United States v. Fosler
2011 CAAF LEXIS 661
| C.A.A.F. | 2011Background
- Appellant Fosler, a drill instructor, engaged in sexual intercourse with SK, a sixteen-year-old NJROTC student and dependent of a Navy member, in Spain in 2007.
- He was charged with adultery under Article 134, UCMJ, and faced a potential conviction under any of the three clause-based terminal elements.
- The specification alleged only that Fosler had wrongfully had sexual intercourse with a woman not his wife, near Naval Station Rota, Spain, on a date in 2007.
- The government sought to convict under Article 134 without expressly stating the terminal element, relying on historical practice of implying it from a charged offense.
- The military judge denied motions to dismiss for failure to allege the terminal element, and the case progressed to appellate review by the Navy-Marine Corps Court of Criminal Appeals (CCA).
- The Court of Appeals for the Armed Forces ultimately reversed, holding that the terminal element must be expressly alleged or implied in the charge and specification, and dismissed the charge and its specification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the terminal element of Article 134 must be alleged | Fosler argues the terminal element need not be expressly stated; historical practice allowed implication. | The government argues the terminal element can be implied by the charge and the Manual guidance. | Terminal element must be expressly alleged or implied in the charge and specification. |
| Whether the charge to Article 134, clause 1 or 2 can be implied from the wording | The specification’s wording should suffice to imply the clause. | The words used (wrongfully, Article 134) do not by themselves imply a specific clause. | No implicit implication of the terminal element from the generic charge and wording. |
| Remedy for failure to state an offense and impact on precedent | If defect, dismissal is appropriate; prior precedents should not be overruled retroactively. | Judgment should be sustained under older practice that allowed implied terminal elements. | Dismissal of the charge and specification; overruled prior contrary precedents. |
Key Cases Cited
- Marker v. United States, 1 C.M.A. 393 (1952) (indictment sufficiency and notice test (elements or clear implication))
- Herndon v. United States, 1 C.M.A. 461 (1952) (specification alleging Article 134 without terminal element valid under early practice)
- Mayo v. United States, 12 M.J. 286 (C.M.A.1982) (short forms of Article 134 specifications may not require explicit terminal element)
- Jones v. United States, 68 M.J. 455 (C.A.A.F.2010) (notice and LIO/context in charging Article 134)
- Medina v. United States, 66 M.J. 21 (C.A.A.F.2008) (notice requirements for Article 134 clauses 1 and 2; LIO considerations)
- McMurrin v. United States, 70 M.J. 15 (C.A.A.F.2011) (limitation on implying Article 134 terminal element post Schmuck)
- Girouard v. United States, 70 M.J. 5 (C.A.A.F.2011) (necessity of notice for Article 134 terminal element; LIO framework)
- Jones v. United States (LIO context), 68 M.J. 465 (C.A.A.F.2010) (line of cases limiting implication of terminal element)
- Schmuck v. United States, 489 U.S. 705 (1989) (elements test; notice requirement for indictments)