UNITED STATES, Appellee
v.
James N. FOSLER, Lance Corporal
U.S. Marine Corps, Appellant
No. 11-0149
Crim. App. No. 201000134
United States Court of Appeals for the Armed Forces
Argued May 16, 2011
Decided August 8, 2011
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. EFFRON, C.J., filed a dissenting
opinion. BAKER, J., filed a dissenting opinion.
Counsel
For Appellant: Major Jeffrey R. Liebenguth, USMC (argued).
For Appellee: Captain Samuel C. Moore, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief).
Military Judge: Moira Modzelewski
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Fosler, No. 11-0149/MC
Judge STUCKY delivered the opinion of the Court.
To establish a violation of Article 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), the
government must prove beyond a reasonable doubt both that
the accused engaged in certain conduct and that the conduct
satisfied at least one of three listed criteria. The
latter element is commonly referred to as the “terminal
element” of Article 134 and the government must prove that
at least one of the article’s three clauses has been met:
that the accused’s conduct was (1) “to the prejudice of
good order and discipline,” (2) “of a nature to bring
discredit upon the armed forces,” or (3) a “crime[ or]
offense[] not capital.” Article 134. We hold that the
Government failed to allege at least one of the three
clauses either expressly or by necessary implication and
that the charge and specification therefore fail to state
an offense under Article 134.
I.
Contrary to his pleas, Appellant was convicted of
adultery in violation of Article 134. On September 21,
2009, he was sentenced to a bad-conduct discharge,
confinement for thirty days, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade. On
February 5, 2010, the convening authority approved the
2
United States v. Fosler, No. 11-0149/MC
sentence and, with the exception of the bad-conduct
discharge, ordered it executed. On October 28, 2010, the
United States Navy-Marine Corps Court of Criminal Appeals
(CCA) affirmed the findings and the sentence. United
States v. Fosler, 69 M.J. 669, 678 (N-M. Ct. Crim. App.
2010). On February 9, 2011, this Court granted review to
determine whether the charge and specification leading to
Appellant’s conviction for adultery in violation of Article
134 stated an offense.
II.
While a drill instructor at the Naval Junior Reserve
Officer Training Corps (NJROTC) in Rota, Spain, Appellant
admitted to having sexual intercourse on December 26, 2007,
with SK, a sixteen-year-old high school student enrolled in
NJROTC, the daughter of an active duty Navy servicemember.
The evidence demonstrated that other drill instructors and
NJROTC students were aware of the sexual relations between
Appellant and SK. SK claimed that the intercourse was not
consensual.
Appellant was charged with rape and aggravated sexual
assault in violation of Article 120, UCMJ, 10 U.S.C. § 920
(2006), and with adultery in violation of Article 134.
Appellant was ultimately acquitted of the Article 120
3
United States v. Fosler, No. 11-0149/MC
charges. The charge sheet described the Article 134
allegation, the offense of conviction, as follows:
Charge II: VIOLATION OF THE UCMJ, ARTICLE 134
Specification: In that Lance Corporal James N.
Fosler, U.S. Marine Corps, Marine Corps Security Force
Regiment, on active duty, a married man, did, at or
near Naval Station, Rota, Spain, on or about 26
December 2007, . . . wrongfully hav[e] sexual
intercourse with [SK], a woman not his wife.
After the end of the Government’s case-in-chief, trial
defense counsel moved to dismiss the specification both
under Rule for Courts-Martial (R.C.M.) 917 (motion for a
finding of not guilty due to insufficient evidence), and
because the Government “failed to allege [the terminal
element] in the charge sheet,” and therefore that the
charge and specification “fail[ed] to state an offense.”
As the CCA noted, this second motion should be “considered
as a motion to dismiss under R.C.M. 907.” Fosler, 69 M.J.
at 670 n.1.
The military judge denied both motions. Concerning
the motion to dismiss, the military judge stated that
“[t]here’s no requirement that the government has to either
state [which clause of the terminal element is alleged], or
state either of them in the [s]pecification.” During the
findings phase, the military judge instructed the members
regarding clauses 1 and 2.
4
United States v. Fosler, No. 11-0149/MC
III.
Historically, the express allegation of the terminal
element of Article 134 has not been viewed as necessary.
The origin of the modern Article 134, the general article,
can be traced back to before the founding of the nation --
namely, the first American Articles of War in 1775.1
William Winthrop, Military Law and Precedents 720 (2d ed.
Government Printing Office 1920) (1895). Two points can be
made about jurisprudence under the general article. First,
“‘conduct to the prejudice of good order and military
discipline’” -- and when it was added in 1916, “conduct of
a nature to bring discredit upon the armed forces” –-
“[was] deemed to be involved in every specific military
crime,” and was therefore available as a lesser included
offense (LIO) of the enumerated articles of the Articles of
War and later the UCMJ. See United States v. Foster, 40
M.J. 140, 143 (C.M.A. 1994), overruled in part by United
States v. Miller, 67 M.J. 385, 389 (C.A.A.F. 2009);
Winthrop, supra at 109. As a consequence, an accused could
be convicted under Article 134 as an LIO of nearly any
offense charged. As the charged offense was an enumerated
article and therefore did not contain the terminal element,
1
As the Articles of War were revised, the numbering of the
general article has been changed.
5
United States v. Fosler, No. 11-0149/MC
its explicit allegation must have been considered
unnecessary. The trier of fact was nonetheless required to
find that the terminal element had been proven beyond a
reasonable doubt to obtain a conviction under Article 134
as an LIO.
Second, the references relied upon by practitioners
did not treat the general article’s terminal element as a
requisite component of the charge and specification.2 To
provide guidance to practitioners, both the Manual for
Courts-Martial (MCM) and authoritative works such as
Colonel Winthrop’s treatise included form charges and
specifications for the various articles. See, e.g., Manual
for Courts-Martial, United States app. 6c (1951 ed.);
Winthrop, supra at 1010-23. This guidance never had the
force of law, but was undoubtedly relied upon in everyday
practice and generally reflective of the authors’
understanding of the law at the time.
With few exceptions, sample specifications provided
for the general article did not indicate that the terminal
element should be alleged, though the sample charges often
2
To understand this point, some background information is
helpful. In military justice, a charge consists of two parts:
the “charge” -- typically, a statement of the article alleged to
have been violated -- and the “specification” -- the more
detailed description of the conduct allegedly violative of the
article. R.C.M. 307(c)(2), (3).
6
United States v. Fosler, No. 11-0149/MC
suggested specific reference to the general article. See
Winthrop, supra at 1022 (suggesting that the terminal
element be listed in the charge, but not in the
specification, and without explicit reference to the
general article); A Manual for Courts-Martial, United
States Army app. 3 at 349-350B (1917 ed.) (addressing the
Articles of War of 1916, with the newly enacted predecessor
to the modern clause 2, and suggesting that the charge
explicitly reference the general article, but that
reference to the terminal element was largely unnecessary);
A Manual for Courts-Martial, United States Army 254-57
(1928 ed.) (same); MCM app. 6c at 488-95 (1951 ed.) (same,
as applied to Article 134 in the newly enacted UCMJ); MCM
pt. IV, paras. 60-113 (2005 ed.) (same); MCM pt. IV, paras.
60-113 (2008 ed.) (same).
This Court previously approved of such practices. See
United States v. Mayo, 12 M.J. 286, 293-94 (C.M.A. 1982);
United States v. Marker, 1 C.M.A. 393, 400, 3 C.M.R. 127,
134 (1952) (“[W]e find no reason for the inclusion in the
specification of the words ‘conduct of a nature to bring
discredit upon the military service.’”); see also United
States v. Smith, 39 M.J. 448, 449-51 (C.M.A. 1994) (stating
that the Court had previously held that a specification did
“allege the military offense of obstruction of justice
7
United States v. Fosler, No. 11-0149/MC
under Article 134” even though it did not expressly allege
the terminal element); United States v. Wolfe, 19 M.J. 174,
175-76 & n.1 (C.M.A. 1985) (upholding an Article 134
conviction omitting express reference to the terminal
element); United States v. Maze, 21 C.M.A. 260, 45 C.M.R.
34 (1972) (same); United States v. Herndon, 1 C.M.A. 461, 4
C.M.R. 53 (1952) (same).
More recent cases have required a greater degree of
specificity in charging. The Supreme Court, addressing the
relationship between the charged offense and permissible
offenses of conviction, explained in Schmuck v. United
States that the accused’s constitutional right to notice
“would be placed in jeopardy” if the government were “able
to request an instruction on an offense whose elements were
not charged in the indictment.” 489 U.S. 705, 718 (1989).
This concern led the Supreme Court to adopt the elements
test as the appropriate method of determining whether an
offense is an LIO of the charged offense -- and therefore
available as an offense of conviction. This test requires
that “the indictment contain[] the elements of both
offenses and thereby gives notice to the defendant that he
may be convicted on either charge.” Id.
In a line of recent cases drawing on Schmuck, we have
concluded that the historical practice of implying Article
8
United States v. Fosler, No. 11-0149/MC
134’s terminal element in every enumerated offense was no
longer permissible. See United States v. McMurrin, 70 M.J.
15, 17 (C.A.A.F. 2011); United States v. Girouard, 70 M.J.
5, 9 (C.A.A.F. 2011); United States v. Jones, 68 M.J. 465,
468 (C.A.A.F. 2010); Miller, 67 M.J. at 388-89; United
States v. Medina, 66 M.J. 21, 24-25 (C.A.A.F. 2008).
The Court’s holdings in this line of cases -- that an
accused’s “constitutional rights to notice and to not be
convicted of a crime that is not an LIO of the [charged]
offense” are violated when an accused is convicted of an
Article 134 offense as an LIO of a non-Article 134 charged
offense, see, e.g., Girouard, 70 M.J. at 10 (citing U.S.
