United States v. Gaskins , 72 M.J. 225 ( 2013 )

UNITED STATES, Appellee
v.
Daniel H. GASKINS, Staff Sergeant
U.S. Army, Appellant
No. 13-0016
Crim. App. No. 20080132
United States Court of Appeals for the Armed Forces
Argued February 19, 2013
Decided May 23, 2013
RYAN, J., delivered the opinion of the Court, in which ERDMANN,
J., and EFFRON, S.J., joined. STUCKY, J., filed a separate
opinion concurring in part and in the result. BAKER, C.J.,
filed a separate opinion concurring in part and dissenting in
part.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain James
S. Trieschmann Jr. (on brief), Major Richard E. Gorini
For Appellee: Captain Chad M. Fisher (argued); Major Robert A.
Rodrigues (on brief)
Military Judge: Timothy Grammel (trial judge); Gregg A.
Marchessault (trial judge); Kirsten V. Brunson (rehearing judge)
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gaskins, No. 13-0016/AR
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, a panel composed of officer and
enlisted members convicted Appellant of carnal knowledge, in
violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2006), repealed by National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,
§ 552, 119 Stat. 3136 (2006), and indecent acts with a child and
indecent assault, both in violation of Article 134, UCMJ, 10
U.S.C. § 934 (2006). 1 At his first sentence hearing, the panel
sentenced Appellant to confinement for twelve years, forfeiture
of all pay and allowances, reduction to pay grade E-1, and a
dishonorable discharge. 2 The convening authority approved the
adjudged sentence.
Before the United States Army Court of Criminal Appeals
(ACCA), Appellant alleged that the omission of a sentencing
exhibit -- Defense Exhibit (DE) A -- from the record of trial
1
The conduct at issue took place in February and March of 2007,
prior to the October 1, 2007 effective date of the amendments to
Article 120, UCMJ. Thus, at that time, carnal knowledge was an
offense under Article 120, UCMJ, and indecent assault and
indecent acts with a child were enumerated offenses under
Article 134, UCMJ, as defined by the President, Manual for
Courts-Martial, United States pt. IV, para. 63, 87 (2005 ed.)
(MCM).
2
On sentencing, the military judge ruled that the offenses
charged in the Specification of Charge I, carnal knowledge, and
the Specification of Charge II, indecent acts with a child, were
multiplicious for sentencing. Therefore, the maximum punishment
was reduced from thirty-two years to twenty-five years.
2
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constituted a substantial omission rendering the trial record
incomplete under Article 54, UCMJ, 10 U.S.C. § 854 (2006). On
August 27, 2010, the ACCA, sitting en banc, ordered that
Appellant’s case be returned to the Army Judge Advocate General
for a hearing pursuant to United States v. DuBay, 17 C.M.A. 147,
37 C.M.R. 411 (1967), to determine (1) the exact contents of DE
A, (2) whether the omission was substantial, and (3) whether
reconstruction of the exhibit was possible. United States v.
Gaskins, 69 M.J. 569, 572-73 (A. Ct. Crim. App. 2010) (en banc).
On December 9, 2010, this Court granted a petition for
extraordinary relief to prohibit the ACCA from ordering a DuBay
hearing, concluding that a DuBay hearing to reconstruct DE A
would be “inappropriate under the facts of this case,” and
remanded the case to the ACCA for further consideration of its
options. Gaskins v. Hoffman, 69 M.J. 452 (C.A.A.F. 2010)
(summary disposition). Upon remand, again sitting en banc, the
ACCA set aside Appellant’s sentence and authorized a sentence
rehearing. United States v. Gaskins, No. ARMY 20080132, 2011
LEXIS 19, 2011 WL 498371 (A. Ct. Crim. App. Feb. 10, 2011) (en
banc) (summary disposition) (unpublished). 3 On rehearing, the
3
On February 28, 2011, Appellant filed a second petition for
extraordinary relief seeking to enjoin the rehearing. On June,
1, 2011, this Court denied the petition without prejudice.
Gaskins v. Hoffman, 70 M.J. 207 (C.A.A.F. 2011) (summary
disposition).
3
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adjudged and approved sentence provided for confinement for nine
years, reduction to E-1, forfeiture of all pay and allowances,
and a dishonorable discharge.
We granted review of the following issues:
I. WHETHER THE GOVERNMENT’S LOSS OF A SENTENCING EXHIBIT
RENDERED THE RECORD OF TRIAL INCOMPLETE UNDER ARTICLE
54, UCMJ, RESULTING IN A JURISDICTIONAL LIMITATION ON
THE SENTENCE TO ONE NO GREATER THAN THAT WHICH COULD
BE APPROVED FOR A NON-VERBATIM RECORD.
