CAAF decided the Army case of United States v. Turner, __ M.J. __, No. 19-0158/AR (CAAFlog case page) (link to slip op.), on Wednesday, March 25, 2020. Considering a specification of attempted murder that failed to expressly allege that the attempt was unlawful (a necessary term because military service involves lawful killing), a majority of the court reads the specification with maximum liberality because the defense waited until after findings to object, and affirms the conviction and the decision of the Army CCA.
Judge Ohlson writes for the court, joined by all but Judge Maggs, who dissents.
CAAF granted review to determine:
Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.
Specialist (E-4) Turner was charged with a specification that read:
that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.
The charge arose from a violent encounter involving Turner, his wife, and a the victim. Turner served with the victim in Korea, and Turner had an adulterous relationship with her that ended when she learned he was married. The victim later learned that she was pregnant, gave birth, and sought child support from Turner. In 2015, Turner and his wife drove from Colorado to Tennessee to confront the victim. During the confrontation, Turner shot the victim multiple times. He was ultimately convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.
During the court-martial, Turner’s defense counsel objected to the attempted murder specification as failing to state an offense. However, counsel did not do so until after the members found Turner guilty. CAAF does not explicitly say that the delay was for purely tactical reasons, but it does suggest as much with a footnote quoting the Ninth Circuit’s observation that “delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants.” Slip op. at 9 n.7 (citation omitted). That’s problematic because CAAF’s precedent strongly favors earlier objections, even though the Rules for Courts-Martial do not require an earlier objection to the failure of a specification to state an offense (something Judge Maggs highlights in his dissenting opinion). Specifically, when a specification is challenged at trial, CAAF reads the specification narrowly; but when it is first challenged after trial, it is read with “maximum liberality.” Slip op. at 7.
The result in this case turns on the majority’s conclusion that the defense objection was made after trial, and so the maximum liberality standard applies and the conviction is affirmed. Judge Ohlson’s majority opinion does not explicitly say that an earlier objection would have led to a different result, but it strongly implies that. Judge Maggs’ dissenting opinion, however, is clear that the specification fails under a narrow reading:
I agree with the Court’s implication that apart from the “maximum liberality” standard, the specification fails to allege criminality either expressly or by necessary implication.
Diss. op. at 3. In other words, Turner’s conviction of attempted murder is based on a deficient specification, but the conviction is affirmed because Turner’s defense counsel waited until after findings to object.
Judge Ohlson explains that the military is a notice-pleading jurisdiction where “each specification will be found constitutionally sufficient only if it alleges, either expressly or by necessary implication, every element of the offense, so as to give the accused notice of the charge against which he must defend and protect him against double jeopardy.” Slip op. at 4 (marks and citations omitted). If a specification fails to state an offense, the remedy is dismissal unless the Government can show that the deficiency was harmless beyond a reasonable doubt. Id. Whether a specification fails to state an offense, however, “depend[s] on when counsel first raised the issue.” Id. Judge Ohlson writes:
“[W]hen [a] charge and specification are first challenged at trial, we read the wording . .. narrowly and will only adopt interpretations that hew closely to the plain text.” United States v. Fosler, 70 M.J . 225, 230 (C.A.A.F. 2011) (emphasis added). Hewing closely to the plain text means we will consider only the language contained in the specification when deciding whether it properly states the offense in question. See United States v. Sutton, 68 M.J . 455 (C.A.A.F. 2010). However, “[a] flawed specification first challenged after trial . . . is viewed with greater tolerance than one which was attacked before findings and sentence.” United States v. Watkins, 21 M.J. 208,209 (C.M.A. 1986) (emphasis added). Under the latter scenario, the specification will be viewed with “maximum liberality.” United States v. Bryant, 30 M.J. 72, 73 (C.M.A. 1990).
Slip op. at 4.
In this case the issue was first raised after findings but before the court-martial adjourned. The majority finds that after findings is after trial, because:
In actuality, the line of demarcation that separates the “trial” stage of a court-martial and the “after trial” stage of a court-martial is the moment of time “before findings and sentence.” Watkins, 21 M.J. at 209 (emphasis added). Thus, as soon as the finder of fact announces a guilty verdict regarding the facially deficient specification, the trial has ended, and the “liberal construction” and “greater tolerance” standards apply. Id.; Bryant, 30 M.J. at 75.
Slip op. at 8. That holding is bolstered by federal civilian practice, with Judge Ohlson writing:
The federal circuit courts’ distinction between ”before conviction” and before verdict,” versus “after conviction” and “after verdict” is significant. In the civilian federal court system there almost always is a considerable lapse of time between when the government obtains a verdict convicting a defendant, and when the defendant’s sentencing occurs (and, of course, when an appeal is filed). Thus, the temporal distinction referenced by several other federal circuit courts is a bright line; in order for a defendant to receive the benefit of a more favorable analytical standard, the defendant must raise a claim that the indictment failed to state an offense before he is convicted. The Watkins Court clearly chose to adopt this approach-which, in the military context, means before findings are announced-and we hold that this analysis serves as binding precedent here.
Slip op. at 9. A footnote adds that this interpretation avoids sandbagging, which the court strongly suggests occurred in this case:
This temporal distinction removes any incentive for trial defense counsel to wait until the verdict is announced before playing the “failure to state an offense” card. Indeed, the Ninth Circuit noted as much when it explained the rationale behind the rule in Pheaster: “Such a long delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants.” 544 F.2d at 361.
Slip op. at 9 n.7.
Having found that the objection came after trial, the majority views the specification with maximum liberality, which Judge Ohlson explains means that:
the claim will fail “absent a clear showing of substantial prejudice to the accused such as a showing that the indictment is ‘so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.'”
Slip op. at 10 (quoting Watkins, 21 M.J. at 210 (quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir. 1965)). Turner cannot overcome that high bar because a reasonable construction of the language of the specification necessarily implies an unlawful killing, and because “there simply is no prejudice to be found in this case.” Slip op. at 10-11.
Jduge Maggs broadly agrees with the majority opinion, including agreeing that the objection was not barred by the Rules for Courts-Martial, that the specification would fail without application of the maximum liberality standard, and that the specification survives with the maximum liberality standard. However, Judge Maggs would not apply that standard to this case, for three reasons. “First, nothing in the Rules for Courts-Martial suggests that a different standard of assessing the sufficiency of a specification should apply depending on whether an accused objects to a specification before or after findings.” Diss. op. at 4. “Second, no precedent requires us to apply the “maximum liberality” standard in this case.” Diss. op. at 5. “Third, this Court should not expand the situations in which the “maximum liberality” standard applies.” Diss. op. at 5. He concludes:
R.C.M. 907(b)(l)(B) and R.C.M. 905(e) permit the accused to challenge a specification for failing to state an offense at any stage of the proceedings, and R.C.M. 307(c)(3) establishes the test for assessing such challenges. We therefore have no need to borrow different standards from other federal courts.
Diss. op. at 5-6. Judge Maggs also acknowledges that the majority’s application of the maximum liberality standard might be good policy, but that making such policy is not (or, at least, should not be) CAAF’s role. He would, therefore, reverse the conviction of attempted murder and set aside the sentence.
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio (wma)(mp3)
• CAAF opinion
• Blog post: Opinion analysis