CAAFlog » October 2016 Term » United States v. Reese

In United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), a unanimous CAAF found no requirement to show prejudice in the case of an objected-to major change (functionally rendering this a structural error), and reversed a conviction of sexual abuse of a child after concluding that the change altered the means of committing the offense and was not fairly included in the original specification. The court also held that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, reversing a conviction of a specification that amounted to obstruction of justice (but omitted an element of that offense).

Reese remained convicted of making false official statements and of wrongful use, possession, or distribution of marijuana, and CAAF remanded the case to the Coast Guard court to reconsider the adjudged sentence. Reese had pleaded guilty to all of those offenses except for one specification of making a false official statement (he contested the charges CAAF reversed), and he was sentenced by a general court-martial composed of a military judge alone to confinement for five years, reduction to E-1, and a dishonorable discharge.

Last week the Coast Guard CCA reassessed the sentence, reducing it dramatically:

We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings of guilty of Charges I and II and their specifications are reaffirmed. A sentence providing for confinement for three months, reduction to E-1, and a bad-conduct discharge is affirmed.

United States v. Reese, No. 1422, slip op. at 3 (C.G. Ct. Crim. App. Jul. 20, 2017) (link to slip op.).

Sometimes such reductions do not result in meaningful relief to the appellant because they come after the confinement has already been served. For Reese, however, the reduction is very meaningful, as he was sentenced in November 2014.

CAAF decided the Coast Guard case of United States v. Reese, 76 M.J. 297, No. 17-0028/CG (CAAFlog case page) (link to slip op.), on Wednesday, June 14, 2017. The court dismisses two charges after concluding that the conviction on the first (alleging sexual abuse of a child) was the product of an improper major change during the trial, and that the second charge failed to state an offense. The decision of the Coast Guard CCA is reversed and the case is remanded for reassessment of the sentence or a sentence rehearing.

Chief Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Reese, No. 17-0028/CG (CAAFlog case page): Oral argument audio.

United States v. Hendrix, No. 16-0731/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Coast Guard case of United States v. Reese, No. 17-0028/CG (CAAFlog case page), on Tuesday, March 14, 2017, at 9:30 a.m. Two granted issues challenge the wording of the charges; the first based on a change made during the trial and the second based on the omission of words of criminality from a specification under Article 134:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

Aviation Maintenance Technician First Class (E-6) Reese elected to be tried by a military judge alone. Reese pleaded guilty to numerous offenses but he pleaded not guilty to other offenses including allegations of sexual abuse of a four year old boy, EV. Reese was also charged with engaging in service discrediting conduct in violation of Article 134 for telling the boy to keep quiet about the alleged sexual abuse.

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