II. WHETHER APPELLANT WAIVED THE FAILURE TO PLEAD THE
TERMINAL ELEMENT OF THE ARTICLE 134 CHARGES BY HIS
FAILURE TO RAISE THAT ISSUE AT THE SENTENCE REHEARING
AND IF NOT, WHETHER THOSE CHARGES SHOULD BE DISMISSED
BECAUSE THE GOVERNMENT FAILED TO PLEAD THE TERMINAL
ELEMENT. 4
The sentence limitation urged by Appellant is not compelled
by any statute or any Rule for Courts-Martial (R.C.M.), and the
ACCA did not abuse its discretion in ordering a rehearing on
sentence. However, we disagree with the ACCA that Appellant
waived the Government’s failure to plead the terminal element to
the Article 134, UCMJ, specifications, and conclude that this
error materially prejudiced Appellant’s substantial right to
notice. See United States v. Humphries, 71 M.J. 209 (C.A.A.F.
2012). Accordingly, we affirm the ACCA’s decision in part and
reverse it in part.
4
United States v. Gaskins, 71 M.J. 448 (C.A.A.F. 2012) (order
granting review).
4
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I. FACTS
In February 2007, Appellant was assigned to the North
Atlantic Treaty Organization school in Latina, Italy. Sergeant
First Class (SFC) S was assigned as Appellant’s sponsor to help
him acclimate to the new assignment and the community.
On February 24, 2007, Technical Sergeant (TSGT) Daley, a
friend of SFC S, hosted a party at his home. During the party,
Appellant brought SFC S’s daughter, TS, who was twelve years old
at the time, into a spare bedroom and put his hand down her
pants. TS pulled up her shirt, unsnapped her bra, and Appellant
started “grabbing on [her] left boob and sucking on it.” After
initially saying “No” when Appellant told her that “he wanted to
be inside [her],” TS said “fine,” and Appellant penetrated TS’s
vagina.
In March 2007, Appellant was reassigned from Latina to
Naples, Italy, pending investigation into the incident with TS.
In Naples, he met Staff Sergeant (SSG) AD, a fellow
noncommissioned officer assigned to his unit. On March 17,
2007, SSG AD ran into Appellant at the Navy Exchange. Because
Appellant was new to the area, she invited him to her house so
that he could see the area and meet the community. After
stopping at SSG AD’s house, they looked at his house and then
went to a barbeque. At the end of the night, SSG AD offered to
let Appellant stay in her guest room because he had been
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drinking. Before going to sleep, SSG AD went into the guest
room to check on Appellant because she was concerned about how
much he had to drink. SSG AD sat down on the foldout couch next
to Appellant and asked if he was okay. Appellant then touched
SSG AD’s inner thigh and started moving his hand up her leg.
SSG AD said “Stop,” but Appellant persisted and penetrated her
vagina with his finger. SSG AD pushed Appellant away, but he
again penetrated her vagina with his finger. SSG AD then shoved
him away more forcefully and left the room.
On February 8, 2008, following a contested trial, a general
court-martial composed of officer and enlisted members convicted
Appellant of carnal knowledge, in violation of Article 120,
UCMJ, and indecent acts with a child and indecent assault, both
in violation of Article 134, UCMJ. The panel sentenced
Appellant to confinement for twelve years, forfeiture of all pay
and allowances, reduction to E-1, and a dishonorable discharge.
During sentencing, Appellant offered the following in
mitigation: (1) the testimony of three witnesses about
Appellant’s rehabilitative potential; (2) an unsworn statement
from Appellant; and (3) a single exhibit -- DE A -- that was
described as a “Good Soldier Book” and contained various
documents, such as Appellant’s Marine Corps service record book,
photos, awards, college transcripts, letters of commendation,
and character letters.
6
United States v. Gaskins, No. 13-0016/AR
At some point after trial, the Government misplaced DE A,
and the exhibit was not included in the authenticated record of
trial. 5 Defense counsel’s clemency submission to the convening
authority described DE A as crucial to Appellant’s sentencing
case. Despite the missing exhibit, the convening authority
approved the adjudged sentence. The ACCA, however, ultimately
set aside Appellant’s sentence and authorized a sentence
rehearing. Gaskins, 2011 LEXIS 19, at *3, 2011 WL 498371, at
*1. 6
Appellant’s sentence rehearing was held on October 18,
2011. The defense filed a motion to limit the maximum
punishment to that which is permitted under R.C.M. 1103(f)(1)
for a non-verbatim record: six months’ confinement, reduction
to E-1, and forfeiture of two-thirds pay per month for six
months. R.C.M. 1103(f)(1). The Government offered to stipulate
to the contents of DE A, but the defense declined because it was
uncertain about the precise nature of DE A’s contents. The
military judge denied the defense motion to limit the maximum
punishment. However, she ruled that the Government would be
limited in what it could offer in aggravation of the offenses.
5
In place of DE A, the Government attached to the record a
memorandum for the record from the supervisory court reporter,
which summarized the efforts to locate DE A and some portions of
DE A.
6
For a more detailed description of the procedural history see
supra pp. 2-3.
