United States v. Shafran (__ M.J. __).Pdf

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Andrew J. SHAFRAN
Boatswain’s Mate Third Class (E-4), U.S. Coast Guard

CGCMG 0386
Docket No. 1480

October 6, 2023

General court-martial sentenced adjudged on 18 September 2021.

Military Judge: CDR Paul R. Casey, USCG
Appellate Defense Counsel: Mr. Philip D. Cave, Esq.
LCDR Kristen R. Bradley, USCG (argued)
Appellate Government Counsel: LT Elizabeth M. Ulan, USCG (argued)
LCDR Daniel P. Halsig, USCG

BEFORE
THE COURT EN BANC 1

Judgment of the Court: JUDGE, joined by HAVRANEK, PELL, TASIKAS and PARKER.
Dissenting in part: BRUBAKER, joined by McCLELLAND and HERMAN.

JUDGE, Judge:

A general court-martial of members with enlisted representation convicted Appellant,
contrary to his pleas, of one specification of abusive sexual contact and one specification of
providing alcohol to a minor in violation of Articles 120 and 134, Uniform Code of Military
Justice (UCMJ). The members sentenced Appellant to confinement for 180 days, reduction to
E-1, and a bad-conduct discharge.

Appellant raises eight assignments of error (AOEs), paraphrased and renumbered as
follows:

1
Judge Mannion did not participate in this decision.
 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

I. There is legally and factually insufficient evidence supporting Appellant’s conviction
for abusive sexual contact;

II. The Article 134 specification (providing alcohol to a person under the age of 21) is
fatally defective because it does not allege a crime or words of criminality;

III. The military judge erred by instructing the members that Appellant was charged with
providing alcohol to a minor when the relevant charge neither alleged Ms. E.F. was a
minor nor cited any standard under which Ms. E.F. could be considered a minor;

IV. There is legally and factually insufficient evidence supporting Appellant’s conviction
for providing alcohol to a person under 21 years of age;

V. Ms. E.F.’s unsworn statement discussing the impact of conduct for which Appellant
was acquitted violated Rule for Courts-Martial (R.C.M.) 1001(c); 2

VI. The convening authority erred by failing to provide reasons for his denial of
Appellant’s deferment request;

VII. Dr. A.H. exceeded the scope of his approved expertise by providing improper and
speculative psychological interpretation of Ms. E.F.’s conduct and gave the
equivalent of “human lie detector” testimony; and

VIII. Appellant was deprived of his right to a unanimous verdict.

In addition, the Court specified the following issues:

(1) Whether the Article 134 specification is fatally defective because it omitted a required
mens rea; and

(2) Whether the record contains notice of a mens rea of at least recklessness that also
suffices as notice of criminality. 3

We have considered AOEs I, III, IV, V, and VIII but summarily decline to grant relief. 4
We discuss the remaining issues. We conclude there was no prejudicial error and affirm.

2
Unless otherwise specified, all references are to the Manual for Courts-Martial (2019 ed.).
3
We heard oral argument on AOE II and the specified issues. Judges Tasikas and Parker did not participate, having
joined the Court after oral argument, but had access to the audio recording.
4
Regarding AOE VIII, see United States v. Anderson, 83 M.J. 291 (C.A.A.F. 2023) (rejecting the contention that a
military accused has a right to a unanimous verdict).

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I. Background
Ms. E.F. was working as a cashier when Appellant came through her line, made
conversation, and asked for her phone number. She declined, but he found her profile and
initiated contact through a dating application they both used. Ms. E.F.’s profile page accurately
listed her age as 20 years old. After multiple offers, Ms. E.F. accepted Appellant’s invitation to
his house.

When she arrived, Appellant showed Ms. E.F. around the house, where she met
Appellant’s roommate, SN V.P., and a few other visiting servicemembers. SN V.P. and
Appellant were members of the same Coast Guard unit and Appellant was SN V.P.’s supervisor.
Later, the roommate said he was going out to purchase alcohol and offered to get some for Ms.
E.F. She declined, but after returning, he and Appellant suggested she take shots of liquor with
them. She initially declined, but after they repeatedly implored her and showed her how to take a
shot, she consumed three shots.

After a couple attempts to kiss Ms. E.F., which she rebuffed, Appellant suggested the two
of them get into his hot tub. Ms. E.F. demurred that she did not have a bathing suit, but Appellant
said she could wear her bra and underwear. Ms. E.F., by then feeling the effects of alcohol and
vertigo, agreed, but testified she felt pressured and believed she had no choice but to stay
because she was not in a condition to drive. As she walked toward a door leading to the hot tub,
Appellant “proceeded to come forward and take off my clothes.” R. at 285.

Appellant picked Ms. E.F. up and put her into the hot tub. Although she sat on the
opposite side, Appellant repeatedly tried to pull Ms. E.F. onto his lap. Each time, she pushed him
away, went back to the opposite end of the tub, and tried to carry on a conversation. After a
while, Appellant got out of the hot tub, pulled Ms. E.F. out, and placed her onto the ground. As
they headed back inside, he gave her a towel, which she wrapped around herself. Without asking,
he then removed the towel and removed her bra and underwear. As he was doing this, he glided
his hand down with open palms and touched her breasts and buttocks. As this happened, Ms.
E.F. tried to cover herself with her arms and “was feeling really uncomfortable,” that if she “tried
to do anything, I wouldn’t get anywhere, I felt I would get hurt.” R. at 290.

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Ms. E.F. put the towel back around herself, and Appellant “tried to start pushing me to go
upstairs.” R. at 292. She testified she was not feeling well and needed to lie down, so she walked
upstairs with his assistance and lay down in a fetal position on a rug in the bedroom. Although
Ms. E.F. alleged that Appellant then picked her up, placed her onto the bed, and sexually
assaulted her, the members acquitted Appellant of this.

As well as charging Appellant with sexual assault and abusive sexual contact under
Article 120, UCMJ, the Government charged an unenumerated offense under Article 134,
UCMJ, for providing alcohol to a person under the age of 21. The original specification alleged
that Appellant knew Ms. E.F. was under the age of 21. However, facing a pretrial Defense
motion for the military judge to instruct accordingly, trial counsel instead, over objection, struck
the knowledge language from the specification, without substitution, and successfully argued
that the offense required only recklessness.

II. Failure to State an Offense
A. Standard of Review
Appellant did not raise at trial his claim that the specification alleging he provided
alcohol to a person under 21 years of age in violation of Article 134, UCMJ, fails to state an
offense. But before deciding how, if at all, this impacts the standard of review, we must consider
recent amendments to the Rules for Courts-Martial. These amendments have altered the
landscape for when claims of failure to state an offense are waived (meaning extinguished,
generally barring relief on appeal), forfeited (meaning due to a failure to timely assert a right,
relief is available only under a heightened plain error standard), or neither (meaning we review
the matter de novo). See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (explaining
the distinction between waiver and forfeiture).

Prior to 2018, R.C.M. 905 delineated issues that, if not raised either before the entry of
pleas or adjournment, were waived by operation of the rule. R.C.M. 905(b), (e), Manual for
Courts-Martial, United States (MCM) (2012 ed.) (R.C.M. 905(b), (e) (2012)). Some older cases,
which tended to conflate waiver with forfeiture, were inconsistent in applying this Rule, but the

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United States Court of Appeals for the Armed Forces (CAAF) recently interpreted the pre-2018
Rule as meaning what it said: issues included in the list were waived by operation of law, not
forfeited. United States v. Hardy, 77 M.J. 438, 441 (C.A.A.F. 2018). 5 Failure to state an offense
was expressly excluded from R.C.M. 905’s waiver provisions, but, if not raised at trial, it was
still deemed forfeited and reviewed for plain error. R.C.M. 905(b)(2), (e) (2012); United States v.
Tunstall, 72 M.J. 191, 196 (C.A.A.F. 2013); United States v. Ballan, 71 M.J. 28, 34 (C.A.A.F.
2012).

R.C.M. 905’s exclusion of failure to state an offense from its waiver provisions made
sense under the old R.C.M. 907, which listed failure to state an offense and jurisdiction as non-
waivable bases for dismissal. R.C.M. 907(b)(1)(A) (2012). But in 2016, without altering R.C.M.
905, the President amended R.C.M. 907 to make failure to state an offense waivable. R.C.M. 907
(2016); MCM (2016), app. 21, Analysis of Rules for Courts-Martial at A21-57. The effect was
that claims of failure to state an offense could be waived if done so affirmatively, but not (like
most other issues) by operation of law under R.C.M. 905; they could, however, still be forfeited
if not timely raised. See, e.g., United States v. Sorrells, No. 201700324, 2019 WL 1220725, at *2
(N-M. Ct. Crim. App. Mar. 13, 2019) (unpub.).

