United States v. Smith

CRAWFORD, Judge

(dissenting in part & concurring in the result):

The majority overlooks how offenses involving “military property” are pled; ignores the referral order of the convening authority; penalizes the bench and bar for following our precedent; jettisons prior precedent as to parallels between the military and Federal Rules of Criminal Procedure; and overlooks the changes to Article 32(d), UCMJ, 10 USC § 32(d).

Overlooks pleadings. A sample specification as amended in this case is as follows:

In that Senior Airman James A. Smith, United States Air Force, 100th Comptroller Squadron, RAF Mildenhall, United Kingdom, did, at RAF Mildenhall, United Kingdom, between on or about 30 August 1995 and on or about 27 September 1995, steal money, military property, of a value of about $1,305.42, the property of the United States Air Force.

The property in this case was alleged to be “property of the United States Air Force.” “Basically, all property owned or held by the United States Air Force is military property of the United States in its broad sense.” United States v. Blevins, 34 CMR 967, 974 (AFBR 1964). There was adequate notice in this case that it was military property owned by the “United States Air Force.” The sample specification is just that, a sample, and is not binding.

Referral orders. The allegation of ownership by the United States Air Force should be sufficient by itself. But in addition to that, there clearly was an administrative error in not amending the specifications because the specifications were ordered amended by the convening authority, to include the words “military property.” In any event, the judge sought to follow the precedent of this Court.

Instructions for the bench and bar. In United States v. Sullivan, 42 MJ 360, 365 (1995), this Court noted:

In deciding whether amending an information is permissible, federal Courts of Appeals use a two-pronged test based upon a literal reading of the rule. They say that an amendment is permissible “if *272no additional or different offense is charged [first prong] and if substantial rights of the defendant are not prejudiced [second prong]____”
The first prong usually is satisfied if the charge is altered to allege a lesser-included offense. See, e.g., Canal Zone v. Burjan, 596 F.2d [690] at 693 [(5th Cir.19.79)]. The Third Circuit has stated that the first prong may be met even if the new offense has some additional elements, where the language of the information contains all the elements of the new offense. Virgin Islands v. Bedford, 671 F.2d [758] at 765 [(3d Cir.1982)]. The Eighth Circuit has permitted a sentence-enhancing element to be added. Wright v. Lockhart, 854 F.2d at 311, 312 (status as habitual criminal added to information).
The second prong is satisfied if the amendment does not cause unfair surprise. The evil to be avoided is denying the defendant notice of the charge against him, thereby hindering his defense preparation.

Replying on this, the judge stated:

Here, the court finds that as cited in the Sullivan case and as trial counsel points out in trial counsel’s brief, this is not dissimilar to the Wright v. Lockhart, Eighth Circuit Court of Appeals case, where a sentence-enhancing element was allowed to be added to information without violating the first prong. Therefore, since there is no misleading of the defense and for the other reasons cited, the court does not find this to be a substantial matter. The court does acknowledge it increases the possible sentence to the accused but nonetheless, it is not a substantial matter that is being changed in the specifications themselves. As a result, the defense motion for appropriate relief with regard to Specifications 1, 2, 3, and 4 of Charge I is also denied.

Prior Precedent. We should not jettison our recent precedent as to the parallels between the military and Federal rules. In both Sullivan and United States v. Moreno, 46 MJ 216 (1997), we noted the parallel between RCM 603(a) and Fed.R.Crim.P. 7(e). We said:

Changes may also be made at any time before findings if they do not impact on the “substantial right[s] of the accused.” RCM 603(e). The comparable element of prejudice to the “substantial rights of the defendant” in the Federal Rule is usually interpreted as requiring some showing of surprise which will interfere with the defendant’s presentation at trial. United States v. Sullivan, 42 MJ 360, 365 (1995). “Since such prejudice may be avoided before trial by granting an appropriate continuance, an amendment made before trial is unlikely to be held to have injured the substantial rights of the defendant where a continuance was granted or none was requested.” W. LaFave and J. Israel, 2 Criminal Procedure § 19.2(g) at 462 (1984).

Moreno, 46 MJ at 218-19.

Change to Article 32(d). Assuming the judge granted the motion, would a new Article 32 investigation be needed? New pretrial advice? New referral? The answer to all three questions is no. The 1996 change to the Code provides that, as long as the offense is investigated, that is sufficient. Art. 32(d), UCMJ, 10 USC § 832(d). Additionally, the pretrial advice covered the change to the specification recommended by the Article 32 officer. Lastly, the referral was of the amended charge.

I do not believe that the added language constitutes “substantial matter,” and for that very reason, I concur in the result.