7
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In aggravation, the Government offered, and the military
judge admitted, (1) Appellant’s Official Military Personnel File
(OMPF), (2) Appellant’s Enlisted Record Brief (ERB), (3) several
character letters copied from his post-trial clemency package,
and (4) a stipulation of expected testimony of TS’s mother. The
defense offered only an unsworn statement from Appellant. After
hearing the evidence, the military judge sentenced Appellant to
confinement for nine years, reduction to E-1, forfeiture of all
pay and allowances, and a dishonorable discharge. The convening
authority subsequently approved the adjudged sentence.
II. ACCA DECISION
On appeal from Appellant’s sentencing rehearing, in a
summary disposition, the ACCA held “the sentence as approved by
the convening authority to be correct in law and fact,” and
affirmed both the findings and sentence. Gaskins, 2012 CCA
LEXIS 259, at *4, 2012 WL 2887988, at *1.
With respect to the second granted issue, the ACCA noted,
in a footnote, “that both the Specification of Charge II and the
Specification of the Additional Charge fail to allege the
terminal elements of a violation of Article 134, UCMJ.”
Gaskins, 2012 CCA LEXIS 259, at *3 n.*, 2012 WL 2887988 at *1
n.*. The lower court observed, however, that although this
Court decided United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011), more than two months prior to Appellant’s sentence
8
United States v. Gaskins, No. 13-0016/AR
rehearing, “Appellant never made a motion to dismiss for failure
to state an offense or otherwise objected to the form of the
charges on Fosler grounds,” nor did he raise a Fosler issue in
his pleadings before the ACCA. Gaskins, 2012 CCA LEXIS 259, at
*3 n.*, 2012 WL 2887988, at *1 n.*. “Because it was settled law
at the time of [A]ppellant’s rehearing that a failure to allege
the terminal element[] in an Article 134, UCMJ offense
constitutes error, [the ACCA] conclude[d] that [A]ppellant’s
failure to raise the issue constitute[d] a conscious waiver.”
Id. (citing Humphries, 71 M.J. at 212).
III. INCOMPLETE RECORD
The threshold question is whether a statute or rule either
mandated the sentence limitation urged by Appellant or precluded
the ACCA from permitting a sentence rehearing, where the record
was incomplete because of the substantial omission of sentencing
exhibit DE A. We review these questions of law de novo. United
States v. St. Blanc, 70 M.J. 424, 427 (C.A.A.F. 2012).
The parties agree that: (1) the Government is responsible
for ensuring that a record is complete, (2) the record presented
to the ACCA for its initial Article 66, UCMJ, 10 U.S.C. § 866(2006), review did not include DE A, and (3) the omission of DE
A was substantial, making the record incomplete under Article
54, UCMJ. See United States v. Henry, 53 M.J. 108, 111
(C.A.A.F. 2000) (stating that only “[a] substantial omission
9
United States v. Gaskins, No. 13-0016/AR
renders a record of trial incomplete”). They disagree, however,
as to the maximum authorized sentence under the circumstances,
and whether, here, the ACCA was authorized to order a sentence
rehearing.
Appellant argues that, confronted with an incomplete record
on sentence, the ACCA was limited to affirming a sentence no
greater than that which could be approved if there was not a
verbatim transcript. Request for Clemency at 1 (July 11, 2008).
Appellant further argues that an Article 54, UCMJ-compliant
record is a “jurisdictional prerequisite to a valid sentence
exceeding that which may be imposed in [the] absence of a
complete record.” Reply Brief for Appellant at 6, United States
v. Gaskins, No. 13-0016 (C.A.A.F. Jan. 24, 2013). The
Government, in turn, argues that a rehearing is one of two
authorized options where a transcript is not verbatim, citing
R.C.M. 1103(f). Brief for Appellee at 14, United States v.
Gaskins, No. 13-0016 (C.A.A.F. Jan. 14, 2013).
A verbatim record is required when:
(i) Any part of the sentence adjudged exceeds six months
confinement . . . or other punishments that may be adjudged
by a special court-martial; or
(ii) A bad-conduct discharge has been adjudged.
R.C.M. 1103(b)(2)(B)(i)-(ii). R.C.M. 1103(f) explains the
convening authority’s remedial options where a verbatim
10
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transcript cannot be prepared. In such instances, the convening
authority may:
(1) Approve only so much of the sentence that could be
adjudged by a special court-martial, except that a bad-
conduct discharge, confinement for more than six months, or
forfeiture of two-thirds pay per month for more than six
months, may not be approved; or
(2) Direct a rehearing as to any offense of which the
accused was found guilty if the finding is supported by the
summary of the evidence contained in the record, provided
that the convening authority may not approve any sentence
imposed at such a rehearing more severe than or in excess
of that adjudged by the earlier court-martial.
R.C.M. 1103(f)(1)-(2).
The problem with both parties’ reliance on R.C.M. 1103 is
that the provisions they point to are limited in their
application, by R.C.M. 1103’s express terms, to instances where
a verbatim transcript cannot be prepared. Id. In this case,
the transcript is verbatim, but the record was otherwise
incomplete prior to the Appellant’s clemency submission because
a defense sentencing exhibit was missing. Cf. United States v.
