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v.
Anthony P. BALLAN, Machinists Mate Second Class
U.S. Navy, Appellant
No. 11-0413
Crim. App. No. 201000242
United States Court of Appeals for the Armed Forces
Argued December 13, 2011
Decided March 1, 2012
RYAN, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., and EFFRON, S.J., joined. BAKER, C.J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: Lieutenant Toren G. E. Mushovic, JAGC, USN
(argued); Lieutenant Jentso Hwang, JAGC, USN, and Lieutenant
Ryan Santicola JAGC, USN.
For Appellee: Captain Samuel C. Moore, USMC (argued); Colonel
Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on brief).
Military Judges:
Glen R. Hines
1
Relevant to Specified Issue II, Appellant was charged with rape
of a child, in violation of Article 120, UCMJ, 10 U.S.C. 920
(2006), not indecent acts with a child, a violation, at the
time, of Article 134, UCMJ, see Manual for Courts-Martial,
United States, Punitive Articles Applicable to Sexual Assault
Offenses Committed Prior to 1 October 2007 app. 27 at A27-3
(2008 ed.) (MCM).
2
No. NMCCA 201000242, slip op. at 3, 5 (N-M. Ct. Crim. App. Jan.
27, 2011).
Id. at 4.
3
Appellant submitted a petition for a grant of review with no
assignment of error, and, on June 2, 2011, this Court specified
the following two issues:
I. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT
FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATES AN OFFENSE UNDER THE SUPREME COURTS HOLDINGS IN
UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED
STATES, AND THIS COURTS RECENT OPINIONS IN MEDINA, MILLER,
AND JONES.
II. ALTHOUGH THE CRIME OF INDECENT ACTS WITH A CHILD TO
WHICH APPELLANT PLEADED GUILTY WAS NOT A LESSER INCLUDED
OFFENSE OF THE CHARGED CRIME OF RAPE OF A CHILD AND THUS
HAD NOT BEEN FORMALLY REFERRED TO TRIAL BY COURT-MARTIAL BY
THE CONVENING AUTHORITY, WHETHER APPELLANT WAIVED SUCH
IRREGULARITY BY PLEADING GUILTY UNDER A PRETRIAL AGREEMENT
TO INDECENT ACTS WITH A CHILD IN VIOLATION OF ARTICLE 134,
WHERE NEITHER THE PRETRIAL AGREEMENT NOR APPELLANTS PLEA
AT ARRAIGNMENT EXPRESSLY SET FORTH EITHER POTENTIAL
TERMINAL ELEMENT FOR AN ARTICLE 134 CLAUSE 1 OR 2
SPECIFICATION, BUT BOTH ELEMENTS WERE DISCUSSED AND
ADMITTED DURING THE PROVIDENCE INQUIRY.
3
(2006).
I.
FACTUAL BACKGROUND
As
The stipulations
For
ISSUE II:
United
R.C.M. 601(a)
Here, as in
Wilkins, the convening authority referred one offense to courtmartial on the charge sheet, but entered into a pretrial
We held in
See id.
Therefore,
See 29 M.J. at
424 (noting that an appellant can waive both the SJA opinion
required by Article 34, UCMJ, 10 U.S.C. 834 (2006), and the
swearing to the charges against him, as long as it was clear
what charges were to be considered by the court-martial (citing
R.C.M. 603(d))); see also United States v. Morton, 69 M.J. 12,
16 (C.A.A.F. 2010); Jones, 68 M.J. at 473.
We conclude that Appellant pleaded guilty to a charge and
specification of indecent acts with a child, which, by virtue of
his pretrial agreement, was referred to court-martial and which
he agreed to have considered by the court-martial.
And yet,
ISSUE I:
See
10
We held
Id. at 234.
In coming to
Id.
11
See
id. at 388-89.
Thus, whether specifications for charged violations of
Article 134, UCMJ, may be upheld in the guilty plea context
where the terminal element is not alleged cannot be answered by
determining that the act that an accused did or failed to do,
MCM pt. IV, para. 60.b.(1), is inherently, impliedly, or as a
matter of common sense, prejudicial to good order and discipline
or service discrediting.
We
12
States, 526 U.S. 227, 232 (1999) (noting that any fact that is
an element of an offense must be charged in the indictment,
submitted to a jury, and proven by the Government beyond a
reasonable doubt); Schmuck v. United States, 489 U.S. 705, 718
(1989); see also United States v. Denmon, 483 F.2d 1093, 1096
(8th Cir. 1973) (heartily applaud[ing] the salutory trend in
recent years to simplify the indictment, but noting that it
cannot go so far in economy of words as to approve the omission
in an indictment of essential elements of an offense).
Consequently, a violation of any of the three clauses of Article
134, UCMJ, does not necessarily lead to a violation of the
other clauses, Fosler, 70 M.J. at 230, and the principle of
fair notice requires that an accused know to which clause he is
pleading guilty, Medina, 66 M.J. at 26, and against which clause
or clauses he must defend, Fosler, 70 M.J. at 230.
We therefore
13
Error
See, e.g.,
4
The Article 134, UCMJ, specifications in this case were legally
sufficient at the time of trial and are problematic today only
because of intervening changes in the law. See, e.g., United
States v. Mayo, 12 M.J. 286, 293-94 (C.M.A. 1982) (holding that
the clause 1 terminal element of Article 134, UCMJ, need not be
alleged in the specification), overruled by Fosler, 70 M.J. at
232.
5
70 M.J. at 226.
In
70 M.J. at 11-12.
involved a guilty plea, and thus they did not address prejudice
or the ramifications of a guilty plea in the unique context of
the military justice system.
C.
Nonetheless, a
535, 541, 40 C.M.R. 247, 253 (1969); see also R.C.M. 910(d)-(h).
The guilty plea process within the military justice system
thus ensures that an appellant has notice of the offense of
7
The notice problem highlighted in Fosler, where the appellant
could not know which theory of criminality he needed to defend
against, and in Medina, where the appellants providence inquiry
failed to inform him that nothing in the charged specification,
which alleged a violation of a federal statute, required him to
admit guilt to clause 2 or Article 134, UCMJ, which was not
alleged, are not present in this case. See Fosler, 70 M.J. at
230; Medina, 66 M.J at 26.
16
present case.
During the plea colloquy, the military judge described
clauses 1 and 2 of the terminal element of Article 134, UCMJ,
for each specification.
We have
8
And it is both notice as to the offense and an affirmative
agreement to be convicted of the charge, which distinguishes a
defective specification in the guilty plea context from a
defective specification or conviction of an uncharged offense in
a contested case. See Girouard, 70 M.J. at 10 (discussing the
Fifth Amendment right to due process of law and the Sixth
Amendment right to be informed of the nature and cause of the
accusation) (quotation marks omitted). Nonetheless, absent
objection, in either context the error is tested for prejudice.
See Cotton, 535 U.S. at 631-32; Girouard, 70 M.J. at 11-12.
17
See Care, 18
18
556 U.S. 129, 142 (2009) (finding that the mere showing of error
cannot be recast[] as the effect on substantial rights).
19
DECISION
20
United States v.
It is
If the
If, in
close of the evidence clearly does not satisfy the fair notice
requirement.
Either the issue is one of notice or it is one purely of
form.
Whereas, in a