This changed again in 2018 when R.C.M. 905 was amended. The new Rule—which
applies here—provides, in pertinent part:
(b) Pretrial motions. . . . The following must be raised before a plea is entered:
...
(3) Defenses or objections based on defects in the charges and specifications (other
than any failure to show jurisdiction or to charge an offense, which objections shall
be resolved by the military judge at any time during the pendency of the
proceedings);
...
(e) Effect of failure to raise defenses or objections.
(1) Failure by a party to raise defenses or objections or to make motions or
requests which must be made before pleas are entered under subsection (b) of
this rule forfeits the defenses or objections absent an affirmative waiver. The
military judge for good cause shown may permit a party to raise a defense or

5
In United States v. Coleman, CAAF declined to determine whether Hardy’s holding applied to multiplicity claims
because, despite Hardy having been decided, the Government did not cite Hardy or raise the issue of waiver.
“Accordingly, we decline to sua sponte raise this issue on the Government’s behalf.” 79 M.J. 100, 102, n.3
(C.A.A.F. 2019).

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objection or make a motion or request outside of the timelines permitted under
subsection (b) of this rule.

(2) Other motions, requests, defenses, or objections, except lack of
jurisdiction or failure of a charge to allege an offense, must be raised before
the court-martial is adjourned for that case. Failure to raise such other
motions, requests, defenses, or objections, shall constitute forfeiture, absent an
affirmative waiver.

R.C.M. 905 (2019) (emphasis added).

This raises a question we have not yet had occasion to consider: As amended, does
R.C.M. 905 exempt claims of failure to state an offense from its deadlines for when claims must
be raised and the consequence of forfeiture when these deadlines are not met?

A plain reading of the new Rule indicates that is exactly what it does. Although failure to
state an offense is now waivable, R.C.M. 905—which is now a forfeiture rule rather than a
waiver rule—continues to single it and jurisdiction out for special treatment. When delineating
deadlines for raising issues, it expressly exempts claims of failure to state an offense. R.C.M.
905(b)(2), (e) (2019). There is, therefore, no basis for asserting that claims of failure to state an
offense raised for the first time on appeal are untimely. R.C.M. 905(e) is likewise plain that the
consequence of forfeiture applies to listed issues that are not raised in accordance with its
timelines—and not to claims of jurisdiction or failure to state an offense. There again is no basis
for interpreting the Rule to read claims of failure to state an offense back into the list of issues
that are forfeited if not raised at trial.

The Government, however, posits that United States v. Day, 83 M.J. 53 (C.A.A.F. 2022),
is recent, binding authority that claims of failure to state an offense raised for the first time on
appeal are forfeited and reviewed for plain error. The Government is correct that CAAF applied
forfeiture to a claim of failure to state an offense when, one can deduce, the new R.C.M. 905
should have applied. Id. at 54–55, 57. Day, however, does not mention R.C.M. 905, let alone
address whether the new Rule modified this standard of review. The court instead repeated the
existing—and apparently unchallenged—premise that absent an objection at trial, claims of
failure to state an offense are reviewed for plain error. But it cited Tunstall, 72 M.J. at 196—a

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case that preceded the amendment to R.C.M. 905. Id. at 57. The reason the court did not cite
R.C.M. 905 or address its impact on the standard of review is simple: neither party briefed the
changes to R.C.M. 905 or raised the issue of whether under it, forfeiture no longer applied. 6
CAAF is reticent to sua sponte raise such issues on a party’s behalf. United States v. Coleman,
79 M.J. 100, 102, n.3 (C.A.A.F. 2019). Therefore, the question of whether the revised R.C.M.
905 altered the standard of review articulated in Tunstall has been neither presented to nor
decided by CAAF and is for us to resolve as a matter of first impression.

We hold that the revised R.C.M. 905 exempts claims of failure to state an offense from
the consequence of forfeiture if not raised during trial. Accordingly, we review claims of failure
to state an offense, whether raised at trial or not, de novo.

B. Law
In assessing the sufficiency of a specification, we start with the knowledge that 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 specification is “a plain, concise, and definite statement of the essential facts
constituting the offense charged.” R.C.M. 307(c)(3). The Supreme Court found that a
specification is sufficient if it “first, contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must defend, and second, enables him to
plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v.
United States, 418 U.S. 87, 117 (1974); United States v. Fosler, 70 M. J. 225, 229 (C.A.A.F.
2011). In the military context, “when an accused servicemember is charged with an offense at
court-martial, each specification will be found constitutionally sufficient only if it alleges, either
expressly or by necessary implication, every element of the offense, so as to give the accused
notice of the charge against which he must defend and protect him against double jeopardy.”
United States v. Turner, 79 M.J. 401, 403 (C.A.A.F. 2020) (internal citations and quotations
omitted) (emphasis added); see also, R.C.M. 307(c)(3). In particular:
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

6
The parties’ briefs are available at: https://www.armfor.uscourts.gov/newcaaf/calendar/202210.htm#25 (last visited
5 October 2023).

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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.

Sell, 3 C.M.A. at 206, 11 C.M.R. at 206. Additionally:
The lens through which [a] Court evaluates the sufficiency of a specification
differs depending on when counsel first raised the issue. When a charge and
specification are first challenged at trial, we read the wording narrowly and will
only adopt interpretations that hew closely to the plain text. Hewing closely to the
plain text means we will consider only the language contained in the specification
when deciding whether it properly states the offense in question. However, a
flawed specification first challenged after trial is viewed with greater tolerance
than one which was attacked before findings and sentence. Under the latter
scenario, the specification will be viewed with maximum liberality.

Id. (internal citations and quotations omitted). Here the sufficiency of the specification was first
raised on appeal.

C. Analysis
This case presents two issues regarding the sufficiency of specification. In AOE II, the
Appellant argued that the specification “fatally defective because it does not allege a crime or
words of criminality.” The Court specified two issues regarding the omission of a mens rea from
the specification. We address the omission of a mens rea first.

1. Omission of Mens Rea
When an offense has a required mens rea, it is an essential element that must not only be
proven, but pleaded in charging documents. Elonis v. United States, 575 U.S. 723, 734 (2015)
(“Although there are exceptions, the ‘general rule’ is that a guilty mind is ‘a necessary element in
the indictment and proof of every crime.’ ” (quoting United States v. Balint, 258 U.S. 250, 251
(1922)) (emphasis added); Fosler, 70 M.J. at 229 (discussing the requirement for a specification
to allege every element of the offense expressly or by necessary implication); United States v.
Berrios-Centeno, 250 F.3d 294, 297 (5th Cir. 2001) (“By any standards, the mens rea element is
‘material’ or ‘essential,’ ” and therefore must be sufficiently alleged in the indictment.); R.C.M.
307(c)(3) Discussion (G)(i) (“If a specific intent, knowledge, or state of mind is an element of
the offense, it must be alleged.”) (emphasis added).

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The specification, as originally drafted, alleged that Appellant acted “knowingly” because
he provided alcohol to “Ms. E.F whom he knew to be under the age of 21.” App. Ex. II at 57.
Prior to arraignment, however, the Government eliminated the requirement that he acted
knowingly by deleting the phrase “whom he knew to be” without substituting any other language
to provide a mens rea. Def. Supp. Mot. for Appropriate Relief: Request for Findings Instruction
in Mens Rea, App. Ex. 30, at 1. This presents a complication, but one easily resolved.

Technically and without further context, this change by the prosecution potentially
rendered the specification defective; however, this technical 7 defect was cured through motion
practice 8 when all parties agreed that the applicable mens rea is reckless as determined by
Tucker, 78 M.J. at 183. The parties then tried the case based on this mens rea and the military
judge instructed the members accordingly. Consequently, any error by not expressly pleading a
mens rea of reckless was clearly harmless beyond a reasonable doubt because the case was tried
as though the specification contained the word reckless. Further, following the rule adopted by
our higher court “of liberally construing specifications in favor of validity when they are
challenged for the first time on appeal,” United States v. Watkins, 21 M.J. 208, 209 (C.M.A.
1986), we find there is no “clear showing of substantial prejudice to the [Appellant]—such as a
showing that the indictment is ‘so obviously defective that by no reasonable construction can it
be said to charge the offense for which conviction was had.” Id. at 210 (quoting United States v.
Thompson, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied, 384 U.S. 964 (1966).

