CAAF decided the Army case of United States v. Stout, 79 M.J. 168, No. 18-0273/AR (CAAFlog case page) (link to slip op.), on August 22, 2019. Reviewing pre-referral changes to the dates of the alleged acts, CAAF finds that the changes were authorized because Article 34(c) specifically permits such changes to conform the charges to the evidence in an Article 32 report. Accordingly, CAAF affirms the findings, sentence, and decision of the Army CCA.

Chief Judge Stucky writes for the court, joined by Judge Sparks. Judge Ryan concurs fully in the Chief Judge’s opinion, but writes separately to address the reach of Rule for Courts-Martial (R.C.M.) 603. Judge Maggs concurs in the judgment, but would hold that the changes were minor (and so permissible under any analysis). Judge Ohlson dissents, asserting that the change-limiting language of R.C.M. 603 applies despite the change-permitting language of Article 34.

Staff Sergeant (E-6) Stout was convicted of abusive sexual contact with a child, indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. All of the offenses involved alleged sexual acts with his step-daughter and, as initially charged, many of the specifications alleged that the acts occurred on certain dates in 2008 and 2009. At an Article 32 pretrial investigation the child testified that the acts occurred while the family lived in New York, from August 2008 until June 2009.

Stout initially pleaded guilty (in 2012) to numerous offenses in accordance with a pretrial agreement, but the Army CCA reversed the pleas (in 2014) and authorized a rehearing. Stout then changed course and contested the charges. At that point – and prior to the convening authority referring the charges for the rehearing – the prosecution made dozens of changes to the charges. Some were relatively insignificant, such as correcting misspellings, but others changed the dates of the alleged acts by as much as 300 days, removing the specific dates and replacing them with the entire time the family lived in New York: between on or about 7 August 2008 and on or about 3 June 2009.

Stout objected, claiming that the changes were major changes that, under R.C.M. 603(d), required preferral of new charges. The military judge overruled the objection and Stout was convicted (in 2015) and sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge. Stout renewed his challenge on appeal, and CAAF granted review to decide:

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.

CAAF heard oral argument in December. After the argument, it ordered briefing of two additional issues:

I. Whether United States v. Brown, 4 C.M.A. 683, 16 C.M.R. 257 (1954), is not controlling in this case because the decision predates the promulgation of the applicable version of R.C.M. 603(d).

II. Whether the applicable version of R.C.M. 603(d) is contrary to and inconsistent with the applicable version of Article 34(c), UCMJ, and therefore void to the extent it prohibits major changes, before referral, to charges and specifications that were amended to “conform to the substance of the evidence contained in the report of the investigating officer.” Article 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

Chief Judge Stucky’s opinion for the court answers the last of those issues in the affirmative, holding that Article 34(c) permits the changes (though not explicitly stating that contrary language in R.C.M. 603(d) is void).

Article 34 contains the requirement for pretrial advice from a staff judge advocate prior to referral of charges to a general court-martial. As it existed at the time of referral for the rehearing in this case, the statute also contained a provision that permitted changes to charges:

If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.

Article 34(c) (2014). The provision did not, however, explicitly require that such changes be made before referral; that language was not added until the statute was rewritten in the Military Justice Act of 2016, 130 Stat. 2000, 2907-2908, effective on January 1, 2019. The new version is substantially identical to the version applicable in this case, except with the addition of the explicit requirement that changes be made before referral.

R.C.M. 603(d), however, limits the ability to make changes to charges, and it distinguishes between minor changes and major changes (with minor changes allowed but major changes prohibited). As it existed at the time of referral for the rehearing in this case, R.C.M. 603(d) stated:

Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew

Part II, Manual for Courts-Martial (2012 ed.). That rule also did not distinguish between changes made before referral and after referral; such a distinction was not added to the rule until the 2019 edition of the Manual (along with other additions, including language that explicitly permits changes before referral).

Chief Judge Stucky’s opinion for the court is short. Considering those dueling provision – the change-permitting language in Article 34(c) and the change-prohibiting language in R.C.M. 603(d) – Chief Judge Stucky concludes that:

The words of Article 34 are clear and unambiguous: before referral, changes may be made to conform the specifications to the evidence contained in the report of the Article 32 investigating officer. In this case, that report showed that the offenses occurred sometime between August 2008 and June 2009, and the specifications were amended to reflect that. That is sufficient to resolve this case and affirm the judgment below.