Const. amends. V, VI) -- call into question the practice of
omitting the terminal element from the charge and
specification. This is so because not “‘all of the
elements’” of the offense of conviction are “‘included in
the definition of the offense of which the defendant is
charged.’” Id. (emphasis in original) (quoting Patterson
v. New York, 432 U.S. 197, 210 (1977)).
In light of this recent case law, we must determine
whether the military judge erred by denying Appellant’s
motion to dismiss for failure to state an offense.
9
United States v. Fosler, No. 11-0149/MC
IV.
The Constitution protects against conviction of
uncharged offenses through the Fifth and Sixth Amendments.
See Russell v. United States, 369 U.S. 749, 761 (1962).
The rights at issue here include the same rights we
addressed in the context of our LIO jurisprudence:
The rights at issue in this case are constitutional in
nature. The Fifth Amendment provides that no person
shall be “deprived of life, liberty, or property,
without due process of law,” U.S. Const. amend. V, and
the Sixth Amendment provides that an accused shall “be
informed of the nature and cause of the accusation,”
U.S. Const. amend. VI.
Girouard, 70 M.J. at 10; see also McMurrin, 70 M.J. at 18-
19 (quoting Girouard, 70 M.J. at 10).
Applying these protections, we set aside convictions
under Article 134 in the LIO context because the charges
and specifications in both cases alleged a violation of an
enumerated article and we could not interpret the elements
of the enumerated articles to “necessarily include[]” the
terminal element. See Article 79, UCMJ, 10 U.S.C. § 879
(2006); see, e.g., Jones, 68 M.J. at 473. We were
compelled to reach this result in multiple cases even
though we employ “normal principles of statutory
construction,” United States v. Alston, 69 M.J. 214, 216
(C.A.A.F. 2010) (rejecting a requirement that elements
“employ identical statutory language”), because none of the
10
United States v. Fosler, No. 11-0149/MC
enumerated articles we examined contained elements the
ordinary understanding of which could be interpreted to
mean or necessarily include the concepts of prejudice to
“good order and discipline” or “conduct of a nature to
bring discredit upon the armed forces,” Article 134; see
Girouard, 70 M.J. at 9.
In the instant case, we are called upon to determine,
not whether the terminal element is necessarily included in
the elements of the charged offense, but whether it is
necessarily implied in the charge and specification.
Though the object we must construe is different -- elements
versus charge and specification -- the basic question is
the same: using the appropriate interpretive tools, can
the relevant statutory or, as here, charging language be
interpreted to contain the terminal element such that an
Article 134 conviction can be sustained?
The military is a notice pleading jurisdiction.
United States v. Sell, 3 C.M.A. 202, 206, 11 C.M.R. 202,
206 (1953). A charge and specification will be found
sufficient if they, “first, contain[] the elements of the
offense charged and fairly inform[] a defendant of the
charge against which he must defend, and, second, enable[]
him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United
11
United States v. Fosler, No. 11-0149/MC
States, 418 U.S. 87, 117 (1974); see also United States v.
Resendiz-Ponce, 549 U.S. 102, 108 (2007) (citations and
quotation marks omitted); United States v. Sutton, 68 M.J.
455, 455 (C.A.A.F. 2010); United States v. Crafter, 64 M.J.
209, 211 (C.A.A.F. 2006); Sell, 3 C.M.A. at 206, 11 C.M.R.
at 206. The rules governing court-martial procedure
encompass the notice requirement: “A specification is
sufficient if it alleges every element of the charged
offense expressly or by necessary implication.”
R.C.M. 307(c)(3).
The requirement to allege every element expressly or
by necessary implication ensures that a defendant
understands what he must defend against: “[A]lthough the
terms Congress chose for [Article 134] are broad, . . .
what is general is made specific through the language of a
given specification. The charge sheet itself gives content
to that general language, thus providing the required
notice of what an accused must defend against.” Jones, 68
M.J. at 472 (citing Parker v. Levy, 417 U.S. 733, 756
(1974)). Indeed, “[n]o principle of procedural due process
is more clearly established than . . . notice of the
specific charge, and a chance to be heard in a trial of the
issues raised by that charge.” Cole v. Arkansas, 333 U.S.
196, 201 (1948); see also Miller, 67 M.J. at 388.
12
United States v. Fosler, No. 11-0149/MC
The three clauses of Article 134 constitute “three
distinct and separate parts.” United States v. Frantz,
2 C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953). Violation of
one clause does not necessarily lead to a violation of the
other clauses. For example, “disorders and neglects to the
prejudice of good order and discipline” is not synonymous
with “conduct of a nature to bring discredit upon the armed
forces,” although some conduct may support conviction under
both clauses. This is particularly true of clause 3. See,
e.g., United States v. Martinelli, 62 M.J. 52 (C.A.A.F.
2005) (detailing significant additional steps required to
obtain a conviction under clause 3, as compared with
clauses 1 and 2).
An accused must be given notice as to which clause or
clauses he must defend against. As we explained in the
context of a guilty plea: “[F]or the purposes of Article
134, UCMJ, it is important for the accused to know whether
[the offense in question is] a crime or offense not capital
under clause 3, a ‘disorder or neglect’ under clause 1,
conduct proscribed under clause 2, or all three.” Medina,
66 M.J. at 26. This requirement was based on fair notice.
See id. Principles of fair notice require the same in
contested cases.
13
United States v. Fosler, No. 11-0149/MC
Because the terminal element was not expressly
alleged, our task is to determine whether the terminal
element was necessarily implied. See R.C.M. 307(c)(3). To
do so, we must interpret the text of the charge and
specification. We agree with the court below that
Resendiz-Ponce does not foreclose the possibility that an
element could be implied. See Fosler, 69 M.J. at 675.
However, in contested cases, when the charge and
specification are first challenged at trial, we read the
wording more narrowly and will only adopt interpretations
that hew closely to the plain text.3 Cf. United States v.
Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986).
The Government argues that the terminal element is
implied because the specification alleged adultery, the
word “wrongfully” was used, and the charge stated “Article
3
Of course, not all drafting errors call a conviction into
question. “‘[M]inor and technical deficiencies’” are not
fatal to the charge and specification, assuming they do not
prejudice the accused. Russell, 369 U.S. at 763 (quoting
Smith v. United States, 360 U.S. 1, 9 (1959)). Appellant’s
specification also suffers from just such a minor and
technical deficiency, in that the specification contains an
incomplete sentence; however, assuming all other
requirements are met, such mistakes do not render the
charge and specification deficient:
Specification: In that [Appellant] . . . did, at or
near Naval Station, Rota, Spain, on or about 26
December 2007, by wrongfully having sexual intercourse
with [SK], a woman not his wife [sic].
14
United States v. Fosler, No. 11-0149/MC
134.” These facts do not provide a basis, individually or
together, to find that the charge and specification
necessarily implied the terminal element.
An allegation of adulterous conduct cannot imply the
terminal element. Article 134, if properly charged, would
be constitutional as applied to Appellant’s adulterous
conduct because, as discussed by the Supreme Court in Levy,
tradition and custom give notice to servicemembers that
adulterous conduct can give rise to a violation of the
UCMJ. See 417 U.S. at 746-47. But this only answers the
question of whether adulterous conduct can constitutionally
be criminalized under Article 134, not whether the wording
of the charge and specification satisfies constitutional
requirements. An accused cannot be convicted under Article
134 if the trier of fact determines only that the accused
committed adultery; the trier of fact must also determine
beyond a reasonable doubt that the terminal element has
been satisfied. See Medina, 66 M.J. at 27. Because
adultery, standing alone, does not constitute an offense
under Article 134, the mere allegation that an accused has
engaged in adulterous conduct cannot imply the terminal
element.
(Emphasis added.)
15
United States v. Fosler, No. 11-0149/MC
Likewise, the word “wrongfully” cannot of itself imply
the terminal element. “Wrongfully” is a word of
criminality and, though our case law has been at times
unclear, see United States v. Choate, 32 M.J. 423, 427
(C.M.A. 1991), words of criminality speak to mens rea and
the lack of a defense or justification, not to the elements
of an offense, see United States v. King, 34 M.J. 95, 97
(C.M.A. 1992); United States v. Fleig, 16 C.M.A. 444, 445,
37 C.M.R. 64, 65 (1966). Neither the word “wrongfully” nor
similar words of criminality can be read to mean or be
defined as, for example, a “disorder[ or] neglect[] to the
prejudice of good order and discipline.” Therefore, while
potentially necessary -- depending on the nature of the
alleged conduct -- such words do not imply the terminal
element in the charge and specification.
In a contested case in which Appellant challenged the
charge and specification at trial, the inclusion of
“Article 134” in the charge does not imply the terminal
element. The words “Article 134” do not, by definition,
mean prejudicial to “good order and discipline,” “of a
nature to bring discredit upon the armed forces,” or a
“crime[ or] offense[] not capital,” and we are unable to
construe the words “Article 134” in the charge we now
review to embrace the terminal element. See Resendiz-
16
United States v. Fosler, No. 11-0149/MC
Ponce, 549 U.S. 105-07 (explaining, in a contested case in
which the accused moved to dismiss the indictment at trial,
that an overt act is and has been necessary to and part of
the definition of an “attempt”); Russell, 369 U.S. at 765-
66; Hamling, 418 U.S. at 117-18; cf. Girouard, 70 M.J. at
10 (explaining the critical role of the elements of the
charged offense).
These components of the charge and specification do
not imply the terminal element alone or when combined.4
V.
The Government also argues that its desired result is
compelled by the MCM (2008 ed.), pursuant to the
President’s delegated and Article II powers, and by Parker
v. Levy.
Congress delegated to the President certain rulemaking
authority under Article 36, UCMJ, 10 U.S.C. § 836 (2006),
but not everything in the MCM represents an exercise of
that authority, and the President does not have the
authority to decide questions of substantive criminal law.
