United States v. Fosler

STATES, Appellee, UNITED FOSLER, Corporal, Lance

James N. Corps, Appellant. Marine

No. 11-0149.

Crim.App. 201000134. No. Appeals for

U.S. Court Forces.

the Armed May 2011.

Argued Aug.

Decided

Judge STUCKY delivered opinion the Court.

To establish a violation of Article Uni- Military (UCMJ), form Code of Justice (2006), § U.S.C. government must prove beyond a reasonable doubt both that engaged accused in certain conduct and the conduct satisfied at one of least three listed criteria. The latter element is commonly referred to as the “terminal ele- ment” government of Article 134 and the prove that at least one of the article’s three clauses has been met: the ac- (1) cused’s prejudice conduct was “to the (2) discipline,” “of a nature to bring (3) forces,” discredit the armed capital.” “erime[ or] offense[ ] not holdWe that the Government failed to allege at least one of the three clauses either necessary implication and charge therefore fail to state an offense under Article 134. I.

Contrary pleas, to his Appellant was con adultery victed of in violation of Article 134. September 21, 2009, On he was sentenced to discharge, bad-conduct confinement thirty days, forfeiture of all pay and allow ances, and reduction to the lowest enlisted grade. February On the convening authority approved and, the sentence with exception discharge, bad-conduct ordered it executed. On October Navy-Marine Corps Court (CCA) Appeals of Criminal affirmed the find ings and the sentence. United States v. Fos ler, 678 (N.-M.Ct.Crim.App. 2010). February On this Court granted review to determine- whether STUCKY, J., leading Appel delivered opinion lant’s Court, conviction for RYAN, violation of JJ., ERDMANN and Article 134 stated an joined. offense. EFFRON, C.J., dissenting filed a opinion. BAKER, J., filed a dissenting opin-

ion. II. While a drill instructor at the Naval Junior Appellant: Major For Jeffrey R. Lieben- (NJROTC) Reserve Training Officer Corps guth, (argued). USMC Rota, Spain, Appellant having admitted to Appellee: Captain Moore, For C. Samuel sexual intercourse on December (argued); Puleo, USMC Colonel J. SK, Louis sixteen-year-old high school stu- USMC, Keller, (on brief). and Brian K. NJROTC, dent daughter enrolled III. Navy duty servieemember. an active drill in- other demonstrated evidence allegation express Historically, the aware were students and NJROTC structors not been 134 has Appellant between relations of the sexual the mod origin of necessary. The viewed was the intercourse that claimed SK SK. article, can be general the Article ern not consensual. founding of the the before traced back to Articles American namely, the first nation — ag- rape and charged with was Appellant Military Winthrop, William in 1775.1 of War of Article assault violation gravated sexual (2d ed. Government 720 Precedents and Law (2006), and with UCMJ, § 920 10 U.S.C. (1895). 1920) points can Two Printing Office Appel- Article 134. of violation gen the under jurisprudence about be made Article the of ultimately acquitted lant was “ preju the First, ‘conduct eral article. the described sheet charges. charge 120 ”— discipline’ military and of dice convic- offense allegation, the 134 “conduct of added when was and tion, as follows: the armed upon bring discredit nature UCMJ, OF THE II: VIOLATION Charge in ev involved deemed “[was] forces”— 134 ARTICLE crime,” was there military specific ery Corporal In Lance that Specification: offense included a lesser fore available Corps, Fosler, Ma- Marine N. U.S. James the Arti (LIO) articles enumerated of the Regiment, Security Force Corps rine See Unit UCMJ. later the War cles of man, did, at or near duty, a married active (C.M.A. Foster, ed States Rota, Station, or about Spain, on Naval States by United 1994), part overruled sex- wrongfully hav[e] ... December (C.A.A.F.2009); Miller, [SK], not his a woman intercourse ual consequence, As a at 109. supra Winthrop, wife. under be convicted an could accused charged. any nearly offense an 134 as LIO case-in- Government’s After end an enumerated was As the to dismiss moved chief, counsel trial defense the ter not contain did and therefore article for Courts- under Rule both allegation element, explicit its minal (motion finding of (R.C.M.) for Martial The tri unnecessary. considered have been evidence), and to insufficient guilty due to find required nonetheless fact was er of allege [the “failed to the Government because proven had been element terminal sheet,” charge in the element] terminal a convic to obtain doubt beyond a reasonable charge and therefore LIO. 134 as under Article tion the CCA As an offense.” to state “fail[ed] “consid- noted, motion should second this relied Second, references R.C.M. motion to dismiss as a ered arti general did not treat practitioners 1. 670 n. M.J. at 907.” compo requisite as a element cle’s To specification.2 charge and nent motions. both judge denied military both practitioners, guidance dismiss, provide the mili- motion Concerning the (MCM) au Courts-Martial require- Manual no “[t]here’s tary judge stated for Winthrop’s as Colonel works thoritative state has either government ment specifica charges and form included al- treatise clause of [which See, e.g., Man various articles. for the tions [specifi- themof either leged], or state app. Courts-Martial, ual the mili- findings phase, During the cation.” 1010-23. supra (1951 ed.); Winthrop, 6c regarding members judge tary instructed law, but the force never had guidance This 2. 1 and clauses "charge”— parts: two revised, consists num- were War Articles of As the 1. alleged to the article typically, a statement changed. been general bering article "specification” been violated.—and have —the alleged- description of the conduct detailed background more point, some To understand (3). 307(c)(2), the article. ly violative of justice, a helpful. information undoubtedly relied upon in everyday conviction, offenses of explained in Schmuck practice generally reflective of the au- v. United States that the accused’s constitu- thors’ understanding of the law at the time. tional right to notice placed “would be jeopardy” if government were “able to With exceptions, few sample specifications request an instruction on an offense whose provided general for the article did not indi elements were not charged in the indict- cate that the terminal element should be 705, 718, ment.” 489 109 S.Ct. alleged, though sample charges often L.Ed.2d 734 This suggested concern specific led the general reference to the Supreme adopt article. Court to Winthrop, supra at elements (sug test as gesting appropriate that the terminal element be method of determining listed the charge, but not in specification, an and whether is an offense LIO of charged explicit without reference general arti offense—and therefore available as an of- cle); A Courts-Martial, Manual United of for fense conviction. This requires test Army (1917 States ed.) app. 3 at 349-350B “the indictment contain[] of elements (addressing the 1916, Articles of War of both offenses thereby gives notice to the newly predecessor enacted to the modern defendant that he be convicted on either 2, clause and suggesting that charge charge.” Id. explicitly general reference article, but In line of recent eases drawing on that reference to the terminal was element Schmuck, we have concluded largely histori- unnecessary); A Manual Courts- cal Martial, practice of implying (1928 Article 134’s United Army States 254-57 ed.) (same); every element in (1951 app. enumerated MCM 6c at offense no 488-95 ed.) (same, permissible. longer as applied to Article 134 United States v. newly UCMJ); McMurrin, enacted IV, 15, pt. MCM 70 paras. (C.A.A.F.2011); M.J. 17 (2005 ed.) (same); 60-113 IV, par MCM United Girouard, States v. 5, 70 M.J. 9 (2008 ed.) (same). as. 60-113 (C.A.A.F.2011); Jones, United States v. 68 465, (C.A.A.F.2010); M.J. 468 Miller, 67 M.J. This Court previously approved of such 388-89; at Medina, United States v. 66 M.J. practices. See United Mayo, v. States 12 21, (C.A.A.F.2008). 24-25 286, M.J. (C.M.A.1982); 293-94 United Marker, v. States 393, 1 400, C.M.A. 3 The holdings Court’s in this line of cases— 127, (1952) (“[W]e C.M.R. 134 find no reason that an accused’s rights “constitutional for the inclusion in of the notice and to not be convicted of a crime that words ‘conduct of a nature bring discredit is not an LIO [charged] of the offense” are ”); the military service.’ see also United violated when an accused is convicted of an Smith, (C.M.A. 448, 449-51 Article 134 as offense an LIO of a non-Artiele 1994) (stating that the Court had previously charged offense, see, 134 e.g., Girouard, 70 held that a “allege did the mili at (citing 10 U.S. V, Const. amends. tary offense of justice obstruction of under VI) into question practice — call of omit Article 134” though even did not ting the terminal element from charge allege element); the terminal United States specification. This is so because not Wolfe, v. (C.M.A. & n. 1 175-76 “ ” ‘all the elements’ of the offense of 1985) (upholding an 134 conviction “ conviction are ‘included in the definition of omitting express reference to the terminal the offense which the element); Maze, v. defendant United States 21 C.M.A. ” charged.’ (emphasis Id. original) (quot (1972) (same); C.M.R. 34 United ing York, Patterson v. New Herndon, U.S. v. 1 C.M.A. 4 C.M.R. 53 (1952)(same). (1977)). S.Ct. 53 L.Ed.2d 281 light More law, recent this recent required cases have case greater we must degree specificity determine charging. whether The judge Su- erred preme Court, addressing denying Appellant’s relationship be- motion to dismiss for tween the permissible offense and failure to state an offense. using the same: question is basic tion —the IV. tools, can the interpretive appropriate against protects Constitution The here, lan- or, charging statutory relevant through the uncharged offenses

conviction to contain interpreted guage See Russell Amendments. and Sixth Fifth conviction that an Article States, 82 S.Ct. 369 U.S. be sustained? can (1962). rights 8 L.Ed.2d rights we ad the same here include issue pleading military is a notice jurispru our LIO in the context of dressed Sell, C.M.A. jurisdiction. dence: A 202, 206, 11 C.M.R. are consti- in this case at issue rights suffi will be found charge and Fifth Amendment nature. The tutional in “first, the elements contain[ ] they, cient “deprived shall be person no provides that fairly inform[] charged due life, property, without liberty, he against defendant Const, V, and law,” amend. process of second, him to and, defend, enable[] that an provides Amendment the Sixth bar of acquittal or conviction plead nature “be shall informed accused same offense.” for the prosecutions future Const, accusation,” U.S. cause of 117, 87, States, 418 U.S. Hamling v. United VI. amend. (1974); see 2887, 590 41 L.Ed.2d 94 S.Ct. McMurrin, 10; Girouard, see also M.J. at 70 Resendiz-Ponce, 549 v. States also United Girouard, 70 M.J. (quoting 70 M.J. at 18-19 782, 166 591 L.Ed.2d 102, 108, 127 S.Ct. U.S. 10). at (citations omit (2007) marks quotation aside we set protections, these Applying 455, Sutton, 68 ted); v. M.J. States United in the LIO 134 under Article convictions Crafter, (C.A.A.F.2010); States v. United 455 specifica- charges because context Sell, (C.A.A.F.2006); 3 209, 211 M.J. 64 of an a violation alleged cases in both tions rules 206, at 206. The 11 C.M.R. C.M.A. inter- we could not article and enumerated encom procedure governing court-martial articles of enumerated pret the elements “A requirement: notice pass the ele- the terminal “necessarily include[]” every of alleges element if it sufficient is 79, UCMJ, 10 U.S.C. See ment. necessary by or charged offense Jones, 473. (2006); see, M.J. at e.g., 68 § 879 307(c)(3). implication.” this result compelled to reach We were every element allege requirement “nor- employ though we even multiple cases necessary implication en expressly or construction,” statutory of principles mal he what understands defendant Alston, 216 sures a v. “[A]lthough terms against: requirement must defend (C.A.A.F.2010) a (rejecting broad, are statutory 134] lan- for [Article Congress chose “employ identical elements through specific general the enumerated is made of is none ... what guage”), because specification. elements given contained language we of articles examined gen could understanding of which ordinary gives content itself charge sheet include necessarily required to mean or interpreted providing thus language, eral “good prejudice to concepts of defend an accused notice what bring a nature discipline” “conduct (citing Par Jones, at 472 against.” 134; forces,” Article the armed discredit 94 S.Ct. Levy, 417 U.S. ker v. Girouard, 9. 70 M.J. at see (1974)). Indeed, princi “[n]o L.Ed.2d 439 clearly process is more due procedural ple upon case, are called we In the instant specific ... notice than established element determine, whether not in a trial of to be heard a chance charge, and the elements necessarily included in is v. charge.” Cole by that raised the issues necessarily offense, it is but whether Arkansas, 68 S.Ct. specification. charge and implied in the Miller, M.J. at (1948); see also L.Ed. is differ- object we must construe Though specifica- charge and versus ent —elements The three clauses of Article 134 plain constitute text.3 Watkins, United States Cf. “three separate distinct and parts.” (C.M.A.1986). United 209-10 Frantz, 161, 163, 2 C.M.A. 7 C.M.R. The Government argues that the terminal Violation of one clause does implied because the necessarily lead ato violation of the other alleged adultery, the word “wrongfully” was clauses. example, For “disorders ne used, and the charge stated “Article 134.” glects prejudice These provide basis, facts do not individual- discipline” synonymous is not with “conduct ly together, to find that the charge and bring a nature to discredit upon the armed specification necessarily implied the terminal

forces,” although some conduct support element. conviction under both clauses. partic This is ularly true of See, e.g., clause 3. An allegation of adulterous conduct Martinelli, (C.A.A.F. 62 M.J. 52 cannot imply the terminal element. Article 2005) (detailing significant additional steps 134, if properly charged, would be constitu required to obtain a conviction under clause tional applied as Appellant’s adulterous compared 2). as with clauses 1 and because, conduct discussed the Su preme Levy, Court in tradition and custom An accused given must be notice as to give notice to servicemembers that adulter which clause or clauses he must defend ous give conduct can rise to a violation of the against. As explained we of a context UCMJ. 746-47, U.S. at 94 S.Ct. guilty plea: purposes “[F]or the of Article only 2547. But this question answers the 134, UCMJ, it important for the accused to whether adulterous conduct can constitution know whether [the question offense in is] ally be criminalized under Article crime or capital offense not 3, under clause a whether the wording of charge speci and neglect’ ‘disorder or 1, under clause conduct fication satisfies requirements. constitutional proscribed 2, under clause or all three.” An accused cannot be convicted Medina, 66 M.J. at 26. requirement This 134 the trier of fact only determines based was on fair notice. See Principles id. the accused adultery; committed the trier of of fair require notice same contested fact must also determine beyond a reason cases. able doubt that the terminal element has been Medina, satisfied. See 66 M.J. at 27. Because the terminal element not Because adultery, standing alone, does not expressly alleged, our task is to determine constitute an 134, offense under Article whether the terminal element was necessari mere allegation that an accused has engaged ly implied. 307(c)(3). See so, To do in adulterous conduct imply cannot the ter we interpret the text of charge and minal element. specification. agree We with the court below that Resendiz-Ponce does not foreclose the Likewise, “wrongfully” the word can possibility that an element could be implied. not of imply itself the terminal element. See 69 M.J. at However, “Wrongfully” is a and, word criminality cases, contested when the charge specifi and though our ease law has been at times un cation are challenged trial, first at clear, we read see Choate, United States v. 32 M.J. the wording narrowly more only 423, and will (C.M.A.1991), 427 of criminality words adopt interpretations closely that hew speak to mens rea and the lack of a defense course, 3. Of drafting not all however, errors call a convic- assuming requirements all other are " question. tion into '[M]inor and technical de- met, such mistakes do not charge render the ” ficiencies’ are not charge fatal to the and and deficient: specification, assuming they prejudice do not Specification: did, [Appellant] In that ... Russell, at or 763, the accused. 369 U.S. at 82 S.Ct. Station, Rota, near Naval Spain, (quoting States, on or 1038 1, 9, about Smith v. United 360 U.S. 26 79 December (1959)). wrongfully having S.Ct. 3 Ap- L.Ed.2d 1041 sexu- pellant’s specification [SK], al just intercourse with also suffers from woman not his wife [sic], a minor and deficiency, technical in that the sentence; incomplete contains an added.) (Emphasis (2006), § but not 10 U.S.C. elements of justification, not to the or represents an exer- everything in the MCM offense, King, 34 M.J. see United (C.M.A.1992); authority, the President does Fleig, cise of authority questions decide 37 C.M.R. have the 16 C.M.A. not Jones, “wrongfully” nor similar law. 68 M.J. Neither the word criminal See substantive Jacob, or criminality can be read to mean (citing words of at 472 Ellis v. as, example, (C.M.A.1988)). “disorder[ or]

be defined article of the UCMJ No prejudice negleet[ ] states that Therefore, potentially while nec- discipline.” the au- if the President had omitted. Even al- the nature of the essary-depending on so, any Rule thority he has not set out to do imply not leged conduct —such words do Military Evi- or Rule of for Courts-Martial charge specifica- terminal element directing that the terminal element dence tion. neces- alleged expressly need not is mere- sary implication. Some of the MCM Appellant in which In a contested case sample hortatory. The ly explanatory or at challenged charge analysis in- drafters’ are specifications and trial, of “Article 134” the inclusion categories and do not among these cluded charge imply the terminal element. does I, binding. pt. para. purport to be See MCM definition, not, by words “Article 134” do (2008 ed.) (“These supplemen- Discussion “good order and disci mean ... official tary do not constitute materials bring discredit pline,” “of a nature to authority any ... ... of the Govern- forces,” views of offense[ ] a “erime[ or] the armed States, they do not ment of the United capital,” and we are unable to construe rules.”); I, para. Dis- now MCM “Article 134” we constitute the words (2005 ed.); see also United States to embrace the terminal element. cussion review (C.A.A.F.2008) Resendiz-Ponce, 105-07, Mitchell, at 549 U.S. (“The case in offenses (explaining, interpretation in a contested of substantive S.Ct. binding in moved to dismiss the is not which the accused in Part IV of the Manual trial, that an overt act is and judiciary_”). dictment necessary part of the definition to and been Russell, in only discussion “attempt”); 369 U.S. at 765- Because the

of an 1038; allegation 117- of the terminal Hamling, stating 418 U.S. at 82 S.Ct. MCM Girouard, 2887; IV, pt. para. at 10 required, MCM 94 S.Ct. element is cf. (2008 60.c.(6)(a) ed.); IV, para. (explaining the critical role of the elements MCM offense). 60.c.(6)(a) (2005 ed.), as lan charged is not set forth binding, we need not guage intended to be speci- components charge and These any language consti decide whether imply the terminal element fication do not delegated authori proper exercise of tutes or when combined.4 alone not, or, if whether the ty under Article 36 authority II would extend President’s Article V. to such a direction. argues that its de- also The Government argues that the si- also The Government (2008 by the compelled result is MCM sired interpreted to should be lence of the MCM ed.), delegated pursuant to the President’s practices. adoption of historical constitute by Parker v. powers, II and and Article However, from no clear indication there is Levy. in the text of Congress expressed — to do it intended or otherwise —that President UCMJ Congress delegated to the Moreover, interpretation would such an authority so. rulemaking certain Russell, U.S. at 82 S.Ct. charge speci- deficiency Appellant's offense. in 4. The ("A 1038; 906(b)(6), Discussion by see also R.C.M. re- not have been remedied fication could repair a particulars cannot be used to particulars bill of questing under R.C.M. a bill of legally suffi- 906(b)(6). which is otherwise particulars cure a A bill of cannot cient.”). charge that fail to state require us to consider whether the actions of phrase cle 134” when that exists in the Congress or the President contravene charge, compelled consti- we are to hold that tutional light mandates. the canon of allege do not avoidance, constitutional adopt we decline to element expressly necessary position. the Government’s See Clark v. implication. To the prior extent that deci- Martinez, 371, 380-81, 543 U.S. 125 S.Ct. Mayo sions such as and Marker hold to the (2005) 160 L.Ed.2d 734 (explaining the contrary, they are overruled. avoidance). canon of constitutional principles decisis, Under of stare we that, argue One could because the Su- events, examine “intervening ex reasonable preme upheld Court constitutionality pectations servicemembers, and the risk of Article 134 on unique the basis of the history undermining public confidence the law.” of that military, article see generally Boyett, United States v. Levy, 417 U.S. 94 S.Ct. we should (C.A.A.F.1995). “But the doctrine does not history also consider that when determining apply statute, order, when a executive whether the terminal element has been al- other basis for a changes.” decision Id. leged by necessary noted, implication. As (footnotes omitted); Agostini also see v. Fel historically, the terminal element did not ton, 203, 235-36, 521 U.S. 117 S.Ct. And, need to clearly alleged. be as dis- (1997). L.Ed.2d 391 Although dissenting cussed, Article traditionally implied 134 was opinions argue length at application as an any LIO of enumerated article even decisis, of stare Supreme Court has ex though the terminal element was not listed plained that “stare possibly decisis cannot among the elements of the offense. controlling when ... question decision in But Supreme jurispru- Court’s LIO proved erroneous, has been manifestly changed dence has Levy since and so has this eroded, underpinnings its subsequent de Court’s, circumscribing the extent to which Supreme] cisions of [the Court.” United particularly Article 134—and its terminal ele- Gaudin, 506, 521, 115 515 U.S. S.Ct. implied. ment —can rights “The at issue L.Ed.2d 444 nature,” this case are constitutional jurisprudence Supreme Court government obligated allege all the and our own Court changed. As dis Girouard, elements the offense. See cussed, prior application of the elements Moreover, M.J. at 10. Levy focused on the context, test largely LIO it was settled constitutionality itself, of Article 134 not the implied Article 134 every could be specific procedure charging an Article 134 other offense and was available as an LIO. offense. See 417 94 S.Ct. 2547. though This was true even language that, It is also noting worth Levy, the terminal element was not contained with

terminal element of Article 134 was expressly in the offense. But Supreme the alleged. at id. 738 n. 94 S.Ct. 2547. law, Court clarified the requiring the ele The allege Government must every Schmuck, ments test. See 489 U.S. at 716- expressly element necessary implica 109 S.Ct. 1443. delay, After some we tion, including the terminal element. applied courts-martial, The law to holding expressly Government did not allege the ter that constitutional requirements notice no minal element Appel this case. Because longer permitted implication such broad of trial, lant made an motion at Medina, we terminal element. See language review the charge of the speci and at 24-25. The mandates of constitutional fication narrowly more might than we requirements at notice superseded long Watkins, stages. later 21 M.J. at standing practice 209-10. of implying Article 134 in Cf. context, In this light changes of the offenses, other enumerated substantially thus jurisprudence, Article 134 adopt we do not limiting the extent to which the terminal reading Government’s broad of the refer permissibly element can implied. Stare charge ence to “Article 134.” require Absent decisis does not ignore that we gloss historical meaning on the of “Arti- fact that the basis practice for the historical VII. when an omitting element the terminal of sub- charged has been Article 134 offense is judgment of the United Accordingly, the at 154. Boyett, M.J. stantially eroded. See Corps of Crimi- Navy-Marine Court findings of Appeals nal is reversed. Therefore, an accused because aside, and the sentence are set guilty and the three clauses he which of the be notified dismissed. its are charge and an R.C.M. against, to survive must defend dismiss, 907 motion to EFFRON, (dissenting); Judge Chief specificat charge in the must be set forth serving a drill instructor as While ion.5 Training Corps Naval Reserve Officer Junior Rota, engaged Spain, Appellant

Program in high VI. stu- with a school in sexual intercourse ensuing charges program. The dent ease, the Govern- at the end of who allegation Appellant, included an case-in-ehief, counsel made a defense ment’s married, adultery with the committed specification of adul- motion dismiss dependent sixteen-year-old student —a tery Charge II because Govern- duty Navy servieemem- daughter an active allege element] [the ment “failed Uniform ber —in violation sheet,” “it’s a charge and therefore (UCMJ), 10 U.S.C. Military Justice Code of constitutes an offense.” This failure to state (2006) “all (proscribing § disorders under R.C.M. motion dismiss prejudice neglects to the 907(b)(1)(B), any made “at forces, all conduct of discipline in the armed military proceedings.” The stage of the upon the armed bring discredit a nature to judge denied this motion. forces, capital”). crimes and offenses of the Construing the text sample adultery charge employed the narrowly, as we must based Manual set forth case, allege specification used the they fail to posture Courts-Martial. offenses, for Article 134 necessary long-standing format terminal element predates enactment employing wording that allegation of the termi- implication. Because of the UCMJ. constitutionally required and nal element require- satisfy failed Government challenges the Appellant appeal, In this here, judge’s decision ment wording specifi- legality of the traditional to dismiss was deny Appellant’s motion does Appellant Article 134. cations under erroneously de- remedy for this error.6 The military judge ruling challenge the dismissal. See sufficiency prose- to dismiss is legal

nied motion regarding the Smith, elements of 452-53 on each of the cution’s evidence United States offense; challenge the (C.M.A.1994). Appellant does nor matter, general elements to be permit, analysis "may lion Judge as a Baker writes that our necessarily implied, mean that the text does not invalidating practical matter have the effect implica equally susceptible every element is the text of R.C.M. 307.” require (Baker, J., notice (C.A.A.F.2011) with constitutional tion consistent dis 307(c)(3) ments. senting). disagree; R.C.M. calls for We charge analysis two-step whether a abili- offense. If the element issue with the President’s state an We do not take 6. conduct, adultery, implied, which necessarily it is as expressly ty stated or to describe state, constitutionality might of Article 134. invoke a violation As we the absent. Jones, holding by does our question at 472. Nor called into has not been R.C.M. 307 validity, vitality, rele- charge challenge or continued we read the law. When recent case Rather, require simply we narrowly, when an vance of Article as we must charged explicitly or be the end of its elements is made before R.C.M. 907 motion trial, using necessary implication, as the Constitution alleged might Alston, Levy Nothing to the require. meaning. See the R.C.M. the same words with contrary. and the Constitu- R.C.M. 307 M.J. at 216. That adequacy (2006) military judge’s of the § instructions U.S.C. (precluding convening panel to the court-martial on the authority elements of referring from case for trial Appellant offense. appeal general contends on in the court-martial absence of such advice). charge that the should be dismissed on the

theory that wording the standard for an Arti- The SJA’s advice legality as to the charge cle 134 does not constitute an offense charge reflected well-established under the Uniform Military Code of Justice. See, e.g., Courts-Martial, law. Manual for majority The opinion agrees Appellant’s (2008 IV, ed.) pt. para. 62.f contention. (MCM (2008 ed.)) (sample specification); Courts-Martial, Article 134 serves as a critical Manual States, foundation United for 6c., (1969 ed.) (MCM to the app. para. maintenance of order and disci- rev. (1969 ed.)) pline in the forces. rev. (sample specification armed See Parker v. pre- Levy, edition); 417 U.S. 94 S.Ct. decessor L.Ed.2d Manual Courts-Mar- for tial, majority States, (1951 The decision app. para. calls into ed.) question validity every (sample specification court-martial the first edition employed conviction that has of the Manual following traditional issued enactment of specification. UCMJ); appellate Courts-Martial, Trial and courts will Manual for required (1949 (sam- Army, ed.) charges app. para. reexamine Article 134 in pending proceedings; ple specification litiga- further the Manual in force for likely concerning Army tion is impact proceedings during period immedi- decision prior ately UCMJ). on preceding convictions under Article enactment of the below, 134. For the reasons set forth I drafted, charge, The also reflected the respectfully dissent. relationship traditional between the text of charge and the elements of this offense. President, The I. PRETRIAL AND Manual TRIAL Courts- Martial, following set forth the guidance PROCEEDINGS con- cerning the elements the offense at issue charge text and its present appeal: General, The Commanding II Marine (1) Ex- That wrongfully accused had Force, peditionary Camp Lejeune, North sexual with a person; intercourse certain Carolina, general convened a court-martial to (2) That, time, at the the accused or the charges consider against Appellant, including person other else; married to someone the following: Charge UCMJ, II: VIOLATION OF THE (3) That, circumstances, ARTICLE 134 conduct of the accused was preju- Specification: Corporal Lance dice of discipline James N. Corps, U.S. Marine Ma- armed forces or was of bring a nature to Corps Security rine Regiment, Force upon discredit the armed forces. duty, man, did, active a married at or near (2008 ed.) para. MCM IV 62.b In Rule Station, Rota, Naval Spain, on or about 26 (R.C.M.) 307(e)(3), for Court-Martial December ... wrongfully sex- hav[e] governs drafting charges, the Presi- [SK], ual intercourse with a woman not his emphasized dent “specification that a is a wife. concise, plain, and definite statement of the essential constituting facts the offense legality charged.” The President further added: “A specification is alleges every sufficient convening authority, making element of the referral, acted the advice of his staff by necessary implication.” Id. (SJA). judge advocate The SJA advised the convening authority “specifications the authority Consistent with to address an charges allege under the an “by necessary offense implication” under rather the UCMJ.” See Article “expressly,” than 10 provided the President has authority ly convening the that the following guidance respect with to the advised the drafting specifications offenses under an offense under of conduct constituted Article 134: the UCMJ. specification alleging

A a violation of Arti- proceedings Pretrial expressly allege that cle 134 need not the During pre- extensive consideration of the neglect,” conduct was “a disorder or that it case, party neither trial motions bring upon a to discredit was “of nature concerning wording of the raised an issue the forces,” “a the armed or that it constituted specification. The defense did not move to capital.” not The same crime offense charges more definite or for a bill make the conduct constitute a disorder or ne- 906(a)(6). particulars under R.C.M. glect prejudice good to the order and at the discipline the armed forces and the motion at the close Gov- defense bring same time be of a nature to discredit ernment’s case upon the forces. armed trial, prosecution During the the intro- 60.c.(6)(a) (2008 ed.); IV, para. ac MCM in- Appellant duced evidence that was an (1969 ed.). 213a, para. rev. see cord MCM structor in the Naval Junior Reserve Officer MCM, Analysis app. of Punitive Articles 23 Training Corps Program, that he had en- (2008 ed.) (citing para. at A23-19 213 of the gaged activity high with a school sexual 1969 Manual as the source for the current program, that the was student student provision). old, years sixteen and that she was the de- duty pendent of an active member of the analysis

The drafters’ of the 1969 Manual specifi Navy. presented its paragraph noted that under After the Government rested, expressly allege” cation “need not presented evidence and the defense support conduct violates. Id. In clause the finding guilty under motion for analysis provision, of this the drafters’ relied 917, including: Herndon, 1 upon United States v. C.M.A. II, Charge a motion as to under Article (1952) (affirming a convic C.M.R. 63 government because the has failed to in which did not tion refer prejudicial show that it was 134). any of the three clauses within Article discipline, discrediting, or service language Herndon relied allege it in the sheet. also failed to sample specification, as set forth in the Therefore, a failure to state an offense. it’s Manual, finding that and affirmed a crime, guilty He can’t be found of a accord- employed language sample specifi ing Specification pled. to this language pertinent similar re cation — spects at issue in the first, military judge At viewed the Herndon, 463-65, present case. C.M.A. offering a motion under R.C.M. defense as at 55-57. Herndon serves as the C.M.R. military judge enter a (requiring controlling support validi precedent finding guilty “if the evidence is insuf- of not See, e.g., ty guidance in the Manual. ficient to sustain a conviction of the Mayo, 12 affected”). proceeding, In the motion (C.M.A.1982) (citing approval Herndon why explanation offered no as to defense 213a). para. activity prosecution’s evidence of sexual be- and a student who also tween instructor Mayo, 12 M.J. at 293— The observation military dependent did not meet specifica that our “has not held that a Court sufficiency respect legal standard with include an lodged tion under Article Appellant’s conduct was either proof that allegation that accused’s conduct was to [the] discipline or good order and discipline or prejudice discrediting applicable law. service of the armed forces” —under discredit motion, military judge denied guidance in the Manual scores that challenged ruling under Appellant his judicial interpretation of consistent with the context, appeal. present proper- R.C.M. 917 the UCMJ. SJA military judge The defense then asked the Instructions objection to address the defense parties presenta- After the concluded their “allege did not a critical ele- merits, military tion of evidence on the ment, prejudicial good which is to order and judge panel instructed the court-martial discipline, ... discrediting.” service The every element of the offense: military judge responded by directing de- Members, looking Charge next at II and sample speci- fense counsel’s attention to the thereunder, Specification the sole the ac- fication the Manual Courts-Martial. cused is with the offense of adul- following dialogue ensued: tery. guilty In order to find the accused me, you way offense, convinced, MJ: Can tell in what you of this must be Specification currently evidence, that’s on the legal competent beyond sheet, bar, in the case at falls short of that reasonable doubt: simple specification, you saying or are First, Rota, that at or near Naval Station sample specification in the Manual for Spain, on or about 26 December is, itself, Courts-Martial is deficient in that wrongfully accused had sexual intercourse it, 134’s, many explicit- like of the [SK], does ly have the terminal element of— [time, Secondly, that at the the] accused another; was married to Yes, argument DC: ma’am. Our is it Thirdly, circumstances, explicitly say under the should that it’s—that under preju- conduct of the accused was to the prejudi- circumstances the conduct was good dice of discipline order and good discipline, cial to order or of a forces, armed or was of a bring nature to bring upon nature to discredit the armed forces, discredit the armed forces. so that Corporal Lance Fosler element, would know whether that other military judge explained, then in de- prejudicial one of the three elements is to tail, meaning of the terms the third good discipline order and or service dis- element: crediting. prejudicial good “Conduct order and discipline” requirement MJ: is conduct that causes a gov- There’s no that the reason- ably injury direct and good obvious Specifi- ernment has to either state in the is, discipline. cation which one it or state either of Specification. them in the discrediting “Service conduct” is conduct that tends harm reputation Yes, DC: ma’am. service, or in public to lower it esteem. government MJ: The prove up can either point, military At that judge provided of them in this case. And the court finds meaning further detailed instructions on the certainly that there is evidence to survive of the third the context of an [motion 917 on the terminal R.C.M.] adultery charge: prejudicial element of good conduct or- every adultery Not act of an constitutes discipline der and discrediting, or service offense under the Uniform Code of Mili- to survive the 917 motion at [R.C.M.] tary offense, Justice. To constitute point. government prove, beyond a reason- Yes, you. DC: ma’am. Thank doubt, adultery able that the accused’s directly prejudicial either analysis legal defense offered no discipline, discrediting. or service support objection wording of its Likewise, as drafted. the de- “Conduct order precedent fense did not address discipline” this Court’s includes that has an Hemdon-Mayo approving line of measurably cases obvious and divisive effect on sample specification, morale, discipline, Manual’s nor did or cohesion of a any legal authority the defense offer organization, for the unit or or that has a proposition military judge clearly impact should detrimental on the authori- reject specification. stature, reliance on sample ty, or esteem of a service member.

