United States v. Staff Sergeant ALLEN D. CHESTNUT ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant ALLEN D. CHESTNUT
United States Army, Appellant
ARMY 20120612
Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
Gregory A. Gross, Military Judge
Colonel Jeffery D. Pedersen, Staff Judge Advocate
For Appellant: Major Richard E. Gorini, JA; Captain Robert Feldmeier , JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief).
31 October 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of assault with a dangerous weapon,
thirteen specifications of bribery, six specifications of making a false official
statement, and two specifications of attempted bribery in violation of Articles 80,
107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 907, 928
and 934 (2006) [hereinafter UCMJ]. The convening authority approved the adjudged
sentence of a bad-conduct discharge, confinement for forty-four months, forfeiture
of all pay and allowances, reduction to the grade of E-1, and a fine of $2500.00.
The convening authority awarded appellant 138 days of confinement credit.
The case is now before this court for review under Article 66, UCMJ.
Appellant submitted a merits pleading to this court and personally raised matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find those
matters raised by appellant are without merit. However, one issue warrants
discussion but no relief.
CHESTNUT—ARMY 20120612
LAW AND DISCUSSION
Appellant was charged with fifteen specifications of asking for and receiving
bribes under Article 134, UCMJ. 1 Consistent with Rule for Court-Martial 307(c)(3),
each of these specifications contained a brief statement of the essential facts
constituting the respective offense and expressly alleged every element. However,
when drafting the specifications, the government elected to use the following
language to address the terminal element for each specification: “such conduct being
to the prejudice of good order and discipline in the armed forces and/or of a nature
to bring discredit upon the armed forces.” (emphasis added.)
Pursuant to a pretrial agreement, appellant pleaded guilty to thirteen of the
fifteen bribery specifications. At the outset of the providence inquiry, the military
judge listed the elements of bribery, including that “under the circumstances, your
conduct was to the prejudice of good order and discipline in the armed forces and or
of a nature to bring discredit upon the armed forces. ” (emphasis added). A
stipulation of fact addressed both theories of the terminal element and established
that appellant’s conduct giving rise to the bribery offenses was both prejudicial to
good order and discipline and service discrediting. This stipulat ion of fact and the
colloquy with the military judge satisfied the providency requirement. See United
States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
The government’s use of “and/or” in the Article 134, UCMJ, specifications
appears to be a combination of a disjunctive and conjunctive pleading. This court,
among others, has highlighted the inherent problems in the use of disjunctive
pleadings. See United States v. Crane, ARMY 20080469, 2009 WL 6832590 at *1
(Army Ct. Crim. App. 18 Aug. 2009) (mem. op.) (disjunctive pleadings are “strongly
discourage[d]” and “serve no discernible purpose and unnecessarily create avoidable
appellate issues”); United States v. Woode, 18 M.J. 640, 642 (N.M.C.M.R. 1984)
(alleging an intent to use “and/or” distribute cocaine was fatally defective); United
States v. Autrey, 30 C.M.R. 252, 254 (C.M.A. 1961) (use of “and/or” is an
“abominable combination of a conjunctive and a disjunctive [which] means either
‘and’ or ‘or’. . . [and] [i]ts use has led to judicial lament ove r the inability of
drafters to state the terms of legal documents in plain English”).
However, despite this problematic pleading, under the unique facts of this
case the error is not fatal, and appellant is entitled to no relief. First, in the case of
a guilty plea, we will “view the specification with maximum liberality.” United
1
Each specification was modeled largely after the example provided in the Manual
for Courts-Martial. Manual for Courts-Martial, United States (2012 ed.)
[hereinafter MCM], pt. IV, ¶66.b. However, the sample specification in the MCM
does not include the terminal element.
2
CHESTNUT—ARMY 20120612
States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (internal quotations and citation
omitted). “A counseled plea of guilty is an admission of factual guilt so reliable
that, where voluntary and intelligent, it quite validly removes the issue of factual
guilt from the case.” Id. at 33 (quoting Menna v. New York, 423 U.S. 61, 62 n. 2
(1975)). Further, while charging in the disjunctive is disfavored, it does not render a
specification under Article 134 fatally defective. See United States v. Miles, 71 M.J.
671, 673 (N.M. Ct. Crim. App. 2012). It has been exhaustively clarified that the
phrase “prejudicial to good order and discipline or of a service -discrediting nature”
merely pleads two different theories of liability for a singular terminal element
under which an accused can be found guilty of but one offense. See United States v.
Medina, 66 M.J. 21 (C.A.A.F. 2006).
Here, appellant was apprised of the elements of the offense of bribery by the
military judge, including the definitions and explanation of the terminal element.
Appellant freely admitted that his conduct satisfied the terminal element. Also, the
stipulation of fact thoroughly addressed both Clauses 1 and 2 and plainly established
that his conduct satisfied both.
CONCLUSION
On consideration of the entire record and submissions of the parties, we hold
the findings of guilty and the sentence as approved by the convening authority are
correct in law and fact. Accordingly, the findings of guilty and the sentence are
AFFIRMED.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES JR.
Clerk of Court
Clerk of Court
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