armed forces, and [3] crimes and offenses not capital.” 10 U.S.C. § 934. The President – exercising his rulemaking authority under Article 36 – enumerated in the Manual for Courts-Martial a wide variety of offenses that may be charged as violations of Article 134 (like obstruction of justice, child pornography offenses, and extramarital sexual conduct (formerly adultery)). Outside of those enumerated offenses, however, servicemembers may also be charged with other, novel, violations of Article 134, so long as the conduct falls into one of the three statutory categories. But the President also prescribed three specific conditions for how such novel specifications may be used:

  • The first is the preemption doctrine, which states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. Mar. 22, 2018) (CAAFlog case page).
  • The second is that “a capital offense may not be tried under Article 134.” ¶ 91.c.(5)(b), Part IV, Manual for Courts-Martial (2019 ed.).
  • The third – and the one at issue in this case – is the provision that “if conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 92 through 109 of this Part), a specification not listed in this Manual may be used to allege the offense.” ¶ 91.c.(6)(a), Part IV, Manual for Courts-Martial (2019 ed.) (formerly ¶ 60.c.(6)(a)).

Two years ago, United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF interpreted that third condition as flatly prohibiting use of a novel specification to allege an offense under Article 134 where the offense is already listed inside the Article’s framework. Reese involved a specification that functionally alleged the offense of obstruction of justice – as enumerated by the President under Article 134 – without requiring the prosecution to prove two of the four elements of obstruction. Reese was quickly applied in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), to reverse two novel specifications that were encompassed by the enumerated offense of indecent language.

Now, in Gleason, CAAF applies Reese to a specification that alleged that:

[Appellant] knowingly and wrongfully interfere[d] with Private First Class J.W.’s ability to place an emergency phone call by taking her telephone from her when she went to call the police and that such conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Slip op. at 4 (modifications in original). The majority finds that the conduct at issue “falls squarely within the President’s explanation of the obstruction of justice offense.” Slip op. at 5. The dissenters, however, would hold that “the novel specification here is not contained within the elements of the listed Article 134, UCMJ, [offense] of obstruction of justice.” Diss. op. of Ryan, J., at 3 (citing Diss. op. of Maggs, J. at 1-4).

Judge Sparks’ majority opinion holds that:

The nature of the acts leading to Appellant taking SPC JW’s telephone suggests Appellant was by intimidation and by force or the threat of force delaying or preventing communication of information to police relating to an assault. This conduct falls squarely within the President’s explanation of the obstruction of justice offense.

By using a “novel” specification, the Government relieved itself of having to prove the second and third elements of obstructing justice. MCM pt. IV, paras. 96.b.(2), (3). As we stated in Guardado, “In deleting a vital element, the Government, in effect improperly reduced its burden of proof. Such an outcome illustrates the reason for the limits of pt. IV, ¶ 60.c.(6)(c) and cannot be countenanced.” 77 M.J. at 96. The Government contends it did not charge this “novel” offense to avoid these elements, but because Appellant engaged in unique misconduct, different from obstruction of justice. As the Government later conceded at  oral argument, however, the “novel” offense could have been charged as obstruction of justice. If an offense is already listed inside Article 134’s framework, it may not be charged as a “novel” general disorder offense. Guardado, 77 M.J. at 95.

Slip op. at 5-6.

The dissenters disagree with Judge Sparks’ reasoning in two ways. First, they argue that the marjotiy’s approach extends the reasoning of Reese (and its application in Guardado) too far because the novel specification in this case doesn’t actually encompass the enumerated offense of obstruction of justice. Judge Ryan writes that:

Reese and Guardado implicated obvious examples of the government taking an offense listed by the President under Article 134, UCMJ, and drafting a novel specification that failed to allege one of the elements of that offense. It is that charging strategy that is prohibited . . .

In contrast, the Government’s charging decision in this case was entirely consonant with the plain language of MCM pt. IV, para. 60.c.(6)(c). As Judge Maggs ably explains, Gleason, __ M.J. at __ (1–4) (Maggs, J., dissenting), the novel specification here is not contained within the elements of the listed Article 134, UCMJ, of obstruction of justice—“ knowingly and wrongfully interfer[ing] with [the] ability to place an emergency phone call”—and thus does not fall under a listed Article 134, UCMJ, offense. . . .

