United States v. Teffeau

IN THE CASE OF

UNITED STATES, Appellee

v.

Charles E. TEFFEAU, Jr., Staff Sergeant
U.S. Marine Corps, Appellant

No. 02-0094/MC
Crim. App. Dkt. No. 99-00322

United States Court of Appeals for the Armed Forces

Argued October 15, 2002

Decided February 6, 2003

ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER JJ., joined.
BAKER, J. filed a concurring opinion.

Counsel

For Appellant: Lieutenant Thomas P. Belsky, JAGC, USNR
(argued).

For Appellee: Lieutenant Clarice B. Julka, JAGC, USNR
(argued); Major Robert M. Fuhrer, USMC, Commander Paul W.
Jones, JAGC, USNR, and Colonel Rose Marie Favors, USMC (on
brief).

Military Judge: R. K. Fricke and John F. Blanche

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Teffeau, No. 02-0094/MC

Judge ERDMANN delivered the opinion of the Court.

Appellant, Staff Sergeant (SSgt) Charles E. Teffeau, United

States Marine Corps, was tried by general court-martial at

Marine Corps Recruit Depot, San Diego, California. Contrary to

his pleas, he was convicted by officer members of conspiring to

violate a general order, failing to obey a lawful general order,

dereliction of duty, making false official statements (five

specifications), and obstructing justice, in violation of

Articles 81, 92, 107, and 134, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. §§ 881, 892, 907, and 934 (2002).

Appellant was sentenced to a dishonorable discharge, confinement

for six months, and reduction to E-1. The convening authority

approved the sentence as adjudged. The Navy-Marine Corps Court

of Criminal Appeals affirmed the findings and only so much of

the sentence as provided for a bad-conduct discharge,

confinement for six months, and reduction to E-1. United States

v. Teffeau, 55 M.J. 756 (N-M. Ct. Crim. App. 2001).

We granted review of the following issues:

I

WHETHER THE LOWER COURT ERRED IN APPLYING
UNITED STATES V. ALLEN, 50 M.J. 84 (C.A.A.F.
1999), AND DENIED APPELLANT DUE PROCESS, IN
AFFIRMING A CONVICTION BASED ON A MATERIAL
VARIANCE THAT CHANGED THE ESSENCE OF THE
FACTS ALLEGED AND FOUND APPELLANT GUILTY OF
A SUBSTANTIVE ACT DIFFERENT FROM THAT
ALLEGED IN THE SPECIFICATION?

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II

WHETHER THE LOWER COURT MISAPPLIED THE LAW,
AND IN THE PROCESS CREATED A CONFLICT WITH
THE ARMY COURT OF MILITARY REVIEW'S DECISION
IN UNITED STATES V. JOHNSON, 39 M.J. 1033
(A.C.M.R. 1994), IN FINDING THAT APPELLANT'S
STATEMENTS TO CIVILIAN POLICE OFFICERS
INVESTIGATING AN AUTOMOBILE ACCIDENT WERE
MADE “IN THE LINE OF DUTY" FOR PURPOSE OF
ARTICLE 107, UCMJ.

III

WHETHER THE LOWER COURT ERRED IN FAILING TO
FIND THAT THIS COURT'S DECISION IN UNITED
STATES V. DAVIS, 47 M.J. 484 (C.A.A.F.
1998), ESTABLISHES PARAGRAPH 31c(6)(a) OF
PART IV OF THE MANUAL FOR COURTS-MARTIAL AS
A VIABLE DEFENSE TO THE OFFENSE OF FALSE
OFFICIAL STATEMENT.

At the argument of this case, the parties agreed that our

decision in United States v. Czeschin, 56 M.J. 346 (C.A.A.F.

2002) was dispositive of Issue III, and that issue is therefore

answered in the negative.

FACTS

At all times pertinent to the offenses in this case,

Appellant was a recruiter for the United States Marine Corps.