2. Failure to Allege a Crime or Words of Criminality
Appellant incorrectly argues that the specification failed to allege a crime. As recognized
by our higher court, “Article 134 would appear to encompass two general classes of conduct:
first, that which is or generally has been recognized as illegal under the common law or under
most statutory criminal codes; and second, that which—however eccentric or unusual—would

7
United States v. Stefan, 784 F.2d 1093, 1102 (11th Cir.) (despite omitting the word “willfully”—an “essential
element of the offense”—the court upheld an indictment for making a false statement because “practical, rather than
technical considerations govern the validity of an indictment”).
8
Appellant originally argued that the removal of the phrase, “whom he knew to be” from the specification was a
major change, but after the military judge denied that motion both the Appellant and government agreed that the
standard was reckless.

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not be viewed as criminal outside the military context.” United States v. Davis, 26 M.J. 445, 448
(C.M.A. 1988). Based upon federal law, 9 state criminal codes in all fifty states and the District of
Columbia, 10 case law (not solely limited to military case law), 11 and longstanding military
custom, Appellant’s case clearly falls in the former category of a conduct generally recognized
as illegal across the entire nation—as such he was on notice that Article 134 prohibited his
conduct and was subject to criminal sanction. The specification therefore does allege a crime by
alleging conduct “which is or generally has been recognized as illegal.” Tellingly, Appellant did
not argue he lacked fair notice of the criminality of his actions, but rather argued solely that the
specification as drafted was defective. Appellant’s Reply Br. at 7-8.

This is important. Appellant concedes he knew his conduct could be criminalized under
Article 134, i.e., he was on notice that the conduct alleged in the specification was generally
recognized as criminal. Consequently, Appellant surely also possessed “the required notice of
what an accused must defend against.” Jones, 68 M.J. at 472. Because the sufficiency of the
specification was not raised at trial, this alone would be enough reason to sustain the sufficiency
of this specification given the standard “of liberally construing specifications in favor of validity
when they are challenged for the first time on appeal,” United States v. Watkins, 21 M.J. 208,
209 (C.M.A. 1986). Since we have taken up this case en banc, have been urged to overrule
United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App 2016), our precedent on this issue,
and are divided ourselves over the issue, a more detailed inquiry is warranted.

Having conceded that he was on notice that his conduct could be criminalized under
Article 134, Appellant instead raises a formalistic argument: the specification must allege words
of criminality by which the Appellant specifically means it must include either the word
wrongful or unlawful. Appellant’s Br. at 20-28. This argument raises form over substance and is
inconsistent with the nature of Article 134, the concept of notice pleading, the statutory text, the

9
28 U.S.C. § 158.
10
Federal Trade Commission Consumer Advice, Alcohol Laws by State (September 2013),
https://consumer.ftc.gov/articles/0388-alcohol-laws-state, last visited 5 October 2023.
11
See, e.g., United States v. Tucker, 78 M.J. 183 (C.A.A.F. 2018).

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MCM, military case law, and constitutional due process requirements as described more fully
below.

A formalistic requirement that all Article 134 specifications must include the word
unlawful or wrongful is contrary to the nature of Article 134. Article 134:
is an expansive, flexible, and amorphous prosecutorial tool within the military
justice system with no analog in Title 18. Intended to serve as a means for a
military commander to meet and enforce the exigencies of military discipline, it
‘requires a finding that (1) the accused did or failed to do certain acts,’ and (2),
proof that Appellant’s conduct was ‘to the prejudice of good order and discipline
in the armed forces,’ or ‘of a nature to bring discredit upon the armed forces,’ or a
‘crime or offense not capital.’ ” 12

United States v. Rice, 80 M.J. 36, 41 (C.A.A.F 2020) (quoting Manual for Courts-Martial,
United States (2008 ed.) [MCM], pt. IV, para. 60.b (internal citations omitted).

“Thus, in contrast to most criminal statutes that speak in terms of prohibited acts,
clause[s] [1 and] 2 of Article 134 speak[] in general terms of acts which create a prohibited
effect.” United States v. Vaughan, 58 M.J. 29, 40 (Crawford, C.J., concurring in the result)
(emphasis in original). While the President through Executive Order has enumerated the
elements for certain Article 134 offenses, Congress did not limit Article 134 to those offenses
enumerated by the President in order to provide flexibility to “meet and enforce the exigencies of
military discipline.” Rice, 80 M.J. at 41. For these unenumerated offenses, a specification must
simply allege acts (or failures to act) that have the effect of being prejudicial to good order and
discipline or service-discrediting. This is not to say that any conduct is criminalized under
Article 134; due process notice requirements limit what can be charged.

A formalistic requirement to always include unlawful or wrongful in an Article 134
specification is highly inconsistent with the nature of a category one Davis specification.
Because a category 1 Davis specification alleges conduct that is generally recognized as
criminal, there is no need to include additional words of criminality such as wrongful or

12
Through clause 3 Article 134 also criminalizes noncapital crimes or offenses that violate federal civilian law
including law made applicable through the Federal Assimilative Crimes Act, but Appellant was not charged with an
offense under clause 3 so this opinion will not further address clause 3.

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unlawful. 13 This legal conclusion stems from logic and common sense—if conduct is generally
recognized as criminal, the addition of words of criminality add nothing to the specification as
the conduct itself, as described in the specification, is criminal and thereby establishes “the
required notice of what an accused must defend against.” Jones, 68 M.J. at 472. Furthermore,
this conclusion is consistent with Davis, because in describing the two categories, the Davis
court found, albeit in dicta, that “[w]ith respect to conduct that, wherever it occurs, is generally
viewed as illegal, it can be argued that a specific allegation of ‘wrongfulness’ or ‘unlawfulness’
is surplusage.” Id. 14 By contrast, Davis category two specifications likely will require pleading
either unlawful or wrongful because such specifications criminalize otherwise lawful conduct
due to the unique military interests.

A formalistic requirement to always include unlawful or wrongful in an Article 134
specification is inconsistent with the concept of notice pleading. The nature of notice pleading
overlaps with most of the constitutional due process requirements for drafting a specification.
The Fifth Amendment provides that no person be deprived of their liberty without due process of
law. U.S. Const. amend. V. The Sixth Amendment provides that due process requires an accused
to “be informed of the nature and cause of the accusation.” U.S. Const. amend. VI. Fosler
articulated that in the context of the military’s notice pleading jurisdiction, a specification is
constitutionally sufficient if it “first, contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must defend, and second, enables him to
plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States
v. Fosler, 70 M. J. 225, 229 (C.A.A.F. 2011) (quoting Hamling v. United States, 418 U.S. 87,
117 (1974)). There is no doubt that Appellant could raise his conviction to bar a future
prosecution for the same offense, so the specification is sufficient if it contains the elements of
the offense charged and fairly informed the accused of charge Appellant needed to defend
against. The specification sufficiently provided Appellant notice of both.

13
The MCM instead uses the phrase “words indicating criminality” in the discussion to R.C.M. 307(c)(3)
Discussion (G)(ii), but notes that such words are only required when the alleged act is not itself an offense.
14
The Davis court did not further elaborate as the court found the facts of that case fell into category 2 where the
acts were only criminal in the military context.

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As previously stated, the statutory text and the MCM provide just two elements for an
unenumerated Article 134 offense: “that (1) the accused did or failed to do certain acts, and (2),
proof that Appellant’s conduct was to the prejudice of good order and discipline in the armed
forces, [or] of a nature to bring discredit upon the armed forces.” Rice, 80 M.J. at 41 (cleaned
up). Neither the statutory text nor the MCM contains a requirement that the word unlawful or
wrongful be included in the specification. Article 134, UCMJ; MCM part IV ¶ 91. The
specification details Appellant’s actions (providing several alcohol beverages to Ms. E.F. a
person under the age of 21 in the presence of junior enlisted members) and alleges violation of
both clause 1 and clause 2 to meet the terminal element. Appellant was therefore on notice as to
both elements. The specification was required to do nothing more.

