United States v. Reese , 2017 CAAF LEXIS 621 ( 2017 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Shane E. REESE, Aviation Maintenance Technician
First Class
United States Coast Guard, Appellant
No. 17-0028
Crim. App. No. 1422
Argued March 16, 2017—Decided June 14, 2017
Military Judge: Christine N. Cutter
For Appellant: William E. Cassara, Esq. (argued); Lieuten-
ant Jason W. Roberts (on brief).
For Appellee: Lieutenant Tereza Z. Ohley (argued); Stephen
P. McCleary, Esq. (on brief).
Chief Judge ERDMANN delivered the opinion of the
court, in which Judges STUCKY, RYAN, OHLSON, and
SPARKS, joined.
_______________
Chief Judge ERDMANN delivered the opinion of the
court.
Contrary to his pleas, a military judge sitting as a gen-
eral court-martial convicted Aviation Maintenance Techni-
cian First Class Shane E. Reese of making a false official
statement, sexual abuse of a child, and a general disorder
for making a statement to a child that was of a nature to
bring discredit upon the armed forces, in violation of Articles
107, 120b, and 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 907, 920b, 934 (2012). Consistent with
his pleas, Reese was also convicted of making additional
false official statements, as well as wrongfully using, pos-
sessing, and distributing marijuana, in violation of Arti-
cles 107 and 112a, UCMJ, 10 U.S.C. §§ 907, 112a, (2012).
Reese was sentenced to a dishonorable discharge, five years
of confinement, and a reduction to E-1. The convening au-
thority approved the sentence as adjudged and the United
United States v. Reese, No. 17-0028/CG
Opinion of the Court
States Coast Guard Court of Criminal Appeals (CCA) af-
firmed the findings and sentence. United States v. Reese, No.
1422, slip op. at 7 (C.G. Ct. Crim. App. Aug. 22, 2016).
Rule for Courts-Martial (R.C.M.) 603(d) provides that
“[c]hanges or amendments to charges or specifications other
than minor changes may not be made over the objection of
the accused unless the charge or specification affected is pre-
ferred anew.” We granted review in this case to determine
two issues. 1 First, we must decide whether the military
judge erred when he held that a change to Specification 3 of
Charge III on the third day of trial was a minor change and,
if so, what effect that error had. Second, we must consider
whether the “novel” 2 offense charged under Article 134,
UCMJ, either was barred by pt. IV, para. 60.c.(6)(c) of the
Manual for Courts-Martial, United States (2012 ed.) (MCM),
or failed to allege words of criminality. We hold that the
change to Specification 3 of Charge III was a major change
and, because Reese objected to the change at trial and the
charge was not preferred anew, it was without legal basis.
Additionally, we hold that since the “novel” Article 134 of-
fense alleged the crime of obstructing justice, it was not a
1 We granted review of the following issues:
I. Whether the military judge erred in allowing the govern-
ment to make a major change to a specification after the com-
plaining witness’s testimony did not support the offense as
originally charged.
II. Whether the specification of the additional charge fails to
state an offense where the terminal element failed to allege
words of criminality and where the alleged conduct fell within
a listed offense of Article 134, UCMJ.
2 The parties referenced an Article 134 offense not listed under
Article 134 but drafted to address the circumstances of a particu-
lar case as a “novel” Article 134 offense. This term was first used
in United States v. Martinson, 21 C.M.A. 109, 44 C.M.R. 163
(1971), for the same purpose. In Martinson the accused was
charged with attempting to damage a jet engine under Article 80,
UCMJ, 10 U.S.C. § 880, but was found guilty by a military judge
of a lesser included “novel” Article 134 offense crafted by the mili-
tary judge by exceptions and substitutions. This practice is cur-
rently authorized in MCM pt. IV, para. 60.(6)(c); see infra pp. 8–9.
2
United States v. Reese, No. 17-0028/CG
Opinion of the Court
proper charge under pt. IV, para. 60.c.(6)(c) of the MCM. 3
We therefore set aside and dismiss Specification 3 of Charge
III and the Specification of the Additional Charge and the
Additional Charge and remand the case to the CCA for a
sentence reassessment or rehearing.
BACKGROUND
This case arose when four-year-old EV made certain
statements and gestures to his parents which indicated he
had been sexually molested by Reese. After an Article 32,
UCMJ, 10 U.S.C. § 832 (2012), investigation, several charges
were referred to a general court-martial, including Specifica-
tion 3 of Charge III (lewd act), and the Specification of the
Additional Charge, which alleged a “novel” obstruction of
justice offense under Article 134, UCMJ. As the substantive
facts underlying the offenses are not at issue in this appeal,
they need not be further addressed.
