United States v. Gaskins

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(UCMJ), 10 U.S.C. § 920 (2006), repealed by National Defense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.

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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).

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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).

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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.

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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.

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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.
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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.

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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,

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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;

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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

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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.
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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

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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.

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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

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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).

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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.

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(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.

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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.

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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.