McCullah, 11 M.J. 234, 236 (C.A.A.F. 1981) (“A ‘complete record’
is not necessarily a ‘verbatim record.’” (quoting United States
v. Whitman, 3 C.M.A. 179, 181, 11 C.M.R. 179, 181 (1953))).
While the lack of a verbatim transcript and an incomplete
record are separate and distinct errors under the R.C.M., we
think that distinction has been blurred based on dicta in Henry,
53 M.J. at 111, and other cases. See also United States v.
11
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Boxdale, 22 C.M.A. 414, 415, 47 C.M.R. 351, 352 (1973) (noting
that “[i]nsubstantial omissions from a record of trial do not
affect its characterization as a verbatim transcript”). Henry
held that the omission of four prosecution exhibits was
insubstantial and, thus, the record was not “incomplete,” where
the substance of the missing exhibits was corroborated by other
exhibits in the record. Henry, 53 M.J. at 111; cf. McCullah, 11
M.J. at 237 (opining that “insubstantial omissions should not
prevent characterizing a record as complete” (internal quotation
marks omitted)). While not necessary to its holding in Henry,
the Court asserted that “[r]ecords of trial that are not
substantially verbatim or are incomplete cannot support a
sentence that includes a punitive discharge or confinement in
excess of 6 months. R.C.M. 1103(b)(2)(B).” Henry, 53 M.J. at
111. However, where, as here, the record includes a verbatim
transcript, R.C.M. 1103(f)’s limiting provisions are inapposite.
Article 54, UCMJ, does require the preparation of a
complete record of the proceedings in a general court-martial
where “the sentence adjudged includes death, a dismissal, a
discharge, or (if the sentence adjudged does not include a
discharge) any other punishment which exceeds that which may
otherwise be adjudged by a special court-martial.” Article
54(c)(1)(A), UCMJ. Among other things, a complete record must
contain “[e]xhibits, or, with the permission of the military
12
United States v. Gaskins, No. 13-0016/AR
judge, copies, photographs, or descriptions of any exhibits
which were received in evidence and any appellate exhibits.”
R.C.M. 1103(b)(2)(D)(v). However, the MCM -- including Article
54, UCMJ, and R.C.M. 1103 -- does not limit the court of
criminal appeals’ (CCA’s) discretion to remedy an error in
compiling a complete record. 7 Compare Article 19, UCMJ, 10
U.S.C. § 819 (2006) (conditioning a special court-martial’s
jurisdiction to impose certain punishments on, among other
things, the availability of a “complete record” of the
proceedings), and Article 18, UCMJ, 10 U.S.C. § 818 (2006)
(placing no such limitation on the jurisdiction of a general
court-martial), with R.C.M. 1103(f) (addressing the failure to
prepare a verbatim transcript when required under the R.C.M. and
listing remedial options).
In contrast, R.C.M. 810(a)(2) specifically authorizes a
rehearing on sentence, as does Article 63, UCMJ, 10 U.S.C. § 863(2006) (limiting the sentence that may be imposed at a
rehearing), and Article 66(d), UCMJ (authorizing the CCA to
order a rehearing). Where the CCA exercises its authority to
order a rehearing on sentence, the record of the rehearing, in
7
While we have recognized that “[a] substantial omission renders
a record of trial incomplete and raises a presumption of
prejudice,” Henry, 53 M.J. at 111, whether a CCA, reviewing the
record of trial pursuant to Article 66, UCMJ, is constrained in
its ability to remedy the prejudice stemming from a substantial
omission is a question of first impression.
13
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concert with the record on findings, constitutes the complete
record for review by the convening authority and the CCA, as
required by Articles 54 and 66, UCMJ. While R.C.M. 1103(f) does
not apply to an incomplete record, it would make little sense to
permit a rehearing on findings to create a new record of trial
as a remedy for the absence of a verbatim transcript, but not
permit a rehearing on sentence to seek to cure any prejudice
suffered from a missing sentence exhibit.
On these facts, nothing in Articles 18 or 54, UCMJ, and
nothing in R.C.M. 1103 compels the limitation on sentence urged
by Appellant or prohibits a rehearing on sentence. The
question, then, is whether the ACCA’s remedy for the incomplete
sentencing record, which was to permit a rehearing on sentence,
was an abuse of discretion or otherwise prejudiced Appellant.
On balance, we hold that the ACCA’s remedy was appropriate
under the circumstances of this case. We note that a CCA may
order a rehearing where it sets aside a sentence adjudged by a
lower court and approved by the convening authority. See
Article 66(d), UCMJ; United States v. Sill, 56 M.J. 239, 240
(C.A.A.F. 2002); see also United States v. Miller, 10 C.M.A.
