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.
Judge Ohlson explains:
[T]he gravamen of the offense with which [Appellant] he was charged was that he failed to be present on the aircraft with his unit when it deployed from Germany to Afghanistan.
On the other hand, we note that “[i]f a person . . . is ordered to move as a passenger aboard a particular ship or aircraft, . . . then missing the particular sailing or flight is essential to establishing the offense of missing movement.” See Manual for Courts-Martial, United States pt. IV, para. 11.c.(2)(b); cf. United States v. Kapple, 40 M.J. 472, 473–74 (C.A.A.F. 1994) (requiring the government to prove that the accused had been ordered to move aboard a specific aircraft). In the original charging document in the instant case, the Government chose to describe the specific aircraft as Flight TA4B702, and thus that specific flight number became an integral part of an element of the offense. Under these circumstances, we decline to hold that only a minor variance occurred.
Slip op. at 13 (omissions in original). Judge Ohlson’s analysis doesn’t draw as stark a distinction as I did between the ship/aircraft theory and the unit theory of Article 87, but he relies on the same reference as I did: paragraph 11.c.(2) of part IV of the Manual for Courts-Martial.
Judge Ohlson then explains that:
In the instant case, Appellant’s defense was squarely focused on the assertion that he was prevented from moving with the 370th Sapper Company because he was kidnapped. . . . right from the beginning of the case, Appellant channeled his efforts into convincing first the investigators and then the court-martial that, as stated by defense counsel in her opening statement, Appellant “did not intend to miss the movement, but he was prevented from going with his unit . . . because of what had happened to him.” . . .
Importantly, the defense has not identified for this Court any different trial strategy it might have employed if Appellant originally had been charged with “missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.” All indications are that Appellant’s defense of impossibility due to kidnapping would have remained precisely the same whether or not he was charged per the original specification or per the exceptions and substitutions, and we see no reasonable possibility that the verdict in this case would have been any different.
Slip op. at 14-15 (second omission in original). Because the variance didn’t affect the Defense strategy, there is no prejudice and CAAF affirms the conviction.
But standing on opposite sides of Judge Ohlson’s opinion of the court are three of the five judges of CAAF. On one side is Chief Judge Baker, who finds that the variance was not even material because “the offense remained the same before and after the military judge’s exception and substitution. Appellant was charged with missing movement by missing the flight deploying his unit.” Baker, C.J. con. op. at 2 (emphasis in original). The Chief Judge sees the change to the specification as “akin to correcting the name of the victim on a larceny charge or, by further illustration, to saying, ‘I missed my flight to Dallas,’ rather than ‘I missed Mohawk Airways Flight 12345, which was en route to Dallas.'” Baker, C.J. con. op. at 3.
On the other side are Judges Stucky and Ryan. Judge Stucky is the furthest away, as he finds that “Appellant’s failure to raise the issue before the court adjourned constitutes waiver. R.C.M. 905(e).” Stucky, J. diss. op. at 1. Focusing on the last-page footnote in Judge Ohlson’s opinion of the court (addressing plain error review), Judge Stucky asserts that:
[United States v. Finch, 64 M.J. 118, 121 (C.A.A.F. 2006)] cites R.C.M. 905(e) as the basis for this plain error standard but does not examine the language of the rule. R.C.M. 905(e) provides:
Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection (b) of this rule shall constitute waiver. The military judge for good cause shown may grant relief from the waiver. Other motions, requests, defenses, or objections, except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is adjourned for that case and, unless otherwise provided in this Manual, failure to do so shall constitute waiver.
It does not say “forfeit,” “forfeit absent plain error,” or “waive absent plain error.” It says “shall constitute waiver.” Therefore, as Appellant failed to object before the court-martial was adjourned, we should consider the variance issue waived.
Stucky, J. diss. op. at 1-2. Judge Stucky concludes this analysis with the plain statement that “in this case, Appellant failed to object, and the objection is not covered by another rule. Appellant’s failure constitutes waiver, and we should not consider this assignment of error.” Stucky, J. diss. op. at 3.
But if the court is going to consider this assignment of error under the plain error test, then Judge Stucky finds that “Appellant has established that the material variance was obvious error that prejudiced his substantial rights.” Stucky, J. diss. op. at 3. He concurs with Judge Ohlson’s analysis on why the variance is material, but then finds it also prejudicial for two significant reasons:
(1) Flight TA4B702 is necessarily a subset of the universe of flights that could have transported Main Body 1. By substituting for the excepted language the more general language, Appellant may have been convicted of missing the movement of TA4B702, the same flight he was acquitted of missing. That would amount to a Double Jeopardy Clause violation.
(2) If Appellant was convicted of missing the movement of some flight other than TA4B702, then he was not given notice and an opportunity to defend against it. By broadening the offense from missing flight TA4B702 to missing whatever flight was scheduled to transport Main Body 1, the military judge made Appellant’s defense — that the Government failed to establish that he missed flight TA4B702 — irrelevant.
Stucky, J. diss. op. at 6-7 (citation omitted). I think the double jeopardy issue is far more persuasive of finding prejudice than the Defense strategy issue (because the Defense still asserted impossibility due to a kidnapping).
Finally, Judge Ryan “join[s] Judge Stucky’s dissent, with a single caveat.” Ryan, J. diss. op. at 1. The caveat relates to Judge Stucky’s finding of waiver. Judge Ryan finds that:
[T]he military judge clearly determined that the Government did not prove one of the elements — which is why she excepted the language that pled it. Thus, irrespective of Appellant’s duty to object at trial, in my view the military judge had an independent duty to dismiss the charge, including giving the parties an opportunity to be heard, and the military judge failed to fulfill that duty.
Ryan, J. diss. op. at 1 (citations omitted). Judge Ryan’s focus on the role of the military judge is reminiscent of her recent dissenting opinion in United States v. Flesher, No. 13-0602/AR, __ M.J. __ (C.A.A.F. Jul. 8, 2014) (CAAFlog case page), where she took the military judge to task for abandoning his role as a gatekeeper for expert testimony. Judge Ryan may have the trial judiciary in her crosshairs.
Ultimately, this case was decided on very narrow grounds; a majority of the court agrees only that the exceptions and substitutions did not prejudice Appellant because he was not misled or denied the opportunity to defend himself against the charge. While Chief Judge Baker’s concurring opinion does not explicitly detail that Appellant’s implausible kidnapping defense is the reason there is no prejudice, this case-specific factual point is the only common ground between Judge Ohlson’s opinion of the court and Chief Judge Baker’s concurring opinion.
Whether this result would be different had the Defense immediately objected to the military judge’s findings is debatable. On one hand, perhaps the judge would have been convinced by an argument similar to Judge Stucky’s double jeopardy point and reconsidered the finding to make it an acquittal. See R.C.M. 924(c). But on the other hand, the judge might have clarified that the finding of guilt was based on the aircraft theory of movement with only the specific flight number omitted as an unnecessary technical detail.
In the absence of such an objection, CAAF splits the difference.
• ACCA opinion (72 M.J. 845)
• Blog post: The ACCA’s mistaken conclusion in a missing movement case
• Blog post: CAAF grants in Treat
• Blog post: Is the Army CCA treating contested cases differently?
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis