United States v. Rauscher
2012 CAAF LEXIS 690
| C.A.A.F. | 2012Background
- Rauscher was charged under Article 134, UCMJ, with assault with intent to murder, but was convicted by members of assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm (Article 128).
- The Navy-Marine Corps Court of Criminal Appeals (CCA) affirmed the conviction and sentence.
- The specification alleged that on about March 29, 2010, with the intent to murder, Rauscher stabbed a Petty Officer with a knife.
- The military judge instructed on both Article 134 and, at the parties’ request, on Article 128, the offense of which Rauscher was convicted.
- The central legal issue concerns whether aggravated assault is a lesser included offense of an Article 134 specification that fails to allege the terminal element; whether the notice to defend was satisfied despite any alleged defect in the Article 134 specification.
- The court held that the specification placed Rauscher on notice of the offense he was convicted of (Article 128) and affirmed the judgment of the CCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| whether aggravated assault is a lesser included offense of the Article 134 spec | Rauscher contends the spec fails to allege terminal element; aggravated assault is not properly included | Government maintains the spec and trial evidence sufficiently placed notice and encompassed the charged offense | No; the spec placed notice and supported the Article 128 conviction |
| whether the notice requirement was violated by any defect in the Article 134 specification | Rauscher argues defect in spec could prejudice defense | Record shows defense proceeded under Article 128 theory and notice was adequate | Not violated; substantial right to be tried on charges presented was not violated |
| whether the instruction on Article 128 was proper given proceedings | N/A (not explicitly stated as separate issue in opinion) | N/A | Court treated Article 128 instruction as appropriate and supported by proceedings |
Key Cases Cited
- United States v. Wilkins, 29 M.J. 421 (C.M.A. 1990) (notice/fair notice of charges under a specification)
- Russell v. United States, 369 U.S. 749 (U.S. 1962) (charges must provide notice of offense)
- Stirone v. United States, 361 U.S. 212 (U.S. 1960) (substantial right to be tried on charges presented)
- United States v. Dacus, 66 M.J. 235 (C.A.A.F. 2008) (elements of offense; notice via specification)
- United States v. Crafter, 64 M.J. 209 (C.A.A.F. 2006) (review of whether a specification states an offense)