United States v. Reese
2017 CAAF LEXIS 621
| C.A.A.F. | 2017Background
- Reese, a Coast Guard Aviation Maintenance Technician First Class, was convicted at a general court-martial of multiple offenses including sexual abuse of a child (Article 120b), false official statements (Article 107), drug offenses (Article 112a), and an Article 134 additional charge alleging a novel obstruction-of-justice theory.
- Specification 3 of Charge III originally alleged Reese "licking the penis" of the child; shortly before trial the child’s testimony indicated the accused touched the child’s penis with a hand, not mouth.
- After the child’s deposition and after the child testified consistently at trial, the government moved (over defense objection) to amend Specification 3 from "licking... with [Reese’s] tongue" to "touching... with [Reese’s] hand." The military judge ruled the amendment was a minor change; defense objected.
- The government also charged a "novel" Article 134 offense alleging Reese told the child that Reese and his wife would go to jail if the child told anyone—framed as conduct "of a nature to bring discredit upon the armed forces" and intended to charge obstructing justice.
- The Coast Guard CCA affirmed findings and sentence. The Court of Appeals for the Armed Forces reviewed whether the Specification 3 amendment was properly characterized as minor and whether the novel Article 134 specification was permissible under the MCM.
- The CAAF held the change to Specification 3 was a major change that could not be made over objection without preferral anew, and that the novel Article 134 specification was barred by MCM pt. IV, para. 60.c.(6)(c) because an obstructing-justice offense is already listed in the Manual.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Reese) | Held |
|---|---|---|---|
| Whether the change to Specification 3 ("licking" → "touching") was a minor change under R.C.M. 603 | The amendment was minor: same offense, same accused, same victim, same date; no unfair surprise | The amendment changed the means of commission and introduced a materially different allegation not fairly included in the original specification | The change was a major change; because Reese objected and the charge was not preferred anew, the amendment lacked legal basis and Specification 3 is dismissed |
| Whether the "novel" Article 134 specification charging obstructing justice was permissible under MCM pt. IV, para. 60.c.(6)(c) | The specification properly alleged obstructing justice as an Article 134 offense | The specification was either barred by the MCM restriction on novel offenses or failed to plead requisite criminality elements | The novel specification was barred by MCM pt. IV, para. 60.c.(6)(c) (obstructing justice is already listed); the Additional Charge is dismissed |
Key Cases Cited
- United States v. Atchak, 75 M.J. 193 (C.A.A.F. 2016) (de novo review on whether an amendment is minor)
- United States v. Sullivan, 42 M.J. 360 (C.A.A.F. 1995) (tests for minor change and prejudice inquiry)
- United States v. Sager, 76 M.J. 158 (C.A.A.F. 2017) (statutory construction canon; interpret R.C.M. plain language)
- United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (interpreting R.C.M. provisions)
- United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007) (R.C.M. interpretation principles)
- United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) (persuasive value of MCM interpretations)
- United States v. Moreno, 46 M.J. 216 (C.A.A.F. 1997) (definition of minor changes under R.C.M.)
- United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (requirement to prefer anew for non-minor changes)
- United States v. Smith, 49 M.J. 269 (C.A.A.F. 1998) (precedent addressing prejudice and amendments)
- United States v. Brown, 34 M.J. 105 (C.M.A. 1992) (amendment/prejudice principles)