In his Brief and Assignment of Error, Appellant argues that he “had no notice of the
standard under which the criminality of his conduct was measured and was not alerted to
possible justifications or defenses.” Appellant’s Br. at 25. More specifically, he noted that the
specification did not allege the existence of an order prohibiting the provision of alcohol to a
person under the age of twenty-one or a reference to Virginia state law. Similarly, in Appellant’s
Reply Brief, he argued that he had no “notice of the theory under which the criminality of [his]
conduct [would] be judged.” Appellant’s Reply Br. at 9. None of these arguments carry any
weight.

First, Appellant was not charged with a violation of an order under Article 92 nor with an
assimilated violation of Virginia state law under Article 134. Consequently, the specification was
not required to allege either of these things.

Second, “the standard under which the criminality of his conduct was measured” was
explicitly alleged; Appellant would be guilty if his conduct was to the prejudice of good order
and discipline in the armed forces, or of a nature to bring discredit upon the armed forces.

Third, Appellant’s Brief and Assignment of Error provides no legal support for the
argument that the specification was required to “alert [him] to possible justifications or
defenses.” Instead, he inquires whether his conduct would be service-discrediting if it was legal

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under state law. That question, however, is for the members to decide, not an element of the
specification to be alleged, because Appellant was not charged with an assimilated crime under
clause 3. United States v. Vaughan, 58 M.J. 29, 36 (C.A.A.F. 2003). The omission of either
unlawful or wrongful from the specification in no way barred Appellant from raising a legal
exception under Virginia law as a defense to his violation of the general prohibition of providing
alcohol to a person under the age of 21 years old. Nor did the omission prevent him from
presenting evidence on any matter that he felt would provide a defense. In fact, the omission of
either unlawful or wrongful did not blind Appellant to the existence of a mistake of fact defense
as to Ms. E.F.’s age. The defense presented evidence supporting that defense, and the military
judge instructed the members accordingly.

The question of whether his conduct would be service-discrediting if it was legal under
state law—a purely hypothetical question because it was not—misapprehends the nature of a
Davis category 1 offense. A category 1 offense is a crime not because it violates state law, but
rather because the conduct described in the specification violates clause 1 and/or clause 2 of
Article 134. This distinction matters because Article 134 offenses are military offenses and even
otherwise lawful conduct may be “illegal solely because, in the military context, its effect is to
prejudice good order or to discredit the service.” Davis, 26 M.J. at 448. (emphasis in original). In
other words, the military nature of an Article 134 offense rests on the intertwined combination of
action and effect. Vaughan, 58 M.J. at 41 (noting accused cannot be on notice conduct was
punishable under Article 134 unless conduct was service-discrediting) (Crawford, C.J.,
concurring in the result.) This distinction is also significant because as Appellant himself notes,
not every violation of state law is service-discrediting (or we note prejudicial to good order and
discipline.) Appellant’s Br. at 25 citing United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008)
(“Not every violation of a state statute is discrediting conduct.”). In other words, when an
accused is charged with conduct that is generally recognized as a crime, whether that conduct
meets every technical requirement of any given state law is not dispositive of whether the
conduct violates clause 1 and/or clause 2.

Two hypotheticals might help illustrate this distinction. For example, if a commanding
officer (CO) invited junior enlisted members from his unit to his home and in their presence

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 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

provided several alcoholic beverages to his 20-year-old daughter and encouraged her to drink to
the point where she passed out, the CO could be charged with a specification that detailed his
actions and alleged his conduct violated clause 1 of Article 134. After the presentation of
evidence at court-martial, members might find that the effect of the specified conduct was
prejudicial to good order and discipline despite being lawful under state law because the CO got
his underage daughter severely intoxicated in the presence of his subordinates. By contrast, a
third class petty officer directed by his chief petty officer to give a soon to be 21-year-old non-
rate a beer at a unit morale event might be found by members to not have violated Article 134
because under those circumstances, members could find that the effect of the conduct was not
prejudicial to good order and discipline even though it violated state law. The determinative
question for members in both cases—assuming they found the alleged conduct proven—is not
whether the conduct violated state law, but rather the effect of the conduct on good order and
discipline.

Setting aside the purely hypothetical issue of legality under state law, the trial defense
team showed they understood the available defenses by their actions despite the omission of both
unlawful and wrongful. The defense attempted to cast doubt on whether Appellant or his
roommate provided Ms. E.F. with the alcoholic beverages, and to show Appellant did not know
her age or did not recklessly disregard her age, that she was just a month short of 21 years old,
that no other enlisted members were present while they were drinking, that Appellant and his
roommate lawfully possessed the alcohol, and that this occurred in Appellant’s private home,
amongst other things. Any of this evidence, alone or in combination, could have persuaded the
members that Appellant’s conduct was not prejudicial to good order and discipline or service-
discrediting. The defense trial team’s performance refutes the contention that the specification as
drafted failed to alert Appellant to the possibility of justification or defense. Neither would the
presence of unlawful or wrongful have alerted them to a specific justification or defense because
they are generic terms not linked to any specific justification or defense.

The constitutional requirements of due process, the concept of notice pleading, and the
statutory and MCM text all support the position that an Article 134 offense that alleges as its first
element conduct that is generally a crime (a Davis category 1 offense) does not always require

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the specification to also plead that the conduct is wrongful or unlawful. Military case law also
supports that position. For example, our higher Court found sufficient an unenumerated
specification alleging child neglect without harm that did not include either unlawful or wrongful
even while stating an “Article 134 offense that is not specifically listed in the MCM must have
words of criminality and provide an accused with notice as to the elements against which he or
she must defend.” Vaughan, 58 M.J. at 35. The specification was sufficient because elements
listed by the military judge during the providence inquiry did “capture the essence of child
neglect” based on the military judge’s definitions of those elements—definitions that were not
contained in the specification itself. Id. For example, the specification alleged the accused did
neglect her child which the military judge determined to mean culpable negligence rather than
simple negligence. Id. The Court held that the elements gave the Appellant sufficient notice and
that whether the acts or omissions violate Article 134 “depend on the facts as evaluated by the
trier of fact.” Id. at 36. By contrast to Vaughan where not all states criminalize child neglect, the
mens rea used varies, and the sufficiency of the specification depended in part on terms not
defined in the specification, this case provides much clearer notice of what Appellant was
required to defend against: he provided alcohol to a person under the age of 21 years old in
violation of the terminal element.

Although not involving an Article 134 specification, United States v. Turner helps
illustrate why alleging unlawful or wrongful was not required in this case. 79 M.J. 401 (C.A.A.F.
2020). Turner involved a specification alleging an attempt to commit premeditated murder. The
sample specification for “Attempts” under Article 80 includes a requirement to “(describe
offense with sufficient detail to include expressly or by necessary implication every element).” Id.
at 404. The specification in Turner, however, failed to allege that the attempted killing was
“unlawful.” Id. Turner noted the correct test is not whether a specification expressly alleges
every element of the predicate offense, but rather that “sufficient specificity is required so that an
accused is aware of the nature of the underlying target or predicate offense.” Id., quoting United
States v. Norwood, 71 M.J. 204, 205, 207 (C.A.A.F. 2012) (citing Bryant, 30 M.J. 72; United
States v. Resendiz-Ponce, 549 U.S. 102 (2007); Wong Tai v. United States, 273 U.S. 77 (1927)).
Federal indictments work the same way. United States v. Lazarenko,564 F.3d 1026 (9th Cir.
2009). When the former Prime Minister of Ukraine was convicted of money laundering, wire

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 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

fraud, and interstate transportation of stolen property for transferring funds through the United
States he acquired through crimes in the Ukraine, he argued that his indictment was deficient
because it did not contain a necessary element: the Ukrainian law he violated. Id. at 1033. The
Ninth Circuit disagreed. Looking to its general precedent on indictments, the court found that
when bringing money laundering charges, for example, “the government need not allege all the
elements of the ‘specified unlawful activity,’ ” i.e., the underlying offense. Id. Appellant
admitted he had notice that his conduct was potentially criminal, therefore the specification
provided sufficient detail to make him aware of the nature of the crime underlying the Article
134 charge.

