I.  Whether the military judge’s erroneous instruction limiting the right to self-defense deprived Appellant of his constitutional right to a fair trial.

II.  Whether the government’s failure to disclose favorable information to the defense deprived Appellant of his constittuional right to a fair trial.

United States v. Behenna, __ M.J. __, No. 12-0030/AR (C.A.A.F. Jan. 13, 2012) (order).

The issue arises from a plea of guilty of forgery by uttering in violation of Article 123, UCMJ, where the appellant used the account and routing numbers from a check sent to him by his cousin to create electronic checks to pay for purchases at Best Buy via an automated bill pay system.

The AFCCA considered this issue and affirmed the conviction, finding that “the appellant caused the checks to be falsely made and he uttered them. This is not a borderline case, the military judge did not abuse his discretion in accepting the appellant’s guilty plea, and we are ourselves convinced of the appellant’s guilt.” United States v. Weeks, No. ACM 37535, slip op. at 3 (A. F. Ct. Crim. App., March 30, 2011).

Before CAAF, the appellant argues the either a writing or signature is a required element of Article 123, and that even if the appellant made an electronic writing or signature, it was not falsely made.

Arguing that the Code adopts the common law on forgery, the appellant’s brief states that historically:

Forgery was a more serious crime because of the threat it posed to a financial system based largely on blind trust. The technological landscape has changed since Blackstone and Coke, so that photo IDs, PIN codes, instant credit checks, and biometrics now protect the system. Banks and businesses have other means to detect, deter, and defend themselves from the unscrupulous. That may be why Congress has not extended Article 123 to electronic signatures, much less to oral and telephonic transactions.

Appellant’s Br. at 7. The brief continues, arguing that thievery is not necessarily forgery and CAAF should not extend the definition of forgery to include electronic signatures (noting that the N-MCCA has reached this same conclusion in United States v. Nimmons, 59 M.J. 550 (N-M Ct. Crim. App., 2003)).

On the issue of whether an electronic writing or signature was falsely made, the appellant argues that “[he] did not say ‘by’ when he ‘signed’ checks over the telephone, but that is effectively what he did. He purported to have authority to sign the checks, but he did not impersonate the Barbers. It is impersonation that distinguishes forgery from other thievery. Appellant did not impersonate. He stole.” Appellant’s Br. at 9.

The government, in its brief, argues that electronically-created checks are “writings” within the definition of Article 123, and that the appellant committed forgery by uttering when he  transferred or offered to transfer the electronically-created checks. Electronic checks are “writings” because the term “siganture” and “writing” are “legal terms which necessarilyincludes signatures and/or writings using every medium imaginable (i.e., fingers in wet cement, crayons, pencils, and electronic checks).” Appellee’s Br. at 12 (citations omitted).

The government also distinguishes the N-MCCA’s opinion in Nimmons, noting that the court “did not say that ‘electronic checks’ cannot qualify as a writing or signature.” Appellee’s Br. at 15. Moreover, the government notes that the transactions in Nimmons were purely electronic, while the transactions at issue in this case resulted in the creation of actual checks by the electronic system.

Finally, the government argues that the fact that the appellant did not lie about his identity has no bearing on false nature of the electronic checks, a fact he admitted to during the plea inquiry.

In a reply brief the appellant argues that forgery by uttering presupposes forgery by making, and that in this case the making and uttering were simultaneous and inseparable. Additionally, he also states that the issue of forgery by electronic media appears to be one of first impression for CAAF.

A military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion, and questions of law related to a guilty plea are reviewed de novo. I anticipate that the oral argument will primarily discuss the question of whether electronic media can constitute a forgery (perhaps with meaningful discussion of the legislative history), and will also consider the significance of the admissions made by the appellant during the plea inquiry.

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument Preview

The appellee consented to the search and seizure of his urine for testing on 15 June 2010. He provided a urine specimen pursuant to that consent on 16 June 2010, and the specimen was stored in the base hospital laboratory until it was shipped to the Air Force Drug Testing Laboratory (AFDTL) on 27 July 2010. On 21 June 2010, before AFDTL tested the specimen, the appellee revoked “any prior consent for search, samples or any other procedure.” AFDTL reported that the specimen tested positive for cocaine on 25 August 2010.
United States v. Dease, Jr., Misc. Dkt. No. 2011-04, slip op. at 1 (A. F. Ct. Crim. App., September 29, 2011).

The AFCCA reversed the trial military judge, ruling that: “Like delivering garbage to the curb, the appellee [Dease] voluntarily abandoned any reasonable expectation of privacy in his waste urine when he delivered it to the government for analysis.” Id. at 4. Airman First Class Dease then petitioned CAAF for review, which was granted on the following issue:

Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.

In the supplement to the petition for review at CAAF, we learn the unusual facts of the case, which occurred in the vicinity of RAF Lakenheath in Suffolk, England. The appellant (Dease) was working as a confidential source in an Air Force Office of Special Investigations (AFOSI) undercover operation targeting a British national suspected of distributing narcotics.

On June 15, 2010, the appellant was apprehended in a vehicle with a civilian, after the civilian was observed by surveillance cameras apparently purchasing narcotics. A search of the vehicle revealed no incriminating evidence, and the appellant subsequently identified himself as an AFOSI operative, claimed that his presence in the vehicle was in connection with the operation, and consented to searches of his vehicle, quarters, and urine. The appellant also stated that the civilian had purchased crack cocaine and smoked it while the appellant drove the vehicle. The appellant denied smoking the crack, and the searches of the vehicle and quarters revealed no incriminating evidence.

On June 21, 2010 (6 days after the incident), the appellant signed a (apparently boilerplate) notification of representation memorandum with military defense counsel that included language revoking any consent for any searches. Copies of the memorandum were sent to AFOSI, the chief of military justice, and other parties. However, the urine sample provided on June 15 was tested and was positive for a metabolite cocaine. The appellant initially claimed that this was due to his mere presence in the vehicle on June 15, but eventually admitted that he had smoked cocaine that night.

In the supplement to the petition for review at CAAF, appellant argues that the AFCCA “conflates two distinct legal principles: consent and abandonment.” Supp. to Pet. at 9. Invoking a plain language reading of M.R.E. 314(e)(3), the appellant argues that testing is clearly prohibited any time after consent is withdrawn, and that consent for seizure is distinct to abandonment. The appellant also argues that the AFCCA’s reasoning, if taken to the extreme, means that the government could hold a urine sample given for some other purpose, such as medical tests, and use it to any end, such as cloning the person’s DNA.

The appellant also urges CAAF to decide the additional question of inevitable discovery, and argues that there was no probable cause for a search, nor had investigators planned to conduct a search if the appellant refused consent.

The government’s reply argues that the collection and the analysis of the urine were a single search for Fourth Amendment purposes, and that the search occurred at the time of collection and before the appellant withdrew his consent. “The United States believes there was no second search, whereas the [AFCCA] held there was no expectation of privacy when the second search occurred.” Reply to Supp. to Pet. at 12. The reply continues:

Appellant voluntarily relinquished his urine when he consented to provide a urine sample for testing. Appellant had an absolute right to revoke his consent up until the time that he provided his urine sample to the government; consent for search is never complete up until the point of seizure. The removal of the bodily fluid constituted the search of Appellant’s “person.” The urine is the object found in the search not the area or container being searched. Just as in the case of a computer, once the hard drive is copied the subsequent analysis of the data removed onto the copy does not constitute a second search. The further analysis is of the data already properly seized does not constitute an additional search each time the evidence is looked at, considered, or reanalyzed. The extraction of the data from the computer onto the mirror image ends the Fourth Amendment analysis just as the collection of the urine ends the Fourth Amendment analysis in this case. This is in complete accord with the line of cases holding that the subsequent analysis of blood had no independent Fourth Amendment significance.
Id. at 13-14 (internal citations omitted).

The government also argues, in a footnote, that the appellant failed to provide clear notice of his withdrawal of consent, because “the non-specific form letter presented would lead a reasonable individual to believe that the form letter merely served to notify individuals that Appellant was represented…” Id. at 15, note 1.

