CAAF decided the Army case of United States v. Treat, No. 14-0280/AR, 73 M.J. 331 (CAAFlog case page) (link to slip op.) on Wednesday, July 16, 2014. A plurality of the court holds that the military judge’s finding of guilty by exceptions and substitutions constituted a material variance but that the variance is not fatal because it did not prejudice Appellant. The court therefore affirms the published decision of the Army CCA that affirmed Appellant’s conviction for missing movement (despite the fact that the CCA found no material variance).

Judge Ohlson writes for the court, joined by Judge Erdmann (and creating what I believe is the first plurality opinion of the court since Forney (discussed here) was decided in 2009). Chief Judge Baker writes separately, concurring in the result but finding that the variance was not material. Judge Stucky dissents across the board, finding that Appellant waived this issue, and further finding that even if Appellant didn’t waive the issue then the variance was both material and fatal and the conviction should be reversed. Judge Ryan also dissents, joining Judge Stucky’s dissent but writing separately to express skepticism about whether the court should find waiver in this case.

Appellant was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he was kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight left. His command didn’t believe his story, and he was soon charged. He was convicted contrary to his pleas of not guilty, by a special court-martial composed of a military judge alone, of missing movement and making a false official statement in violation of Articles 87 and 107. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

CAAF granted review of a single issue involving the missing movement conviction:

Whether there is a fatal variance and a violation of Appellant’s due process right to notice when the Government alleged that Appellant missed the movement of a particular aircraft but the proof established that he missed the movement of a particular unit.

The Government charged Appellant as follows:

In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

Slip op. at 3 (emphasis added). “However, at trial the Government’s witnesses could not recall the flight number of the aircraft on which Appellant’s unit deployed. After hearing all the evidence, the military judge convicted Appellant of the missing movement charge, but only after excepting the words ‘Flight TA4B702,’ and substituting therefor the words ‘the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.'” Slip op. at 3.

The Defense did not move for a finding of not guilty based on the Government’s failure to prove the flight number, nor did the Defense object at the time the military judge made the findings (a fact that Judge Ohlson addresses in a last-page footnote as requiring plain error review). However, the Defense did raise the issue of a variance during the post-trial process. A variance is when the offense proven at trial does not conform with the offense alleged in the charge, and it is a potential issue when findings are made by exceptions and substitutions. Exceptions and substitutions are changes to a specification permitted by Rule for Courts-Martial 918; an accused may be found guilty of a specification while not guilty of certain language within the specification (exceptions) and guilty of other language added to the specification (substitutions).

In this case, the Defense strategy was based on Appellant’s asserted kidnapping, and “the defense’s theme throughout the trial was ‘the truth is stranger than fiction.'” Slip op. at 8. But “in order ‘to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby.” Slip op. at 12 (emphasis in original) (quoting United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009)). On automatic review the Army CCA found no material variance in the findings, issuing a published decision (72 M.J. 845). I discussed that opinion in this post, where I reviewed the two different theories of missing movement under Article 87 and concluded that there was a material variance in the findings and that the CCA’s finding of no variance was mistaken. But I felt that Appellant’s kidnapping defense wasn’t affected by the variance, nor would it have been any more effective had the offense been charged consistent with the judge’s findings. So I agreed with the CCA’s ultimate conclusion affirming the findings.

Judge Ohlson’s plurality opinion agrees with my conclusion that there was a material but non-fatal variance.

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Audio of this week’s oral arguments is available at the following links:

United States v. MacDonald, No. 14-0001/AR (CAAFlog case page): Argument audio.

United States v. Treat, No. 14-0280/AR (CAAFlog case page): Argument audio.

United States v. Leahr, 14-0265/CG (CAAFlog case page): Argument audio.

CAAF will hear oral argument in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page) on Tuesday, May 13, 2014. The court will review a single issue:

Whether there is a fatal variance and a violation of Appellant’s due process right to notice when the Government alleged that Appellant missed the movement of a particular aircraft but the proof established that he missed the movement of a particular unit.

Appellant was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he was kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight had left. His command didn’t believe his story, and he was soon charged. He was convicted, contrary to his pleas of not guilty at a special court-martial composed of a military judge alone, of missing movement and making a false official statement, in violation of Articles 87 and 107. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

Article 87 (10 U.S.C. § 887) states:

Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.