See Jones, 68 M.J. at 472 (citing Ellis v. Jacob, 26 M.J.
4
The deficiency in Appellant’s charge and specification could
not have been remedied by requesting a bill of particulars under
R.C.M. 906(b)(6). A bill of particulars cannot cure a charge
and specification that fail to state an offense. See Russell,
369 U.S. at 770; see also R.C.M. 906(b)(6), Discussion (“A bill
17
United States v. Fosler, No. 11-0149/MC
90, 92 (C.M.A. 1988)). No article of the UCMJ states that
the terminal element may be omitted. Even if the President
had the authority to do so, he has not set out any Rule for
Courts-Martial or Military Rule of Evidence directing that
the terminal element need not be alleged expressly or by
necessary implication. Some of the MCM is merely
explanatory or hortatory. The sample specifications and
drafters’ analysis are included among these categories and
do not purport to be binding. See MCM pt. I, para. 4,
Discussion (2008 ed.) (“These supplementary materials do
not constitute . . . official views of . . . any . . .
authority of the Government of the United States, and they
do not constitute rules.”); MCM pt. I, para. 4, Discussion
(2005 ed.); see also United States v. Mitchell, 66 M.J.
176, 179 (C.A.A.F. 2008) (“The interpretation of
substantive offenses in Part IV of the Manual is not
binding on the judiciary . . . .”).
Because the only discussion in the MCM stating that
allegation of the terminal element is not required, MCM pt.
IV, para. 60.c.(6)(a) (2008 ed.); MCM pt. IV, para.
60.c.(6)(a) (2005 ed.), is not set forth as language
intended to be binding, we need not decide whether any such
of particulars cannot be used to repair a specification which is
otherwise not legally sufficient.”).
18
United States v. Fosler, No. 11-0149/MC
language constitutes a proper exercise of delegated
authority under Article 36 or, if not, whether the
President’s Article II authority would extend to such a
direction.
The Government also argues that the silence of the MCM
should be interpreted to constitute adoption of historical
practices. However, there is no clear indication from
Congress -- expressed in the text of the UCMJ or otherwise
-- that it intended to do so. Moreover, such an
interpretation would require us to consider whether the
actions of Congress or the President contravene
constitutional mandates. In light of the canon of
constitutional avoidance, we decline to adopt the
Government’s position. See Clark v. Martinez, 543 U.S.
371, 380-81 (2005) (explaining the canon of constitutional
avoidance).
One could argue that, because the Supreme Court upheld
the constitutionality of Article 134 on the basis of the
unique history of that article in the military, see
generally Levy, 417 U.S. 733, we should also consider that
history when determining whether the terminal element has
been alleged by necessary implication. As noted,
historically, the terminal element did not need to be
clearly alleged. And, as discussed, Article 134 was
19
United States v. Fosler, No. 11-0149/MC
traditionally implied as an LIO of any enumerated article
even though the terminal element was not listed among the
elements of the charged offense.
But the Supreme Court’s LIO jurisprudence has changed
since Levy and so has this Court’s, circumscribing the
extent to which Article 134 -- and particularly its
terminal element -- can be implied. “The rights at issue
in this case are constitutional in nature,” and the
government is obligated to allege all the elements of the
offense. See Girouard, 70 M.J. at 10. Moreover, Levy
focused on the constitutionality of Article 134 itself, not
the specific procedure of charging an Article 134 offense.
See 417 U.S. at 754. It is also worth noting that, in
Levy, the terminal element of Article 134 was expressly
alleged. See id. at 738 n.5.
The Government must allege every element expressly or
by necessary implication, including the terminal element.
The Government did not expressly allege the terminal
element in this case. Because Appellant made an R.C.M. 907
motion at trial, we review the language of the charge and
specification more narrowly than we might at later stages.
Cf. Watkins, 21 M.J. at 209-10. In this context, and in
light of the changes in Article 134 jurisprudence, we do
not adopt the Government’s broad reading of the reference
20
United States v. Fosler, No. 11-0149/MC
in the charge to “Article 134.” Absent the historical
gloss on the meaning of “Article 134” when that phrase
exists in the charge, we are compelled to hold that the
charge and specification do not allege the terminal element
expressly or by necessary implication. To the extent that
prior decisions such as Mayo and Marker hold to the
contrary, they are overruled.
Under principles of stare decisis, we examine
“intervening events, reasonable expectations of
servicemembers, and the risk of undermining public
confidence in the law.” United States v. Boyett, 42 M.J.
150, 154 (C.A.A.F. 1995). “But the doctrine does not apply
when a statute, executive order, or other basis for a
decision changes.” Id. (footnotes omitted); see also
Agostini v. Felton, 521 U.S. 203, 235-36 (1997). Although
the dissenting opinions argue at length for the application
of stare decisis, the Supreme Court has explained that
“stare decisis cannot possibly be controlling when . . .
the decision in question has been proved manifestly
erroneous, and its underpinnings eroded, by subsequent
decisions of [the Supreme] Court.” United States v.
Gaudin, 515 U.S. 506, 521 (1995).
The jurisprudence of the Supreme Court and our own
Court has changed. As discussed, prior to application of
21
United States v. Fosler, No. 11-0149/MC
the elements test in the LIO context, it was largely
settled that Article 134 could be implied in every other
offense and was available as an LIO. This was true even
though the language of the terminal element was not
contained within the charged offense. But the Supreme
Court clarified the law, requiring the elements test. See
Schmuck, 489 U.S. at 716-21. After some delay, we applied
that law to courts-martial, holding that constitutional
notice requirements no longer permitted such broad
implication of the terminal element. See Medina, 66 M.J.
at 24-25. The mandates of constitutional notice
requirements superseded the long-standing practice of
implying Article 134 in other enumerated offenses, thus
substantially limiting the extent to which the terminal
element can permissibly be implied. Stare decisis does not
require that we ignore the fact that the basis for the
historical practice of omitting the terminal element when
an Article 134 offense is charged has been substantially
eroded. See Boyett, 42 M.J. at 154.
Therefore, because an accused must be notified which
of the three clauses he must defend against, to survive an
22
United States v. Fosler, No. 11-0149/MC
R.C.M. 907 motion to dismiss, the terminal element must be
set forth in the charge and specification.5
VI.
In this case, at the end of the Government’s case-in-
chief, defense counsel made a motion to dismiss the
specification of adultery under Charge II because the
Government “failed to allege [the terminal element] in the
charge sheet,” and therefore “it’s a failure to state an
offense.” This constitutes a motion to dismiss under
R.C.M. 907(b)(1)(B), which may be made “at any stage of the
proceedings.” The military judge denied this motion.
Construing the text of the charge and specification
narrowly, as we must based on the posture of the case, they
fail to allege the terminal element expressly or by
necessary implication. Because allegation of the terminal
5
Judge Baker writes that our analysis “may as a practical matter
have the effect of invalidating the text of R.C.M. 307.” United
States v. Fosler, __ M.J. __ (5) (C.A.A.F. 2011) (Baker, J.,
dissenting). We disagree; R.C.M. 307(c)(3) calls for a two-step
analysis of whether a charge and specification state an offense.
If the element is not expressly stated or necessarily implied,
it is absent. As we state, the constitutionality of R.C.M. 307
has not been called into question by recent case law. When we
read the charge and specification narrowly, as we must when an
R.C.M. 907 motion is made before the end of trial, the terminal
element might be alleged using words with the same meaning. See
Alston, 69 M.J. at 216. That R.C.M. 307 and the Constitution
permit, as a general matter, elements to be necessarily implied,
does not mean that the text of every element is equally
susceptible to implication consistent with constitutional notice
requirements.
23
United States v. Fosler, No. 11-0149/MC
element is constitutionally required and the Government
failed to satisfy that requirement here, the military
judge’s decision to deny Appellant’s motion to dismiss was
in error.6 The remedy for this erroneously denied motion to
dismiss is dismissal. See United States v. Smith, 39 M.J.
448, 452-53 (C.M.A. 1994).
VII.
Accordingly, the judgment of the United States Navy-
Marine Corps Court of Criminal Appeals is reversed. The
findings of guilty and the sentence are set aside, and the
charge and its specification are dismissed.
6
We do not take issue with the President’s ability to describe
conduct, such as adultery, which might invoke a violation of
Article 134. See Jones, 68 M.J. at 472. Nor does our holding
challenge the validity, vitality, or continued relevance of
Article 134. Rather, we simply require that its elements be
charged explicitly or by necessary implication, as the
Constitution and the R.C.M. require. Nothing in Levy is to the
contrary.
24
United States v. Fosler, No. 11-0149/MC
EFFRON, Chief Judge (dissenting):
While serving as a drill instructor at the Naval Junior
Reserve Officer Training Corps Program in Rota, Spain, Appellant
engaged in sexual intercourse with a high school student in the
program. The ensuing charges included an allegation that
Appellant, who was married, committed adultery with the student
-- a sixteen-year-old dependent daughter of an active duty Navy
servicemember -- in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2006) (proscribing
“all disorders and neglects to the prejudice of good order and
discipline in the armed forces, all conduct of a nature to bring
discredit upon the armed forces, and crimes and offenses not
capital”).
The adultery charge employed the sample specification set
forth in the Manual for Courts-Martial. The specification used
the long-standing format for Article 134 offenses, employing
wording that predates enactment of the UCMJ.
In this appeal, Appellant challenges the legality of the
traditional wording of specifications under Article 134.
Appellant does not challenge the ruling of the military judge
regarding the legal sufficiency of the prosecution’s evidence on
each of the elements of the offense; nor does Appellant
challenge the adequacy of the military judge’s instructions to
the court-martial panel on the elements of the offense.
United States v. Fosler, No. 11-0149/MC
Appellant contends on appeal that the charge should be dismissed
on the theory that the standard wording for an Article 134
charge does not constitute an offense under the Uniform Code of
Military Justice. The majority opinion agrees with Appellant’s
contention.
