Opinion Analysis: CAAF finds no error in changes to charges made prior to referral, in United States v. Stout
CAAF decided the Army case of United States v. Stout, 79 M.J. 168, No. 18-0273/AR (CAAFlog case page) (link to slip op.), on August 22, 2019. Reviewing pre-referral changes to the dates of the alleged acts, CAAF finds that the changes were authorized because Article 34(c) specifically permits such changes to conform the charges to the evidence in an Article 32 report. Accordingly, CAAF affirms the findings, sentence, and decision of the Army CCA.
Chief Judge Stucky writes for the court, joined by Judge Sparks. Judge Ryan concurs fully in the Chief Judge’s opinion, but writes separately to address the reach of Rule for Courts-Martial (R.C.M.) 603. Judge Maggs concurs in the judgment, but would hold that the changes were minor (and so permissible under any analysis). Judge Ohlson dissents, asserting that the change-limiting language of R.C.M. 603 applies despite the change-permitting language of Article 34.
Staff Sergeant (E-6) Stout was convicted of abusive sexual contact with a child, indecent liberties with a child, sodomy with a child, and assault with intent to commit rape, in violation of Articles 120, 125, and 134. All of the offenses involved alleged sexual acts with his step-daughter and, as initially charged, many of the specifications alleged that the acts occurred on certain dates in 2008 and 2009. At an Article 32 pretrial investigation the child testified that the acts occurred while the family lived in New York, from August 2008 until June 2009.
Stout initially pleaded guilty (in 2012) to numerous offenses in accordance with a pretrial agreement, but the Army CCA reversed the pleas (in 2014) and authorized a rehearing. Stout then changed course and contested the charges. At that point – and prior to the convening authority referring the charges for the rehearing – the prosecution made dozens of changes to the charges. Some were relatively insignificant, such as correcting misspellings, but others changed the dates of the alleged acts by as much as 300 days, removing the specific dates and replacing them with the entire time the family lived in New York: between on or about 7 August 2008 and on or about 3 June 2009.
Stout objected, claiming that the changes were major changes that, under R.C.M. 603(d), required preferral of new charges. The military judge overruled the objection and Stout was convicted (in 2015) and sentenced to confinement for 18 years, reduction to E-1, and a dishonorable discharge. Stout renewed his challenge on appeal, and CAAF granted review to decide:
Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.
CAAF heard oral argument in December. After the argument, it ordered briefing of two additional issues:
I. Whether United States v. Brown, 4 C.M.A. 683, 16 C.M.R. 257 (1954), is not controlling in this case because the decision predates the promulgation of the applicable version of R.C.M. 603(d).
II. Whether the applicable version of R.C.M. 603(d) is contrary to and inconsistent with the applicable version of Article 34(c), UCMJ, and therefore void to the extent it prohibits major changes, before referral, to charges and specifications that were amended to “conform to the substance of the evidence contained in the report of the investigating officer.” Article 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).
Chief Judge Stucky’s opinion for the court answers the last of those issues in the affirmative, holding that Article 34(c) permits the changes (though not explicitly stating that contrary language in R.C.M. 603(d) is void).