296, 299, 27 C.M.R. 370, 373 (1959) (“[W]e reaffirm our previous
holdings that a case may be returned to a court-martial for
rehearing on sentence only.”). We further note that, on
rehearing, the military judge took extra care to craft remedial
14
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measures that sought to cure any prejudice Appellant may have
suffered from the absence of DE A. She ruled that any victim-
impact evidence in aggravation would be time-limited to the date
of the original presentencing hearing. She further ruled that
TS could not testify, allowing only a stipulation of expected
testimony from TS’s mother. Moreover, we consider the fact
that, on rehearing, Appellant’s original sentence, awarded by
members who had had every opportunity to review DE A --
confinement for twelve years, forfeiture of all pay and
allowances, reduction to pay grade E-1, and a dishonorable
discharge -- was reduced by three years’ confinement as
indicative that the ACCA’s remedy was nonprejudicial in this
case. 8
Given that neither a statute nor an R.C.M. directs a
particular remedial measure to address an incomplete record in a
general court-martial, we hold that the ACCA did not abuse its
discretion in ordering the rehearing, and that, under these
facts, Appellant was not prejudiced by the chosen remedy.
8
On rehearing, Appellant was sentenced to confinement for nine
years, reduction to E-1, forfeiture of all pay and allowances,
and a dishonorable discharge. The revised sentence is in accord
with the requirement that a convening authority may not approve
a sentence on rehearing that is more severe or in excess of the
original sentence. Article 63, UCMJ.
15
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IV. HUMPHRIES ISSUE
Appellant also argues that the specifications under Charge
II and the Additional Charge both fail to state an offense
because they do not allege the terminal element of Article 134,
UCMJ. 9 Where, as here, a specification neither expressly alleges
nor necessarily implies the terminal element, the specification
is defective. Fosler, 70 M.J. at 229-30. Because Appellant’s
trial occurred before our decision in Fosler, we deem
Appellant’s failure to object at trial to forfeit rather than
waive the error. Humphries, 71 M.J. at 211, 213-15. Moreover,
as the Government concedes, Appellant’s failure to raise the
issue at his sentence rehearing, which was held two months after
this Court’s decision in Fosler, did not constitute waiver
9
The charges and specifications read as follows:
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 134.
SPECIFICATION: In that Staff Sergeant Daniel Gaskins, US
Army, did, at or near Latina, Italy, on or about 24
February 2007, commit an indecent act with the body of
[TS], a female under 16 years of age, not the wife of the
said Staff Sergeant Daniel Gaskins, by sucking on her
breast, kissing her on the mouth and rubbing her vaginal
area with intent to gratify the lust of the said Staff
Sergeant Daniel Gaskins and [TS].
ADDITIONAL CHARGE: VIOLATION OF THE UCMJ, ARTICLE 134
SPECIFICATION: In that Staff Sergeant Daniel Gaskins, US
Army, did, at or near Lago Patria, Italy, between on or
about 17 March 2007 and 24 March 2007, commit an indecent
assault upon [AD], a person not his wife by touching [AD’s]
inner thigh with his hand, feeling around her vaginal area
with his hand and digitally penetrating [AD’s] vagina with
his finger, with intent to gratify his sexual desires.
16
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because a defense motion to dismiss the findings for failure to
allege the terminal element was beyond the military judge’s
proscribed authority to conduct a rehearing on sentence. Cf.
United States v. Smith, 41 M.J. 385, 386 (C.A.A.F. 1995)
(holding that “a court can only take action that conforms to the
limitations and conditions prescribed by the remand” (internal
quotation marks omitted)).
In the absence of waiver, “where defects in a specification
are raised for the first time on appeal, dismissal of the
[defective specification] will depend on whether there is plain
error -- which, in most cases, will turn on the question of
prejudice.” Humphries, 71 M.J. at 213. Here, the parties agree
that it was plain and obvious error for the Government not to
allege the terminal element in the specifications under Charge
II and the Additional Charge. Id. at 212. “The question, then,
is whether the defective specification[s] resulted in material
prejudice to Appell[ant]’s substantial right to notice.” Id. at
215; see also Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006) (“A
finding or sentence of court-martial may not be held incorrect
on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.”).
“Both [the Fifth and Sixth] [A]mendments ensure the right
of an accused to receive fair notice of what he is being charged
with.” United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F.
17
United States v. Gaskins, No. 13-0016/AR
2011). An Article 134, UCMJ, specification that fails to plead
the terminal element does not put an accused on fair notice of
which clause or clauses of the terminal element he must defend
against. Fosler, 70 M.J. at 230; see also United States v.
Medina, 66 M.J. 21, 26-28 (C.A.A.F. 2008) (concluding that the
three clauses of Article 134, UCMJ’s terminal element are
alternative theories of criminality and, therefore, declining to
affirm a conviction on clauses 1 or 2 where the accused was
charged with and tried for violating clause 3).