Article 134 serves as a critical foundation to the
maintenance of good order and discipline in the armed forces.
See Parker v. Levy, 417 U.S. 733 (1974). The majority decision
calls into question the validity of every court-martial
conviction that has employed the traditional specification.
Trial and appellate courts will be required to reexamine Article
134 charges in pending proceedings; and further litigation is
likely concerning the impact of the decision on prior
convictions under Article 134. For the reasons set forth below,
I respectfully dissent.
I. PRETRIAL AND TRIAL PROCEEDINGS
The text of the charge and its specification
The Commanding General, II Marine Expeditionary Force, Camp
Lejeune, North Carolina, convened a general court-martial to
consider charges against Appellant, including the following:
Charge II: VIOLATION OF THE UCMJ, ARTICLE
134
Specification: In that Lance Corporal James
N. Fosler, U.S. Marine Corps, Marine Corps
Security Force Regiment, on active duty, a
married man, did, at or near Naval Station,
2
United States v. Fosler, No. 11-0149/MC
Rota, Spain, on or about 26 December 2007, .
. . wrongfully hav[e] sexual intercourse
with [SK], a woman not his wife.
The legality of the charge
The convening authority, in making the referral, acted upon
the advice of his staff judge advocate (SJA). The SJA advised
the convening authority that the “specifications under the
charges allege an offense under the UCMJ.” See Article 34,
UCMJ, 10 U.S.C. § 834 (2006) (precluding a convening authority
from referring a case for trial by general court-martial in the
absence of such advice).
The SJA’s advice as to the legality of the charge reflected
well-established military law. See, e.g., Manual for Courts-
Martial, United States pt. IV, para. 62.f (2008 ed.) (MCM (2008
ed.)) (sample specification); Manual for Courts-Martial, United
States, app. 6c., para. 127 (1969 rev. ed.) (MCM (1969 rev.
ed.)) (sample specification in predecessor edition); Manual for
Courts-Martial, United States, app. 6, para. 119 (1951 ed.)
(sample specification in the first edition of the Manual issued
following enactment of the UCMJ); Manual for Courts-Martial,
U.S. Army, app. 4, para. 117 (1949 ed.) (sample specification in
the Manual in force for Army proceedings during the period
immediately preceding enactment of the UCMJ).
The charge, as drafted, also reflected the traditional
relationship between the text of the charge and the elements of
3
United States v. Fosler, No. 11-0149/MC
this offense. The President, in the Manual for Courts-Martial,
set forth the following guidance concerning the elements of the
offense at issue in the present appeal:
(1) That the accused wrongfully had
sexual intercourse with a certain person;
(2) That, at the time, the accused or
the other person was married to someone
else; and
(3) 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. 62.b (2008 ed.) In Rule for Court-Martial
(R.C.M.) 307(c)(3), which governs the drafting of charges, the
President emphasized that a “specification is a plain, concise,
and definite statement of the essential facts constituting the
offense charged.” The President further added: “A
specification is sufficient if it alleges every element of the
charged offense expressly or by necessary implication.” Id.
Consistent with authority to address an element “by
necessary implication” rather than “expressly,” the President
has provided the following guidance with respect to the drafting
of specifications for offenses under Article 134:
A specification alleging a violation of
Article 134 need not expressly allege that
the conduct was “a disorder or neglect,”
that it was “of a nature to bring discredit
upon the armed forces,” or that it
constituted “a crime or offense not
4
United States v. Fosler, No. 11-0149/MC
capital.” The same conduct may constitute a
disorder or neglect to the prejudice of good
order and discipline in the armed forces and
at the same time be of a nature to bring
discredit on the armed forces.
MCM pt. IV, para. 60.c.(6)(a) (2008 ed.); accord MCM para. 213a,
(1969 rev. ed.). see MCM, Analysis of Punitive Articles app. 23
at A23-19 (2008 ed.) (citing para. 213 of the 1969 Manual as the
source for the current provision).
The drafters’ analysis of the 1969 Manual noted that under
paragraph 213, the specification “need not expressly allege”
which clause the conduct violates. Id. In support of this
provision, the drafters’ analysis relied upon United States v.
Herndon, 1 C.M.A. 461, 4 C.M.R. 53 (1952) (affirming a
conviction in which the specification did not refer to any of
the three clauses within Article 134). Herndon expressly relied
upon the language of the sample specification, as set forth in
the 1951 Manual, and affirmed a finding that employed the
language of the sample specification -- language similar in
pertinent respects to the specification at issue in the present
case. Herndon, 1 C.M.A. at 463-65, 4 C.M.R. at 55-57. Herndon
serves as the controlling precedent in support of the validity
of the guidance in the Manual. See, e.g., United States v.
Mayo, 12 M.J. 286, 293 (C.M.A. 1982) (citing with approval
Herndon and para. 213a).
5
United States v. Fosler, No. 11-0149/MC
The observation in Mayo, 12 M.J. at 293 -- that our Court
“has not held that a specification lodged under Article 134 must
include an allegation that [the] accused’s conduct was to the
prejudice of good order and discipline or to the discredit of
the armed forces” -- underscores that the guidance in the Manual
is consistent with the judicial interpretation of the UCMJ. In
that context, the SJA properly advised the convening authority
that the charged conduct constituted an offense under the UCMJ.
Pretrial proceedings
During the extensive consideration of pretrial motions in
this case, neither party raised an issue concerning the wording
of the specification. The defense did not move to make the
charges more definite or for a bill of particulars under R.C.M.
906(a)(6).
The defense motion at the close of the Government’s case
During the trial, the prosecution introduced evidence that
Appellant was an instructor in the Naval Junior Reserve Officer
Training Corps Program, that he had engaged in sexual activity
with a high school student in the program, that the student was
sixteen years old, and that she was the dependent of an active
duty member of the Navy. After the Government presented its
evidence and rested, the defense presented a motion for a
finding of not guilty under R.C.M. 917, including:
6
United States v. Fosler, No. 11-0149/MC
a motion as to Charge II, under Article 134,
because the government has failed to show
that it was prejudicial to good order and
discipline, or service discrediting, and
also failed to allege it in the charge
sheet. Therefore, it’s a failure to state
an offense. He can’t be found guilty of a
crime, according to this Specification as
pled.
At first, the military judge viewed the defense as offering
a motion under R.C.M. 917 (requiring the military judge to enter
a finding of not guilty “if the evidence is insufficient to
sustain a conviction of the offense affected”). In the motion
proceeding, the defense offered no explanation as to why the
prosecution’s evidence of sexual activity between an instructor
and a student who also was a military dependent did not meet the
legal sufficiency standard with respect to proof that
Appellant’s conduct was either prejudicial to good order and
discipline or service discrediting under applicable law. The
military judge denied the motion, and Appellant has not
challenged his ruling under R.C.M. 917 in the present appeal.
The defense then asked the military judge to address the
defense objection that the specification did not “allege a
critical element, which is prejudicial to good order and
discipline, or . . . service discrediting.” The military judge
responded by directing defense counsel’s attention to the sample
specification in the Manual for Courts-Martial. The following
dialogue ensued:
7
United States v. Fosler, No. 11-0149/MC
MJ: Can you tell me, in what way the
Specification that’s currently on the charge
sheet, in the case at bar, falls short of
that simple specification, or are you saying
that the sample specification in the Manual
for Courts-Martial is, itself, is deficient
in that it, like many of the 134’s, does not
explicitly have the terminal element of --
DC: Yes, ma’am. Our argument is it should
explicitly say that it’s -- that under the
circumstances the conduct was prejudicial to
good order and discipline, or of a nature to
bring discredit upon the armed forces, so
that Lance Corporal Fosler would know
whether that other element, one of the three
elements is prejudicial to good order and
discipline or service discrediting.
MJ: There’s no requirement that the
government has to either state in the
Specification which one it is, or state
either of them in the Specification.
DC: Yes, ma’am.
MJ: The government can prove up either of
them in this case. And the court finds that
there is certainly evidence to survive a
[motion under R.C.M.] 917 on the terminal
element of conduct prejudicial to good order
and discipline or service discrediting, to
survive the [R.C.M.] 917 motion at this
point.
DC: Yes, ma’am. Thank you.
The defense offered no legal analysis in support of its
objection to the wording of the specification as drafted.
Likewise, the defense did not address this Court’s precedent in
the Herndon-Mayo line of cases approving the Manual’s sample
specification, nor did the defense offer any legal authority for
8
United States v. Fosler, No. 11-0149/MC
the proposition that the military judge should reject reliance
on the sample specification.
Instructions
After the parties concluded their presentation of evidence
on the merits, the military judge instructed the court-martial
panel on every element of the offense:
Members, looking next at Charge II and the
sole Specification thereunder, the accused
is charged with the offense of adultery. In
order to find the accused guilty of this
offense, you must be convinced, by legal and
competent evidence, beyond a reasonable
doubt:
First, that at or near Naval Station Rota,
Spain, on or about 26 December 2007, the
accused wrongfully had sexual intercourse
with [SK].
Secondly, that at the [time, the] accused
was married to another; and
Thirdly, 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.
The military judge then explained, in detail, the meaning
of the terms in the third element:
“Conduct prejudicial to good order and
discipline” is conduct that causes a
reasonably direct and obvious injury to good
order and discipline.
“Service discrediting conduct” is conduct
that tends to harm the reputation of the
service, or to lower it in public esteem.
9
United States v. Fosler, No. 11-0149/MC
At that point, the military judge provided further detailed
instructions on the meaning of the third element in the context
of an adultery charge:
Not every act of adultery constitutes an
offense under the Uniform Code of Military
Justice. To constitute an offense, the
government must prove, beyond a reasonable
doubt, that the accused’s adultery was
either directly prejudicial to good order
and discipline, or service discrediting.