DISCUSSION
I. Whether the change to Specification 3 of Charge III is
a major or minor change
Reese was charged with committing a lewd act upon EV,
a child under the age of twelve, “by licking the penis of [EV]
with [Reese’s] tongue.” Two days prior to trial, the govern-
ment and defense interviewed EV for the first time at a dep-
osition. During the deposition, EV testified that Reese had
not touched EV’s penis with his mouth, but that Reese had
touched EV’s penis with his hand. Two days later at trial,
EV testified substantially the same as he did during his
deposition as to the factual basis for this charge.
After a weekend recess, the government moved the court
for what it argued was a minor change to the charge sheet.
Specifically, the government moved to amend Specification 3
of Charge III from “licking the penis of EV with [Reese’s]
tongue” to “touching the penis of [EV] with [Reese’s] hand.”
The defense objected to the change, asserting it was a major
change because it added a new matter not previously con-
3 As we resolve this issue based on the language of pt. IV, para.
60.c.(6)(c), we need not address Reese’s argument that the charge
lacked words of criminality.
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Opinion of the Court
templated by the original charge and established a different
means of accomplishment. Over the defense’s objection, the
military judge determined the change was minor. In holding
so, the military judge found that:
This variance does not add a party, [and] does not
change or add an offense, which remains sexual
abuse of a child. It does not contain a matter that
was not a substantial matter not fairly included in
those previously preferred. Nor do I find that it was
likely to mislead the accused as to the offense
charged. The date, time, subject matter of the of-
fense remains the same. The part of the body that
was touched on the complaining witness remains
the same. It is a foreseeable possibility that ... what
is pled to [and] what develops at trial will [differ] ...
as it has done so in this case. All of the parties were
alerted to that possibility during the pretrial depo-
sition of the complaining witness. The court finds
that changing the words “licking” to “touching” and
the words “tongue” to “hand” are a minor change ....
If defense desires to recall witnesses already re-
leased based on this ruling they can bring that to
my attention.
In a later separate written ruling, the military judge
added that:
The complaining witness has always alleged only
one incident of sexual abuse with the accused....
[and] any body part of the accused used with the
requisite intent will satisfy the first element of Ar-
ticle 120b UCMJ. Proof of a particular body part
used to accomplish the “sexual contact” does not
compromise the offense but merely serves as proof
that a body part of the accused was used to affect
the “sexual contact.”
….
[Further, t]he record does not show that the ac-
cused was surprised by the discrepancy in proof
preceding the government motion....
The defense motion shows the accused chose to
make tactical decisions related pleas, forum choice,
cross[-]examination of witnesses after hearing the
11 November 2014 deposition of EV in which he de-
scribed the manner the accused touched his penis
(with hand) and after participating in a fully liti-
gated M.R.E. 807 motion in July, regarding state-
4
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Opinion of the Court
ments of EV, some of which were consistent with
touch by a hand to his penis. Defense can therefore
not claim surprise as the variance was foreseeable
based on pre-trial proceedings. That the defense
chose for tactical reasons [to] take certain actions
based on the body part alleged in the specification
does not convert a minor change into a major
change.
Before this court, Reese argues that the military judge
erred when she determined that the change sought by the
government to Specification 3 of Charge III, was a minor
change. As at trial, Reese contends that the change allowed
by the military judge altered the means of committing the
offense and that the change was not fairly included in the
previously preferred specification. The government counters
that the military judge correctly determined that the change
was minor, stating that the charge “alleged the same offense
... by the same accused ... against the same person ... on the
same date,” and that “the part of EV’s body touched by Ap-
pellant ... remained the same.” Whether a change made to a
specification is minor is a matter of statutory interpretation
and is reviewed de novo. United States v. Atchak, 75 M.J.
193, 195 (C.A.A.F. 2016).
R.C.M. 603(a) provides that “[m]inor changes in charges
and specifications are any except those which add a party,
offenses, or substantial matter not fairly included in those
previously preferred, or which are likely to mislead the ac-
cused as to the offenses charged.” United States v. Moreno,
46 M.J. 216, 218 (C.A.A.F. 1997). The R.C.M. 603(a) Discus-
sion clarifies what constitutes a minor change and includes,
inter alia, “those [changes] necessary to correct inartfully
drafted or redundant specifications; to correct a misnaming
of the accused; to allege the proper article; or to correct other
slight errors.”
We have previously held that a change is minor so long
as “no additional or different offense is charged … and if
substantial rights of the defendant are not prejudiced.”
United States v. Sullivan, 42 M.J. 360, 365 (C.A.A.F. 1995)
(internal quotation marks omitted) (citations omitted).
The first prong usually is satisfied if the charge is
altered to allege a lesser-included offense....
5
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... The second prong is satisfied if the amendment
does not cause unfair surprise. The evil to be avoid-
ed is denying the defendant notice of the charge
against him, thereby hindering his defense prepa-
ration.