The specific language used to charge Appellant with missing movement became an issue at trial. The Government alleged that Appellant:

did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

(emphasis added). But the military judge made findings by exceptions and substitutions. The offense of conviction states that Appellant:

did, at Bamberg, Germany, on or about 17 November 2010, through design, miss movement of the flight dedicated to transport Main Body 1 of the 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgzstan with which he was required in the course of duty to move.

(emphasis added). Appellant’s counsel did not object at the time the findings were made, but later raised the issue of a variance during the post-trial process. A variance is when the offense proven at trial does not conform with the offense alleged in the charge. It is a potential issue when findings are made by exceptions and substitutions. A variance is “material” when, “for instance, [it] substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (marks and citations ommited). A material variance is “fatal” when it “(1) [puts an accused] at risk of another prosecution for the same conduct, (2) mislead[s] him to the extent that he has been unable adequately to prepare for trial, or (3) den[ies] him the opportunity to defend against the charge.” Id. (marks and citation omitted).

In a published opinion, the Army CCA found no material variance in the findings. I discussed that opinion in this post, where I reviewed the two different theories of missing movement under Article 87 and explained why I think that there was a material variance in the findings and why I think that the CCA’s finding of no variance is mistaken. I’m not going to rehash my argument here because you can just read it there. However, the CCA also noted that Appellant’s defense was focused on his claim that he was kidnapped. This defense wasn’t affected by the variance, nor would it have been any more effective had the offense been charged consistent with the judge’s findings. So I agreed with the CCA’s ultimate conclusion affirming the findings.

But Appellant’s brief adds a new fact for CAAF’s consideration:

It is clear from the record that SGT Treat premised his defense strategy to the missing movement charge on demonstrating (1) that the government could not prove that Flight TA4B702 existed, and (2) that not only was there no flight on November 17, 2010, SGT Treat knew he was not leaving on November 17, 2010.

App. Br. at 11.

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Last month CAAF granted review in the Army case of United States v. Treat, No. 14-0280/AR (CAAFlog case page). Sergeant Treat was convicted of missing movement after pleading not guilty plea at a special court-martial composed of a military judge alone. Specifically, he was charged with missing the movement of “Flight TA4B702” (that would have taken him from his duty station in Germany to a combat deployment in Afghanistan). But the judge didn’t convict him of missing that aircraft. Rather, the judge convicted him of missing movement “of the flight dedicated to transport Main Body 1 of the 54th Engineer Battalion.”

A three judge panel of the Army CCA issued a published opinion in the case last October, affirming the conviction on the basis that:

While the missing movement charge in this case was perhaps inartfully drafted, referring to a particular flight number, the charge was clearly aimed directly at appellant’s purposeful missing of his unit’s flight. The defense argues that the government prosecution theory changed when the military judge excepted the flight number and substituted a description of what the flight number represented, namely the flight of Main Body 1. The theory of the case, however, remained the same, namely, that the appellant missed his unit’s flight upon which he was required to move and that he did so through his own design.

United States v. Treat, No. 20110402, 72 M.J. 845, slip op. at 5 (A.Ct.Crim.App. Oct. 25, 2013) (link to slip op.). I disagreed with this conclusion in a post titled: The ACCA’s mistaken conclusion in a missing movement case. CAAF will review the case to determine if the change was a fatal variance that deprived the appellant of his due process right to notice.

But now a different three judge panel of the Army CCA considers the case of Private Wolf, who was also convicted of missing movement at a special court-martial composed of a military judge alone. However, unlike Treat, Wolf pleaded guilty.

Wolf was charged with missing the movement of his unit, Alpha Company. But during the plea inquiry, Wolf explained that he “missed the movement of Charlie Company, or at the very least, a ‘follow-on company’ different and distinct from Alpha Company.” United States v. Wolf, No. 20120385, slip op. at 2 (A.Ct.Crim.App. Feb. 25, 2014) (link to slip op.). The judge who took the plea “never resolved this inconsistency or obtained appellant’s agreement to such a change in the specification.” Slip op. at 2. So the CCA finds a substantial basis in law and fact to question the plea, and rejects it, vacating that conviction for missing movement (though the court affirms numerous other pleas of guilty, and the sentence).

Article 87 identifies three separate movements that may not be missed: those of “a ship,” “[an] aircraft,” or “[a] unit.” These three types comprise two different theories of prosecution: A unit theory and a ship/aircraft theory. The CCA’s mistake in Treat was its conclusion that the theory of the case didn’t change when the judge changed the offense from the ship/aircraft theory to the unit theory. But in Wolf there is no change; the charge and the plea are both clearly based on the unit theory of missing movement.

