CAAFlog » September 2011 Term » United States v. Rauscher

Lesser-included offense jurisprudence hasn’t received much attention this year at CAAF, considering the court’s game-changing series of LIO cases of recent terms past: United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (ruling that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (ruling that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010)(“returning to” the elements test for determining LIOs).

But the court makes quick work of the question presented in United States v. Rauscher, No. 12-0172/NA, __71 M.J. 225 (C.A.A.F. June 18, 2012) (CAAFlog case page) (link to slip op.):

Appellant was charged with, inter alia, assault with intent to commit murder under Article 134, UCMJ.  But the specification failed to allege the terminal element. The members found Appellant not guilty of the charged offense, but guilty of aggravated assault under Article 128, UCMJ, as a lesser-included offense. Did the lower court err in holding that aggravated assault is a lesser-included offense of an Article 134 specification that fails to allege the terminal element?

In a per curiam opinion, the court is “convinced that the specification clearly alleges every element of the offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, the offense he was convicted of.” Slip op. at 4. A footnote contains an important reminder for trial advocates:

In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute.

Slip op. at 4 N.1 (citing United States v. Hutcheson, 312 U.S. 219, 229 (1941)). That appears to be exactly what happened in Rauscher, and the court took notice of not only the lack of objection from the defense, but its apparent embracing of this legal principle:

Appellant defended against this theory throughout the trial. Appellant proposed instructions for the Article 128 offense and did not object to the instructions given by the military judge. In closing, defense counsel even asked the panel to “closely look” at Article 128 because “that’s much more aligned with what happened.”

Slip op. at 5. Still, I do think appellate defense counsel deserve credit when they can get CAAF to look at the sufficiency of a specification to state an offense that the trial defense counsel argued was the offense “much more aligned with what happened.” Especially when the court could have just let stand the CCAs opinion coming to the same conclusion.

Case Links:
NMCCA opinion
Blog post: NMCCA affirms more 134 specifications without terminal elements
Appellant’s brief
Appellee’s (government) brief
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

5-page per curiam affirmance, available here.

That leaves four CAAF opinions to be issued:  the two biggies (Ali and Behenna) plus Barnett and Vela.

Here’s a link to today’s oral argument in United States v. Rauscher, No. 12-0172/NA.  And here’s a link to today’s oral argument in United States v. Norwood, No. 11-0515/MC.

And with that, oral argument season for the September 2011 term is closed, though oral argument seaasons have sometimes reopened unexpectedly during past terms.

The cases, all convictions in accordance with the pleas of the accused, and all unpublished decisions are:

Each follows the reasoning of prior cases, essentially that: (1) the accused was on notice, considering the greater tolerance exercised when a specification is first challenged on appeal, because of the pretrial agreement, the assistance of counsel, and the explanation of the elements by the military judge, and (2) even if he was not on notice, he consented to a major change when the military judge informed him of the elements of the otherwise uncharged offense (which was implicitly referred by the convening authority’s acceptance of the pretrial agreement).

This brings the post-Fosler, missing terminal element, guilty-plea affirmation total to 9 (8 NMCCA, 1 ACCA). Correction: total of 6, all NMCCA. An additional 2 contested cases were reversed by NMCCA on Fosler grounds.

Additionally, the NMCCA released its (also unpublished) opinion in an interesting Jones non-trailer. United States v. Rauscher, No. 201000684, involves an accused who was charged with assault with intent to commit murder, in violation of Article 134, but was convicted of aggravated assault, in violation of Article 128, as a lesser included offense.  The NMCCA found that based upon the facts of the case, and specifically the discreet facts alleged in the specification at issue, the LIO was proper, and affirmed the conviction. Of note, the 134 specification did not state the terminal element…