Id.
R.C.M. 603(d) goes on to provide that, when “[c]hanges or
amendments to charges or specifications other than minor
changes [are] made over the objection of the accused ... the
charge or specification affected [must be] preferred anew.”
See also United States v. Girouard, 70 M.J. 5, 13–14
(C.A.A.F. 2011).
The defense’s primary arguments that the change was
major are that it altered the means of committing the of-
fense and that the change was not fairly included in the
original specification. We agree. As noted earlier, the R.C.M.
603(a) Discussion indicates that a minor change is merely
intended to allow the government the freedom to correct
small errors such as “inartfully drafted or redundant specifi-
cations ... misnaming of the accused ... or to correct other
slight errors.” (Emphasis added.) While changing the means
by which a crime is accomplished may constitute a slight er-
ror under the appropriate circumstances, those circumstanc-
es are not present here. See, e.g., United States v. Murray,
43 M.J. 507, 511 (A.F. Ct. Crim. App. 1995). Indeed, it ap-
pears from the record that the government itself acknowl-
edged the difference between the charges when they styled
the change as a “new charge that came up.”
Nor do we believe that an allegation of sexual touching
with a hand is fairly included in an offense akin (though not
identical) to oral sodomy of a child. While the military judge
noted that it would be an unusual circumstance where the
accused could lick the penis of a complaining witness with-
out some initial form of touch, that does not answer the al-
together different question of whether Reese was on notice
that he would need to defend against a touching charge,
since it was not alleged. As counsel for Reese noted during
arguments before this court, a touching with the hand could
have readily been argued as accidental. There is no such de-
fense to the charge as initially alleged. Given the different
6
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Opinion of the Court
nature of the two offenses and the dissimilar defenses avail-
able for each, we are not persuaded the change was minor.
The government goes on to argue that Reese was on no-
tice of the potential change in the charge because he was
aware of the nature of EV’s testimony. This argument, how-
ever, is unconvincing. Despite learning that its evidence on
this charge was not legally sufficient two days before trial,
for some reason the government chose not to amend the
charge. There is no dispute that the government controls the
charge sheet and that Reese was on notice that he had to
defend against an allegation that he licked the complaining
witness’s penis. The defense was entitled to rely on the
charge sheet and the government’s decision not to amend
the charge sheet prior to trial. 4
We have previously held that a change is minor when “no
additional or different offense is charged ... and if substan-
tial rights of the defendant are not prejudiced.” Sullivan, 42
M.J. at 365 (emphasis added) (internal quotation marks
omitted) (citations omitted). Accordingly, our past analyses
in this area of the law required a showing of prejudice before
we could grant relief. See id.; see also United States v. Smith,
49 M.J. 269, 270 (C.A.A.F. 1998); United States v. Brown, 34
M.J. 105, 109 (C.M.A. 1992); United States v. Johnson, 12
C.M.A. 710, 711, 31 C.M.R. 296, 297 (1962).
R.C.M. 603(d), however, states that “[c]hanges or
amendments to charges or specifications other than minor
changes may not be made over the objection of the accused
unless the charge or specification affected is preferred
anew.” We apply ordinary rules of statutory construction in
interpreting the R.C.M. See United States v. Muwwakkil, 74
M.J. 187, 194 (C.A.A.F. 2015); United States v. Custis, 65
M.J. 366, 370 (C.A.A.F. 2007).
The Supreme Court has stated time and again that
courts must presume that a legislature says in a
4 We also note that, given the disparity between the evidence and
the specification as charged, we are further convinced that a mo-
tion for a finding of not guilty would have been granted had it
been raised. R.C.M. 917(a). The Government simply could not
have proven the original specification based on the evidence ad-
duced at trial.
7
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Opinion of the Court
statute what it means and means in a statute what
it says there. When the words of a statute are un-
ambiguous, then, this first canon is also the last:
judicial inquiry is complete.
United States v. Sager, 76 M.J. 158, 161 (C.A.A.F. 2017)
(internal quotation marks omitted) (citation omitted). The
plain language of R.C.M. 603(d) does not discuss preju-
dice. Rather, if a change is “major,” it provides that such
change cannot be made over defense objection unless the
charge is “preferred anew.” The practical effect is that if a
change is major and the defense objects, the charge has no
legal basis and the court-martial may not consider it unless
and until it is “preferred anew,” and subsequently re-
ferred. See R.C.M. 201(b)(3). To the extent our precedent has
required a separate showing of prejudice under these cir-
cumstances, it is overruled: absent “preferr[al] anew” and a
second referral there is no charge to which jurisdiction can
attach, and Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2012),
is not, in fact, implicated. See Sager, 76 M.J. at 161; Sulli-
van, 42 M.J. at 365; Smith, 49 M.J. at 270; Brown, 34 M.J.
at 109; Johnson, 12 C.M.A. at 711, 31 C.M.R. at 297.
