The last oral argument on Monday, December 3, 2012, is also the last scheduled argument of this calendar year: United States v. Tunstall, No. 12-0516/AF. The case is an interesting way to end the calendar year because when CAAF granted review in August, it ordered the parties to file briefs on both issues:

I. Whether appellant’s conviction for indecent acts must be set aside because the military judge erred in instructing the jury that indecent acts is a lesser included offense of aggravated sexual assault.

II. Whether the finding of guilty to adultery must be dismissed in accordance with Rule for Courts-Martial 907(b)(1) because it fails to state an offense.

It’s rare that the court orders briefs on a terminal-elements issue since the decisions in Fosler, Ballan, and Humphries. The problem with the adultery specification in this case, which was tried in 2009 (before CAAF decided Fosler), is that it lacked a terminal element (like in Fosler), and the Defense did not object at trial (like in Humphries). CAAF granted relief in both Fosler and Humphries, though in Humphries the court rejected the blanket rule that dismissal is required in these circumstances, and instead tested for plain error. But here the Appellant asks CAAF to “revisit its prejudice analysis in Humphries and instead follow Rule for Courts-Martial 907(b)(1)’s plain language that a ‘specification shall be dismissed at any stage of the proceedings if’ it ‘fails to state an offense.'” Appellant’s  Br. at 11 (emphasis added).

The Appellant makes two arguments for dismissal of the adultery specification in this case. The first is application of the plain-error test; that he was prejudiced because:

there was nothing during its case-in-chief that reasonably placed [the accused] on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated. That element was controverted. As the Supreme Court has stated, “A simple plea of not guilty puts the prosecution to its proof as to all elements of the crime charged[.]” Appellant pleaded not guilty to the adultery specifications, thereby controverting all of the specification’s elements. At no time thereafter did the defense enter any stipulations, make any concessions, or take any other action to uncontrovert the adultery specification’s terminal element.

Appellant’s Br. at 24 (marks and citations omitted). When Humphries was decided, I was hostile to the notion that by sitting on your hands you can possibly preserve the issue of surprise for appeal (as opposed to, say, objecting to the surprise, or even just repeating “wait, what” until the judge takes notice), and I still think this is bad logic. Article 134 is hardly a complex statute, and the concept that mere adultery is not criminal, but adultery coupled with prejudice/discredit is criminal, is pretty basic stuff that counsel are presumed to know. I believe that if a defense counsel didn’t know this, but suddenly realizes it during the trial, he has an obligation to bring it to the court’s attention sometime before appellate division gets the case.

But the Appellant’s brief makes the alternative argument “that Humphries’ prejudice analysis approach is inconsistent with a presidentially prescribed rule in the Manual for Courts-Martial. Under that rule, dismissal is the required remedy for the adultery specification’s failure to state an offense.” Appellant’s Br. at 28. This argument is based on the premise that CAAF must obey the rules for courts-martial established by the President, and that “[t]he President is free to revise that rule if he no longer wishes to mandate dismissal of the specification as the sole remedy for failure to state an offense. But unless and until the President modifies R.C.M. 907(b)(1), it is this Court’s duty to enforce it as written.” Appellant’s Br. at 30. Were CAAF to adopt this reasoning, it would be a dramatic reversal from the court’s decision in Humphries issued just a few months ago. I think it unlikely that CAAF will reverse itself so soon, particularly since Senior Judge Effron (who was in the Humphries (3-2) majority) will return for this case.

But, the Government’s brief highlights a different way CAAF might take its terminal element jurisdiction in a new direction: by changing how it applies the plain-error test. The oral argument in this case will occur immediately after the oral argument in United States v. Clifton, No. 12-0486/AR, and in my argument preview for Clifton I theorized that Clifton “is really about CAAF’s slow-but-steady move to the full, four-prong test for plain error.” The court’s decision to order briefs on the terminal element issue in this case, and to schedule these two cases together, adds weight to that theory. So does the Government’s framing of the issue, which includes a lengthy footnote on page 13 that discusses the full, four-prong test for plain error. Reading the tea-leaves, I see a chance that a CAAF majority is ready to adopt the full plain-error test by (1) finding error that is (2) plain and obvious and (3) materially prejudiced a substantial right of the Appellant (just like in Humphries), but still decline to grant relief because (4) the error [does not] seriously affect the fairness, integrity or public reputation of judicial proceedings.