Appellant and SSgt James Finch were both assigned recruiting

duties at the Marine Corps recruiting substation in Wichita,

Kansas. The duties of a Marine recruiter included making weekly

contact with recruits awaiting entry on active duty under the

Delayed Entry Program (DEP). Ms. Jennifer Keely and Ms.

Jennifer Toner were two such recruits. They enlisted in the

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United States v. Teffeau, No. 02-0094/MC

United States Marine Corps and both women had SSgt Finch as a

recruiter at some point in their respective enlistment

processes. On January 3, 1997, the women were members of the

United States Marine Corps, enlisted in the DEP, and awaiting

active duty.

On January 2, 1997, the two female recruits contacted

Appellant and SSgt Finch. Plans were made for the four of them

to meet the following day at 11:00 a.m. at Ms. Toner’s home.

The purpose of this gathering was to celebrate Ms. Keely’s

impending departure for Marine Corps boot camp.

On the morning of January 3, Appellant advised his

supervisor, Gunnery Sergeant (GySgt) Terrence Quilty, that he

and SSgt Finch were proceeding to the nearby town of Winfield,

Kansas. Gunnery Sergeant Quilty did not know specifically who

the two recruiters were visiting, but he did not give Appellant

permission to go to Ms. Toner’s house or authorize him to drink

alcohol with either of the DEP recruits.

Appellant and SSgt Finch drove to Winfield in uniform and

in a government vehicle. At approximately 10:55 a.m., the two

recruiters stopped at a gas station. Staff Sergeant Finch

purchased a case of beer with a $50 dollar bill and Appellant

carried the beer to the government vehicle. The recruiters then

drove the remaining distance to Ms. Toner’s house.

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United States v. Teffeau, No. 02-0094/MC

Ms. Keely arrived at the Toner home after appellant and

SSgt Finch. Appellant and SSgt Finch, while still in uniform,

each drank a quantity of Jack Daniels whiskey. Ms. Keely drank

schnapps that was in the freezer. The drinking continued for

almost three hours. Ms. Toner did not drink because she had the

flu and because she had to work later that afternoon. When Ms.

Toner requested that they move the party because she had to go

to work, the two recruiters changed out of their uniforms and

departed with Ms. Keely for Winfield Lake to continue the

celebration. Appellant drove the government vehicle to the

lake, following SSgt Finch and Ms. Keely, who were in Ms.

Keely’s red Ford Mustang.

Upon returning from Winfield Lake, SSgt Finch and Ms. Keely

were involved in a single car accident. Ms. Keely’s red Mustang

skidded 243 feet and hit a tree. Ms. Keely was killed and SSgt

Finch was injured. Ms. Keely’s blood-alcohol content (BAC) was

determined to be .07; SSgt Finch had a BAC of .14. An empty

Budweiser Light beer can was recovered from Ms. Keely’s car.

The beer can had the same lot number as beer cans found at the

lake and beer sold at the gas station where Appellant and SSgt

Finch bought beer. During a subsequent search of the government

vehicle, no beer or beer cans were found.

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United States v. Teffeau, No. 02-0094/MC

ISSUE I

Background

Charge II alleged a violation of Article 92, failure to

obey a lawful general order. In pertinent part, the

specification upon which appellant was arraigned read as

follows: “did . . . fail to obey a lawful general order, to

wit: paragraph 6d, of Marine Corps Recruit Depot, San Diego,

Order 1100.4a, dated 21 May 1992 by wrongfully providing alcohol

to Jennifer Keely, a person enrolled in the delayed entry

program.”1

1
Paragraph 6 of Marine Corps Recruit Depot, San Diego, Order 1100.4a (21 May
1992), reads as follows:
6. Action. Recruiting personnel are forbidden to engage in,
encourage, solicit, or otherwise seek nonprofessional personal
relationships with members of the DEP [Delayed Entry Program] or
other prospective recruit applicants. The following conduct is
specifically prohibited:
a. Encouraging, seeking, soliciting, or engaging in any
sexual relations with members of the DEP or other prospective
recruit applicants. This is intended to include overt sexual
acts as well as using rank or supervisory position to take
advantage of a prospective recruit or member of the DEP for
personal sexual gratification, regardless of the knowledge or
consent of the individual involved.
b. Financial dealings of any kind with any member of the
DEP or prospective recruit applicant, to include acceptance of
services or other gratuities, borrowing or lending money, or
commercial solicitation. This does not preclude acceptance of
those personal gifts approved by reference (b).
c. Engaging in physical contact with or touching any
member of the DEP or prospective recruit applicant other than
reasonable physical contact necessary to protect life or prevent
serious injury, in self-defense, or as a necessary part of admin
activities.
d. Providing alcoholic beverages, either directly or
through the use of a third party, for consumption, to any member
of the DEP or prospective recruit applicants under any
circumstances, unless previously approved by the applicable
District CO.

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Concerning this offense, the members were instructed as

follows:

In the specification of Charge II, the accused is
charged with the offense of violating a lawful general
order. In order to find the accused guilty of this
offense, you must be convinced by legal and competent
evidence beyond a reasonable doubt: number one, that
there was in existence a certain lawful general order
in the following terms, that is, Paragraph 6d, of the
Marine Corps Recruit Depot, San Diego, Order 1100.4a,
dated 21 May 1992 which provides in part that
recruiting personnel are forbidden to engage in,
encourage, solicit, or otherwise seek nonprofessional
relationships with members of the DEP or other
prospective recruit applicants. The following conduct
is specifically prohibited: Providing alcoholic
beverages, either directly or through the use of a
third party, for consumption, to any member of the DEP
or prospective recruit applicants under any
circumstances, unless previously approved by the
applicable District Commanding Officer.

Two, that the accused had a duty to obey such order;
and three, that on or about the 3rd of January 1997 at
Winfield, Kansas, the accused failed to obey this
lawful general order by wrongfully providing alcohol
to Jennifer Keely, a person enrolled in the delayed
entry program.

Concerning variance or exceptions and substitutions, the

military judge instructed as follows:

If you have doubt about the time, place, or manner in
which any of the offenses allegedly occurred, but you
are satisfied beyond a reasonable doubt that the
offense or offenses were committed at a time, place,
or in a particular manner which differs slightly from
the exact time, place, or manner alleged in the
specification, you may make minor modifications in
reaching your findings by changing the time, place, or
manner in which the alleged offenses described in the
specification occurred, provided that you do not
change the nature or identity of the offense.

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Further direction was given with respect to using the findings

worksheet to annotate findings by exceptions and substitutions:

. . . Should the members find that some of that
language in the specification doesn’t apply or has not
been proved by – beyond a reasonable doubt, you can
use part three in excepting certain language out of
the specification. Now when you do that you don’t
necessarily have to substitute anything in its place
either. You just – you just can delete that language
you think has not been proven beyond a reasonable
doubt from the specification.

There were no objections to the instructions as given nor was

there a request for any additional instructions.

Findings were announced with respect to Charge II as

follows:

PRES: Of the Specification of Charge II: Guilty,
except for the words paragraph 6[d] of Marine Corps
Recruit Depot Order 1100.4a. Specifically,
“wrongfully providing alcohol to Jennifer Keely.”
Substituting therefore the words – I don’t have the
note page with me – excuse me, sir. That was it, yes
– “wrongfully and engaging in and seeking in a
nonprofessional, personal relationship with Jennifer
Keely, a person enrolled in the Delayed-Entry
Program.”

MJ: Of the excepted words: Not guilty. Of the
substituted words: Guilty?

PRES: And the substituted words would be paragraph
6 of Marine Corps Recruit Depot, San Diego, 1100.4a,
dated 21 May 92,’ “by wrongfully engaging in and
encouraging and otherwise seeking a nonprofessional,
personal relationship with Jennifer Keely, a person
enrolled in the Delayed-Entry Program.” It’s the
substituted words.

MJ: All right. Of the excepted words: Not guilty.
Of the substituted words: Guilty.

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PRES: Guilty. That’s correct.

MJ: Okay. Of Charge II?

PRES: Of Charge II: Guilty.

In sum, the members found Appellant guilty of a violation of

paragraph 6 for engaging in or seeking a nonprofessional

personal relationship. The findings by exceptions and

substitutions eliminated the specificity of subparagraph “d,”

providing alcohol, and acquitted Appellant of that particular

alleged conduct.

Before the Court of Criminal Appeals Appellant argued that

these findings by exceptions and substitutions amounted to a

material variance requiring that the offense be dismissed. The

government responded that “the members were certainly convinced

that [A]ppellant violated the Order [against engaging in,

encouraging or otherwise seeking nonprofessional personal

relationships with members of the DEP or other prospective

recruits] by consuming alcohol with Jennifer Keely and Jennifer

Toner, both members of the DEP.” The court below agreed with

Appellant that there was a material variance, noting that the

Government sought “to anchor the guilty findings on a related,

but materially different, incident than the one originally

charged in the specification.” Teffeau, 55 M.J. at 762. The

Court of Criminal Appeals denied relief, however, finding that

appellant had not demonstrated substantial prejudice as required

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by our decision in United States v. Allen, 50 M.J. 84, 86

(C.A.A.F. 1999). Id.

Discussion

“A variance between pleadings and proof exists when

evidence at trial establishes the commission of a criminal

offense by the accused, but the proof does not conform strictly

with the offense alleged in the charge.” Allen, 50 M.J. at 86

(citing United States v. Lee, 1 M.J. 15, 16 (C.M.A. 1975)). The

Manual for Courts-Martial, United States (2002 ed.) [hereinafter

MCM] anticipates the potential for a variance by authorizing

findings by exceptions and substitutions. See Rule for Courts-

Martial (RCM) 918(a)(1). Findings by “[e]xceptions and

substitutions may not be used to substantially change the nature

of the offense or to increase the seriousness of the offense or

the maximum punishment for it.” Id.; United States v. Wray, 17

M.J. 375, 376 (C.M.A. 1984)(the same prohibition existed in

Manual for Courts-Martial, United States (1969 Rev. ed.) para.

74(b)(2)).

Minor variances, such as the location of the offense or the

date upon which an offense is allegedly committed, do not

necessarily change the nature of the offense and in turn are not

necessarily fatal. See, e.g., United States v. Hunt, 37 M.J.

344, 347-48 (C.M.A. 1993)(date of rape charged as “on or

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United States v. Teffeau, No. 02-0094/MC

about”); United States v. Parker, 54 M.J. 700, 711 (A. Ct. Crim.

App. 2001)(change in the date of an alleged rape not material);

United States v. Willis, 50 M.J. 841 (A. Ct. Crim. App. 1999)

(change in language alleged to be false under Article 107

violation not material). Where, however, an appellant can

demonstrate that a variance is material and that he or she was

prejudiced, the variance is fatal and the findings thereon can

not stand.

For whatever reason, the members rejected the inferential

evidence and trial counsel’s argument that alcohol was provided

to Ms. Keely. The government counsel’s argument before the

Court of Criminal Appeals sought to base the finding on conduct

at Ms. Toner’s home where Appellant and SSgt Finch did not

provide the alcohol. Based on the Government’s argument and the

record of trial, the Court of Criminal Appeals found that the

findings by exceptions and substitutions reflected a “different

incident” than that which was charged.

Because we conclude that this is a finding of fact in this

case, and the finding is not clearly erroneous, we accept as

binding upon this Court that the finding by exceptions and

substitutions reflected a different incident. See United States

v. Tollinchi, 54 M.J. 80, 82 (C.A.A.F. 2000)(Court of Appeals

for the Armed Forces will not overturn findings of fact by a

Court of Criminal Appeals unless they are clearly erroneous or

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United States v. Teffeau, No. 02-0094/MC

unsupported by the record). We also agree with the lower

court’s conclusion of law that this variance was material. See

Hunt, 37 M.J. at 347 (holding that there was no material

variance “as a matter of law”). The findings by exceptions and

substitutions convicted Appellant of a different offense,

involving a different incident than that described in the

specification upon which Appellant was arraigned. This was a

“substantial” change in violation of R.C.M. 918(a)(1).

We disagree, however, that there is no prejudice in this

case. Prejudice can arise from a material variance in a number

of ways.2 An appellant may show that the variance puts him at

risk of another prosecution for the same conduct. Lee, 1 M.J.

at 16. An appellant may show that his due process protections

have been violated where he was “misled to the extent that he

has been unable adequately to prepare for trial,” Lee, 1 M.J. at

16, or where the variance at issue changes the nature or

identity of the offense and he has been denied the opportunity

to defend against the charge. Wray, 17 M.J. at 376. It is this

latter form of prejudice, a violation of due process, that

appellant suffered.

2
To the extent that our opinion in United States v. Allen, 50 M.J. 84
(C.A.A.F. 1999) could be read to require that an appellant must show both
that he or she was misled and that the variance put the appellant at risk of
another prosecution, we take this opportunity to make it clear that a dual
showing is not required and that these are alternative forms of demonstrating
error.

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United States v. Teffeau, No. 02-0094/MC

Fundamental due process demands that an accused be afforded

the opportunity to defend against a charge before a conviction

on the basis of that charge can be sustained. “Few

constitutional principles are more firmly established than a

defendant’s right to be heard on the specific charges of which

he is accused.” Dunn v. United States, 442 U.S. 100, 106-07

(1979). Applying this principle, we have held that a conviction

for a larceny that was not charged violates due process. Wray,

17 M.J. at 376.

We believe a similar result is required in Appellant’s case

where his conviction is predicated upon a different incident

than the one originally alleged in the specification. By virtue

of exercising its prosecutorial discretion in the charging

decision, the Government alerted Appellant that he was to defend

against a claim that he “provided” alcohol to Ms. Keely in

violation of the lawful general order. Appellant’s defense

strategy highlighted that he did not provide the alcohol

consumed at the Toner home, that he did not arrive at the lake

until after the accident, and that he could not be linked beyond

a reasonable doubt to beer cans found in Ms. Keely’s Mustang.

The findings by exceptions and substitutions acquitted the

Appellant of the specific offense of “providing” alcohol to Ms.

Keely and substituted a broader offense that Appellant had not

been provided the opportunity to defend against.

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United States v. Teffeau, No. 02-0094/MC

The Court of Criminal Appeals did not err in applying the

two-prong test enunciated in Allen. That court did err,

however, when it failed to recognize the prejudice flowing from

a material variance that changes the very nature of the offense

in issue and impacts upon an accused’s ability to defend against

the charge against him. When a material variance deprives an

accused of the fundamental right to due process, he has been

prejudiced.

The findings of guilty of Charge II and its specification

must be set aside.

ISSUE II

Background

Due to the fatality and the alcohol-involvement, Winfield

police officers conducted an extensive investigation into the

circumstances surrounding the accident. The civilian officers

were aware of Appellant’s military status at the time they

interviewed him. The Commanding Officer of the 8th Marine Corps

District directed a command investigation into the accident as

well. Appellant made several false statements concerning the

circumstances surrounding the accident as the police and command

investigators attempted to determine what occurred.

In three specifications, Appellant was found guilty of

making false official statements in violation of Article 107 to

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United States v. Teffeau, No. 02-0094/MC

Winfield police officers. (Charge III, specifications 1, 2, and

5.) Prior to pleas, Appellant moved to dismiss these

specifications for failure to state an offense. The motion

alleged both that the statements were not official within the

meaning of Article 107 because Appellant did not have an

independent duty or obligation to speak.

In addition to the facial information in the

specifications, the Government presented evidence relating to

appellant’s duty status at the time of the incident and

statements. Specifically, the Government noted that Appellant

served as a canvassing recruiter; the evening after the

accident, Appellant was in uniform when the Winfield police

questioned him; the first time Appellant was interviewed by the

Winfield police, Appellant was accompanied to the police

department by his military supervisor, GySgt Quilty; and

Appellant was not given any direction or order to speak to the

police.

The military judge made findings of fact and conclusions of

law. His findings of fact included:

[T]hat at the time that these purported false
statements were made, the accused was an active duty
service member. . . [and that] the contents of these
purported statements to the Winfield City Police
Department directly pertained to the accused’s
performance of his military duties as a canvassing
recruiter assigned to the Winfield, Kansas area.

The military judge’s conclusions of law were:

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United States v. Teffeau, No. 02-0094/MC

Number one, the accused statements were made in the
line of duty because they directly related in the
performance of his military duties as a Marine
recruiter assigned to the local area wherein the
alleged offenses took place.

Two, the Court specifically adopts the legal analysis
set forth in the trial counsels’ brief regarding
breath [sic] of the term “official” as used in Article
107 of the UCMJ. That it is the use of the word
“official” is the substantial equivalent to the
phrase, quote, in any manner [sic] within the
jurisdiction of any department or agency of the United
States as found in 18 United States Code, Section
1001, unquote.

Four [sic], based on the foregoing analysis, the Court
concludes that all statements which the accused
provided to various members of the Winfield Police
Department would fall within the legal definition of
an official statement as mandated by Article 107 of
the UCMJ; notwithstanding the status of the recipients
as private nonmilitary parties and the fact that these
statements were in an oral vice written form.

The military judge denied the motion to dismiss the allegations

of false official statements made to civilian officers of the

Winfield police.

Discussion

Article 107 punishes “[a]ny person subject to this chapter,

who, with intent to deceive, . . . makes any other false

official statement knowing it to be false[.]” A statement is

“official” if that statement is “made in the line of duty.” MCM

Part IV, para. 31 c (1). This definition of “official” does not

mean that the President intended to limit “line of duty” in this

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United States v. Teffeau, No. 02-0094/MC

context to the meaning those words may have in other, non-

criminal contexts.3

In fact, this Court has recognized that the scope of

Article 107 is more expansive than its civilian counterpart, 18

U.S.C. § 1001 (2002), because “[t]he primary purpose of military

criminal law – to maintain morale, good order, and discipline –

has no parallel in civilian criminal law.” United States v.

Solis, 46 M.J. 31, 34 (C.A.A.F. 1997). See also United States

v. Smith, 44 M.J. 369, 372 (C.A.A.F. 1996)(referencing Article

107’s “unique language”); United States v. Hagee, 37 M.J. 484,

485 (C.M.A. 1993)(“Nothing in the plain language of this statute

limits its scope to deceptions in which the United States is the

intended or actual direct victim.”).

Examining Appellant’s conduct in light of the language and

purposes of Article 107, we find that Appellant’s statements to

civilian officers of the Winfield police were official. It is

clear that, from the inception of the arrangement to meet the

two women through and including Appellant’s statements to both

military and civilian officials, this entire incident and

investigation bore a direct relationship to Appellant’s duties

and status as a Marine Corps recruiter.

3
For example, “line of duty” determinations made to determine a
servicemember’s entitlement to medical care at government expense, to
determine entitlement to disability compensation at a physical evaluation
board, or to determine Government liability under the Federal Tort Claims
Act, 28 U.S.C. § 2671-72 (2002).

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Appellant knew Staff Sergeant Finch and both women as a

result of his official duties. Appellant reported to his

supervisor that he was meeting with someone in Winfield on

January 3, implying to GySgt Quilty that the meeting was related

to Appellant’s recruiting duties. Both the women were newly

recruited into the Marine Corps DEP, and both had used SSgt

Finch as a recruiter. Appellant and SSgt Finch used an official

government vehicle when they went to meet the women. Appellant

and SSgt Finch were in uniform when they went to meet the women.

Unquestionably, the entire sequence of events had its origin in

Appellant’s duties, responsibilities, and status as a recruiter.

The Winfield police were aware of Appellant’s duties and

status. A military supervisor accompanied Appellant to the

Winfield Police Department the night of the accident. Appellant

was in uniform when interviewed by the Winfield police officers.