And yet in Wolf the guilty plea is set aside, while in Treat the contested conviction was confirmed (and now heads to CAAF).

Last October the Army CCA issued a published opinion in United States v. Treat, 72 M.J. 845, No. 20110402 (A.Ct.Crim.App. Oct. 25, 2013) (link to slip op.). Treat is a contested missing-movement case where Appellant was charged with missing the movement of a specific aircraft (“Flight TA4B702”) but was convicted by the military judge of missing the movement of a unit (“the flight dedicated to transport Main Body 1”). Appellant complained that this created a material fatal variance, but the CCA rejected this argument because “[t]he theory of the case, however, remained the same.” Slip op. at 5.

When I wrote about the case in this post last November, I argued that changing a charge of missing movement from missing a specific flight to missing “the flight dedicated to transport [a specific unit]” doesn’t actually keep the theory the same. Rather, it changes the theory completely, and substantially changes the nature of the offense. Because of this, I felt that the CCA’s conclusion that there was no material variance was mistaken.

CAAF’s going to determine if I got this one right:

No. 14-0280/AR.  U.S. v. Michael L. TREAT.  CCA 20110402.  Review granted on the following issue:

WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF APPELLANT’S DUE PROCESS RIGHT TO NOTICE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.

Briefs will be filed under Rule 25.

Though, it’s worth mentioning that I could be both right and wrong in my analysis of this case, as I concluded:

The appellant’s hard-to-swallow defense of a kidnapping that prevented him from making the flight (for which he was also convicted of making a false official statement) isn’t affected at all by changing the theory of prosecution from a particular flight to a unit movement. Either way the false story leads to a conviction. So in the end, the variance is material but not fatal, and the CCA’s decision affirming the findings is the right result.

I was in trial all last week and didn’t have a chance to review the Army CCA’s published opinion in United States v. Treat, 72 M.J. 845, No. 20110402 (A.Ct.Crim.App. Oct. 25, 2013) (op. here). But Major Bateman’s writeup at the nicely redesigned 31(b)log got my attention, and this past weekend I took a hard look at the case.

Appellant, Sergeant Treat, was assigned to an Army unit based in Germany. The unit was scheduled to deploy to Afghanistan in 2010, and Appellant participated in the pre-deployment training and was briefed on the deployment schedule. But when the unit eventually boarded an aircraft to fly to Afghanistan, Appellant wasn’t there. He later appeared, claiming that he had been kidnapped at a local bar by Russian-speaking men before the scheduled departure and not released until after the flight had left. “Not likely,” said his command. He was soon charged and then convicted, contrary to his pleas of not guilty, of missing movement and making a false official statement, in violation of Articles 87 and 107, by a special court-martial composed of a military judge alone. He was sentenced to confinement for three months, reduction to E-1, and a bad-conduct discharge.

The language of the missing movement specification became an issue at trial. The Government alleged that Appellant:

did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.

(emphasis added). But the military judge made findings by exceptions and substitutions. The offense of conviction states that Appellant:

did, at Bamberg, Germany, on or about 17 November 2010, through design, miss movement of the flight dedicated to transport Main Body 1 of the 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgzstan with which he was required in the course of duty to move.

(emphasis added). The Army CCA’s published opinion addresses these exceptions and substitutions as a possible “material fatal variance.” A variance is when the offense proven at trial does not conform with the offense alleged in the charge and is an issue when findings are made by exceptions and substitutions. A variance is “material” when, “for instance, [it] substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense.” United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (marks and citations ommited). A material variance is “fatal” when it “(1) [puts an accused] at risk of another prosecution for the same conduct, (2) mislead[s] him to the extent that he has been unable adequately to prepare for trial, or (3) den[ies] him the opportunity to defend against the charge.” Id. (marks and citation omitted).

In Treat the CCA finds no material variance in the military judge’s findings, concluding:

While the missing movement charge in this case was perhaps inartfully drafted, referring to a particular flight number, the charge was clearly aimed directly at appellant’s purposeful missing of his unit’s flight. The defense argues that the government prosecution theory changed when the military judge excepted the flight number and substituted a description of what the flight number represented, namely the flight of Main Body 1. The theory of the case, however, remained the same, namely, that the appellant missed his unit’s flight upon which he was required to move and that he did so through his own design.

Treat, slip op. at 5 (emphasis added). But changing a charge of missing movement from missing a specific flight to missing “the flight dedicated to transport [a specific unit]” doesn’t actually keep the theory the same. Rather, it changes the theory completely, and substantially changes the nature of the offense.

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