However, the Government’s brief also emphasizes the prejudice prong of the plain-error test, arguing that “[t]hroughout the government’s case-in-chief, trial defense counsel cross examined several of the government’s witnesses on issues related to the terminal element of adultery. . . . By asking these questions, trial defense counsel elicited evidence he was able to later argue about in closing argument in an effort to acquit Appellant of this specification.” Gov’t Br. at 16. A footnote adds:

In fact, trial defense counsel identified this terminal element as “the most important element” and then read it verbatim to the members from the military judge’s instructions.

Gov’t Br. at 16, N.4.  The Government’s brief also highlights the fact that the Defense introduced evidence of the Appellant’s impending divorce, and that “trial defense counsel argued that this application for dissolution of the marriage was evidence ‘going against’ this third element.” Gov’t Br. at 17-18. This sure seems to undercut the Appellant’s argument of surprise, meaning that even if the court wants to get to the fourth-prong of the plain-error test, this case might not make it that far.

The other issue in this case is that the Appellant was convicted by the members of an indecent act under Article 120(k) (2007), as a lesser-included offense of aggravated sexual assault under Article 120(c)(2)(B) (2007), after being instructed by the military judge that they could consider that offense as a LIO. The Appellant’s defense counsel did not object to this instruction. The facts involved sexual contact between the Appellant and a female Airman, in and out of the presence of other junior Airmen. The Appellant makes two arguments against the conviction of an indecent act: (1) that it constitutes a fatal variance, and (2) that indecent acts is not a LIO of aggravated sexual assault, nor was the indecent acts offense fairly raised by the prosecution.

A variance is when the proof offered at trial does not strictly conform to the offense alleged, and is generally an issue where there are findings by exceptions and substitutions. The Appellant’s characterization of this issue as a fatal variance doesn’t quite fit. However, comparing the elements does bear some fruit for the Appellant, and the brief explains why the elements of the offense of indecent act are different from those of aggravated sexual assault. However, the Appellant’s brief does not address the fact that there was no objection to the military judge’s instruction. The court might speculate that the lack of objection was because the Defense actually wanted that instruction, considering that it reduced the maximum confinement for that specification from 30 years to 5 years. This is a significant weak spot in the Appellant’s argument, and an easy way for the court to deny relief, particularly if the court is really looking to expand the discretionary nature of relief for unpreserved error under the plain-error doctrine.

The Government’s argument on this issue is essentially that an aggravated sexual assault is necessarily also an indecent act, and it emphasizes that “open and notorious sexual conduct is not an ‘element’ of an indecent acts offense.” Gov’t Br. at 9 (emphasis in original). The Government argues that “the United States could have transplanted the essential facts from the alleged aggravated sexual assault specification, without alteration, into a legally sufficient indecent acts specification: Appellant did engage in a sexual act, to wit: digital penetration by [Appellant] of the vagina with [A1C KAS], who was substantially incapable of declining the participation in the sexual act.” Gov’t Br. at 8. This only feels like a bit of a stretch. A footnote highlights the lack of objection to the military judge’s LIO instruction, but the Government does not take the plain-error analysis further.

These issues might make Tunstall a simple case about a single charge sheet, or they might signal a larger shift in CAAF’s willingness to grant relief when the Defense fails to object at trial. The AFCCA considered both of the issues granted by CAAF, and denied relief, and I don’t see strong justifications in the Appellant’s brief for reversing the CCA. This makes me suspicious that this grant of review is about more than just this case. Maybe I’m right, and CAAF is gearing up for a big shift, or maybe I just need to reinforce the foil lining of my cover.

Case Links:
AFCCA opinion
Appellant’s Brief
Appellee’s (Government) Brief
Blog post: Argument preview

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