No one disagrees (1) with the Government’s intuition that,
generally speaking, servicemembers’ bad acts can reflect poorly
on the armed services, Brief for Appellee at 33, or (2) that the
evidence of the bad acts in this case may be legally sufficient
under this Court’s precedent to prove that Appellant’s conduct
was “directly prejudicial to good order and discipline” or had
“a tendency to bring the service into disrepute or which tends
to lower it in public esteem.” MCM pt. IV, para. 60.c.(2)(a),
(3) (2008 ed.). However, where, as here, the Government fails
to allege the terminal element, mention it during trial, or put
on independent evidence of it, that the evidence of the bad acts
may have been legally sufficient to prove the terminal element
does not answer the altogether different question whether
Appellant suffered material prejudice to his substantial right
to notice and to defend himself. See United States v. Goings,
18
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__ M.J. __ (16) (C.A.A.F. 2013); United States v. Tunstall, __
M.J. __ (12-13) (C.A.A.F. 2013) (reversing the appellant’s
conviction where the charge sheet alleged that his conduct was
indecent because the alleged victim was substantially incapable
of declining participation, but the military judge allowed the
panel to convict on an “open and notorious” theory); United
States v. Lubasky, 68 M.J. 260, 264-65 (C.A.A.F. 2010)
(rejecting the government’s argument that this Court may affirm
a conviction where the evidence was legally sufficient to prove
a variant of the charged offense when (1) the factfinder based
its findings on the charges and specifications as drafted, and
(2) the offense proved at trial was not a lesser included
offense of the charged offense).
The argument that an accused is not prejudiced by the
government’s failure to allege the terminal element because it
is “intuitive” that the bad act discredited the military runs
contrary to long-established principles of fair notice, as
acknowledged in Fosler. To punish conduct that is to the
prejudice of good order and discipline in the armed forces, or
of a nature to bring discredit upon the armed forces, the
government must establish (1) a predicate act or failure to act,
and (2) the terminal element. Medina, 66 M.J. at 25. As Fosler
makes clear, in charging an Article 134, UCMJ, offense, language
describing (1) does not fairly imply (2). 70 M.J. at 229-31;
19
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see also Goings, __ M.J. at __ (13-14). Suggesting that there
was no prejudice because the predicate acts were “intuitively”
prejudicial to good order and discipline and service
discrediting fails to recognize Article 134, UCMJ’s terminal
element for what Fosler reiterated it is –- a discrete element
of a criminal offense. 70 M.J. at 230 (“An accused cannot be
convicted under Article 134 if the trier of fact determines only
that the accused committed [the act]; the trier of fact must
also determine beyond a reasonable doubt that the terminal
element has been satisfied.”).
Moreover, we are not operating in a vacuum; R.C.M.
907(b)(1)(B) establishes that the failure to state an offense is
grounds for dismissing the charge. R.C.M. 907(b)(1)(B) (noting
that a charge or specification that fails to state an offense is
a nonwaivable ground for dismissal at any stage of the
proceeding). In Humphries, however, we concluded that, in the
context of a defective Article 134, UCMJ, specification raised
for the first time on appeal, the failure to allege the terminal
element is not necessarily structural error warranting automatic
dismissal, but error that can be tested for prejudice.
Humphries, 71 M.J. at 213; see generally Tunstall, __ M.J. at __
(16-18) (finding no prejudice where the defense introduced
evidence for the specific purpose of negating the terminal
element); Goings, __ M.J. at __ (16) (finding no prejudice where
20
United States v. Gaskins, No. 13-0016/AR
the appellant “was put on notice that the Government intended to
prove that his conduct was both prejudicial to good order and
discipline and service discrediting and [] defended himself
against those theories of guilt”). Thus, where a defective
specification: (1) was tried prior to our decision in Fosler,
and (2) was raised for the first time on appeal, we test that
error for prejudice, which turns on whether that error
frustrated an accused’s right to notice and opportunity to
zealously defend himself, Humphries, 71 M.J. at 215-16; cf.
Lankford v. Idaho, 500 U.S. 110, 124 (1991) (observing that “the
question is whether inadequate notice . . . frustrated counsel’s
opportunity to make an argument that might” have influenced the
outcome), which depends in turn on “whether notice of the
missing element is somewhere extant in the trial record, or
whether the element is ‘essentially uncontroverted.’” 10
Humphries, 71 M.J. at 215-16 (quoting United States v. Cotton,
10
We continue to find the standard of prejudice set out in
United States v. Dominguez Benitez, 542 U.S. 74 (2004), ill-
suited for defective Article 134, UCMJ, specifications tried
prior to Fosler. See, e.g., Humphries, 71 M.J. at 215 n.7
(noting that “Dominguez Benitez is inapposite” because, among
other reasons, “any objection by Appellee at trial would have
been futile based on the law at the time -- which also
alleviates the ‘sandbagging’ concerns noted in [Puckett v.
United States, 556 U.S. 129, 134 (2009)]”). Different
considerations would apply, however, with respect to cases tried
after Fosler was decided because that case clarified for the
field that the terminal element of Article 134, UCMJ, is a
discrete criminal element that -- like any other criminal
element -- must be independently pleaded and proven.
