In United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here), CAAF reversed nearly 60 years of military jurisprudence and declared that a specification under Article 134 fails to state an offense if it does not allege a “terminal element.” The following term, in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (CAAFlog case page), the court limited the application of Fosler by finding that an accused can plead guilty to a 134 specification that lacks a terminal element because the protections provided by a military plea inquiry are adequate to avoid material prejudice to a substantial right. But then, in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page), the court expanded Fosler (where the appellant objected at trial) to include situations where no objection is made at a contested trial, finding that if the Government does not cure the lack of notice caused by the defective specification during the trial itself then, despite the lack of objection, the defect materially prejudices the accused’s right to notice and the conviction must be set-aside.
I was as surprised as everyone else by Fosler, rather ambivalent about Ballan, and outright hostile to Humphries (writing in The Hazard of Humphries that the way for an accused to get relief under Humphries is to not raise the issue at the time of trial – to sandbag the trial court and then claim lack of notice on appeal).
But last week, on June 5, CAAF did something nonsensical in the post-Ballan world – it reversed a guilty plea where the inquiry merely involved the wrong terminal element:
No. 14-0567/AR. U.S. v. Michael C. EVANS. CCA 20130251. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that Specification 3 of Charge IV charged Appellant with violating clause 1 of Article 134, not clause 2. However, the providence inquiry focused on clause 2 of Article 134, and there was no discussion on the record of clause 1. This was reversible error, where Appellant was unaware of one of the elements of the offense, either explicitly or inferentially. See United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013). Accordingly, it is ordered that said petition is granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO BREACH OF RESTRICTION TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES (SPECIFICATION 3 OF CHARGE IV) WITHOUT QUESTIONING APPELLANT REGARDING CLAUSE 1 OF ARTICLE 134, UCMJ.
The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 3 of Charge IV, and the finding of guilty is set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Specification 3 of Charge IV and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specification and the sentence.
I can’t find the CCA’s opinion on its website (an increasingly common problem – are electrons part of the sequester?).
Notably, in Ballan, where the specification contained no terminal element, CAAF concluded:
There was no prejudice to the substantial rights of Appellant; this case, involving a defective specification and a proper plea inquiry, is distinguishable from a contested case involving a defective specification. In cases like this one, any notice issues or potential for prejudice are cured while there is still ample opportunity either for a change in tactics or for the accused to withdraw from the plea completely — not to mention that the military judge must, sua sponte, enter a not guilty plea to the affected charge and specification where he has found a plea improvident. See R.C.M. 910(h)(1) (allowing an accused to withdraw a plea of guilty); R.C.M. 910(h)(2) (requiring the military judge to enter a plea of not guilty when the accused makes statements inconsistent with a guilty plea).
In a contested case, on the other hand, there is no equivalent, timely cure that would necessarily be present in every properly conducted court-martial. In sum, while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone is insufficient to show prejudice to a substantial right.
71 M.J. 28, __, slip op. at 18-19.
So, if an accused pleads guilty to a 134 specification that totally omits the terminal element, that conviction will be affirmed based upon the notice and protections provided by the guilty plea inquiry. However, if the specification states a terminal element, but the plea inquiry discusses a different terminal element, that conviction will be reversed for lack of notice.