The investigation concerned potential criminal misconduct

involving a person or persons subject to the UCMJ. There was a

parallel military investigation into this incident. The subject

matter of the Winfield police investigation was of interest to

the military and within the jurisdiction of the courts-martial

system. See Solorio v. United States, 483 U.S. 435 (1987).

Appellant’s conduct and his subsequent statements about his

conduct could have, and did, subject him to criminal liability

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in the military justice system for various offenses in addition

to his false official statements.

We reject any absolute rule that statements to civilian

law enforcement officials can never be official within the

meaning of Article 107. See, e.g., United States v. Johnson, 39

M.J. 1033 (A.C.M.R. 1994). Any such construction of Article 107

is unreasonably restrictive in light of the unique purposes of

Article 107 and the military criminal law. The circumstances

leading up to and surrounding the statements made to the

Winfield police bear a clear and direct relationship to

Appellant’s duties as a recruiter and reflect a substantial

military interest in the investigation. The statements

Appellant made to the Winfield police officers were therefore

“official” within the meaning of Article 107.

Decision

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed. The findings of guilty of

Charge II, its specification and the sentence are set aside, and

Charge II and its specification are dismissed. The case is

returned to the Judge Advocate General of the Navy for remand to

the Court of Criminal Appeals. That court may reassess the

sentence or order a sentence rehearing.

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BAKER, Judge (concurring):

In United States v. Wray, 17 M.J. 375 (C.M.A. 1984),

members convicted the appellant by exceptions and

substitutions changing both the date and the amount of the

larceny. The Court concluded that this changed the

identity of the offense. Therefore, the Court was not

prepared to “uphold a conviction on a charge that was

neither alleged in an indictment nor presented to a jury at

trial . . . .” Id. at 376. The Court dismissed the charge

and its specification “without prejudice to another trial

being held on the proper charge.” Id.

In this case, the Court dismisses Charge II and its

specification because through the members’ exceptions and

substitutions, “Appellant’s conviction is predicated upon a

different incident than the one originally alleged in the

specification.” _ M.J. (10). However, the Court does not

expressly state, as in Wray, that another trial may be held

on “a” or “the” proper charge, or alternatively distinguish

the outcome in Wray from this case so as to preclude

retrial on a proper charge.

In my view, this silence should not be interpreted as

overruling the result in Wray or the general proposition on

which it is based. Reversal of a conviction does not

prevent retrial for the same offense unless the reversal is
United States v. Teffeau, No. 02-0094/MC

based on insufficiency of the evidence. Montana v. Hall,

481 U.S. 400, 402-03 (1987)(per curiam); United States v.

Ball, 163 U.S. 662, 672 (1896).∗

∗
The Supreme Court in Montana v. Hall, 481 U.S. 400, 402-03
(1987)(per curiam), stated:
It is a "venerable principl[e] of double jeopardy
jurisprudence" that "the successful appeal of a
judgment of conviction, on any ground other than the
insufficiency of the evidence to support the verdict,
Burks v. United States, 437 U.S. 1 (1978), poses no
bar to further prosecution on the same charge.”
United States v. Scott, 437 U.S. 82, 90-91 (1978).
See generally 3 W. LaFave & J. Israel, Criminal
Procedure § 24.4 (1984). Justice Harlan explained the
basis for this rule:
"Corresponding to the right of an accused to be
given a fair trial is the societal interest in
punishing one whose guilt is clear after he has
obtained such a trial. It would be a high price
indeed for society to pay were every accused
granted immunity from punishment because of any
defect sufficient to constitute reversible
error in the proceedings leading to conviction.
From the standpoint of a defendant, it is at
least doubtful that appellate courts would be
as zealous as they now are in protecting
against the effects of improprieties at the
trial or pretrial stage if they knew that
reversal of a conviction would put the accused
irrevocably beyond the reach of further
prosecution. In reality, therefore, the
practice of retrial serves defendants' rights
as well as society's interest." United States
v. Tateo, 377 U.S. 463, 466 (1964).
See Burks v. United States, supra, at 15.