United States v. Ballan
2012 CAAF LEXIS 238
| C.A.A.F. | 2012Background
- Appellant was convicted by general court-martial on one specification of sodomy with a child under twelve, one specification of indecent acts with a child, and eight specifications of indecent acts with another, under Articles 125 and 134, UCMJ; sentence was a dishonorable discharge, 25 years’ confinement, and forfeiture of all pay and allowances.
- Convening authority suspended confinement in excess of 20 years for the period already served plus 12 months consistent with Appellant’s pretrial agreement.
- NMCCA set aside some findings and dismissed several specifications as legally insufficient, reassessing the sentence but concluding the same sentence would have been imposed.
- Court addressed jurisdictional/referral issues and the effect of a missing terminal element for Article 134 specifications in the guilty-plea context, applying prejudice review under Article 59, UCMJ.
- Appellant’s NCIS investigation began in 2008 after age-inappropriate behavior by his three biological children; Appellant admitted sexual misconduct with and in the presence of his children; charges included rape of a child, sodomy with a child, and eight indecent acts; pretrial agreement involved pleas to Article 134 specifications without explicit terminal elements.
- Plea inquiry explained Article 134 elements; Appellant admitted acts were service-discrediting; the court found jurisdictional questions and terminal-element pleading issues, but ultimately affirmed the NMCCA decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Article 134 clauses 1 or 2 specifications lack terminal elements and are valid on guilt plea. | Ballan contends the plea did not allege the terminal element. | Appellant argues lack of explicit terminal element defeats validity. | Defect acknowledged but no prejudice shown; plea valid. |
| Whether waiver via pretrial agreement to plead guilty to a non-LIO charge constitutes waiver of referral irregularity. | Ballan asserts the amendment was effectively referred by agreement. | Appellant benefited from amendment and waived objection. | Waiver recognized; functional equivalent of referral under Wilkins. |
| Is the government’s major change to charges permissible without objection under R.C.M. 603/604 in light of plea and notice? | Ballan contends notice issues remain after amendment. | Appellant agreed to the change; no prejudice detected. | Remains valid under the plea context; prejudice not shown. |
Key Cases Cited
- United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (affirms referral as per pretrial agreement and notices in guilty pleas)
- United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (right to know offense and clause in Article 134 context)
- United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (terminal element cannot be implied from mere conduct in Article 134 specs)
- Jones v. United States, 526 U.S. 227 (1999) (elements must be charged, submitted, and proven)
- Miller v. United States, 67 M.J. 385 (C.A.A.F. 2009) (rejects implied-terminal-element doctrine for Article 134)
- United States v. Wilkins, 29 M.J. 421 (C.A.A.F. 1990) (referral formality not required when pretrial agreement substitutes referral)
- Parker v. United States, 59 M.J. 195 (C.A.A.F. 2003) (government can address mis-pleading by withdrawal/referral under rules)