Other military cases have also found sufficient specifications that failed to allege
wrongfulness or other words of criminality. See United States v. French, 31 M.J. 57, 60 (C.M.A.
1990) (despite lacking express words of criminality, the court upheld an Article 134 specification
alleging the defendant “did orally communicate . . . indecent language” by asking a girl under the
age of 16, “if [Appellant] could climb into bed with her” because “[a]s a whole … the language
certainly conveys an indecent message.”); United States v. Brecheen, 27 M.J. 67, 68–69 (C.M.A.
1988) (despite omitting the element of “wrongfulness,” the court upheld an Article 112
specification alleging the defendant attempted to distribute a controlled substance, because “it is
well recognized by this Court and federal courts in general that the essential elements of a crime
need not be expressly alleged so long as they may be found by reasonable construction of other
language in the challenged specification.”); United States v. Bunch, 3 C.M.A. 186, 189,
11 C.M.R. 186, 189 (1953) (despite lacking express words of criminality, the court upheld an
Article 134 specification alleging the defendant possessed property belonging to another,
because the specification “implicitly contain[ed] a charge that the act committed by the accused
was itself an offense and therefore unlawful and wrongful.”); United States v. Macko, 82 M.J.
501, 503 (N-M. Ct. Crim. App. 2021), review denied, 82 M.J. 235 (C.A.A.F. 2022) (despite
omitting the specific element of “wrongfulness,” the Navy-Marine Court of Criminal Appeals
upheld an Article 134 specification alleging the production of child pornography, because “the
word ‘wrongfully’ [was] necessarily implied by the specification's allegation that Appellant
produced ‘digital pictures of a minor engaging in sexually explicit conduct.’ ”); United States v.
Hoffmann, No. 201400067, 2020 WL 3045674, at *9 (N-M. Ct. Crim. App. June 8, 2020)

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 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

(unpublished) (despite not including the word “wrongfully,” the court upheld a novel Article 134
specification for enticing an individual under the age of 18, reasoning that “in evaluating whether
the specification contains words of criminality, we are not looking for ‘magic’ words. The mere
failure to include the word ‘wrongfully’ does not necessarily render a specification invalid.”).
Military case law therefore supports the proposition that not all Article 134 offenses require the
inclusion of either wrongful or unlawful.

Appellant also urges us to overrule United States v. Tevelein, 75 M.J. 708 (C.G. Ct.
Crim.App. 2016). We decline to do so, but we also choose not to merely rely on stare decisis in
reaching our result. Nevertheless, we feel it necessary to address Tevelein because some view it
to establish a bright line rule that words of criminality are never required. Tevelein recognized
that “[w]hat remains elusive in military justice jurisprudence is precisely which circumstances
require additional words of criminality. We need not decide that issue here.” Id. at 711, n.21.
Instead, in Tevelein we applied the Sell test to the facts and circumstances of the case. Notably,
this was a guilty plea in which Tevelein never challenged the sufficiency of the specification,
including on appeal. Furthermore, Tevelein “entered into a stipulation of fact, and admitted that
he used Spice to get high, for its mind-altering effects, that he expected the effects to be similar
to that of marijuana, a Schedule 1 controlled substance, that he used Spice with other Coast
Guard members, and in front of other Coast Guard members, in Coast Guard leased housing, and
that he used Spice in part because he knew it would not be detected by an urinalysis test.” Id. at
712-13.

These stipulated facts well established that Tevelein’s use of Spice was unlawful. Like
Davis and Vaughan, based upon the specific facts of the case, we concluded that Tevelein had
sufficient notice that “his conduct was punishable,” that the specification “apprise[d] [him] of
what he needed to defend against,” and that it was not plain error for the military judge to accept
his guilty plea. Id. at 712, 713. As stated in footnote 21, this was a fact-based opinion rejecting
the notion that every Article 134 specification must include words of criminality such as
unlawful or wrongful to be sufficient. Thus, Tevelein does not establish a brightline rule that the
terms “wrongful” or “unlawful” are never required in an unenumerated Article 134 specification.

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 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

Similarly, this opinion does not draw such a brightline rule. Accordingly, it remains open as to
which Article 134 specifications require words of criminality.

While we and our dissenting colleagues agree that Article 134 offenses do not “always
require particular words of criminality, such as ‘wrongfully’ or ‘unlawfully,’ and that, instead,
what suffices as words of criminality depends on the nature of each offense,” we take different
analytical approaches to when such words are required. United States v. Shafran, __ M.J. __, No.
1480, slip op. at 34-35 (C.G. Ct. Crim. App. 6 Oct 2023).

Initially, however, we start from the same premise: the Sixth Amendment requires the
specification to provide notice of the elements that the accused must defend against at trial. We
also agree that “if the facts alleged in and of themselves describe a violation of unwritten,
customary law, nothing further is needed.” Id. at 34. As detailed above, we believe that the facts
alleged do describe a violation of unwritten, customary law as evidenced by military case law, as
well as state and federal law; therefore, neither wrongfully nor unlawfully is required. Our
colleagues go further with their analysis, opining that such words are required when “more
information” is needed to show whether the acts alleged might or might not fall under the
prohibition at issue. Id. As detailed above, there are no facts that would per se take Appellant’s
conduct outside the prohibition against providing alcohol to a person under the age of 21. This is
in part because factually his conduct did not fall under any exception under Virginia state law,
but more importantly because whether Appellant’s conduct is criminal ultimately depends not on
any such state law exceptions, but rather whether his conduct was prejudicial to good order and
discipline or service-discrediting. As a result, more information was not required to provide
Appellant his constitutionally required notice of what he had to defend against.

Our dissenting colleagues alternatively opine that “if a specification ‘excludes any
possibility that [an] accused’s behavior was accidental or that the conduct charged could
reasonably be interpreted as innocent,’ then omitting words of criminality like ‘wrongfully’ is
‘not fatal.’ ” Id. at 35 (quoting United States v. Gaskin, 12 C.M.A. 419, 421, 31 C.M.R. 5, 7
(1961). The specification in Gaskin, however, did not include “unlawfully” and the Court noted
the inclusion of the words “wrongfully” or “unlawfully” were a “mere formality” where a

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specification “implicitly contain[s] a charge that the acts there set out were in themselves
criminal.” Gaskin, 12 C.M.R. at 421, 31 C.M.R. at 7. The specification at issue here at least
implicitly charges acts that are criminal. Excluding any possibility of innocence is not required to
provide the Appellant adequate notice of what he must defend against, nor is it required by the
relevant case law.

Specifications are not required to exclude any possibility of innocence. The Supreme
Court has long held that an indictment “need not negative the matter of an exception made by a
proviso or other distinct clause, whether in the same section or elsewhere, and that it is
incumbent on one who relies on such an exception to set it up and establish it.” McKelvey v.
United States, 260 U.S. 353, 357 (1922); Dixon v. United States, 548 U.S. 1, 13 (2006) (“Duress,
like the defense at issue in McKelvey, is an excuse that allows an exception from liability.”);
Evans v. United States, 153 U.S. 584, 590 (1894) (“Neither in criminal nor in civil pleading is it
required to anticipate or negative a defense.”). The Supreme Court has also held that an
indictment that “recites the necessary elements of an offense” is not insufficient because “it does
not allege facts that themselves demonstrate the availability of a constitutional privilege.” United
States v. Sisson, 399 U.S. 267, 288 (1970) (“an indictment, in order to be sufficient, need not
anticipate affirmative defenses”). Our colleagues maintain that the inclusion of wrongfully or
unlawfully is a necessary element, but that is not consistent with the case law. Although
determining “whether an exception in a criminal statute creates an element or an affirmative
defense is not an exact science,” courts continue to apply the rule in McKelvey where exceptions
to general provisions are not elements given that this “longstanding convention is part of the
backdrop against which Congress writes laws.” United States v. Rafiekian, 991 F.3d 529, 541-
542 (4th Cir. 2021). This is true even where the general provision and the exceptions are in
separate subparagraphs of the same statutory provision. Id. Here, the exceptions would not come
from the same statute, but from state law rather than federal law. 15 Furthermore, the exceptions

15
In Virginia even the exceptions have exceptions. Our colleagues cite Meija v. Commonwealth for the proposition
that a person under the age of 21 must have illegally consumed alcohol and noting the exceptions for legal
consumption. Yet even noting the exceptions, an underage person violates the statute if his blood alcohol
concentration is greater than 0.02 grams. Meija v. Commonwealth, 23 Va.App. 173, 177-178 (1996).

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 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

would not even be explicitly pleaded by inserting wrongfully or unlawfully; at best they would
be implied. Consequently, those words cannot be elements of the offense that must be pleaded.

