The charges in this case relate to Appellant’s involvement in a group sexual encounter on April 17, 2009, and a subsequent cover-up of the incident. Specifically, at some point on the night in question, Appellant (the company first sergeant), Staff Sergeant (SSgt) K, and Corporal (Cpl) H encountered Cpl H’s girlfriend – the victim, a private first class – naked, in a cabana that she and Cpl H had rented. During the ensuing events, all three men engaged in various sexual conduct with the victim.
Slip op. at 3-4. Later, the three men conspired to lie to investigators about the “encounter,” and the appellant did lie until he was confronted with evidence and made a confession. Id. See also United States v. Norwood, No. 201000495, slip op. at 2 (N-M. Ct. Crim. App. May 5, 2011) (unpublished). Before a military judge sitting as a general court-martial, the appellant pleaded guilty to attempted adultery, conspiracy to obstruct justice, and making a false official statement, and not guilty to conspiracy to commit indecent acts and indecent acts. He was convicted of all of these offenses and sentenced to a bad-conduct discharge, confinement for fourteen months, and reduction to E-5 (of course, Article 58a provides for automatic reduction to E-1).
Before the NMCCA, the appellant argued, inter alia, that the attempted adultery and conspiracy to obstruct justice specifications each fail to state an offense. Because the offenses underlying the Article 80 attempt and Article 81 conspiracy were Article 134 offenses, the appellant argued that the specifications were required to allege a terminal element in order to provide adequate notice. Noting the lack of objection at trial, the NMCCA disagreed with the appellant, finding that CAAF’s recent caselaw does not now require specific allegation of a terminal element for Article 80 and 81 offenses.
CAAF granted review to determine:
I. Whether, in light of United States v. Fosler, the specifications alleging attempted adultery and conspiracy to obstruct justice state offenses.
But then the court specified a broader issue:
II. Whether, in order to state an offense of attempt or conspiracy under Articles 80 and 81, the specification is required to expressly allege each element of the predicate offense.
Judge Ryan wrote for a unanimous court, answering the specified issue in the negative and mooting the granted issue. The court finds, and states clearly, “that in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense.” Slip op. at 3.
The opinion is short, with only a few paragraphs dedicated to the legal question. However, those paragraphs are to the point, citing CAAF and Supreme Court caselaw, as well as cases from every federal circuit (all reaching the same conclusion, save one). “It is not essential to the validity of the [inchoate] charge that the offense that is the object of the agreement be described with technical precision.” Slip op. at 7 (citation omitted).
Judge Ryan does note that “sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense – particularly in the context of an underlying Article 134, UCMJ, offense.” Slip op. at 8. However she adopts the NMCCA’s analysis, finding that the specifications were sufficient in this case.
There doesn’t seem to be room in this opinion for the argument that things would be different if the appellant objected at trial, and Judge Ryan avoids anything more than a passing reference to the Fosler/Ballan line of cases. Perhaps an accused is entitled to a bill of particulars for inchoate offenses. The general nature of the General Article certainly implies the possibility that an accused could be misled. But the appellant’s underlying argument (see Appellant’s Br. at 9) that applying Fosler to require the express allegation of a terminal element for inchoate offenses is consistent with CAAF’s recent LIO jurisprudence (Miller, Medina, and Jones), is rejected. The LIO easy button emerges unscathed.
• NMCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Oral argument audio
• CAAF opinion
• Blog post: CAAF affirms in Norwood
• Blog post: Opinion analysis