United States v. Nealy
2012 CAAF LEXIS 369
| C.A.A.F. | 2012Background
- Appellant stabbed a noncommissioned officer during a fight on April 21, 2010 after a threat was overheard.
- Charge III alleged two specifications of communicating a threat under Article 134, UCMJ.
- Appellant offered to plead guilty to Article 117 as a lesser included offense of Article 134; the government sought to prove the charged Article 134 specification instead.
- During plea inquiries, the military judge instructed on Article 117 elements and also explained Article 134 terminal-element clauses to Appellant.
- The military judge convicted Appellant of the lesser included offense of provoking speech under Article 117, UCMJ, and separately convicted under Article 134, with a deficient terminal element in Specification 2.
- ACCA summarily affirmed the findings and sentence; this Court granted review on two issues related to LIO status and notice under Jones and related cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over Article 117 LIO | Appellant argues Jones prevents 117 from being an LIO of 134, thus no referral of 117 occurred. | Majority holds convening authority referred the LIO by implication; the record shows intent to refer listed LIOs when 134 was referred. | Convene authority intended to refer LIO; court-martial jurisdiction affirmed. |
| Effect of missing terminal element in Article 134 Specification 2 | Error in pleading the terminal element prejudices substantial rights and undermines providence. | Providence inquiry and notice to Appellant suffice; no prejudice under Ballan framework. | Not prejudiced; providence inquiry adequate and plea valid. |
| Counting LIOs listed in MCM for referral | If Article 117 was not an actual LIO, there was no proper referral of that offense. | Record shows contemporaneous belief that 117 was an LIO; referral intended to include listed LIOs. | Court should not divest jurisdiction; referral included the listed LIO. |
Key Cases Cited
- United States v. Wilkins, 29 M.J. 421 (C.M.A. 1990) (jurisdiction requires proper referral by convening authority)
- United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004) (distinguishes Wilkins on referral and jurisdictional lines)
- United States v. Virgilito, 22 M.R. 394 (C.M.R. 1973) (LIOs referred with the charged offense)
- United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (functional equivalence of referral and prejudice framework)
- United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (elements test for LIOs; listing in MCM does not provide notice of LIO status)
- United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (notice and providence inquiry requirement in pleas)
- United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005) (noting notice of prohibited conduct under terminal element)
- Puckett v. United States, 556 U.S. 129 (2009) (mere error cannot be recast as prejudice to substantial rights)