On the issue of inevitable discovery, the government argues that the facts of the case overwhelmingly support a legal determination of probably cause.

The standard of review on an Article 62 appeal is whether the trial military judge abused his discretion; questions of law are reviewed de novo and findings of fact are reviewed under the clearly-erroneous standard (the AFCCA’s well-stated rule is: “On questions of fact, we ask whether the decision is reasonable; on questions of law we ask whether the decision is correct.” Dease, Jr., slip op. at 1 (emphasis in original)). Accordingly, I anticipate Tuesday’s oral argument to focus on the law of the granted issue, unless the record is explicit on the facts surrounding the issue of the inevitability of the discovery.

Case Links:
• AFCCA opinion
• Blog post: AFCCA Clarifies Expectation of Privacy in Urine
• Blog post: Significant search and seizure CAAF grant
• Appellant’s Supplement to Petition for Review
• Appellee’s (government) Reply
• Blog post: Argument Preview

The assigned issue:  “Whether the Government counsel’s stategic withholding of the convening authority’s grant of immunity makes Appellant’s statement to Government counsel non-immunized.”  United States v. Hathorne, __ M.J. __, No. 12-6002/AF (C.A.A.F. Jan. 4, 2012) (order granting review).

The specified issue:  “Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), this Court has jurisdiction over an Article 62, UCMJ, appeal when the court-martial has adjudged a sentence that did not include a punitive discharge or confinement for one year?”  Id.

AFCCA’s unpublished decision in the case is available here.  United States v. Hathorne, Misc. Dkt. No. 2011-02 (A.F. Ct. Crim. App. Oct. 4, 2011).

The defense had filed a motion with CAAF to stay the trial proceedings while it considered the petition for review.  But CAAF denied that motion on 1 November 2011.  (That denial doesn’t seem to appear in the daily journal.)  The case went to trial the following day.  Airman First Class Hathorne was convicted of one specification of cocaine use.  He received a sentence of confinement for 7 days, 30 days of hard labor without confinement, restriction for 30 days, and reduction to E-1.

No. 12-0106/AF.  U.S. v. Michael A. CISNEROS.  CCA S31871.  Review granted on the following issue:

WHERE A SPECIFICATION CHARGED UNDER ARTICLE 134, UCMJ, FAILS TO STATE AN OFFENSE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), BY NOT INCLUDING THE TERMINAL ELEMENTS FOR CLAUSE 1 OR 2, CAN AN ACCUSED PROVIDENTLY PLEAD GUILTY TO SUCH A SPECIFICATION WHERE HE FAILS TO OBJECT TO THE SPECIFICATION AT TRIAL, WHERE THE MILITARY JUDGE ADVISES THE ACCUSED OF THE TERMINAL ELEMENTS DURING THE PROVIDENCE INQUIRY, AND THE ACCUSED ADMITS TO ALL THE ELEMENTS?

No. 12-0140/AF.  U.S. v. Jeremiah C. SLACK.  CCA S31906.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELLv. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Also, the following application for extraordinary relief was docketed on 19 December:

Misc. No. 12-8008/AR.  Julian ASSANGE, and WIKILEAKS, Appellants v. UNITED STATES OF AMERICA and Lieutenant Colonel Paul ALMANZA, Appellees.  CCA 20111146.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

LTCOL Almanza is the Article 32 Investigating Officer in the Manning case.

No. 09-0519/NA.  U.S. v. Michael S. HODGE.  CCA 200601124.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 11-0647/MC.  U.S. v. Marchello K. HANCOCK.  CCA 201000400.  Review granted on the following issue:

AS IN UNITED STATES v. FOSLER, THE ARTICLE 134 SPECIFICATION FAILED TO ALLEGE EITHER POTENTIAL TERMINAL ELEMENT AND THEREFORE FAILED TO STATE AN OFFENSE.  COULD APPELLANT PLEAD GUILTY TO A SPECIFICATION THAT FAILED TO STATE AN OFFENSE?

