United States v. Ballan, __ M.J. __, No. 11-0413/NA (C.A.A.F. March 1, 2012).

7 Responses to “CAAF provides us with the Fosler secret decoder ring”

  1. Dew_Process says:

    Beam me up, Scotty.  CAAF has spoken.

  2. stewie says:

    Disappointing, and Judge Baker provides the clear logic as to why this differentiation is well, not logical. Same situations. Now I think the answer Judge Baker gives is reversed, but he is absolutely correct that this separation between GP and contest on something that is ostensibly about failure to state an offense and notice is not rational.

  3. RY says:

    Let me see if I got this right…
    1) GP w/no objection = tested for prejudice but defective specs will be okay as long as MJ advised/instructed on missing elements, i.e., AFFIRMED.
    2) contested w/no objection – tested for prejudice… probably case-by-case analysis and reversed if instructions did not specify a specific Article 134 clause (because then like Jones where notice is incomplete and only during instructions phase of trial)
    3) GP w/objection = REVERSED (b/c not plain error, not waivable, and prejudice not required).
    4) contested w/objection = REVERSED (b/c not plain error and prejudice not required)
    Do I have it right? 

  4. Zachary Spilman says:

    In our view, in the context of a specification that was legally sufficient at the time of trial and to which a plea of guilty was entered and accepted, the real question is whether we will find prejudice and disturb the providence of a plea where the providence inquiry clearly delineates each element of the offense and shows that the appellant understood “to what offense and under what legal theory [he was] pleading guilty,” We answer this question in the negative. Slip op. at 14-15 (citation omitted).

    Fantastic. We’re drinking champagne tonight.

  5. stewie says:

    So now, post-Fosler, such a specification is no longer “legally sufficient at the time of trial.” Thus one assumes even if you follow this “logic” those cases will be overturned.

    Which means this is totally a “oops, sorry we burdened you with Fosler, let’s see if we can mitigate that burden on you without overturning” decision.

  6. RY says:

    Stewie – I don’t read it that way… it was legally sufficient at trial because indecent acts was an LIO at the time of this pre-Jones case.  Thus, they’re trying to answer it on the Fosler issue recognizing it also had a Jones issue, (the Jones issue was Issue II in this opinion and they addressed it first before turning to Fosler, Issue I).  

  7. stewie says:

    I read it differently, because I don’t think the Jones issue has any bearing on the Fosler issue at all, since whether or not it is a LIO has no bearing on whether or not they were missing the terminal element.

    I get they had to address and clear both, but seems to me, the language about legally sufficient at the time of trial goes back to the fact that this was a pre-Fosler timeline as well.