237 included within all of discrediting conduct” includes fenses were treated as “Service adultery tendency, purposes articles” for that has a because the other “enumerated nature, bring Ac open notorious of treatment as lesser included offenses. its subject disrepute, majority, charged cording service into to make “As the ridicule, public it in public or to lower offense was an enumerated article there esteem. [of fore did not contain the terminal element 134], explicit allegation must have its circumstances, adultery may Under some unnecessary.” 70 M.J. at been considered good prejudicial not be order and disci- Foster, (citing 227-28 v. United States may pline, but nevertheless be service dis- (C.M.A.1994); M.J. William Win explained crediting, as I’ve those terms to (2d throp, Military Law and Precedents 109 you. 1920) (1895)). Printing ed. Gov’t Office Fos Likewise, circumstances, depending on the ter contains no discussion of historical basis adultery prejudicial could be offenses, of the format for Article 134 discipline, but not be service discredit- nothing Winthrop suggests that the tradi ing. developed tional format was to address the military judge The then added detailed relationship greater and of between lesser guidance application on the of these instruc- majority opinion fenses. The does not iden tions to the facts of the case: tify any justify historical record that would determining alleged In whether the adul- impetus the conclusion for the for tery in this case is mat of the traditional came from discipline, or is of a nature to in a concern about the treatment of lesser forces, you bring upon discredit the armed cluded offenses. should consider all the facts and circum- Precedent including, stances offered on this issue but to, status, not limited the accused’s marital majority any opinion does not cite rank, military grade, position; im- case which our Court has held pact organiza- on unit or traditional fails to state an of accused, tion of a detrimental such as fense under the UCMJ. After acknowl morale, organization, effect on a unit or edging upholding the Herndon line of cases efficiency; teamwork and where the adul- specification, majority the traditional occurred; tery who have known of the pres opinion contends that the result nature, adultery; any, and the compelled by ent case is our recent decisions personal relationship official and between McMurrin, in United States v. 70 M.J. the accused and [SK]. Girouard, (C.A.A.F.2011); v. United States present appeal, Appellant has (C.A.A.F.2011); 70 M.J. United States challenged adequacy of these instruc- Jones, (C.A.A.F.2010); tions, Appellant challenged legal nor has Miller, United States v. 388-89 sufficiency of the evidence which the Medina, (C.A.A.F.2009); finding panel court-martial returned a (C.A.A.F.2008). 21, 24-25 70 M.J. at guilty adultery. on the represent 228. These the latest at eases

tempt by bring our Court to some order to included offenses —a consideration of lesser APPELLATE II. CONSIDERATION subject subject that been the of consider majority variety offers a of reasons for See, instability e.g., able law. concluding the traditional Felicetti, Gary Surviving Multiplici E. does not set forth an offense under Vortex, Law, Army ty/LIO Family Feb. UCMJ. (describing frequent 46-48 perspective Historical judicial prior doctrine to the current shifts cases). eases address the role majority opinion speculates set of These pur ascertaining whether a specification reflects elements format of the traditional jurisprudence ported lesser offense is included within prior which Article 134 of- trial, military judge provided purposes of Article contested offense for (2006) UCMJ, (governing respect § to both ser- detailed instructions U.S.C. offenses). discrediting preju- vice conduct and conduct included convictions lesser good discipline. dicial to order and majority opin- in the The cases relied To the extent that an accused can demon- that a proposition ion stand for the conviction beyond that information the text of the strate if may not be affirmed under Article 79 the may necessary in sample specification a purported included offense contains an lesser case, a particular the accused file motion necessarily included with- element that is not specification a or a bill of for more definite charged in eases under- the offense. These 906(b)(6). particulars under R.C.M. Such a necessity including all score the elements motion, however, sepa- does not address the charge; that within the text of a but is not question of whether a rate primary present in ease. issue the dismissed for failure to state an offense un- 307(c)(3) specifically states that “[a] 907(b)(1)(B), der R.C.M. but instead involves alleges every if specification is sufficient it appro- a determination as to whether relief is charged element of the offense or 906(b)(6). priate pres- under R.C.M. by necessary implication.” specifica- If the case, did for a ent the defense not move more test, that it tion before us does meet is particu- definite or for a bill irrespective holdings in invalid of our lars. Medinctr-McMurrin line of cases. In that regard, primary question present criminality Words of specification at ease is whether issue majority opinion, As noted in the this case necessarily included all the elements of the presents question specifi- of whether the charged offense. necessarily implied cation an element of the Alternate under Article theories 18h offense. 70 M.J. at 230. See R.C.M. 307(c)(3). case, In this the issue is whether majority opinion states that ac- “[a]n specification necessarily the traditional im- given cused must be notice as to which clause plies charged that conduct was either or clauses he must defend [of 134] discipline or against.” opinion atM.J. 230. The cites discrediting. service specifi- in a no case which we have held that identify cation must a clause or clauses with- majority opinion that states “the word in Article 134 in order to state an offense ‘wrongfully’ specification] [in cannot of a under the UCMJ survive motion to element,” imply itself contend opinion dismiss. The relies on our recent ing compelled that we are dismiss Medina, decision in 66 M.J. at but that criminality because “words require case does not a speak to mens rea and the lack of a defense identify the Article 134 clause under which justification, not to the elements of an an individual has been convicted. On the In support offense.” 70 M.J. at 230-31. contrary, expressly recognizes Medina proposition, majority opinion cites (C.M.A. an accused with an offense under King, United States v. 1992), (non-capital clause 3 crimes and Fleig, C.M.A. offenses) 444, 445, (1966), can be convicted of either a clause 1 37 C.M.R. but neither (conduct prejudicial King Fleig compels offense nor the result (service discipline) present or a clause ease. Neither case addressed the conduct) discrediting relationship allegation wrong even neither is men- between Indeed, specification. tioned in the id. at 26-27. fulness and the terminal element. See valid, Medina, specifications Such conviction is so both cases involved that did not element, long military judge as the contain the a circumstance has addressed the theory through alternate instructions in a that drew no attention from the Court in cases, inquiry through plea contested case or either case. In both the Court focused pretrial agreement guilty plea specifications, in a factual case. deficiencies case, present involving id. In the a not the terminal element. As noted See Appeals discussing Court of Criminal “wrongful” employed is as a of crimi- word relationship King Fleig present nality, alleged when concert with conduct, specified case: necessarily implies particularly the terminal element. This is comparison[ ... [T]he to other flawed ] adultery, true in the context of where al- specifications inapplicable they because leging wrongful the conduct was missing allegations were all specif- of facts required normally because it would not be ic to charged. the individual crimes jurisdictions.... crime civilian [T]he King, 34 (allegation marriage wrongfulness appellant’s conduct missing specification); implies preju- context is what Fleig, 445-46, C.M.A. at [16 37 C.M.R. at good dice to discipline, order and service (for offense, a hit-and-run speci- 64-65] the discredit, or both. missing fication was fact that the vehicle the driving accused was in was involved Id. at (emphasis 676-77 and footnote omit- collision). the charging Such factual ted). omis- agree. I precedent supports Our use analogous omitting sions are not the of the specification, nothing traditional and in terminal element is common all compels our contrary case law result.

