CAAFlog » October 2018 Term » United States v. Gleason

CAAF decided the Army case of United States v. Gleason, 78 M.J. 473, No. 18-0305/AR (CAAFlog case page) (link to slip op.), on June 6, 2019. The court rejects a novel specification under Article 134, concluding that it is barred by the prohibition in the Manual for Courts-Martial against charging a novel specification when the offensive conduct is already covered by an offense enumerated in the Manual. CAAF reverses the decision of the Army CCA, dismisses the specification at issue, sets aside the sentence, and remands for further proceedings.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan and Judge Maggs both dissent, each filing an opinion.

CAAF granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Article 134 criminalized three categories of conduct: “[1] all disorders and neglects to the prejudice of good order and discipline in the armed forces, [2] all conduct of a nature to bring discredit upon the armed forces, and [3] crimes and offenses not capital.” 10 U.S.C. § 934. The President – exercising his rulemaking authority under Article 36 – enumerated in the Manual for Courts-Martial a wide variety of offenses that may be charged as violations of Article 134 (like obstruction of justice, child pornography offenses, and extramarital sexual conduct (formerly adultery)). Outside of those enumerated offenses, however, servicemembers may also be charged with other, novel, violations of Article 134, so long as the conduct falls into one of the three statutory categories. But the President also prescribed three specific conditions for how such novel specifications may be used:

  • The first is the preemption doctrine, which states that Article 134 cannot be used to prosecute conduct covered by Articles 80-132. See ¶ 91.c.(5)(a), Part IV, Manual for Courts-Martial (2019 ed.). See also United States v. Wheeler, 77 M.J. 289 (C.A.A.F. Mar. 22, 2018) (CAAFlog case page).
  • The second is that “a capital offense may not be tried under Article 134.” ¶ 91.c.(5)(b), Part IV, Manual for Courts-Martial (2019 ed.).
  • The third – and the one at issue in this case – is the provision that “if conduct by an accused does not fall under any of the enumerated Article 134 offenses (paragraphs 92 through 109 of this Part), a specification not listed in this Manual may be used to allege the offense.” ¶ 91.c.(6)(a), Part IV, Manual for Courts-Martial (2019 ed.) (formerly ¶ 60.c.(6)(a)).

Two years ago, United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF interpreted that third condition as flatly prohibiting use of a novel specification to allege an offense under Article 134 where the offense is already listed inside the Article’s framework. Reese involved a specification that functionally alleged the offense of obstruction of justice – as enumerated by the President under Article 134 – without requiring the prosecution to prove two of the four elements of obstruction. Reese was quickly applied in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), to reverse two novel specifications that were encompassed by the enumerated offense of indecent language.

Now, in Gleason, CAAF applies Reese to a specification that alleged that:

[Appellant] knowingly and wrongfully interfere[d] with Private First Class J.W.’s ability to place an emergency phone call by taking her telephone from her when she went to call the police and that such conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Slip op. at 4 (modifications in original). The majority finds that the conduct at issue “falls squarely within the President’s explanation of the obstruction of justice offense.” Slip op. at 5. The dissenters, however, would hold that “the novel specification here is not contained within the elements of the listed Article 134, UCMJ, [offense] of obstruction of justice.” Diss. op. of Ryan, J., at 3 (citing Diss. op. of Maggs, J. at 1-4).

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Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. McDonald, No. 18-0308/AR (CAAFlog case page): Oral argument audio.

United States v. Gleason, No. 18-0305/AR (CAAFlog case page): Oral argument audio.

The audio is also available on our oral argument audio podcast.

CAAF will hear oral argument in the Army case of United States v. Gleason, No. 18-0305/AR (CAAFlog case page), on Tuesday, February 19, 2019, after the argument in McDonald. The court granted review of a single issue:

Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and it reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

Gleason presents an substantially-identical challenge. Staff Sergeant (E-6) Gleason was convicted of multiple offenses including a novel Article 134 specification alleging that he interfered with the ability of his victim to place a call requesting emergency assistance. Gleason asserts that the novel specification was improper because it eliminated elements of the enumerated Article 134 offense of obstruction of justice.

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Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and it reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

On Friday CAAF granted review in this Army case:

No. 18-0305/AR. U.S. v. Michael C. Gleason. CCA 20150379. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT ERRED BY AFFIRMING A NOVEL SPECIFICATION COVERED BY AN ENUMERATED ART. 134, UCMJ OFFENSE.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here but does not discuss this issue or the facts in detail. The novel Article 134 offense appears to be interfering with an emergency call. I’m going to engage in some pure speculation and say that the enumerated offense that might cover the conduct is either disorderly conduct (¶ 73) or communicating a threat (¶ 110). Or both.