“Conduct prejudicial to good order and
discipline” includes adultery that has an
obvious and measurably divisive effect on
the discipline, morale, or cohesion of a
military unit or organization, or that has a
clearly detrimental impact on the authority,
stature, or esteem of a service member.
“Service discrediting conduct” includes
adultery that has a tendency, because of its
open notorious nature, to bring the service
into disrepute, to make it subject to public
ridicule, or to lower it in public esteem.
Under some circumstances, adultery may not
be prejudicial to good order and discipline,
but nevertheless may be service
discrediting, as I’ve explained those terms
to you.
Likewise, depending on the circumstances,
adultery could be prejudicial to good order
and discipline, but not be service
discrediting.
The military judge then added detailed guidance on the
application of these instructions to the facts of the case:
In determining whether the alleged adultery
in this case is prejudicial to good order
and discipline, or is of a nature to bring
discredit upon the armed forces, you should
10
United States v. Fosler, No. 11-0149/MC
consider all the facts and circumstances
offered on this issue including, but not
limited to, the accused’s marital status,
military rank, grade, or position; the
impact of the adultery on a unit or
organization of the accused, such as a
detrimental effect on a unit or
organization, morale, teamwork and
efficiency; where the adultery occurred; who
may have known of the adultery; and the
nature, if any, of the official and personal
relationship between the accused and [SK].
In the present appeal, Appellant has not challenged the
adequacy of these instructions, nor has Appellant challenged the
legal sufficiency of the evidence upon which the court-martial
panel returned a finding of guilty on the charge of adultery.
II. APPELLATE CONSIDERATION
The majority offers a variety of reasons for concluding
that the traditional specification does not set forth an offense
under the UCMJ.
Historical perspective
The majority opinion speculates that the format of the
traditional specification reflects prior jurisprudence in which
Article 134 offenses were treated as included within all of the
other “enumerated articles” for purposes of treatment as lesser
included offenses. According to the majority, “As the charged
offense was an enumerated article and therefore did not contain
the terminal element [of Article 134], its explicit allegation
must have been considered unnecessary.” __ M.J. __ (5-6)
11
United States v. Fosler, No. 11-0149/MC
(citing United States v. Foster, 40 M.J. 140, 143 (C.M.A. 1994);
William Winthrop, Military Law and Precedents 109 (2d ed. Gov’t
Printing Office 1920) (1895)). Foster contains no discussion of
historical basis of the format for Article 134 offenses, and
nothing in Winthrop suggests that the traditional format was
developed to address the relationship between greater and lesser
offenses. The majority opinion does not identify any historical
record that would justify the conclusion that the impetus for
the format of the traditional specification came from a concern
about the treatment of lesser included offenses.
Precedent
The majority opinion does not cite any case in which our
Court has held that the traditional specification fails to state
an offense under the UCMJ. After acknowledging the Herndon line
of cases upholding the traditional specification, the majority
opinion contends that the result in the present case is
compelled by our recent decisions in United States v. McMurrin,
70 M.J. 15, 17 (C.A.A.F. 2011); United States v. Girouard, 70
M.J. 5, 9 (C.A.A.F. 2011); United States v. Jones, 68 M.J. 465,
468 (C.A.A.F. 2010); United States v. Miller, 67 M.J. 385, 388-
89 (C.A.A.F. 2009); United States v. Medina, 66 M.J. 21, 24-25
(C.A.A.F. 2008). __ M.J. __ (8-9). These cases represent the
latest attempt by our Court to bring some order to consideration
of lesser included offenses -- a subject that has been the
12
United States v. Fosler, No. 11-0149/MC
subject of considerable instability in military law. See, e.g.,
Gary E. Felicetti, Surviving the Multiplicity/LIO Family Vortex,
Army Law, Feb. 2011, at 46, 46-48 (describing the frequent
shifts in judicial doctrine prior to the current set of cases).
These cases address the role of elements in ascertaining whether
a purported lesser offense is included within a charged offense
for purposes of Article 79, UCMJ, 10 U.S.C. § 879 (2006)
(governing convictions for lesser included offenses).
The cases relied upon in the majority opinion stand for the
proposition that a conviction may not be affirmed under Article
79 if the purported lesser included offense contains an element
that is not necessarily included within the charged offense.
These cases underscore the necessity of including all elements
within the text of a charge; but that is not the primary issue
in the present case. R.C.M. 307(c)(3) specifically states that
“[a] specification is sufficient if it alleges every element of
the charged offense expressly or by necessary implication.” If
the specification before us does not meet that test, it is
invalid irrespective of our holdings in the Medina-McMurrin line
of cases. In that regard, the primary question in the present
case is whether the specification at issue necessarily included
all the elements of the charged offense.
13
United States v. Fosler, No. 11-0149/MC
Alternate theories under Article 134
The majority opinion states that “[a]n accused must be
given notice as to which clause or clauses [of Article 134] he
must defend against.” __ M.J. at __ (13). The opinion cites no
case in which we have held that a specification must identify a
clause or clauses within Article 134 in order to state an
offense under the UCMJ and survive a motion to dismiss. The
opinion relies on our recent decision in Medina, 66 M.J. at 26,
but that case does not require that a specification identify the
Article 134 clause under which an individual has been convicted.
On the contrary, Medina expressly recognizes that an accused
charged with an offense under Article 134, clause 3 (non-capital
crimes and offenses) can be convicted of either a clause 1
offense (conduct prejudicial to good order and discipline) or a
clause 2 offense (service discrediting conduct) even if neither
is mentioned in the specification. See id. at 26-27. Such a
conviction is valid, under Medina, so long as the military judge
has addressed the alternate theory through instructions in a
contested case or through the plea inquiry or a pretrial
agreement in a guilty plea case. See id. In the present case,
involving a contested trial, the military judge provided
detailed instructions with respect to both service discrediting
conduct and conduct prejudicial to good order and discipline.
14
United States v. Fosler, No. 11-0149/MC
To the extent that an accused can demonstrate that
information beyond the text of the sample specification may be
necessary in a particular case, the accused may file a motion
for a more definite specification or a bill of particulars under
R.C.M. 906(b)(6). Such a motion, however, does not address the
separate question of whether a charge must be dismissed for
failure to state an offense under R.C.M. 907(b)(1)(B), but
instead involves a determination as to whether relief is
appropriate under R.C.M. 906(b)(6). In the present case, the
defense did not move for a more definite specification or for a
bill of particulars.
Words of criminality
As noted in the majority opinion, this case presents the
question of whether the specification necessarily implied an
element of the offense. __ M.J. at __ (14). See R.C.M.
307(c)(3). In this case, the issue is whether the traditional
specification necessarily implies that the charged conduct was
either prejudicial to good order and discipline or service
discrediting.
The majority opinion states that “the word ‘wrongfully’ [in
the specification] cannot of itself imply the terminal element,”
contending that we are compelled to dismiss the specification
because “words of criminality speak to mens rea and the lack of
a defense or justification, not to the elements of an offense.”
15
United States v. Fosler, No. 11-0149/MC
__ M.J. at __ (16). In support of that proposition, the
majority opinion cites United States v. King, 34 M.J. 95, 97
(C.M.A. 1992), and United States v. Fleig, 16 C.M.A. 444, 445,
37 C.M.R. 64, 65 (1966), but neither King nor Fleig compels the
result in the present case. Neither case addressed the
relationship between an allegation of wrongfulness and the
terminal element. Indeed, both cases involved specifications
that did not contain the terminal element, a circumstance that
drew no attention from the Court in either case. In both cases,
the Court focused on factual deficiencies in the specifications,
not the terminal element. As noted by the Court of Criminal
Appeals in discussing the relationship of King and Fleig to the
present case:
[T]he . . . comparison[] to other flawed
specifications is inapplicable because they
were all missing allegations of facts
specific to the individual crimes charged.
See King, 34 M.J. at 97 (allegation of
marriage missing in adultery specification);
. . . Fleig, [16 C.M.A. at 445-46, 37 C.M.R.
at 64-65] (for a hit-and-run offense, the
specification was missing fact that the
vehicle the accused was driving was involved
in the collision). Such factual charging
omissions are not analogous to omitting the
terminal element that is common to all
Article 134 offenses.
United States v. Fosler, 69 M.J. 669, 675 (N-M. Ct. Crim. App.
2010) (emphasis and citations omitted).
16
United States v. Fosler, No. 11-0149/MC
The Court of Criminal Appeals then addressed the question
of whether the elements of the offense were necessarily implied
in the present case. After carefully discussing our prior cases
and the specification at issue in this case, the court offered
the following conclusion:
[I]f a specification does not contain the
terminal element specifying that the conduct
was prejudicial to good order and discipline
or service discrediting, alleging the
criminality of the specified conduct by use
of the words “wrongful” or “unlawful” is
sufficient.
In the present case, the specification
itself properly alleges both criminality and
the acts that might be determined as
prejudicial to good order and discipline or
service discrediting. The specification at
issue provided notice to LCpl Fosler that
while he was a married man and on active
duty at Naval Station, Rota, Spain, he
wrongfully had sexual intercourse with a
woman not his wife. The appellant was on
notice that his conduct while a married
active duty service member put him at risk
of criminal liability if the conduct was
service discrediting or prejudicial to good
order and discipline.
. . . [T]he specification here states the
sexual intercourse was wrongful. Again,
“wrongful” is employed as a word of
criminality, and when alleged in concert
with the specified conduct, it necessarily
implies the terminal element. This is
particularly true in the context of
adultery, where alleging that the conduct
was wrongful is required because it would
normally not be a crime in civilian
jurisdictions. . . . [T]he wrongfulness of
the appellant’s conduct in the military
context is what implies prejudice to good
17
United States v. Fosler, No. 11-0149/MC
order and discipline, service discredit, or
both.