Article 134 offenses. III. (N. ADHERENCE TO PRECEDENT United States v. M.Ct.Crim.App.2010) (emphasis and citations present require The ease does not us to omitted). any guidance decide whether of the in Part IV of the Manual a binding establishes re- Appeals Court of Criminal then ad- quirement. Here, dealing we are with well- question dressed the of whether the elements judicial precedent predates established necessarily of the implied offense were in the regard, enactment of the UCMJ. In that present the carefully case. After discussing our guidance President’s both reflects the state prior specification cases and the at issue law, of the case, application and informs the of the this the court following offered the 307(c)(3) rule regarding set forth conclusion: drafting treatment of elements specification [I]f a does contain the specifications. specifying terminal element that the con- prejudicial good duct was order and impression, If this awere ease of first discipline or service discrediting, alleging approach suggested majority opinion criminality specified conduct might provide appropriate ground well an use of “wrongful” the words or “unlawful” dealing decision. We are not with a fresh is sufficient. case, however, but instead have a case involv- ing long-standing precedent case, In present specification itself law. properly alleges criminality both and the might acts that prejudi- be determined as Supreme emphasized Court has cial to discipline or service precedent judicial adherence to deci- discrediting. specification at issue provides sions—the doctrine of stare decisis— provided LCpl notice to Fosler while preferred promotes “the course because it duty he was a man married and on active evenhanded, predictable, and consistent Station, Rota, Spain, wrongful- Naval he development legal principles, fosters reli- ly had sexual intercourse with a woman decisions, judicial ance on and contributes to appellant not his wife. The was on notice integrity judi- perceived the actual and that his conduct while a married active Tennessee, process.” Payne cial 501 duty put service member him at risk of 808, 827, 115 L.Ed.2d 720 S.Ct. liability if criminal the conduct was service (1991). Relying precedent, on our the Presi- discrediting promulgated guidance gov- dent has that has discipline. charging erned the of offenses under Article ... throughout history [T]he here states the sex- of the UCMJ. reliance, wrongful. Again, majority ual intercourse was Notwithstanding that II, majori- Second, in Part discussed employs the charge that that a opinion holds beyond the needs of ty’s opinion reaches forth does not set traditional question, case, put appears signifi- Given UCMJ. offense under 134, UCMJ, invalidate, convictions all Article charges in main- on Article 134 cant reliance do not that did not or present, past and discipline in the taining good order specifica- terminal element include the likely to forces, majority opinion is armed terminal element pleading the tion. While impact litigation about to extensive lead required. it is not good practice, might be pending courts-martial the decision plain runs counter to change a sea Such and the decision proceedings; appellate 307, long-standing prac- language of R.C.M. challenges prior in collateral well result are tice, of stare decisis that principles traditional upon the that relied convictions apt in the Article particularly specification. specifica- If the to ask: One is left context. prece- application of considering the implicitly ease does not Appellant’s tion dent, decisis “[s]tare observed that we have element, when would terminal include the rule, making, anot principle of decision is a include precedent the applied when need not be implication? badly ... rea- is ‘unworkable or at issue III, ma- Third, Part the considered as Tualla, 52 soned.’” United questions than opinion raises more jority (omission (C.A.A.F.2000) original) 228, 231 legal systemic A number of critical answers. Payne, S.Ct. (quoting 501 U.S. status, open. What questions remain policy 2597). workability, overturning In terms of play in the context the Manual any, if does into uncharted will lead us precedent 134, role the What does Article UCMJ? past challenges to territory, numerous with defining any, play, in Chief Commander involving convictions under cases present (R.C.M.) and for Courts-Martial the Rules contrast, ap- procedure By the Article 134. 134, Finally, UCMJ? of Article the elements pro- of cases —a Herndon line proved UCMJ, 134, lost its essential Article Appellant with the provided cedure that fair and therefore predictable, as a character respond as opportunity to notice and same useful, military discipline? traditionally to service- provided has been 134 offenses— charged with Article members badly nor reasoned. is neither unworkable I. circumstances, I would adhere Under these in this question presented case legal and affirm the decision precedent al- straightforward: Does the Appeals. of Criminal Court charged offense element of the lege every necessary implication?

expressly or view, yes. specifica- BAKER, (dissenting): my the answer Judge tion at states: issue three reasons. respectfully I dissent for Corporal Lance In that Specification: I, pres- First, Part this case as discussed man, did, married ... a Fosler James N. application of Rule for straightforward ents a Rota, Station, Spain, on at or Naval near (R.C.M.) text of 307. The Courts-Martial wrongful- ... or about 26 December wrongful specification, which referenced [SK], a with ly sexual intercourse hav[e] certain with on a date adulterous conduct his wife. woman not certain, necessarily implied the termi- person obvious, Uniform Code of Article nal element To start with § (UCMJ), 10 U.S.C. Military allege either of termi- expressly Justice does Courts-Martial, an under clauses Manual nal for elements ed.) Thus, (2008 (MCM) ques- 2 of UCMJ. dis- consistently of service pro- the elements Military practice tion is whether so. states prejudicing or conduct And, crediting law has conduct case this Court’s vides so. alleged nec- discipline are always so. concluded essary implication, permitted by Appellant’s right as the text satisfied “to be informed of yes. of R.C.M. 307.1 The answer is the nature and cause of the accusation.” Const, amend. VI. First, charge alleges Appellant violated UCMJ. That necessari- Nonetheless, majority concludes that ly implies Appellant violated either allegation wrongful adulterous conduct clause clause clause or some combina- on a date certain under Article tion of the three clauses. UCMJ, imply does not that conduct is either discrediting service Second, expressly states discipline. This conclusion cele- Appellant violated Article substance; surely brates form over certain, on a date “on or about 26 December principle constitutional at stake is satisfied as 2007,” by “having sexual intercourse with purpose is the behind R.C.M. 307: fair notice [SK], Thus, a woman not his wife.” to the defendant as to what he will have to specification expressly Appellant states that against. defend adultery. committed more, Third, important What is and more from a specification expressly states systemic standpoint, majority Appellant engaged into “call[s] this conduct Thus, question practice “wrongfully.” omitting his conduct was not adultery, wrongful mere element from the adultery specification” but military. UCMJ, context of the majority As the context of Article offenses acknowledges itself “wrongful” generally. is a Posing word M.J. at 228. Thus, criminality. specification charges question, in turn places in doubt the text appellant criminal in the mili- plainly permits specifi- of R.C.M. tary adultery. and not mere by necessary cations to reference elements Thus, least, implication. very at the as the Fourth, criminal, to be “the Judge Chief notes: directly adulterous conduct must either be significant Given the reliance on Article prejudicial discipline to order and or charges in maintaining good order MCM, and discrediting.” IV, service pt. para. forces, discipline majority in the armed 62.c. That only is the manner in which opinion likely litiga- is to lead to extensive adultery can be criminal under the article. Moreover, impact tion about the of the decision specification on Appellant’s pending appellate pro- courts-martial case and sample specification is based on the ceedings; provided Thus, may and the decision specifica- the Manual.2 a result challenges collateral alleging wrongful prior tion convictions adulterous conduct un- 134, UCMJ, necessarily specifica- der Article relied the traditional implies discrediting the conduct is tion. service or discipline. (Effron, C.J., 70 M.J. at 231-32 dis That is the basis on which the President has senting). expressly, Whether done or prosecution. authorized its implication, the new court-made standard practical a Finally, as matter have the effect of provides because the concerned, invalidating If specific date of the the text of R.C.M. 307. conduct implied party, Appel- Appellant’s well as the name of the other element is not case, lant on alleged notice as to what facts in it is not clear under what conditions the support of might implied these elements he would be re- terminal element ever be result, quired 134, UCMJ, to meet. a As the context of an Article offense. location) alleges every (subject-matter jurisdiction 1. "A is sufficient if it board— charged data, element of the offense required), [fill on or about in date or 307(c)(3). necessary implication.” R.C.M. dates], range wrongfully have sexual inter- party], [fill course with (married) (woman/man) in name of other a provides following sample 2. The Manual (his wife) (her specification: husband). data), (a (personal jurisdiction In that [fill in] IV, para. MCM 62.f. did, woman), (at/on married married man/a forty-five trailer cases in the is reflected II. this case. currently pending resolution of additional flaws are several There context, a growing. In such The number First, the analysis that warrant discussion. would seem of stare decisis principle string of cases majority’s analysis relies on suited. particularly years are not past two from the McMurrin, v. 70 M.J. point, States United stated, the doctrine of As the Court (C.A.A.F.2011); v. Gir United States preferred course because decisis is “the stare (C.A.A.F.2011); ouard, United 70 M.J. evenhanded, predictable, and promotes it (C.A.A.F. Jones, v. 68 M.J. States legal principles, development of consistent Miller, 2010); 67 M.J. United decisions, judicial and con reliance on fosters (C.A.A.F.2009); v. 388-89 integrity perceived actual and tributes to the (C.A.A.F.2008). Medina, 21, 24-25 66 M.J. v. judicial process.” United States but cases address These (C.A.A.F.2003) or fair notice they not address R.C.M. 307 Rorie, (quot do element for offenses of the terminal Tennessee, 808, 827, Payne 501 U.S. ing first four UCMJ. The (1991)). L.Ed.2d S.Ct. lesser included offenses. address cases making principle of decision decisis is a Stare right defendants latter case is about applied precedent need not be when they to at pleading are know what badly reasoned. at issue is unworkable barring appel they plead, thus time Tualla, affirming plea a distinct from late court (C.A.A.F.2000). matter, general how “As a case is on offense after the fact while ever, usually the adhering precedent heightened notice stan do the appeal. Nor it is policy, because most matters wise guilty pleas or lesser applicable to dards applicable rule of important more offense instructions address included right.” Id. than be settled law be settled as the notice constitutional concerns same omitted). (citation quotation marks specifica applicable to pleading standard majority compares case, now. The tions —until law is both settled settled no double oranges. There are apples correctly. concerns, example, created