No. 12-0071/AR.  U.S. v. Robert M. BIGBACK.  CCA 20101044.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 12-0073/MC.  U.S. v. Mark A. Leubecker.  CCA 201100091.  Review granted on the following issue:

WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v. FOSLER AND UNITED STATES v. WATKINS, IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATIONS STATE AN OFFENSE.

No. 12-0099/AR.  U.S. v. Matthew J. MCCLAIN.  CCA 20090446.  Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF POSSESSING CHILD PORNOGRAPHY.

No. 12-0131/AR.  U.S. v. Robert L. MURCHISON.  CCA 20101052.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF ADDITIONAL CHARGE II FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

WHETHER THE ARMY COURT ERRED IN HOLDING THE APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY BECAUSE JEOPARDY DID NOT ATTACH AND EVEN IF IT DID, MANIFEST NECESSITY JUSTIFIED THE CONVENING AUTHORITY’S DECISION TO WITHDRAW CHARGES.

United States v. Easton, __ M.J. __, No. 12-0053/AR (C.A.A.F. Dec. 15, 2011).  We discussed ACCA’s published decision in the case here.  United States v. Easton, 70 M.J. 507 (A. Ct. Crim. App. 2011).

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO DISMISS FOR FAILURE TO STATE AN OFFENSE, WHERE THE SPECIFICATION OMITTED REFERENCE TO A REQUIRED ELEMENT UNDER STATE LAW FOR  A FINDING OF GUILTY FOR WRONGFUL CONSUMPTION OF ALCOHOL WHILE UNDER AGE 21.

United States v. Hayes, __ M.J. __, No. 12-0090/AF (C.A.A.F. Nov. 30, 2011).  AFCCA’s unpublished decision in the case is available here.  United States v. Hayes, No. ACM 37588 (A.F. Ct. Crim. App. Aug. 15, 2011) (per curiam).

No. 11-0258/MC. U.S. v. Travis J. WESTHOVEN. CCA 201000132. Review granted on the following issue: WHETHER, IN LIGHT OF UNITED STATES v. MCMURRIN, 70 M.J. 15 (C.A.A.F. 2011), AND UNITED STATES v. MORTON, 69 M.J. 12 (C.A.A.F. 2010), APPELLANT’S GUILTY PLEA TO AN OFFENSE NOT NECESSARILY INCLUDED IN THE CHARGED OFFENSE CAN BE AFFIRMED UNDER UNITED STATES v. WILKINS, 29 M.J. 421 (C.M.A. 1990). Briefs will be filed under Rule 25.

The appellant was charged when his roomate died after the appellant provided him with and instructed him on the use of heroin.  ”A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas and subject to various exceptions, of . . . violation of Articles 92, 112a, and 134, Uniform Code of Military Jusice, 10 U.S.C. §§ 892, 912a, and 934. The appellant pled not guilty to certain excepted language generally going to the intent to distribute on the Article 112a offenses, additional violations of Articles 112a, and involuntary manslaughter charged under Article 119. The excepted language and remaining charges were withdrawn and dismissed.” United States v. Westhoven, No. 201000132, op. at 2-3 (N-M Ct. Crim. App., Nov 2010).

In Morton, CAAF eliminated the “closely-related offenses doctrine” that provided that an accused may be convicted when his admissions during the plea colloquy establish his guilt to a different, uncharged (but closely related) offense. In McMurrin, CAAF ruled that negligent homicide under Article 134 is not a lesser-included offense of involuntary manslaughter under Article 119. Neither the order granting review nor the NMCCA’s opinion in Westhoven make the procedural posture of this case entirely clear, but presumably the appellant was charged with involuntary manslaughter but convicted of negligent homicide under the closely-related offenses doctrine.

Case Links:
• NMCCA’s unpublished opinion
• Blog post: A look at a Marine’s descent from Iraq to PTSD to a court-martial conviction

Review is granted in the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

II. WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER APPELLANT PURSUANT TO ARTICLE 2(a)(10), UNIFORM CODE OF MILITARY JUSTICE.

III. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Briefs will be filed under Rule 25 on Issues I and II only.

We’ll follow-up with links to briefs and more information when available. ACCA decision available here, prior coverage here and here to name a few.  H/t DHS

I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?

