United States v. Girouard, 2011 CAAF LEXIS 278

Appellant Girouard was convicted by a general court-martial of conspiracy to obstruct justice, obstruction of justice, violating a general order, and three negligent-homicide specifications; acquitted of premeditated murder/ conspiracy to commit premeditated murder.
Adjudged sentence included dishonorable discharge, 10 years’ confinement, forfeitures (except for forfeitures), and reduction to Private E-1; 368 days confinement credit approved.
ACCA affirmed findings and sentence; Appellant sought reconsideration arguing Jones (2010) prohibited negligent-homicide conviction as an LIO of murder.
This Court granted review to address whether negligent homicide is an LIO of premeditated murder; held it is not an LIO and the conviction can be plain error.
The Court concluded negligent homicide contains terminal elements beyond premeditated murder (prejudice to good order or discredit), so it is not an LIO.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is negligent homicide a lesser included offense of premeditated murder?	Girouard contends no; not an LIO after Jones.	The government argued it may be immaterial to outcome; waiver or invite error.	Negligent homicide is not an LIO.
Was the negligent-homicide instruction plain error and prejudicial?	Error existed; instruction not warranted under law then.	Any error harmless or not prejudicial due to notice.	Yes, plain error; prejudice established.
Was there waiver of the negligent-homicide issue?	Defense could not waive constitutional rights; no waiver.	Waiver arguments may apply if rights waived.	No waiver; due process rights not waived.

Jones, 68 M.J. 465 (C.A.A.F.2010) (elements test for LIO; notice concerns)
Miller, 67 M.J 385 (C.A.A.F.2009) (LIO analysis under elements approach)
Patterson v. New York, 432 U.S. 197 (U.S. Supreme Court, 1977) (due process requires proof of all elements)
Schmuck v. United States, 489 U.S. 705 (U.S. Supreme Court, 1989) (elements-based LIO framework adopted in military context)