We agree with our colleagues that there are times when “a particular word of criminality,
such as ‘wrongfully,’ may, depending on the nature of the offense, be necessary to fully establish
criminality,” but this is not such an offense. Shafran, __ M.J. __, slip op. at 36. For example, as
they note, a specification alleging extortion requires an allegation that the obtaining of the
property must be wrongful because the alleged extortionist has no lawful claim to the property.
(A member threatening to report his shipmate to their Commanding Officer if the shipmate
doesn’t return his property is not committing extortion because it is the member’s property, not
his shipmate’s.) No similar requirement is present in an allegation of providing alcohol to a
person under the age of 21. A specification must allege that use of a controlled substance is
wrongful because the Controlled Substances Act, 21 U.S.C. §§ 801-971, is designed to provide
for the lawful use of substances, e.g., in accordance with a prescription from a medical doctor. 16
The Controlled Substances Act is not a general provision criminalizing activity and therefore an
allegation of wrongful use is necessary. An enumerated Article 134 specification alleging the
possession of child pornography contains an allegation that the possession be wrongful to
preclude the unintentional or inadvertent acquisition of child pornography—possibly also to
protect trial counsel, defense counsel, and military judges who too often knowingly possess child
pornography in the course of their duties—but no such protection is required concerning an
allegation of recklessly providing alcohol to a person under the age of 21.

Our colleagues also point to the utility of “wrongful” or “unlawful” by reference to
United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016). Rapert, however, concerns the
complicated state of mind for the communication of a threat, something not at issue in this case.
Communication is a two-way street: there is the message the speaker intends to communicate
and the message received by the listener. In the criminal context, this is further complicated by
freedom of speech issues arising under the First Amendment. Elonis v. United States, 575 U.S.
723 (2015). The communication must therefore be analyzed under both an objective and a

16
The Controlled Substances Act because with the Congressional finding that many of the drugs it controls “have a
useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American
people.” 21 U.S.C. § 801(1).

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 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

subjective standard. First, would a reasonable listener have understood the communication to
constitute a threat. Second, did the speaker subjectively intend to communicate a threat. Rapert,
75 M.J. at 169. The fact that the third element of the offense required the communication to be
wrongful distinguished this military offense from the civilian offense at issue in Elonis. Id.
Although this saved the specification from the constitutional challenge raised by implying the
complicated state of mind at issue, the inclusion of wrongful did not provide the accused with
clear notice of what he had to defend against, nor did it provide counsel and the military judge
any guidance regarding how to instruct members. The Court itself felt the need to add bracketed
language to the elements to clarify how the various mens rea applied. Id. See also, Counterman
v. Colorado, 600 U.S. 66 (2023) (First Amendment only requires a reckless disregard that a
reasonable listener would understand the communication to be a true threat). A similar problem
would arise by the inclusion of wrongful or unlawful in the specification in this case; including
either word would not provide the accused any additional notice of what he had to defend
against, nor would it have provided any clear guidance concerning instructions. Including either
word would not add conduct or actions to be proven, a state of mind, or clarity regarding why the
acts were unlawful or wrongful.

In the specific context of this alleged offense involving a general state and federal wide
prohibition against providing alcohol to a person under the age of 21, there is no defense
exception that must be pleaded as element, no complicated two-part mens rea, and no
wrongfulness component to the alleged crime such as with extortion. For these reasons, we
disagree with our colleagues that an allegation of wrongful or unlawful is a required element of
the crime that must be pleaded in the specification.

This returns us to the position that when an unenumerated Article 134 offense requires
words of criminality remains an open question perhaps unavailing of any simple answer;
however, some guidance to counsel seems appropriate. First, when crafting specifications
alleging unenumerated Article 134 offenses, counsel must take great care conducting research of
the case law and consulting more seasoned practitioners before drafting the specification and
then seeking review of the draft. Here, counsel crafted a specification requiring a mens rea of
knowing, higher than the minimal standard required by case law. Counsel then struck that

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language without substituting any other language alleging a mens rea. This was a careless,
unforced error. Second, while a specification may expressly or by implication allege the
elements of an offense, alleging the elements expressly removes the potential for error. Third, a
specification alleging conduct that is generally a crime may not require the inclusion of other
words of criminality such as unlawful or wrongful, but the crime may have such an element. For
example, extortion is communicating a threat to obtain something of value, but an element of the
offense is that the receipt of the object of value must be unlawful. Fourth, if the acts or omissions
alleged for element one are generally not a crime, some words of criminality must be alleged in
order for the accused to have notice of what he must defend against. Wrongful or unlawful may
suffice, but they may not. Consider alleging details that describe why the conduct was not lawful
or wrongful. For example, in a specification alleging the use of a substance that is not a
controlled substance consider including details such as the use was for the purpose of getting
high and to evade detection by urinalysis and in the presence of subordinates.

The specification at issue alleges both the terminal element and conduct that is generally
a crime in all fifty states and the District of Columbia. The specification thereby provided him
notice of the nature of the offense alleged and what he needed to defend against either expressly
or by necessary implication. The specification is sufficient.

III. Denial of Deferment Request
Appellant correctly notes that the convening authority erred by denying his request to
defer confinement without providing an explanation. Our higher court has provided a clear, yet
often overlooked, mandate: “When a convening authority acts on an accused’s request for
deferment of all or part of an adjudged sentence, the action must be in writing (with a copy
provided to the accused) and must include the reasons upon which the action is based.” United
States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992) (emphasis added), overruled on other grounds by
United States v. Dinger, 77 M.J. 447 (C.A.A.F. 2018). This is so appellate courts can provide
meaningful judicial review of whether the convening authority abused his discretion in denying
the request. Id. at 6–7.

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The Post-Trial Action indicates that Appellant requested deferment of automatic
forfeitures, reduction to E-1, and the balance of adjudged confinement until entry of judgment. It
also summarily notes that the convening authority denied this request, but no explanation is
provided and neither Appellant’s request nor any separate documentation denying the request is
included in the record of trial. This was error. Sloan, 35 M.J. at 7; R.C.M. 1112(f)(4); Coast
Guard Military Justice Manual (COMDTINST M5810.1H), para. 21.E.6.i. Convening authorities
and their advisors are cautioned that when denying deferment requests, appropriate
documentation, including reasons for denial, must accompany the record of trial so that we can
effectively perform our appellate function.

Still, we only grant relief if the error materially prejudiced a substantial right of the
accused. Art. 59, UCMJ; Sloan, 35 M.J. at 7. Appellant does not articulate any prejudice he
suffered, and we discern none. See United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App.
2008), aff’d, 68 M.J. 445 (C.A.A.F. 2010). Accordingly, we decline to grant relief.

IV. Expert Testimony
Appellant asserts that the Government’s expert witness in forensic psychology exceeded
the bounds of his expertise and offered impermissible testimony. Because Appellant did not
make a timely objection, we review for plain error. To be entitled to relief, Appellant has the
burden to show: (1) there was error; (2) the error was plain or obvious; and (3) the error was
materially prejudicial to his substantial rights. United States v. Brooks, 64 M.J. 325, 328
(C.A.A.F. 2007).

In its Notice of Expected Use of Expert Testimony, the Government proffered that it
intended to call a forensic psychologist for “testimony related to the physiological impacts of the
victims’ alcohol consumption, her likely blood alcohol concentration at the time of the alleged
assault, the impact of alcohol consumption on the victim’s memory, and the implications and
manifestations of the trauma sustained during and following the alleged assault of the witness.”

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Appellate Ex. II at 27. Based on this proffer, the Defense lodged objections and the military
judge conducted a Daubert hearing. 17

When testifying at trial, Dr. A.H. strayed significantly from the proffer and what was
addressed during the hearing. After reviewing factors that can affect a person’s memory, trial
counsel asked if Dr. A.H. could explain Ms. E.F.’s “spotty, intermittent memory and her inability
to respond to sexual activity . . . [.]” R. at 617. Dr. A.H. responded:
At that time, with all these factors at play that we just talked about, she may have
been, again, there's no way to know this for certain. She may have been asleep or
sleep like state, when a towel or a blanket were removed. That wouldn't been
enough then to sufficiently wake her up. . . . And from her testimony, it sounds
like she was awake and crying, and they did not respond maybe, as she testified,
perhaps because she felt it would be futile to try to respond. But then at some
point, when she becomes more awake, she then starts to factor in the totality of
everything that happened. And I think that really hits her of what had happened
and transpired over the evening.