21
United States v. Gaskins, No. 13-0016/AR
535 U.S. 625, 633 (2002) (finding that evidence of the omitted
drug quantity was “overwhelming” and “essentially
uncontroverted” where the Government put on independent evidence
going beyond mere possession to prove that the conspiracy
involved a drug quantity sufficient to increase the statutory
maximum)).
Here, there was no overwhelming evidence. As the
Government concedes, no direct evidence was put on to prove the
terminal element. Brief for Appellee at 30. Neither clause 1
nor 2 was directly or indirectly mentioned by either party until
the military judge instructed the members on the elements of the
Article 134, UCMJ, specifications, nor did the Government
proffer any physical evidence or witness testimony as to how
Appellant’s acts might have affected either his unit or the
public’s opinion of the armed forces, nor did the defense
indicate that they knew they were defending against either
theory of liability. Compare, e.g., Tunstall, __ M.J. at __
(16-18) (finding no prejudice where the trial record indicated
that the defense introduced evidence for the specific purpose of
negating the terminal element, thus indicating that he defended
himself against it); Goings, __ M.J. at __ (17-18) (finding no
prejudice where witnesses testified that the appellant’s conduct
was prejudicial to good order and discipline and service
discrediting, and the appellant vigorously defended against the
22
United States v. Gaskins, No. 13-0016/AR
terminal element); and see United States v. Ballan, 71 M.J. 28,
35 (C.A.A.F. 2012) (finding no prejudice in the context of a
guilty plea where the appellant was informed of the terminal
element and explained why his acts were service discrediting).
Where, as here, (1) Appellant’s trial occurred before this
Court’s decision in Fosler, (2) no mention or evidence of the
terminal element is extant in the record of trial, and (3) the
evidence at trial did not otherwise notify Appellant of the
Government’s theory of criminality, or show that Appellant
nonetheless did defend against the terminal element, it is
impossible to guess what Appellant’s strategy might have been
had the Government alleged the terminal element and put
Appellant on notice of which theory of criminality it was
pursuing. Cases, like this one and Humphries, where the
Government fails to (1) allege an element of the offense, (2)
mention its theory of criminality with respect to the terminal
element, and (3) put on any direct evidence of the terminal
element are simply inapposite to those Supreme Court cases in
which the Government put on evidence that went directly to the
omitted aggravating factor or element, see, e.g., United States
v. Cotton, 535 U.S. 625 (2002); Neder v. United States, 527 U.S.
1 (1999), unless we disregard the sage reminder from Fosler that
the elements of Article 134, UCMJ, are distinct and non-
fungible. Fosler, 70 M.J. at 230.
23
United States v. Gaskins, No. 13-0016/AR
In this case, the Government relied solely on evidence of
the bad acts, the first element of Article 134, UCMJ, to prove
the offenses at trial. The military judge instructed the
members in the disjunctive, telling them that they could find
Appellant guilty of the Article 134, UCMJ, specifications if
they concluded that Appellant’s conduct was either prejudicial
to good order and discipline or service discrediting. Under
these circumstances, both Appellant and this Court lack
knowledge of a matter of critical significance -- namely, on
which theory of criminality Appellant was tried and convicted,
see Medina, 66 M.J. at 26 (concluding that the three clauses of
the terminal element are alternative theories of criminality).
We decline the Government’s invitation to speculate as to
whether Appellant would or could have defended himself
differently if the Government had either proffered its theory of
criminality or introduced evidence directly proving at least one
theory of criminality satisfying the terminal element. Cf.
Chiarella v. United States, 445 U.S. 222, 236-37 (1980) (stating
that the Court would not affirm a conviction based on a theory
not presented to the jury); Dunn v. United States, 442 U.S. 100,
107 (1979) (“[A]ppellate courts are not free to revise the basis
on which a defendant is convicted simply because the same result
would likely obtain on retrial.”); Medina, 66 M.J. at 27 (“[A]n
24
United States v. Gaskins, No. 13-0016/AR
appellate court may not affirm on a theory not presented to the
trier of fact and adjudicated beyond a reasonable doubt.”). 11
Because Appellant was never given notice of the theory of
criminality the Government pursued, and no evidence was
introduced on any theory, we cannot say that the errors in the
Article 134, UCMJ, specifications were cured. See Humphries, 71
M.J. at 217; see also Tunstall, __ M.J. at __ (17); Goings, __
M.J. at __ (17). Accordingly, we hold that the Government’s
failure to allege the terminal element in Charge II and the
Additional Charge was plain and obvious error that materially
prejudiced Appellant’s substantial right to notice under the
Fifth and Sixth Amendments as to which theory or theories of
liability under Article 134, UCMJ, he needed to defend himself
against. See Article 59(a), UCMJ. The findings of guilt as to
indecent assault and indecent acts with a child in violation of
Article 134, UCMJ, are hereby set aside. See Humphries, 71 M.J.
at 217.