Id. at 676-77 (emphasis and footnote omitted). I agree. Our
precedent supports use of the traditional specification, and
nothing in our case law compels a contrary result.
III. ADHERENCE TO PRECEDENT
The present case does not require us to decide whether any
of the guidance in Part IV of the Manual establishes a binding
requirement. Here, we are dealing with well-established
judicial precedent that predates enactment of the UCMJ. In that
regard, the President’s guidance both reflects the state of the
law, and informs the application of the rule set forth in R.C.M.
307(c)(3) regarding the treatment of elements in the drafting of
specifications.
If this were a case of first impression, the approach
suggested in the majority opinion might well provide an
appropriate ground for a decision. We are not dealing with a
fresh case, however, but instead have a case involving long-
standing precedent under military law.
The Supreme Court has emphasized that adherence to
precedent in judicial decisions -- the doctrine of stare decisis
-- provides “the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
18
United States v. Fosler, No. 11-0149/MC
contributes to the actual and perceived integrity of the
judicial process.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). Relying on our precedent, the President has promulgated
guidance that has governed the charging of offenses under
Article 134 throughout the history of the UCMJ. Notwithstanding
that reliance, the majority opinion holds that a charge that
employs the traditional specification does not set forth an
offense under the UCMJ. Given the significant reliance on
Article 134 charges in maintaining good order and discipline in
the armed forces, the majority opinion is likely to lead to
extensive litigation about the impact of the decision on pending
courts-martial and appellate proceedings; and the decision may
well result in collateral challenges to prior convictions that
relied upon the traditional specification.
In considering the application of precedent, we have
observed that “[s]tare decisis is a principle of decision
making, not a rule, and need not be applied when the precedent
at issue is ‘unworkable or . . . badly reasoned.’” United
States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000) (omission in
original) (quoting Payne, 501 U.S. at 827). In terms of
workability, overturning this precedent will lead us into
uncharted territory, with numerous challenges to past and
present cases involving convictions under Article 134. By
contrast, the procedure approved in the Herndon line of cases --
19
United States v. Fosler, No. 11-0149/MC
a procedure that provided Appellant with the same notice and
opportunity to respond as has been provided traditionally to
servicemembers charged with Article 134 offenses -- is neither
unworkable nor badly reasoned. Under these circumstances, I
would adhere to precedent and affirm the decision of the Court
of Criminal Appeals.
20
United States v. Fosler, No. 11-0149/MC
BAKER, Judge (dissenting):
I respectfully dissent for three reasons. First, as
discussed in Part I, this case presents a straightforward
application of Rule for Courts-Martial (R.C.M.) 307. The text
of the specification, which referenced wrongful adulterous
conduct on a date certain with a person certain, necessarily
implied the terminal element of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2006). The Manual for
Courts-Martial, United States (2008 ed.) (MCM) expressly states
so. Military practice consistently provides so. And, this
Court’s case law has always concluded so.
Second, as discussed in Part II, the majority’s opinion
reaches beyond the needs of this case, and appears to put in
question, if not invalidate, all Article 134, UCMJ, convictions
past and present, that did not or do not include the terminal
element in the specification. While pleading the terminal
element might be good practice, it is not required. Such a sea
change runs counter to the plain language of R.C.M. 307, long-
standing practice, and principles of stare decisis that are
particularly apt in the Article 134, UCMJ, context. One is left
to ask: If the specification in Appellant’s case does not
implicitly include the terminal element, when would a
specification include the terminal element by implication?
United States v. Fosler, No. 11-0149/MC
Third, as considered in Part II, the majority opinion
raises more questions than it answers. A number of critical
systemic legal policy questions remain open. What status, if
any, does the Manual play in the context of Article 134, UCMJ?
What role does the Commander in Chief play, if any, in defining
the Rules for Courts-Martial (R.C.M.) and the elements of
Article 134, UCMJ? Finally, has Article 134, UCMJ, lost its
essential character as a predictable, and therefore fair and
useful, element of military discipline?
I.
The legal question presented in this case is
straightforward: Does the specification allege every element of
the charged offense expressly or by necessary implication? In
my view, the answer is yes. The specification at issue states:
Specification: In that Lance Corporal James N. Fosler
. . . a married man, did, at or near Naval Station,
Rota, Spain, on or about 26 December 2007, . . .
wrongfully hav[e] sexual intercourse with [SK], a
woman not his wife.
To start with the obvious, the specification does not expressly
allege either of the terminal elements for an offense under
clauses 1 or 2 of Article 134, UCMJ. Thus, the question is
whether the elements of service discrediting conduct or conduct
prejudicing good order and discipline are alleged by necessary
2
United States v. Fosler, No. 11-0149/MC
implication, as permitted by the text of R.C.M. 307.1 The answer
is yes.
First, the charge alleges that Appellant violated Article
134, UCMJ. That necessarily implies that Appellant violated
either clause 1, clause 2, clause 3, or some combination of the
three clauses.
Second, the specification expressly states that Appellant
violated Article 134, UCMJ, on a date certain, “on or about 26
December 2007,” by “having sexual intercourse with [SK], a woman
not his wife.” Thus, the specification expressly states that
Appellant committed adultery.
Third, the specification expressly states that Appellant
engaged in this conduct “wrongfully.” Thus, his conduct was not
mere adultery, but wrongful adultery in the context of the
military. As the majority itself acknowledges “wrongful” is a
word of criminality. Thus, the specification charges appellant
with criminal adultery in the military and not mere adultery.
Fourth, for adultery to be criminal, “the adulterous
conduct must either be directly prejudicial to good order and
discipline or service discrediting.” MCM, pt. IV, para. 62.c.
That is the only manner in which adultery can be criminal under
the article. Moreover, the specification in Appellant’s case is
1
“A specification is sufficient if it alleges every element of
the charged offense expressly or by necessary implication.”
R.C.M. 307(c)(3).
3
United States v. Fosler, No. 11-0149/MC
based on the sample specification provided in the Manual.2 Thus,
a specification alleging wrongful adulterous conduct under
Article 134, UCMJ, necessarily implies that the conduct is
service discrediting or prejudicial to good order and
discipline. That is the basis on which the President has
authorized its prosecution.
Finally, because the specification provides the specific
date of the conduct concerned, as well as the name of the other
party, Appellant was on notice as to what alleged facts in
support of these elements he would be required to meet. As a
result, the specification satisfied Appellant’s right “to be
informed of the nature and cause of the accusation.” U.S.
Const. amend. VI.
Nonetheless, the majority concludes that an allegation of
wrongful adulterous conduct on a date certain charged under
Article 134, UCMJ, does not imply that conduct is either service
discrediting or prejudicial to good order and discipline. This
conclusion celebrates form over substance; as surely the
2
The Manual provides the following sample specification:
In that [fill in] (personal jurisdiction data), (a married
man/a married woman), did, (at/on board -- location)
(subject-matter jurisdiction data, if required), on or
about [fill in date or range of dates], wrongfully have
sexual intercourse with [fill in name of other party], a
(married) (woman/man) not (his wife) (her husband).
MCM pt. IV, para. 62.f.
4
United States v. Fosler, No. 11-0149/MC
constitutional principle at stake is satisfied as is the purpose
behind R.C.M. 307: fair notice to the defendant as to what he
will have to defend against.
What is more, and more important from a systemic
standpoint, the majority “call[s] into question the practice of
omitting the terminal element from the charge and specification”
in the context of Article 134, UCMJ, offenses generally.
Fosler, __ M.J. at __ (9). Posing the question, in turn places
in doubt the text of R.C.M. 307, which plainly permits
specifications to reference elements by necessary implication.
Thus, at the very least, as the Chief Judge notes:
Given the significant reliance on Article 134 charges
in maintaining good order and discipline in the armed
forces, the majority opinion is likely to lead to
extensive litigation about the impact of the decision
on pending courts-martial and appellate proceedings;
and the decision may result in collateral challenges
to prior convictions that relied upon the traditional
specification.
Fosler, __ M.J. at __ (19) (Effron, C.J., dissenting). Whether
done expressly, or by implication, the new court-made standard
may as a practical matter have the effect of invalidating the
text of R.C.M. 307. If the terminal element is not implied in
Appellant’s case, it is not clear under what conditions the
terminal element might ever be implied in the context of an
Article 134, UCMJ, offense.
5
United States v. Fosler, No. 11-0149/MC
II.
There are several additional flaws in the analysis that
warrant discussion. First, the majority’s analysis relies on a
string of cases from the past two years that are not on point,
United States v. McMurrin, 70 M.J. 15, 17 (C.A.A.F. 2011);
United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011); United
States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010); United States
v. Miller, 67 M.J. 385, 388-89 (C.A.A.F. 2009); and United
States v. Medina, 66 M.J. 21, 24-25 (C.A.A.F. 2008). These
cases address Article 134, UCMJ, but they do not address R.C.M.
307 or fair notice of the terminal element for offenses charged
under Article 134, UCMJ. The first four cases address lesser
included offenses. The latter case is about the right of
defendants to know what offense they are pleading to at the time
they plead, thus barring an appellate court from affirming a
plea to a distinct offense after the fact and while a case is on
appeal. Nor do the heightened notice standards applicable to
guilty pleas or lesser included offense instructions address the
same constitutional concerns as the notice pleading standard
applicable to specifications -- until now. The majority
compares apples to oranges. There are no double jeopardy
concerns, for example, created by implying the terminal element
of Article 134, UCMJ, that would necessitate the same notice
standard as the guilty plea and lesser included offense cases.
6
United States v. Fosler, No. 11-0149/MC
In short, these cases do not address whether a specification
under Article 134, UCMJ, is or is not constitutionally
sufficient to state an offense.