R. at 617–18.

Later, trial counsel asked whether Dr. A.H. was “able to form an opinion of why this
happened or how these factors had affected Ms. [E.F.]” R. at 618. Dr. A.H. replied:
We start first with her own statement, which was in the detective interview that
[Appellant] had been the first guy that had ever asked for her phone number, and I
think that that meant something to her, and that she was she was naïve. She was
immature. As a 20 year old, she was under the wing of her parents and the
watchful eye of her parents. She may have been very trusting to other people in
uniform, maybe not the same Air Force uniforms that she was accustomed to but
pretty close. She may have been overly trusting of people.

R. at 619.

Dr. A.H. also offered, “Having been alcohol naïve, she could have been more prone to
being suggestible than she would if she were a little bit older, a little bit more experienced.” R. at
619–20. Finally, trial counsel asked Dr. A.H. what “other factors” suggested that Ms. E.F. did
not want sexual activity. Dr. A.H. responded by pointing to testimony that Ms. E.F. had a

17
That is, a hearing to determine the admissibility of scientific evidence under Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 582 (1993).

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headache, which usually gets worse with physical activity, to Ms. E.F.’s testimony that she sat on
the opposite end of the hot tub from Appellant as “another indication that you wanted to avoid
sexual activity,” and to her testimony that she went to a small carpet in Appellant’s room rather
than getting on the bed. R. at 620–21.

We, too, find this testimony problematic. It was quite speculative, of untested reliability,
and risked invading the province of the members to determine the credibility of the putative
victim. M.R.E. 702; Brooks, 64 M.J. at 329. Appellant, however, at no point objected to it. His
attempt to seek relief for it now fails because even if we assume there was error that was plain or
obvious, he has not demonstrated that it materially prejudiced his substantial rights.

First, the bulk of Dr. A.H.’s testimony went toward the sexual assault that allegedly
occurred after Ms. E.H. went to Appellant’s bedroom (specification 1 of Charge I)—not the
serious abusive sexual contact that allegedly occurred before that charged in specification 2 of
Charge I. The members acquitted Appellant of the alleged sexual assault (specification 1),
indicating that any error in the expert testimony about that offense was not prejudicial. This also
indicates that the members gave properly cabined weight to the entirety of Dr. A.H.’s testimony.

Second, rather than objecting to the above testimony, trial defense counsel challenged it
through effective cross-examination. Besides emphasizing that Dr. A.H. had not interviewed Ms.
E.F. or reviewed any medical records, he elicited that Ms. E.H.’s memory only allegedly got
spotty when she got to the bedroom and that besides the possibilities discussed during direct
examination, there were other possibilities, such as that a sexual assault did not occur, that there
was consensual activity, or that there was no activity. This put the witness’s “could haves” and
“may haves” into proper context and was effective impeachment.

Considering the entire record, we are persuaded that the members, heeding the military
judge’s instructions, gave Dr. A.H.’s testimony only the weight it deserved, determined Ms.
E.F.’s credibility themselves using their independent judgment, and based their findings on
competent evidence. Accordingly, we find no prejudice and decline to grant relief.

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V. Decision
We determine that the findings and sentence are correct in law and fact and, on the basis
of the entire record, should be approved. Accordingly, the findings of guilty and the sentence are
affirmed.

Judges HAVRANEK, PELL, TASIKAS and PARKER concur.

BRUBAKER, Judge, concurring in part and dissenting in part:

I fully agree with the Court’s resolution of assignments of error (AOEs) I, V, VI, VII, and
VIII and with affirming the abusive sexual contact conviction. I also agree with the Court’s
analysis and holding regarding the proper standard of review for appellate claims of failure to
state an offense under the amended Rule for Courts-Martial 905. I respectfully disagree,
however, with the Court’s analysis in Part II.C about whether the specification alleging an
unenumerated offense under Article 134, Uniform Code of Military Justice (UCMJ), states an
offense and with the decision to affirm the finding of guilty to the specification. I would set it
aside, thereby mooting the remaining AOEs about the Article 134 conviction (III and IV).
Accordingly, I dissent.

It is black-letter law that a specification is “constitutionally sufficient only if it alleges,
either expressly or by necessary implication, every element of the offense, so as to give the
accused notice of the charge against which he must defend and protect him against double
jeopardy.” United States v. Turner, 79 M.J. 401, 403 (C.A.A.F. 2020) (cleaned up) (quoting
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)). But this case presents difficult
questions that divide this Court: (1) What are the elements for the offense at issue, charged under
Article 134, but unenumerated, meaning it has not been spelled out, either by Congress or by the
President?; (2) What are “words of criminality,” and when does an offense require proof of
them?; and (3) Does the unenumerated offense of providing alcohol to a person under the age of
21 years require pleading and proof of words of criminality such as “wrongfully” or
“unlawfully”?

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I would conclude that: (1) the unenumerated offense of providing alcohol to a person
under the age of 21 years requires proof not only of a mens rea of at least recklessness, but of
words of criminality, specifically, either “wrongfully” or “unlawfully”; (2) even viewed with
maximum liberality, the specification failed to allege, expressly or by necessary implication,
either of these essential elements and therefore failed to state an offense; and (3) this
constitutional error was not harmless beyond a reasonable doubt. I would therefore set aside the
conviction.

I. Elements of Unenumerated Offenses Under Article 134
Determining the elements required to prove a specific offense under clause 1 or 2 of
Article 134, UCMJ, requires considering more than just the article’s literal language or its two
basic elements. In relevant part, Article 134 provides, “Though not specifically mentioned in this
chapter, all disorders and neglects to the prejudice of good order and discipline in the armed
forces [and] all conduct of a nature to bring discredit upon the armed forces . . . shall be
punished . . . .” Art. 134, UCMJ. The President—before listing specific elements for enumerated
offenses under Article 134—explains that, as a general matter, clause 1 or 2 offenses require
proof: (1) that the accused did or failed to do certain acts; and (2) that, under the circumstances,
the accused’s conduct was to the prejudice of good order and discipline or of a nature to bring
discredit upon the armed forces. MCM, pt. IV, para 91.b.(1), (2).

Read literally, the statutory language and two basic elements would appear to criminalize
any act or omission that satisfies the second, or terminal, element. But, as this Court has recently
emphasized, “it does not.” United States v. Tucker, 82 M.J. 553, 560 (C.G. Ct. Crim. App. 2022).
These two clauses, with origins in pre-Revolutionary British law, have been part of our military
law since 1775 and “must be judged, therefore, not in vacuo, but in the context in which the
years have placed it.” United States v. Frantz, 2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953).
More specifically, the Supreme Court instructs that it is “the longstanding customs and usages of
the services”—also known as “ ‘customary military law’ ”—that “impart accepted meaning to
the seemingly imprecise standards of [Article] 134.” Parker v. Levy, 417 U.S. 733, 746–47
(1974) (quoting Martin v. Mott, 12 Wheat. 19, 35 (1827)). It is only because customary military

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law imparts accepted meaning to what is now codified as clauses 1 and 2 of Article 134 that they
have, for many years, survived vagueness challenges:
Notwithstanding the apparent indeterminateness of such a provision, it is not
liable to abuse; for what those crimes are, and how they are to be punished, is well
known by practical men in the navy and army, and by those who have studied the
law of courts martial, and the offences of which the different courts martial have
cognizance.

Id. at 747 (quoting Dynes v. Hoover, 20 How. 65, 82 (1857)). See also, United States v. Rice, 80
M.J. 36, 41 (C.A.A.F. 2020) (“The exceptionally broad statutory language [of Article 134] and
potential for abuse is balanced, in large part, by [military appellate courts’] duty to constrain
it.”).

Despite its broad terms, then, the first element of Article 134 cannot be read to
encompass any act or omission. Instead, a servicemember must have “fair notice” that his or her
act or omission is “forbidden and subject to criminal sanction” under this body of law known as
customary military law. United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (quoting
United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). Sources of notice that an act or
omission is forbidden under this body of law include “the MCM, federal law, state law, military
case law, military custom and usage, and military regulations.” Id.

In the MCM, the President provides examples of customary offenses under Article 134
and the proof required for each. MCM, pt. IV, paras. 92–108. By doing so, he is not creating
substantive criminal law, which is outside his purview, but “merely indicating various
circumstances in which the elements of Article 134, UCMJ, could be met.” United States v.
Jones, 68 M.J. 465, 471 (C.A.A.F. 2010). These examples are not exhaustive. “Other violations
of customary military law that are not listed by the President may likewise be punished under
Article 134 ‘if sufficient notice of its proscription previously existed in military law.’ ” Tucker,
82 M.J. at 561 (quoting United States v. Kick, 7 M.J. 82, 83 (C.M.A. 1979)).