11
The Government leaves no doubt as to its belief that it would
have been foolhardy for Appellant to have defended himself on
the theory that his conduct was not prejudicial to good order
and discipline or service discrediting, Brief for Appellee at
33-34, but the Fifth and Sixth Amendments protect Appellant’s
right to make that determination for himself. See Goings, __
M.J. at __ (18) (finding no prejudice where the appellant was
given the opportunity to defend himself against the terminal
element and did so); Tunstall, __ M.J. at __ (17) (same).
25
United States v. Gaskins, No. 13-0016/AR
V. LESSER INCLUDED OFFENSE
The remaining question is whether we may nonetheless affirm
a finding of assault consummated by battery, in violation of
Article 128, UCMJ, 10 U.S.C. § 928 (2006), as a lesser included
offense (LIO) of indecent assault. 12 See Article 59(b), UCMJ.
“The due process principle of fair notice mandates that ‘an
accused has a right to know what offense and under what legal
theory’ he will be convicted; an LIO meets this notice
requirement if ‘it is a subset of the greater offense alleged.’”
United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010)
(quoting Medina, 66 M.J. at 26-27). “This Court applies the
elements test to determine whether one offense is an LIO of
another.” United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F.
2012). “[A]pplying normal rules of statutory interpretation and
construction, this Court will determine whether the elements of
the LIO would necessarily be proven by proving the elements of
the greater offense.” Id.At the time the acts occurred, the elements of indecent
assault, as charged, were:
(1) That the accused did bodily harm to a certain person;
12
We are not aware of any LIOs of indecent acts with a child, as
charged, that do not require proving Article 134, UCMJ’s
terminal element. Thus, because Appellant was never put on
notice of the terminal element, we cannot affirm any LIO of
indecent acts with a child.
26
United States v. Gaskins, No. 13-0016/AR
(2) That the act was done with unlawful force or violence;
(3) That the person was not the spouse of the accused;
(4) That the acts were done with the intent to gratify the
lust or sexual desires of the accused; and
(5) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
MCM pt. IV, para. 54.b.(2), 63.b. (2005 ed.). The elements of
assault consummated by battery were:
(1) That the accused did bodily harm to a certain person;
and
(2) That the bodily harm was done with unlawful force or
violence.
Id. at para. 54.b.(2).
After comparing the elements of the two offenses, it is
evident that each element of assault consummated by battery
would necessarily be met by proving the first two elements of
indecent assault. The specification of the Additional Charge
alleged the elements of assault consummated by battery, see
supra n.9, and the evidence is legally sufficient to support a
finding of guilty as to this offense. Therefore, we affirm only
so much of the Additional Charge and its specification that
extends to findings of guilty to the LIO of assault consummated
by battery in violation of Article 128, UCMJ.
27
United States v. Gaskins, No. 13-0016/AR
VI. DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed as to Charge I and its specification,
reversed as to Charge II and its specification, and reversed as
to the Additional Charge and its specification. Charge II and
its specification are dismissed with prejudice. We affirm only
so much of the Additional Charge and its specification that
extends to findings of guilty to the lesser included offense of
assault consummated by battery in violation of Article 128,
UCMJ. The record is returned to the Judge Advocate General of
the Army for remand to the Court of Criminal Appeals for
reassessment of the sentence in light of our action on the
findings.
28
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STUCKY, Judge (concurring in part and in the result)
I concur with the majority that, under the circumstances of
this case, the rehearing remedied the loss of Appellant’s Good
Soldier Book after his original sentencing hearing. For the
reasons set out in my dissent in United States v. Humphries, 71
M.J. 209, 219 (C.A.A.F. 2012) (Stucky, J., dissenting), and
referred to in my recent concurrence in United States v.
Tunstall, __ M.J. __, __ (1–2) (C.A.A.F. 2013) (Stucky, J.,
concurring in the result), I respectfully disagree with the
majority’s holding that Appellant was materially prejudiced by
the failure of the specifications alleged under Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006),
to allege the terminal element. See Article 59(a), UCMJ, 10
U.S.C. § 859(a) (2006).
Nonetheless, it is apparent that at present the majority of
this Court continues to adhere to the truncated test for plain
error that has been followed at least since United States v.
Powell, 49 M.J. 460 (C.A.A.F. 1998). Having no desire to
reargue the issue each time we encounter a plain error
situation, and considering myself bound, as we all are, by the
precedents of the Court, I will await a case in which the issue
of which test to apply is squarely presented.
I therefore concur in the result.
United States v. Gaskins, No. 13-0016/AR
BAKER, Chief Judge, (concurring in part and dissenting in
part):
I concur in the Court’s analysis of Issue I. With respect
to Issue II, I adhere to my earlier views expressed in United
States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J.,
dissenting). Applying that analysis mutatis mutandis to this
case involving Appellant’s indecent acts with a servicemember’s
dependent and Appellant’s indecent assault of Staff Sergeant AD,
I would affirm on Issue II as well.