jeopardy term, pre- During this Court was its first 134, Article the terminal element of implying today: question before Court sented UCMJ, same no that would necessitate the necessary plead the so-called termi- it guilty plea and lesser standard as the tice 96 of the Articles nal of then Article element short, cases In these included offense cases. Marker, 1 In States of War. United specification under whether a do not address accused, (1952), 134, UCMJ, 3 C.M.R. 127 is or is constitutional C.M.A. Article ly an offense. civilian, specifica- state sufficient of three convicted stood alleging wrongful acceptance of unlaw- tions Second, majority’s analysis ignores a house clothing, payments, and gifts ful military practice as well as the long-standing Upholding company Japan. in from a tire in the doctrine of stare principles embedded convictions, held: decisis, this Court particularly relevant which are military practice. In light continuous of this in the no reason for the inclusion find [W]e documents, deed, Judge as the Chief of a specifications of the words “conduct years prece past sixty majority whistles upon the bring discredit nature to con many more of continuous dent truth, suggest- In we believe the service.” calling practice by it “historical.” sistent nothing tradi- language to be more than ed However, at we 70 M.J. 223 232-33. surplusage specifi- tionally permissible majority dubs be clear. What should 96, supra. under Article of War cations laid current, consistent, and “historical” is nothing legal can add Its use therein military. everyday practice in the continuous allegation of conduct not effect to an It is con with the Manual. It is consistent And, discrediting nature —and its omis- precedent. with this Court’s sistent sion not at all from Today, thirty detracts conduct which years Mayo, since the Court clearly is.3 jettisons However, precedent. this there is nothing in the record long- indicates Marker, 1 C.M.A. at at C.M.R. 134. standing practice and law in this area is reasoning principle Court’s rested on the unworkable, reasoned, badly or unfair. States, Hagner set forth v. United fact, point enduring nature of 427, 431, these 52 S.Ct. 76 L.Ed. 861 precedents, gone which have unchallenged, vitality today. It retains its suggests customary practice sufficiency The true test of the of an in- quite continues to be workable. This dictment is not whether it could have been Court’s long-standing recent prec- reversal certain, more definite or but whether it UCMJ, edent the area of Article contains the elements of the offenses in- lesser included offenses does not demon- charged. tended to be If the indictment strate otherwise. Those cases addressed the informs the accused of what he must be issue of prepared meet, whether sufficiently defi- 134, UCMJ, nite danger implied speci- to eliminate the could be jeop- of future ardy, it will be held sufficient. fications alleging violations of the enumerat- distinct; ed offenses. The issue here is can Marker, 1 C.M.A at at 134. C.M.R. 134, UCMJ, the terminal element of Article This Court concluded that specifications implied be in the context specification of a at issue in Marker met these criteria.4 Two alleging UCMJ, offense, an Article Herndon, months later in United where the provided President has (1952), C.M.A. 4 C.M.R. 53 the Court alleged Manual that the only misconduct can considered whether or not a al- leging receipt of stolen UCMJ. property under Arti- cle Impor- stated an offense. majority’s holding also contradicts tantly, allege failed to long-standing precedent concerning the suffi element. Although pre- the issue ciency of a generally. In Unit different, sented slightly for review was Sell, ed States v. 3 C.M.A. C.M.R. 202 Court cited Marker in holding spec- that “the (1953), notwithstanding its citation to the ... defective, ification herein fatally is not Hagner cases, language in earlier the Court alleges properly but instead an offense under nonetheless felt there was uncertainty still Herndon, Article 134.” 1 C.M.A. at military justice system as to the test to C.M.R. at 57. applied. C.M.A. 11 C.M.R. at practice apace This continued until the is language took the in Hag Court sue appeal thirty years returned on later in ner, expanded upon it and announced the (C.M.A. Mayo, 12 M.J. 286 following: 1982). There, the appellant was convicted The true sufficiency test of the of an in- 134, UCMJ, under Article for communicating dictment is not whether it could have been a Mayo hoax. bomb contended that certain, made more definite and but wheth- specification was insufficient under Article er it contains the elements of the offense 134, UCMJ, because it did allege not that the charged, intended to sufficiently and accused’s conduct was to the prejudice of apprises the defendant of what he must be good discipline. Id. at Citing 293. meet; and, prepared to Herndon, any in case Marker and other this summarily Court disposed proceedings against taken Mayo’s of are him for stating, contention a “Short offense, forms similar specifications of 134 whether the record do not shows require allegation an accuracy as to the may plead character of what extent he the accused’s conduct.” Id. a acquittal former or conviction. true,

3. "surplusage” It should be noted that the term analyzing 4. While the Court in Marker was appears necessity including refer to the 96, for beyond dispute Article of War it is that the language specification and was intend- not language ultimately of article became the suggest language ed to that the in the statute 134, very language Article UCMJ. unnecessary. itself was 244 laid in a Fout, not be made need v. 3 C.M.A. In United

Id. 14 at (1953) (overruled Article.” C.M.A. the General 124 13 C.M.R. Watkins, at 346. 34 C.M.R. States v. grounds other (1986)), this the Court refined Here, pleaded under specification was “Every element stating, essential standard mar- alleged that a charged must be sought to be offense inter- wrongfully engaged sexual ried man implication in the directly by clear alleged not his wife. This with a course woman cases are the bedrock These specification.” traditional accepted the long Court has military practice upon which wrongful: meaning of the term 307(c)(3) “A is sufficient rest. a [wrongful] word has well-de- That the charged alleges every of it stat- meaning when used criminal fined by necessary implication.” expressly or fense Webster, who defines supported utes is manner; wrong doing thing “in a it as a majority’s also runs coun- conclusion contrary moral unjustly; in manner a criminali- regarding words of to case law ter justice.” “wrongful” lay The word [sic] sufficiency specifi- of a ty determining statutes, implies ... used in criminal when allege is sufficient to A cation. in the doer of the perverted evil mind if “it the elements offense contains op- “wrongful” implies the act. The word including charged, intended to be offense right. posite of allegation criminality or an importing words West, 3, 7, 34 v. 15 C.M.A. United States this is of mind where to intent or state (C.M.A.1964); see United C.M.R. Tindoll, necessary.” (C.A.A.F. Barner, 131, 136 States v. (1966). 194, 195, 36 C.M.R. C.M.A. 2001) (a wrongful act “one done without criminality “[A]lthough addition of words of pur justification or with some sinister legal acts which obvious- ... cannot make criminal Reeves, 61 pose”); accord United not, allegation ly ... serves [the] are (C.A.A.F.2005). character of proscribed ac- demonstrate context, Outside the words Sadinsky, act.”5 United States cused’s no- criminality might provide alone 563, 565, 34 C.M.R C.M.A. however, military, adul- In the all tice. Sadinsky, convicted of the accused was In Man- tery or should be criminalized. The unlawfully” jumping from “wrongfully and relatively contains ual Courts-Martial underway. 14 at ship C.M.A. while was his lengthy list of factors to be considered noted that at The Court 34 C.M.R. prejudicial determining conduct is when such that accused pleading makes clear did “the dis- discipline or service order circumstances, not, jump under unusual over- IV, para. 62.C.2. crediting. MCM legitimate in the course his duties board only can military, the as, shipmate, or for possibly, to rescue good order disci- prosecuted if it offends might be com- purpose other some Thus, discrediting. pline or is service C.M.A. innocent.” pletely more than sufficient specification was stated that the at 345. Court C.M.R. requirement. meet the constitutional clause 1 offense was inquiry for this critical traditionally directly palpably and And what of other offenses the act “whether For in- UCMJ? discipline under Article stance, language setting of allegation an absence “such the service” that although wrongfulness alleged, King, was the was that majority's of United States v. The 5. citation allege 95, (C.M.A.1992), specification the that accused States v. failed and United 97 64, 445, 444, person ele- other was married —an essential Fleig, the 16 C.M.A. 37 C.M.R. 65 (1966), and the essence of the offense ment of proposition that words of crimi for the Likewise, Fleig, specification purport- a nality speak itself. elements of the offense do not fleeing ing scene the accused with 70 M.J. at 230-31. dubious. is somewhat allege to state that the accused's adultery specification King of a accident failed did not The cases, element, In had in the accident. both language but vehicle been of the that criminality could not crimi- alone make conclusion words not the basis for Court's was obviously were not. problem nal acts which The there it failed to state an offense.