Slip op. at 4. The Chief Judge’s observation that the statute permits changes before referral is, however, a bit of a departure from the language of the statute. As discussed above, at the time of referral in this case the plain language of the statute did not require that changes be made before referral; that language was not added until after the trial. But it doesn’t matter to the result because the plain language of the statute permitted changes at any time.

Judge Ryan’s concurring opinion addresses R.C.M. 603(d). She concludes that “the most natural understanding is that the 2012 version of R.C.M. 603 governs the amendment of charges . . . after the charges have been referred to a court-martial by the convening authority.” Con. op of Ryan, J. at 2 (emphasis added). Accordingly, the rule doesn’t apply in this case because the changes were made before referral. Judge Ryan also observes that the changes in this case are allowed because they “conform the charges and specifications to the evidence adduced at an Article 32, UCMJ, investigation,” not because they are major or minor. Con. op of Ryan, J. at 3.

Judge Maggs’ concurring opinion focuses on the nature of the changes in this case, concluding that the changes were minor changes (and so allowed if R.C.M. 603 applies) because they:

merely altered the alleged dates of offenses, and did not affect the nature or identity of the offenses against which Appellant had to defend himself.

Con. op of Maggs, J. at 3. Judge Maggs takes no position on whether Article 34(c) permits changes regardless of kind prior to referral.

Judge Ohlson dissents. Observing that the President has the authority to make rules that provide greater protections to an accused than what Congress provides in the UCMJ, Judge Ohlson writes:

Rule for Courts-Martial (R.C.M.) 603—which prescribes how changes may be made to a charge sheet—also must be complied with in cases such as the one before us. I reach this conclusion for two reasons: (a) this Court should seek to harmonize relevant provisions of the UCMJ and the R.C.M.—such as Article 34, UCMJ, and R.C.M. 603; and (b) the President has the authority—such as in R.C.M. 603—to provide servicemembers with rights greater than those afforded by Congress as long as such an enhancement of rights does not run counter to a specific congressional mandate or prohibition. In the course of harmonizing Article 34, UCMJ, with R.C.M. 603, and then applying the increased procedural protections afforded servicemembers under the latter provision, I conclude that the Government failed to follow the procedures required under R.C.M. 603. Accordingly, I believe that the convictions for Specifications 1 and 6 of Charge I and the Specification of Charge II must be reversed.

Diss. op. of Ohlson, J. at 1. A footnote adds:

In simplest terms, a charge sheet provides an accused with proper formal notice of what he needs to defend against at trial. Such notice is grounded in principles of fundamental fairness. And it is important to underscore that the government alone controls the charge sheet from the inception of the charges through the court-martial itself. Thus, the requirement that when the government makes major changes to a charge sheet it then must prefer those charges anew—which typically is a relatively simple step—is a small procedural price to pay to ensure that notice requirements are strictly adhered to and that principles of fundamental fairness are scrupulously observed.

Diss. op. of Ohlson, J. at 2, n.3. Judge Ohlson also finds that the changes in this case are major changes because of how much they altered the dates of the alleged acts:

In the instant case, the Government wished to change the dates when it alleged that Appellant committed the charged offenses. But the change in dates was not a day or two, or a week or two, or even a month or two in length. Rather, long after the Article 32, UCMJ, hearing was concluded, the Government decided that it wanted to change the dates of the charged offenses by approximately 300 days. Common sense compels the conclusion that a change of that magnitude is not “minor.”

Diss. op. of Ohlson, J. at 2-3 (emphasis in original).

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
Blog post: CAAF orders additional briefs
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: CAAF finds no error in changes to charges made prior to referral, in United States v. Stout”

  1. Vulture says:

    Judge Ohlson also makes this comment:
     “…it can be surmised that trial counsel in the instant case made these changes because he recognized the significant risk that the trier of fact would either (a) acquit the accused of the charges because the original dates on the charge sheet did not come close to matching the dates that would be elicited at trial, or (b) make a change to the dates through exceptions and substitutions that would on appeal be deemed a fatal variance …”
    I think this dulls Hanlon’s Razor.