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).