Second, the majority’s analysis ignores long-standing
military practice as well as the principles embedded in the
doctrine of stare decisis, which are particularly relevant in
light of this continuous military practice. Indeed, as the
Chief Judge documents, the majority whistles past sixty years of
precedent and many more of continuous and consistent practice by
calling it “historical.” Fosler, __ M.J. __ at __ (22).
However, we should be clear. What the majority dubs
“historical” is the current, consistent, and continuous everyday
practice in the military. It is consistent with the Manual. It
is consistent with this Court’s precedent. And, it is reflected
in the forty-five trailer cases currently pending resolution of
this case. The number is growing. In such a context, the
principle of stare decisis would seem particularly suited.
As the Court has stated, the doctrine of stare decisis is
“the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial process.” United
States v. Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003) (quoting Payne
v. Tennessee, 501 U.S. 808, 827, (1991)). Stare decisis is a
7
United States v. Fosler, No. 11-0149/MC
principle of decision making and need not be applied when the
precedent at issue is unworkable or badly reasoned. United
States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000). “As a
general matter, however, adhering to precedent is usually the
wise policy, because in most matters it is more important that
the applicable rule of law be settled than it be settled right.”
Id. (citation and quotation marks omitted). In this case, the
law is both settled and settled correctly.
During its first term, this Court was presented the
question before the Court today: was it necessary to plead the
so-called terminal element of then Article 96 of the Articles of
War. In United States v. Marker, 1 C.M.A. 393, 3 C.M.R. 127
(1951), the accused, a civilian, stood convicted of three
specifications alleging wrongful acceptance of unlawful gifts of
clothing, payments, and a house from a tire company in Japan.
Upholding the convictions, this Court held:
[W]e find no reason for the inclusion in the specifications
of the words “conduct of a nature to bring discredit upon
the military service.” In truth, we believe the suggested
language to be nothing more than traditionally permissible
surplusage in specifications laid under Article of War 96,
supra. Its use therein can add nothing of legal effect to
an allegation of conduct not of such a discrediting nature
-- and its omission detracts not at all from conduct which
clearly is.3
3
It should be noted that the term “surplusage” appears to refer
to the necessity for including the language in the specification
and was not intended to suggest that the language in the statute
itself was unnecessary.
8
United States v. Fosler, No. 11-0149/MC
Marker, 1 C.M.A. at 400, 3 C.M.R. at 134. The Court’s reasoning
rested on the principle set forth in Hagner v. United States,
285 U.S. 427, 431 (1932). It retains its vitality today.
The true test of the sufficiency of an indictment is not
whether it could have been more definite or certain, but
whether it contains the elements of the offenses intended
to be charged. If the indictment informs the accused of
what he must be prepared to meet, and is sufficiently
definite to eliminate the danger of future jeopardy, it
will be held sufficient.
Marker, 1 C.M.A at 400, 3 C.M.R. at 134. This Court concluded
that the specifications at issue in Marker met these criteria.4
Two months later in United States v. Herndon, 1 C.M.A. 461, 4
C.M.R. 53 (1952), the Court considered whether or not a
specification alleging receipt of stolen property under Article
134, UCMJ, stated an offense. Importantly, the specification
failed to allege the terminal element. Although the issue
presented for review was slightly different, the Court cited
Marker in holding that “the specification . . . herein is not
fatally defective, but instead alleges properly an offense under
Article 134.” Herndon, 1 C.M.A. at 465, 4 C.M.R. at 57.
This practice continued apace until the issue returned on
appeal thirty years later in United States v. Mayo, 12 M.J. 286
(C.M.A. 1982). There, the appellant was convicted under Article
4
While true, the Court in Marker was analyzing Article of War
96, it is beyond dispute that the language of that article
ultimately became the very language of Article 134, UCMJ.
9
United States v. Fosler, No. 11-0149/MC
134, UCMJ, for communicating a bomb hoax. Mayo contended that
the specification was insufficient under Article 134, UCMJ,
because it did not allege that the accused’s conduct was to the
prejudice of good order and discipline. Id. at 293. Citing
Marker and Herndon, this Court summarily disposed of Mayo’s
contention stating, “Short forms of Article 134 specifications
do not require an allegation as to the character of the
accused’s conduct.” Id.
Today, thirty years since Mayo, the Court jettisons this
precedent. However, there is nothing in the record that
indicates long-standing practice and law in this area is
unworkable, badly reasoned, or unfair. In point of fact, the
enduring nature of these precedents, which have gone
unchallenged, suggests that this customary practice has and
continues to be quite workable. This Court’s recent reversal of
long-standing precedent in the area of Article 134, UCMJ, lesser
included offenses does not demonstrate otherwise. Those cases
addressed the issue of whether the terminal element in Article
134, UCMJ, could be implied in specifications alleging
violations of the enumerated offenses. The issue here is
distinct; can the terminal element of Article 134, UCMJ, be
implied in the context of a specification alleging an Article
134, UCMJ, offense, where the President has provided in the
10
United States v. Fosler, No. 11-0149/MC
Manual that the alleged misconduct can only be charged under
Article 134, UCMJ.
The majority’s holding also contradicts long-standing
precedent concerning the sufficiency of a specification
generally. In United States v. Sell, 3 C.M.A. 202, 11 C.M.R.
202 (1953), notwithstanding its citation to the Hagner language
in earlier cases, the Court nonetheless felt there was still
uncertainty in the military justice system as to the test to be
applied. 3 C.M.A. at 206, 11 C.M.R. at 206. The Court took the
language in Hagner, expanded upon it and announced the
following:
The true test of the sufficiency of an indictment is not
whether it could have been made more definite and certain,
but whether it contains the elements of the offense
intended to be charged, and sufficiently apprises the
defendant of what he must be prepared to meet; and, in case
any other proceedings are taken against him for a similar
offense, whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction.
Id. In United States v. Fout, 3 C.M.A. 565, 568, 13 C.M.R. 121,
124 (1953) (overruled on other grounds by United States v.
Watkins, 21 M.J. 208 (1986)), the Court refined this standard
stating, “Every essential element of the offense sought to be
charged must be alleged directly or by clear implication in the
specification.” These cases are the bedrock upon which military
practice and R.C.M. 307(c)(3) rest. “A specification is
11
United States v. Fosler, No. 11-0149/MC
sufficient if it alleges every element of the charged offense
expressly or by necessary implication.”
The majority’s conclusion also runs counter to case law
regarding words of criminality in determining the sufficiency of
a specification. A specification is sufficient to allege an
offense if “it contains the elements of the offense intended to
be charged, including words importing criminality or an
allegation as to intent or state of mind where this is
necessary.” United States v. Tindoll, 16 C.M.A. 194, 195, 36
C.M.R. 350, 351 (1966). “[A]lthough addition of words of
criminality . . . cannot make criminal acts which obviously are
not, . . . [the] allegation serves to demonstrate the proscribed
character of accused’s act.”5 United States v. Sadinsky, 14
C.M.A. 563, 565, 34 C.M.R 343, 345 (1964). In Sadinsky, the
accused was convicted of “wrongfully and unlawfully” jumping
5
The majority’s citation of United States v. King, 34 M.J. 95,
97 (C.M.A. 1992), and United States v. Fleig, 16 C.M.A. 444,
445, 37 C.M.R. 64, 65 (1966), for the proposition that words of
criminality do not speak to the elements of the offense is
somewhat dubious. Fosler, __ M.J. __ at __ (16). The adultery
specification in King did not allege the language of the
terminal element, but that was not the basis for the Court’s
conclusion that it failed to state an offense. The problem
there was that although wrongfulness was alleged, the
specification failed to allege that the accused or the other
person was married -- an essential element of adultery and the
essence of the offense itself. Likewise, in Fleig, a
specification purporting to charge the accused with fleeing the
scene of a accident failed to state that the accused’s vehicle
had been in the accident. In both cases, words of criminality
alone could not make criminal acts which obviously were not.
12
United States v. Fosler, No. 11-0149/MC
from his ship while it was underway. 14 C.M.A. at 564, 34
C.M.R. at 343. The Court noted that “the pleading makes clear
that accused did not, under unusual circumstances, jump
overboard in the course of his legitimate duties as, possibly,
to rescue a shipmate, or for some other purpose which might be
completely innocent.” 14 C.M.A. at 465, 34 C.M.R. at 345. The
Court stated that the critical inquiry for this clause 1 offense
was “whether the act was palpably and directly prejudicial to
the good order and discipline of the service” and that “such an
allegation need not be made in a specification laid under the
General Article.” 14 C.M.A. at 566, 34 C.M.R. at 346.
Here, the specification was pleaded under Article 134,
UCMJ, and alleged that a married man wrongfully engaged in
sexual intercourse with a woman not his wife. This Court has
long accepted the traditional meaning of the term wrongful:
That the word [wrongful] has a well-defined meaning when
used in criminal statutes is supported by Webster, who
defines it as doing a thing “in a wrong manner; unjustly;
in a manner contrary to moral lay [sic] or justice.” The
word “wrongful” . . . when used in criminal statutes,
implies a perverted evil mind in the doer of the act. The
word “wrongful” implies the opposite of right.
United States v. West, 15 C.M.A. 3, 7, 34 C.M.R. 449, 453
(C.M.A. 1964); see United States v. Barner, 56 M.J. 131, 136
(C.A.A.F. 2001) (a wrongful act is “one done without legal
justification or with some sinister purpose”); accord United
States v. Reeves, 61 M.J. 108, 111 (C.A.A.F. 2005).
13
United States v. Fosler, No. 11-0149/MC
Outside the military context, words of criminality alone
might not provide such notice. In the military, however, not
all adultery is or should be criminalized. The Manual for
Courts-Martial contains a relatively lengthy list of factors to
be considered in determining when such conduct is prejudicial to
good order and discipline or service discrediting. MCM pt. IV,
para. 62.c.2. In the military, the offense of adultery can only
be prosecuted if it offends good order and discipline or is
service discrediting. Thus, this specification was more than
sufficient to meet the constitutional requirement.