II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?

III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

The N-MCCA’s initial unpublished opinion is here: United States v. Bradley, No. 200501089 (N-M Ct. Crim. App., 25 Nov 2008).

CAAF’s review and remand (Bradley I) is here: United States v. Bradley, 68 M.J. 279; No. 09-5002/NA (CAAF, 20 Jan 2010).

The N-MCCA’s unpublished opinion on remand is here: United States v. Bradley, No. 200501089 (N-M Ct. Crim. App., 15 Feb 2011).

I’m not familiar with the case and haven’t yet reviewed the opinions, so I can’t provide further background at this time.

CAAF has also announced the cases being heard on December 12-13, calendar here:

Dec. 12:  United States v. Michael D. King, Jr., No. 11-0583/NA followed by United States v. Alexander M. Watson, No. 11-0523/MC

Dec. 13:  United States v. Darrian S. Nealy, No. 11-0615/AR followed by United States v. Anthony P. Ballan, No. 11-0413/NA

Other than King, all of the cases are Fosler-style cases.  King features an issue raised via United States v. Grostefon, as our Senior Contributor noted earlier–though Capt. Bottomly now takes up BU3 King’s case on brief and at argument.

Is anyone still keeping count?

IN APPELLANT’S COURT-MARTIAL, THE MILITARY JUDGE ADMITTED A LABORATORY REPORT WHICH INCLUDED NOTATIONS FROM LAB TECHNICIANS AND A CERTIFICATION DOCUMENT STATING IN PLAIN TERMS THAT APPELLANT TESTED POSITIVE FOR AN ILLEGAL SUBSTANCE.  THE REPORT WAS DESIGNED TO BE “LEGALLY DEFENSIBLE” AT COURT-MARTIAL.  DID THE ADMISSION OF THIS REPORT VIOLATE APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM ABSENT TESTIMONY FROM THE TECHNICIANS OR THE CERTIFYING OFFICIAL WHO CREATED THE DOCUMENTS IN THE REPORT?

United States v. Sanders, __ M.J. __, No. 11-0563/MC (C.A.A.F. Sept. 15, 2011) (order granting review).

WHETHER THE GENERAL VERDICT OF GUILTY RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED, IN THAT AT LEAST ONE OF THE SIX IMAGES PRESENTED TO THE MEMBERS WAS NOT CHILD PORNOGRAPHY.

United States v. Barberi, __ M.J. __, No. 11-0462/AR (C.A.A.F. Sept. 16, 2011).  ACCA’s unpublished decision in the case is available here.  United States v. Barberi, No. ARMY 20080636 (A. Ct. Crim. App. Feb. 22, 2011) (per curiam).

WHETHER ARTICLE 120(c) IS UNCONSTITUTIONAL AS APPLIED WHERE: THE MILITARY JUDGE (1) REQUIRED APPELLANT TO PROVE THE AFFIRMATIVE DEFENSES OF CONSENT AND MISTAKE OF FACT AS TO CONSENT BY A PREPONDERANCE OF THE EVIDENCE; (2) DETERMINED THAT THE DEFENSES HAD BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE; AND THEN (3) FAILED TO DISMISS THE CHARGES SUA SPONTE AS REQUIRED BY RULE FOR COURTS-MARTIAL 917.

United States v. Esochea-Sanchez, __ M.J. __, No. 11-0559/NA (C.A.A.F. Sept. 13.) (order granting review).  CAAF ordered that no briefs would be filed.

Plus, CAAF granted review of three more Fosler trailers:   United States v. Fairley, __ M.J. __, No. 11-0595/NA (C.A.A.F. Sept. 13, 2011); United States v. Dietz, __ M.J. __, No. 11-0611/AR (C.A.A.F. Sept. 13, 2011); and United States v. Moses, __ M.J. __, No. 11-0626/AR (C.A.A.F. Sept. 13, 2011).

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

United States v. Tiller, __ M.J. __, No. 11-0476/AR (C.A.A.F. Aug. 22, 2011); United States v. Swensen, __ M.J. __, No. 11-0617/AF (C.A.A.F. Aug. 22, 2011).