The cases, all convictions in accordance with the pleas of the accused, and all unpublished decisions are:

Each follows the reasoning of prior cases, essentially that: (1) the accused was on notice, considering the greater tolerance exercised when a specification is first challenged on appeal, because of the pretrial agreement, the assistance of counsel, and the explanation of the elements by the military judge, and (2) even if he was not on notice, he consented to a major change when the military judge informed him of the elements of the otherwise uncharged offense (which was implicitly referred by the convening authority’s acceptance of the pretrial agreement).

This brings the post-Fosler, missing terminal element, guilty-plea affirmation total to 9 (8 NMCCA, 1 ACCA). Correction: total of 6, all NMCCA. An additional 2 contested cases were reversed by NMCCA on Fosler grounds.

Additionally, the NMCCA released its (also unpublished) opinion in an interesting Jones non-trailer. United States v. Rauscher, No. 201000684, involves an accused who was charged with assault with intent to commit murder, in violation of Article 134, but was convicted of aggravated assault, in violation of Article 128, as a lesser included offense.  The NMCCA found that based upon the facts of the case, and specifically the discreet facts alleged in the specification at issue, the LIO was proper, and affirmed the conviction. Of note, the 134 specification did not state the terminal element…

5 Responses to “NMCCA affirms in three more cases with 134 specifications lacking a terminal element”

  1. stewie says:

    What this tells me, is that the Service Courts really hate Fosler and would like to find any way they can to avoid applying it, because this was a contest, not a guilty plea, and yet even though the CAAF has said that as charged this case (Rauscher) did not state an offense, and did not provide notice, the Service Court in this case still tried to find a way to affirm it by finding a LIO.

    So, why not use this to solve ANY charge that fails to state an offense? Simply try and find an LIO that is fairly embraced by the allegation.

  2. Charles Gittins says:


    Do this work long enough and you get to understand that the CCAs are rubber stamps populated with “company men and women” looking for their next promotion. Going against the Government at that rank is NOT a way to find yourself a promotion, and the decision reflect that truism.

  3. Michael A says:

    I’m not sure about that ACCA count. If you are referring to Thomas (20100463), that case is about the sufficiency of a 134 Specification – but the spec in that case expressly alleged the terminal element. See page 2 of the decision.

  4. Zachary Spilman says:

    I’m not sure about that ACCA count.If you are referring to Thomas (20100463), that case is about the sufficiency of a 134 Specification – but the spec in that case expressly alleged the terminal element.See page 2 of the decision.

    You’re right! Oops… I sure blew that count…

  5. anon says:

    Funny, I thought the complaint was that the CCAs were comprised of old-time COLs just waiting to get their retirement checks . . . but way to impute improper motives. As for Fosler, CAAF is still citing to Watkins so I’m not sure how the CCA’s could rule differently under the principles of stare decisis. On an unrelated note the 9th remanded the don’t ask don’t tell case back to the district court for dismissal. The concurring opinion is worth a read.