245 forth the terminal element of through particulars”); bill of People v. UCMJ, can Ingersoll, one charged willfully 181 Colo. 506 P.2d 365 (1973) (in wrongfully seizing person felony case, holding him theft where offense against reasonably may his will assert that committed in he is alternative ways, may require prosecution notice that prosecution defendant intends to particular state proceed against him manner he kidnapping? for commit- by filing ted IV, offense motion for para. Furthermore, partic- bill of MCM 92. could ulars); Carbone, accord State v. claim, 172 credibly one Conn. in the case of kidnapping, (1977). 374 224 A.2d Like other that he is not sufficiently apprised that such jurisdictions, military justice system pro- prejudicial conduct is good order or ser- remedy vides a requires the accused more discrediting? vice specificity in allegation, assuming, inas Finally, the majority appears to conflate ease, specification is sufficient to requirement specification an state allege an offense. offense with an right to speci accused’s more 906(b)(6) R.C.M. an allows accused to move ficity in allegation. majority takes for appropriate relief in the form of a bill of the position that the specification was consti particulars. purpose particu- of a bill of tutionally deficient because it failed to inform lars is: the accused theory as to which liability contained the terminal element the Gov to inform the accused of the nature of the pursue. ernment intended to An accused charge with precision sufficient to enable right does have a to know under what statu prepare trial, the accused to for to avoid or tory theory government proceeding danger minimize the surprise at the against him in trial, those instances where the time of and to enable the accused to provides statute ways plead acquittal alternative it can be or conviction in bar of However, violated. prosecution there is no another constitutional for the same offense requirement that the when the vague set forth itself is too such purposes. theories as indefinite long as the otherwise meets the test for sufficiency. Williams, United Here, I, as recounted in specifica Part (C.M.A.1994); n. 2 United Mobley, v. States clearly tion indicated that the Government (C.M.A.1990); proceeding theory on a Appellant’s 906(b)(6) Discussion. “The purpose of a bill conduct was discrediting service un and/or particulars is to scope narrow the of the dermined order and discipline. The pleadings.” Paulk, law “not whether it could have been made 456, 458, C.M.A. 32 C.M.R. 456 certain, more but whether definite Moreover, if a specification, although stating contains the elements the offense intended offense, is still so defective that the ac- charged.” to be Hagner, appears misled, cused to have been he S.Ct. 417. If there several are means 906(b)(4) request a continuance. R.C.M. Dis- committing the offense contained in the stat cussion. this case when defense counsel ute, right accused has a to have the moved to dismiss at the end of the Govern- specification made more definite. State case, ment’s complain he did not 06-0286, (La. Campbell, pp. 05/21/08); 93-94 defense been had misled because ab- (in So.2d murder case “a defen language sence of alleging the conduct was may procure dant statutory as to the details order or discredit- service method which he ing.6 committed the offense larceny specific permanently fender harbor intent to UCMJ, example Yet, (and is a classic deprive before) of how the aforemen- defraud. since even long-standing principles UCMJ, play tioned inception out. Con- permissi- it has been 121, UCMJ, statutory in the tained text of Article simply allege specification ble to in the that the are three committing alternative Presumably, methods accused "did steal.” if the accused wrongful talcing, obtaining offense—a or with- specificity prosecution desires from the as to holding. requires The statute "theory” larceny also that being pursued the of- which is military it it law? Does bind

III. UCMJ? Is place Appel- not judges? If the Manual did legal policy and There are a number of have to defend lant on notice that he would majority systemic questions raised criminal against a opinion unanswered. An opinion that are left discrediting or to was service in required questions address all all is not to discipline, and then one must ask raised; however, might contexts standing does the Manual re- what role here, opinion represents a sea where as question going tain forward? The is raised change practice depending in and law on how I, in Part because as recounted applied, guidance it additional is warrant- dissent, Judge’s the Manual states Chief questions ed. A number of arise. conduct must either be “the adulterous First, apply past and how does Fosler to directly prejudicial to order and disci- Although majority present cases? re MCM, IV, pline discrediting.” or service appellant’s conviction based on textual verses Moreover, Appellant’s specifica- para. 62.C.2. analysis particular specification, sample in the Manual. tion is based on implicate question all opinion appears to 134, UCMJ, in the termi question procedural Article cases which as well. Rule so, specified. nal not been If it element has which is at minimum for Courts-Martial without indication as to how this has done so delegated presidential authori- an exercise past apply rule will or should to cases or new 36, UCMJ,7 ty pursuant permits to justice military sys pending to cases charged by necessary implica- elements to be specification If to state an of tem. fails However, guidance from tion. there is no fense, example, can an accused ever be for majority applies to how R.C.M. 307 specification, of that whether or not convicted UCMJ, offenses if it does not objects specification? he Can an ac long apply this case. This Court has plead guilty to a that does cused persuasive that Manual is authori- stated so, Similarly, If not state an offense? how? 134, UCMJ, ty, but in recent Article cases case, a contested can an the context of persuaded. It would this Court has not been right accused waive the to be tried on a seem that if the Commander Chiefs con- not that does state offense? military authority were relevant in stitutional so, knowingly right If can one waive that justice practice, it would be most relevant counsel and accused were not aware at the 134, UCMJ, respect Articles 92 and did not state an time arguably directly which are most related And, course, writ offense? how does the regulating discipline in the armed forces apply past of coram cases? See nobis just system justice providing for Denedo, 904, 129 United States v. 556 U.S. reference to the the armed forces. Without S.Ct. L.Ed.2d Manual it is not clear how the President as might Second, Commander Chief exercise whatev- standing does the Manual what authority might inherently hold as possess in the context of Article er he now 134, UCMJ, him, being pur- against may particu- move a bill of method under Article he for jurisdic- any sued. lars. Neither this Court nor other larceny statute is derived from the tion where 36(a), UCMJ, is as follows: 7. The text of Article required Ap- law ever otherwise. common parently, criminality, namely, "did Pretrial, trial, words post-trial procedures, in- only imply essen- steal" are sufficient to arising cluding proof, modes of for cases intent, specific courts-martial, but also to encom- tial element of chapter military triable (or all) pass any tribunals, of the three alternative means of commissions and other this, committing larceny. the offense of Given procedures inquiry, may pre- courts of incongruous by regulations seems that this Court should hold which scribed shall, the President specification alleging wrongful adultery apply practicable, that a so far as he considers pleaded principles under Article is constitution- of law and the rules of evidence ally provide generally recognized deficient to notice to an accused of in the trial of criminal Here, courts, of his conduct. States district but the criminal character cases in the United require contrary Appellant simply to or inconsistent could have moved to which not be specify chapter. alternative with this the Government ‘may unfitly be called the developed what defining proce- in in Chief Commander And, usage military justice. military ‘general customary law1 or dure and substance Manual, 744, it is reference to military without Id. at 94 S.Ct. service.’” military put will be clear how members Mott, 25 U.S. (quoting Martin might violate to what conduct on notice as (1827)). 19, 35, 6 L.Ed. 537 Wheat. 134, statutory Certainly, the Article UCMJ. crimi equated to a civilian UCMJ “cannot provide do not such notice. elements alone code,” and with id. at 94 S.Ct. nal unpersuasive here But the Manual 134, UCMJ, specifically, it respect to Article application, how then is fair unpredictable vacuo, judged but “must be ‘not provided? ” notice years placed have it.’ context in which the is not one of suspects the issue One (quoting Id. at 94 S.Ct. case or with R.C.M. fair notice Frantz, 161, 163, 2 C.M.A. 7 C.M.R. itself. Has but with (1953)). retain Do these observations UCMJ, capacity to serve lost its today they did force and effect as the same fair and reliable predictable, a and thus service they the time were made? Is uphold good discipline? tool to to Article practice relevant custom Jones, (Baker, J., dissenting). at 474 UCMJ? Levy, Parker v. 417 U.S. S.Ct. Is play. questions appear all now (1974), These still law? 41 L.Ed.2d 439 context, might if the one ask is, by necessity, special- “[T]he justice, process, and the interests of due society.” society separate from civilian ized mili- significant discipline interest has, And it Id. at 94 S.Ct. 2547. executive and tary warrant more holistic necessity, “developed laws and traditions 134, UCMJ, rath- legislative of Article review long history.” Id. Be- during its own its adjudi- unpredictable piecemeal er than special separating it cause of the distinctions issues. society, military has cation of discrete from the civilian “the

Case Details

Case Name: United States v. Fosler

Court Name: Court of Appeals for the Armed Forces

Date Published: Aug 8, 2011

Citation: 2011 WL 3477186

Docket Number: 11-0149/MC

Court Abbreviation: C.A.A.F.