Diss. op. of Ryan, J., at 2-3 (modifications in original). And Judge Maggs writes:

The novel specification required the Government to prove that Appellant “knowingly and wrongfully interfere[d] with Private First Class J.W.’s ability to place an emergency phone call by taking her telephone from her when she went to call the police.” These words by themselves do not suggest an offense having the nature of obstruction of justice. While the words of the specification do embrace the circumstances actually proved at trial, they also would cover circumstances having no connection to a criminal proceeding or the administration of justice. For example, the same specification could have been used if Appellant had prevented SPC JW from placing an emergency call to the police to report a missing child or a traffic hazard requiring urgent police attention. Thus, I do not agree that the nature of the acts alleged in the specification bring the specification within the framework offense of obstruction of justice.

Diss. op. at Maggs, J., at 3. Second, the dissenters fault the majority for looking at the evidence presented at trial rather than merely the elements of the offense as charged. Judge Ryan writes:

I further agree with Judge Maggs that the Court’s reasoning is flawed because it looks to the “ ‘circumstances’ proved at trial to determine the ‘nature of the acts’ of which Appellant was charged,” and thus “improperly relies on the evidence presented at trial in determining the nature of the acts alleged in the novel specification.” Gleason, __ M.J. at __ (2) (Maggs, J., dissenting). . . .

The majority here focuses not on elements, but instead breezily concludes that: “Guardado anticipates a relatively broad approach in analyzing conduct alleged in novel specifications. Thus, we need not confine ourselves to an element-by-element comparison between the drafted offense and the offense listed in the MCM.” Gleason, __ M.J. at __ (5). I disagree.

Diss. op. of Ryan, J., at 3-4. Similarly, Judge Maggs writes:

A problem with [the majority’s] reasoning is that the Court improperly relies on the evidence presented at trial in determining the nature of the acts alleged in the novel specification. Whether a specification states an offense depends on the language of the specification, not on what facts are proved at trial. See United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). Consistent with this principle, the Court in Reese and Guardado looked only at what was alleged in the respective novel specifications and did not consider the evidence presented at trial. Reese, 76 M.J. at 302−03; Guardado, 77 M.J. at 95−96. In my view, if the Court had limited itself to considering the words of the novel specification in this case, it would have reached a different conclusion.

Diss. op. of Maggs, J., at 2.

A footnote in Judge Sparks’ majority opinion seems to acknowledge that the dissenters have a point and that the specification in this case fails because of the facts of this case, because a similar novel specification may survive under different facts:

There might very well be circumstances in which wrongfully interfering with the response of certain authorities, such as medical personnel for example, might be appropriately charged in a novel specification. That case is not before us, and nothing in this opinion should be taken as a pronouncement on any such case in the future.

Slip op. at 6 n.3.

Beyond the specific facts of this case, however, Judge Sparks’ majority opinion speaks broadly about the importance of preventing prosecutorial overreach:

we are cognizant of the fact that there are myriad examples of conduct posing a threat to good order and discipline that are not accounted for in the listed offenses included in the MCM under Article 134, UCMJ. And, it is beyond cavil that the UCMJ must retain enough flexibility for the commander to address such conduct. On the other hand, we are reminded of the United States Supreme Court’s observation in Parker v. Levy, albeit the Supreme Court was addressing a vagueness and overbreadth challenge, that “[Article 134] has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope.” 417 U.S. 733, 752 (1974). The Supreme Court saw military appellate courts as stewards of Article 134, UCMJ, and as checks against its potentially over-expansive use. Here, the ultimate military authority, the Commander-in-Chief, has already listed the Article 134, UCMJ, offense of obstruction of justice, and Appellant’s conduct under the circumstances of this case clearly falls under that offense.

Slip op. at 6. Judge Ryan fundamentally agrees with that underlying premise, writing that:

There is no question in my mind that the President has the authority to place these narrowing constraints on the government’s charging decisions under Article 134, UCMJ.

Diss. op. at Ryan, J., at 1 n.2. But Judge Maggs has doubts:

The opinions in Reese and Guardado did not identify any article of the UCMJ that empowers the President to declare, either directly or by implication, that military judges must dismiss charges alleging misconduct that otherwise meets the statutory requirements of Article 134, UCMJ, for failing to state an offense. The Court’s opinion today also cites no article conferring such power. . . . The Court should entertain arguments about this subject in future cases.

Diss. op. of Maggs, J., at 1 n.1.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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