II. Novel Charge under Article 134, UCMJ
The government referred a “novel” Article 134, UCMJ,
charge against Reese, which alleges in pertinent part that
Reese made:
a statement to [EV], a four year old child ..., to wit:
“that if he [EV] told anyone what he [Reese] had
done to [EV] that [Reese and his wife] would go to
jail” or words to that effect, and that such conduct
was of a nature to bring discredit upon the armed
forces.
Reese argues that the offense as drafted is barred by pt.
IV, para. 60.c.(6)(c) of the MCM and also that the charge
lacks words of criminality. The government concedes that
the specification was intended to charge the offense of ob-
structing justice and Reese points out that pt. IV, para. 96 of
the MCM already contains an offense of “Obstructing jus-
tice” which lists four elements. 5 The government responds
5 The elements of Article 134, “Obstructing justice,” are as follows:
1. That the accused wrongfully did a certain act;
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that the charge properly states an obstructing justice of-
fense.
Part IV, para. 60.c.(6)(c) of the MCM states “[i]f conduct
by an accused does not fall under any of the listed offenses
for violations of Article 134 in this Manual (paragraphs 61
through 113 of this Part) a specification not listed in this
Manual may be used to allege the offense.” “Although Man-
ual explanations of codal offenses are not binding on this
Court, they are persuasive indications of how the President,
as head of the Executive Branch of Government, perceives
an offense, including limitations on the Executive power
that are not required by the Code or other applicable law.”
United States v. Miller, 47 M.J. 352, 356 (C.A.A.F. 1997) (in-
ternal quotation marks omitted) (citation omitted); accord
United States v. Miller, 67 M.J. 87, 89 (C.A.A.F. 2008). This
clear language of pt. IV, para. 60.c.(6)(c) does not allow the
government to charge a “novel” offense if the offense is oth-
erwise listed as an Article 134, UCMJ, offense. See Sager, 76
M.J. at 161.
In response to Reese’s reliance on pt. IV, para. 60.c.(6)(c),
the government interprets Reese’s position as a preemption
argument and argues that the doctrine of preemption is in-
applicable to this situation. In making this preemption ar-
gument, however, the government relies on pt. IV, para.
60.c.(5)(a), which prohibits the government from using Arti-
cle 134, UCMJ, to charge offenses that are listed in the
UCMJ outside of Article 134. Preemption under pt. IV, para.
60.c.(5)(a) is distinct from the provisions of pt. IV, pa-
2. That the accused did so in the case of a certain per-
son against whom the accused had reason to be-
lieve there were or would be criminal proceedings
pending;
3. That the act was done with the intent to influence,
impede, or otherwise obstruct the due administra-
tion of justice; and
4. That, under the circumstances, the conduct of the
accused was to the prejudice of good order and dis-
cipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
MCM pt. IV, para. 96.b.
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Opinion of the Court
ra. 60.c.(6)(c). Part IV, para. 60.c.(6)(c) prohibits the gov-
ernment from using a “novel” specification to allege an Arti-
cle 134 offense that is already listed inside the article’s
framework. That is exactly what the government did in this
case and we adopt the President’s persuasive interpretation
of Article 134 on this point. 6 Accordingly, the Additional Of-
fense was barred by pt. IV, para. 60.c.(6)(c) and therefore
fails to state an offense under the UCMJ.
DECISION
The decision of the United States Coast Guard Court
of Criminal Appeals regarding Charge III, Specification 3,
the Additional Charge and its Specification, and the sen-
tence, are reversed. The findings as to Charge III, Specifica-
tion 3 and the Additional Charge and its Specification are
set aside and those offenses are dismissed. The remaining
findings are affirmed. The record is returned to the Judge
Advocate General of the Coast Guard for remand to the
Court of Criminal Appeals to either reassess the sentence
based on the affirmed findings or order a sentence rehear-
ing.
6 Not only is such action barred under pt. IV, para. 60.c.(6)(c),
the manner in which the novel charge was drafted in this case
creates an additional problem. As correctly noted by Judge Bruce
at the CCA:
By using a novel specification, the Government
relieved itself of having to prove the second and
third elements of obstructing justice. Part IV,
Paragraph 96b.(2) and (3). Those elements re-
late to proof that the conduct was in the case of
a person against whom the accused had reason
to believe there would be criminal proceedings,
and that the conduct was intended to influence,
impede, or otherwise obstruct justice.
Reese, No. 1422, slip op. at 10–11 (Bruce, J., concurring in part
and dissenting in part). While undoubtedly unintentional on the
part of the government, the “novel” specification in this case re-
duced the government’s burden of proof and illustrates the pur-
pose of pt. IV, para. 60.c.(6)(c).
10