UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist CHRISTOPHER P. KILBURN
United States Army, Appellant
ARMY 20100917
Headquarters, Fort Riley
Susan Arnold, Military Judge
Lieutenant Colonel Robert A. Borcherding, Staff Judge Advocate (pretrial)
Colonel Michael L. Smidt, Staff Judge Advocate (post-trial)
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Stephen J. Rueter, JA (on brief);
Major Jacob D. Bashore, JA (reply brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Daniel H. Karna, JA (on brief).
30 November 2012
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SUMMARY DISPOSITION
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Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of false official statement (two specifications), wrongful
making of false military identification cards, and wrongful gifting of a false military
identification card, in violation of Articles 107 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 907 and 934 (2006) [hereinafter UCMJ]. The military judge
convicted appellant, contrary to his pleas, of desertion terminated by apprehension,
wrongful use of a false military identification card with intent to deceive, and
wrongfully carrying concealed weapons in violation of Articles 85 and 134, UCMJ,
10 U.S.C. §§ 885 and 934 (2006). 1
1
Appellant pleaded guilty to the lesser offenses of absence without leave in excess
of thirty days and wrongful use of a false military identification card without intent
to deceive in violation of Articles 86 and 134, UCMJ.
KILBURN – ARMY 20100917
The military judge sentenced appellant to a bad-conduct discharge,
confinement for forty months, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority (CA) approved only so much of the
sentence as provided for a bad-conduct discharge, confinement for forty months, and
reduction to the grade of E-1. The CA credited appellant with 149 days of
confinement credit against the sentence to confinement. The CA deferred forfeitures
of pay and allowances, effective 15 November 2010, and waived automatic forfeiture
of pay and allowances for six months, effective 26 April 2011.
This case is before this court for review under Article 66, UCMJ. Appellant
raises two assignments of error through counsel, the second of which 2 bears
discussion and relief.
LAW AND DISCUSSION
Specifications 1 - 2 of Charge III
The elements of a crime under clause 1 or 2 of Article 134, UCMJ are that (1)
the accused engaged in certain conduct, and (2) that the conduct was prejudicial to
good order and discipline or service discrediting. See Manual for Courts-Martial,
United States, (2008 ed.), pt. IV, ¶ 66.b(1)(e).
We note that Specifications 1 and 2 of Charge III, setting forth violations of
Article 134, UCMJ, do not expressly allege terminal elements. Appellant pleaded
guilty to these specifications, and the appropriate providence inquiry was conducted.
We have considered these specifications of the Article 134 charge in light of United
States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), and find no prejudice to appellant and
no relief warranted.
Specification 3 of Charge III
Similarly, Specification 3 of Charge III also does not expressly allege the
required terminal element. While appellant was charged with and ultimately
convicted of wrongful use of a false military identification card with the intent to
deceive, he only pleaded guilty to the offense without the intent to deceive. The
2
WHEN THE GOVERNMENT FAILS TO ALLEGE AN ARTICLE 134 TERMINAL
ELEMENT, THE CHARGE FAILS TO STATE AN OFFENSE UNLESS THE
TERMINAL ELEMENT CAN BE “NECESSARILY IMPLIED” FROM THE
LANGUAGE OF THE SPECIFICATION. SINCE THE MISSING TERMINAL
ELEMENTS IN SPECIFICATION 1 – 4 OF CHARGE III CANNOT BE
NECESSARILY IMPLIED FROM THE TEXT, THE CHARGES ARE FATALLY
DEFECTIVE AND MUST BE DISMISSED.
2
KILBURN – ARMY 20100917
providence inquiry clearly delineated the terminal element and shows appellant
understood “under what legal theory he was pleading guilty.” Id. Accordingly,
under Ballan and United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we find
no prejudice to appellant and no relief warranted.
Specification 4 of Charge III
Specification 4 of Charge III also did not allege a terminal element of an
Article 134, UCMJ, clause 1 or clause 2 offense, specifically, whether appellant’s
conduct was prejudicial to good order and discipline or service discrediting.
“The Government must allege every element expressly or by necessary
implication, including the terminal element.” United States v. Fosler, 70 M.J. 225,
232 (C.A.A.F. 2011). Pursuant to Humphries, even if this specification does not
allege the terminal elements by necessary implication, the question remains whether
the defect resulted in material prejudice to appellant’s substantial right to notice.
This question is answered by a close review of the record to determine if “notice of
the missing element is somewhere extant in the trial record, or whether the element
is ‘essentially uncontroverted.’” Id. at 215-16 (citing United States v. Cotton, 535
U.S. 625, 633 (2002)).
In view of Humphries, we disapprove the finding of guilty as to the Article
134, UCMJ, offense alleged in Specification 4 of Charge III. The specification does
not contain any allegation of the terminal element under Article 134, UCMJ, and
there is nothing in the record to satisfactorily establish notice of the need to defend
against a terminal element as required under Humphries. As such, we now set aside
appellant’s conviction of wrongfully carrying concealed weapons. Appellant’s first
assignment of error, challenging the constitutionality of this conviction, is now
moot.
In regards to sentencing, we conclude the military judge would have properly
considered the evidence adduced regarding the weapons because the actions
surrounding the concealed carrying were inextricably linked to the termination by
apprehension of his desertion, for which appellant was properly convicted. “[T]he
sentencing landscape would not have been drastically changed” by the absence of
Specification 4 of Charge III. We are satisfied beyond a reasonable doubt the
military judge would have adjudged a sentence no less than the sentence actually
adjudged and approved. See United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006);
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
CONCLUSION
The finding of guilty of Specification 4 of Charge III is set aside and that
specification is dismissed. The remaining findings of guilty are affirmed.
3
KILBURN – ARMY 20100917
Reassessing the sentence on the basis of the error noted, the entire record, and in
accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986)
and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors
identified by Judge Baker in his concurring opinion, the court affirms the sentence.
We have also considered the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without
merit.
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM
Clerk of Court
H. SQUIRES, JR.
Clerk of Court
4