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v.
Mark R. CONLIFFE, Cadet
U.S. Army, Appellant
No. 08-0158
Crim. App. No. 20040721
United States Court of Appeals for the Armed Forces
Argued September 22, 2008
Decided January 7, 2009
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and STUCKY, J., joined. ERDMANN, J., filed a separate
opinion concurring in part and dissenting in part, in which
RYAN, J., joined. RYAN, J., also filed a separate opinion
concurring in part and dissenting in part.
Counsel
For Appellant: Captain Melissa Goforth Koenig (argued); Colonel
Christopher J. OBrien, Lieutenant Colonel Steven C. Henricks,
and Major Teresa L. Raymond (on brief); Lieutenant Colonel Mark
Tellitocci, Captain Patrick B. Grant, and Captain Sean F.
Mangan.
For Appellee: Captain Adam S. Kazin (argued); Major Elizabeth
G. Marotta (on brief); Colonel Denise R. Lind, Major Dana E.
Leavitt, and Captain W. Todd Kuchenthal.
Military Judge:
David L. Conn
When
Why is that?
United States v.
It is an abuse of
Id. at
Id. at 322.
Id.
This discretion is
Id. (quoting
Housebreaking
An accused who unlawfully enters the building or structure
It follows that
As such, an act
The
In this
10
See
Article 133, UCMJ; see also MCM pt. IV, para. 59.c(2); United
States v. Taylor, 23 M.J. 314, 318 (C.M.A. 1987) (The test [for
Article 133, UCMJ] is whether the conduct has fallen below the
standards established for officers.); United States v. Marsh,
15 M.J. 252, 253-54 (C.M.A. 1983) (finding that unauthorized
absence is a peculiarly military offense, or an offense to
which disputed factual issues about the accuseds status as a
servicemember must be decided by the trier of fact as part of
the determination of guilt or innocence and as to which the
Government bears the burden of proof beyond reasonable doubt
and which by its express terms, the statutory prohibition
applies only to a member of the armed forces) (quotation marks
omitted).
11
Only a commissioned
An accused may be
Id. at 26.
Id.
13
(3)
Id.
Therefore, by
14
Id. at 27.
15
16
Rodriquez, 18 M.J. at
an accused
has a right to know to what offense and under what legal theory
he or she is pleading guilty.
The
17
Id. at 27.
We affirm only so
The
18
I do not
To do so
The test
(C.M.A. 1994).
Id. at para.
66 M.J. at 26.
The
However, the
Id. at para.
Conliffe
M.J.
Conliffe,
I write separately
States, 526 U.S. 227, 251-52 (1999) (holding that the Fifth
Amendments Due Process Clause and the Sixth Amendments notice
and jury trial guarantees require that all elements must be
charged in an indictment, submitted to a jury, and proved beyond
a reasonable doubt); Schmuck v. United States, 489 U.S. 705, 718
(1989) (allowing lesser included offense instructions only in
those cases where the indictment contains the elements of both
offenses and thereby gives notice to the defendant that he may
be convicted on either charge).
See
40 M.J.
at 142-43.
So far so good.
applying the elements test, the Foster Court was confronted with
U.S. 358, 364 (1970) (holding that the Due Process Clause
protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which he is charged); see also Jones, 526 U.S. at
232 (Much turns on the determination that a fact is an element
of an offense . . . given that elements must be charged in the
indictment, submitted to a jury, and proven by the Government
beyond a reasonable doubt.); Apprendi v. New Jersey, 530 U.S.
466, 510 (2000) (Thomas, J., concurring) ([T]he indictment
must allege whatever is in law essential to the punishment
sought to be inflicted. (quoting 1 J. Bishop, Law of Criminal
Procedure 50 (2d ed. 1872))).
I am aware of no other
Id. at 686.
The Court invalidated these instructions, and the state law they
were based on, because they relieved the government of its
Id. at 718.
I see no
Chan, 978 F.2d 546, 553-55 (9th Cir. 1992) (refusing to affirm a
conviction for misprision of a felony because that offense
requires at least one element not present in the offenses for
which the appellant was originally convicted); United States v.
Cavanaugh, 948 F.2d 405, 409-12 (8th Cir. 1991) (refusing to
affirm a conviction for assault resulting in serious bodily
injury in place of a murder conviction that was set aside,
because the assault offense had an additional element that was
not proved at trial).
I respectfully dissent from the portion of the majoritys
holding affirming a conviction to a violation of Article 134,
UCMJ.