And what of other offenses traditionally charged under
Article 134, UCMJ? For instance, in the absence of language
setting forth the terminal element of Article 134, UCMJ, can one
charged with willfully and wrongfully seizing a person and
holding him against his will reasonably assert that he is not on
notice that the prosecution intends to proceed against him for
kidnapping? See MCM pt. IV, para. 92. Furthermore, could one
credibly claim, in the case of kidnapping, that he is not
sufficiently apprised that such conduct is prejudicial to good
order or service discrediting?
Finally, the majority appears to conflate the requirement
that a specification state an offense with an accused’s right to
more specificity in the allegation. The majority takes the
position that the specification was constitutionally deficient
14
United States v. Fosler, No. 11-0149/MC
because it failed to inform the accused as to which theory of
liability contained in the terminal element the Government
intended to pursue. An accused does have a right to know under
what statutory theory the government is proceeding against him
in those instances where the statute provides alternative ways
it can be violated. However, there is no constitutional
requirement that the specification set forth such theories as
long as the specification otherwise meets the test for
sufficiency. Here, as recounted in Part I, the specification
clearly indicated that the Government was proceeding on a theory
that Appellant’s conduct was service discrediting and/or
undermined good order and discipline. The law is “not whether
it could have been made more definite and certain, but whether
it contains the elements of the offense intended to be charged.”
Hagner, 285 U.S. at 431. If there are several means of
committing the offense contained in the statute, the accused has
a right to have the specification made more definite. State v.
Campbell, 06-0286, pp. 93-94 (La. 05/21/08); 983 So. 2d 810, 870
(in murder case “a defendant may procure details as to the
statutory method by which he committed the offense through a
bill of particulars”); People v. Ingersoll, 506 P.2d 364, 365
(Colo. 1973) (in felony theft case, where offense charged may be
committed in alternative ways, defendant may require prosecution
to state particular manner in which he committed offense by
15
United States v. Fosler, No. 11-0149/MC
filing motion for bill of particulars); accord State v. Carbone,
374 A.2d 215, 224 (Conn. 1977). Like other jurisdictions, the
military justice system provides a remedy if the accused
requires more specificity in the allegation, assuming, as in
this case, the specification is sufficient to allege an offense.
R.C.M. 906(b)(6) allows an accused to move for appropriate
relief in the form of a bill of particulars. The purpose of a
bill of particulars is:
to inform the accused of the nature of the charge with
sufficient precision to enable the accused to prepare for
trial, to avoid or minimize the danger of surprise at the
time of trial, and to enable the accused to plead the
acquittal or conviction in bar of another prosecution for
the same offense when the specification itself is too vague
and indefinite for such purposes.
United States v. Williams, 40 M.J. 379, 381 n.2 (C.M.A. 1994);
United States v. Mobley, 31 M.J. 273, 278 (C.M.A. 1990); R.C.M.
906(b)(6) Discussion. “The purpose of a bill of particulars is
to narrow the scope of the pleadings.” United States v. Paulk,
13 C.M.A. 456, 458, 32 C.M.R. 456, 458 (1963). Moreover, if a
specification, although stating an offense, is still so
defective that the accused appears to have been misled, he may
request a continuance. R.C.M. 906(b)(4) Discussion. In this
case when defense counsel moved to dismiss at the end of the
Government’s case, he did not complain that the defense had been
16
United States v. Fosler, No. 11-0149/MC
misled because of the absence of language alleging the conduct
was prejudicial to good order or service discrediting.6
II.
There are a number of legal policy and systemic questions
raised by the majority opinion that are left unanswered. An
opinion is not required to address all questions in all contexts
that might be raised; however, where as here, the opinion
represents a sea change in practice and law depending on how it
is applied, additional guidance is warranted. A number of
questions arise.
6
The offense of larceny under Article 121, UCMJ, is a classic
example of how the aforementioned long-standing principles play
out. Contained in the statutory text of Article 121, UCMJ, are
three alternative methods of committing the offense -- a
wrongful taking, obtaining or withholding. The statute also
requires that the offender harbor the specific intent to
permanently deprive or defraud. Yet, since (and even before)
the inception of the UCMJ, it has been permissible to simply
allege in the specification that the accused “did steal.”
Presumably, if the accused desires specificity from the
prosecution as to which “theory” of larceny is being pursued
against him, he may move for a bill of particulars. Neither
this Court nor any other jurisdiction where a larceny statute is
derived from the common law has ever required otherwise.
Apparently, the words of criminality, namely, “did steal” are
sufficient to not only imply the essential element of specific
intent, but also to encompass any (or all) of the three
alternative means of committing the offense of larceny. Given
this, it seems incongruous that this Court should hold that a
specification alleging wrongful adultery pleaded under Article
134, UCMJ, is constitutionally deficient to provide notice to an
accused of the criminal character of his conduct. Here,
Appellant could have simply moved to require the Government to
specify which alternative method under Article 134, UCMJ, was
being pursued.
17
United States v. Fosler, No. 11-0149/MC
First, how does Fosler apply to past and present cases?
Although the majority reverses appellant’s conviction based on
textual analysis of the particular specification, the opinion
appears to implicate and question all Article 134, UCMJ, cases
in which the terminal element has not been specified. If so, it
has done so without indication as to how this new rule will or
should apply to past cases or to cases pending in the military
justice system. If a specification fails to state an offense,
for example, can an accused ever be convicted of that
specification, whether or not he objects to the specification?
Can an accused plead guilty to a specification that does not
state an offense? If so, how? Similarly, in the context of a
contested case, can an accused waive the right to be tried on a
specification that does not state an offense? If so, can one
knowingly waive that right if counsel and accused were not aware
at the time that the specification did not state an offense?
And, of course, how does the writ of coram nobis apply to past
cases? See United States v. Denedo, 129 S. Ct. 2213 (2009).
Second, what standing does the Manual now possess in the
context of Article 134, UCMJ? Is it law? Does it bind military
judges? If the Manual did not place Appellant on notice that he
would have to defend against a charge of criminal adultery that
was service discrediting or prejudicial to good order and
discipline, then one must ask what role or standing does the
18
United States v. Fosler, No. 11-0149/MC
Manual retain going forward? The question is raised because as
recounted in Part I, and in the Chief Judge’s dissent, the
Manual states that “the adulterous conduct must either be
directly prejudicial to good order and discipline or service
discrediting.” MCM, pt. IV, para. 62.c.2. Moreover,
Appellant’s specification is based on the sample in the Manual.
The question is procedural as well. Rule for Courts-
Martial 307, which is at minimum an exercise in delegated
presidential authority pursuant to Article 36, UCMJ,7 permits
elements to be charged by necessary implication. However, there
is no guidance from the majority as to how R.C.M. 307 applies to
Article 134, UCMJ, offenses if it does not apply in this case.
This Court has long stated that the Manual is persuasive
authority, but in recent Article 134, UCMJ, cases this Court has
not been persuaded. It would seem that if the Commander in
Chief’s constitutional authority were relevant in military
justice practice, it would be most relevant with respect to
7
The text of Article 36(a), UCMJ, is as follows:
Pretrial, trial, and post-trial procedures, including modes
of proof, for cases arising under this chapter triable in
courts-martial, military commissions and other military
tribunals, and procedures for courts of inquiry, may be
prescribed by the President by regulations which shall, so
far as he considers practicable, apply the principles of
law and the rules of evidence generally recognized in the
trial of criminal cases in the United States district
courts, but which may not be contrary to or inconsistent
with this chapter.
19
United States v. Fosler, No. 11-0149/MC
Articles 92 and 134, UCMJ, which arguably are most directly
related to regulating discipline in the armed forces and not
just to providing a system of justice for the armed forces.
Without reference to the Manual it is not clear how the
President as Commander in Chief might exercise whatever
authority he might inherently hold as Commander in Chief in
defining the procedure and substance of military justice. And,
without reference to the Manual, it is not clear how members of
the military will be put on notice as to what conduct might
violate Article 134, UCMJ. Certainly, the statutory elements
alone do not provide such notice. But if the Manual is
unpersuasive here and unpredictable in application, how then is
fair notice provided?
One suspects that the issue is not one of fair notice in
this case or with R.C.M. 307, but with Article 134, UCMJ,
itself. Has Article 134, UCMJ, lost its capacity to serve as a
predictable, and thus fair and reliable tool to uphold good
order and discipline? Jones, 68 M.J. at 474 (Baker, J.,
dissenting). Is Parker v. Levy, 417 U.S. 733 (1974), still good
law?
“[T]he military is, by necessity, a specialized society
separate from civilian society.” Id. at 743. And it has, by
necessity, “developed laws and traditions of its own during its
long history.” Id. Because of the special distinctions
20
United States v. Fosler, No. 11-0149/MC
separating it from the civilian society, “the military has
developed what ‘may not unfitly be called the customary military
law’ or ‘general usage of the military service.’” Id. at 744
(quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ
“cannot be equated to a civilian criminal code,” id. at 749, and
with respect to Article 134, UCMJ, specifically, it “must be
judged ‘not in vacuo, but in the context in which the years have
placed it.’” Id. at 752 (quoting United States v. Frantz, 2
C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). Do these observations
retain the same force and effect today as they did at the time
they were made? Is service custom and practice relevant to
Article 134, UCMJ?
These questions all now appear in play. In such a context,
one might ask if the interests of justice, due process, and the
significant interest in discipline in the military warrant a
more holistic executive and legislative review of Article 134,
UCMJ, rather than the unpredictable piecemeal adjudication of
discrete issues.
21
United States v. Fosler
Court: Court of Appeals for the Armed Forces
Date filed: 2011-08-08
Citations: 70 M.J. 225, 2011 CAAF LEXIS 661, 2011 WL 3477186
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