When charging an unenumerated Article 134 offense, two distinct notice requirements
come into play. First, under the Fifth Amendment’s Due Process Clause, an accused must have
fair notice of criminality at the time of his conduct. Parker, 417 U.S. at 752. Separately, under

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the Sixth Amendment, an accused is entitled at the time of trial to notice of the charges against
which he must defend. Turner, 79 M.J. at 403. Although both are implicated when assessing the
sufficiency of a specification alleging an unenumerated Article 134 offense, each must be
analyzed separately. For the former, notice of criminality of conduct “does not necessarily
require published notice of the precise wording of the elements.” United States v. Saunders, 59
M.J. 1, 9 (C.A.A.F. 2003). But, by the time of trial, “[i]n addition to notice that an act is a crime,
a person must also have ‘fair notice as to the standard applicable to the forbidden conduct’
against which they must defend.” Id. (quoting Vaughan, 58 M.J. at 31) (emphasis added). This
includes notice of “every element” of the offense. Turner, 79 M.J. at 403 (quoting United States
v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)).

For enumerated Article 134 offenses, the President details specific standards in the form
of elements, definitions, and sample specifications. MCM, pt. IV, paras. 92–108. An accused
charged with an unenumerated offense is no less entitled to notice of the specific applicable
standards. Saunders, 59 M.J. at 9. But because the standards are not detailed by Congress or by
the President, it is incumbent on courts to ascertain applicable standards without such aids. See,
e.g., Vaughan, 58 M.J. at 35 (“Here, because the charged offense was not listed in the MCM, the
military judge defined the elements herself . . . . In our view, the elements she listed capture the
essence of ‘child neglect’ as reflected in military custom and regulation as well as a majority of
state statutes.”).

II. Whether the Specification States an Offense
Turning to this case, I agree with the majority that Appellant had fair notice that, at the
time of his conduct, providing alcohol to a person under the age of 21 years was prohibited. This
is amply supported by case law and federal and state law. See, e.g., United States v. Tucker, 78
M.J. 183 (C.A.A.F. 2018); Federal Trade Commission Consumer Advice, Alcohol Laws by State
(September 2013), https://consumer.ftc.gov/articles/0388-alcohol-laws-state, last visited 31
August 2023. Appellant’s Fifth Amendment right to notice of criminality was, therefore,
vindicated.

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That does nothing, however, to answer whether the Government charged the offense in a
manner to vindicate Appellant’s Sixth Amendment right to be informed of the charges against
him and the essential facts—the elements—required to prove them. On this point, I disagree with
the majority. The amended specification alleged that Appellant:
provide[d] several alcoholic beverages to Ms. E.F., a person under the age of 21,
in the presence of other junior enlisted members of the U.S. Coast Guard and U.S.
Air Force, and that said conduct was to the prejudice of good order and discipline
in the armed forces and was of a nature to bring discredit upon the armed forces.

Charge Sheet.

I would conclude this was insufficient because it omits two elements necessary to prove
the customary offense of providing alcohol to a person under the age of 21 years: (1) a mens rea
of at least recklessness; and (2) words of criminality, specifically, either “wrongfully” or
“unlawfully.”

A. Mens Rea
As the majority notes, a required mens rea is an essential element of an offense that must
be pleaded. Elonis v. United States, 575 U.S. 723, 734 (2015). The charged offense has a
required mens rea of at least recklessness, meaning the Government must prove, at a minimum,
that the accused “provide[d] alcohol to someone while consciously disregarding the known risk”
that the person was under the legal drinking age. Tucker, 78 M.J. at 186. Therefore, to be
sufficient, the specification was required to allege, either expressly or by necessary implication, a
mens rea of at least recklessness. R.C.M. 307(c)(3); Turner, 79 M.J. at 403.

Because the specification was challenged for the first time after trial, we view it with
“maximum liberality.” Turner, 79 M.J. at 403 (quoting United States v. Bryant, 30 M.J. 72, 73
(C.M.A. 1990)). Though there is reason to question whether this “maximum liberality” standard
continues to apply to an error that is preserved, rather than forfeited, under the amended R.C.M.
905, I believe it does. CAAF has explained that liberally construing specifications challenged
after trial:
is consistent with R.C.M. 905(e), which authorizes the defense to raise an
objection to a specification’s failure to allege an offense at any time, including

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after “the court-martial is adjourned.” Thus, it is the rule that sets forth when an
objection is timely for the purposes of waiver, but it is our case law that sets forth
the proper standard for determining whether a timely motion is meritorious.

Turner, 79 M.J. at 405, n.4.

Although R.C.M. 905 now sets forth when an objection is timely for the purposes of
forfeiture, that does not necessarily supersede the maximum liberality standard. A court can
review a matter de novo—meaning looking at it anew, without deference to any prior decision
and without placing any burden on the accused to show plain error—and yet apply a liberal
standard in its de novo review. This appears consistent with the approach of civilian, federal
courts. See, e.g., United States v. Gama-Bastidas, 222 F.3d 779, 785–86 (10th Cir. 2000).

But even applying this standard, the specification fails. Prior to trial, the trial counsel
excised any reference to a mens rea from the specification. Even read with maximum liberality,
nothing in the amended specification alleges, expressly or by necessary implication, that
Appellant was, at a minimum, reckless as to Ms. E.F.’s age. This was error. Whether or not it
was later “cured” in the course of litigation goes only to whether it was harmless beyond a
reasonable doubt.

B. Words of Criminality
“An Article 134 offense that is not specifically listed in the MCM must have words of
criminality and provide an accused with notice as to the elements against which he or she must
defend.” Vaughan, 58 M.J. at 35 (citing United States v. Davis, 26 M.J. 445, 447–48
(C.M.A.1988)) (emphasis added); see also, Saunders, 59 M.J. at 9. So, clearly, the Government
in this case was required to allege and to prove words of criminality. Still, that leaves us with
vexing questions about what suffices as “words of criminality” and how we determine when a
specific word of criminality, like “wrongfully,” must be pleaded and proven. As our higher court
has itself acknowledged, case law in this area “has been at times unclear.” United States v.
Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011). Still, in my view, we must strive to answer these
questions before we can determine whether the specification at bar alleged sufficient words of
criminality to state an offense.

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This Court has itself vacillated on the issue. In United States v. Hughey, it deemed
insufficient a specification alleging an unenumerated Article 134 offense because of “the absence
of any word of criminality such as ‘wrongfully.’ ” 72 M.J. 809, 813 (C.G. Ct. Crim. App. 2013),
overruled by United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016). Noting that
“[t]he fact that certain conduct is prejudicial to good order and discipline does not, in itself, make
the conduct criminal and punishable under Article 134,” it ruled that the specification lacked
either a specific word of criminality such as “wrongfully” or sufficient facts and circumstances
such as were present in Vaughan and Davis to establish criminality. Id. at 813–14 (citing
Vaughan, 58 M.J. at 35, n.4; Davis, 26 M.J. at 449). It also questioned the continued vitality of
Davis in light of more recent Article 134 cases, such as Fosler, 70 M.J. at 230–31. Hughey, 72
M.J. at 814.

In United States v. Tevelein, our Court overruled Hughey, reasoning:
Central to our earlier opinion was the conclusion that the words of the terminal
element, i.e., that conduct was prejudicial to good order or discipline or service
discrediting, were not words of criminality. Such a conclusion is not consonant
with Davis, in which the court equated the terminal element language of Article
134 with words of criminality: “We can see no harm in alleging criminality in
terms of the provision of Article 134 which made the conduct wrongful, rather
than by using a general allegation that appellant’s activity was ‘wrongful’ or
‘unlawful.’ ”

75 M.J. 708, 711 (C.G. Ct. Crim. App. 2016) (en banc).

The Tevelein Court approvingly quoted United States v. Farence, 57 M.J. 674, 677 (C.G.
Ct. Crim. App. 2002): “Stated differently, the words ‘prejudicial to the good order and discipline
of the armed forces’ are, without more, ‘words importing criminality’ sufficient to support a
specification alleging acts that would not otherwise constitute a crime.” Tevelein, 75 M.J. at 711.
After acknowledging less than clear military case law on the point and, by way of footnote, that
“precisely which circumstances require additional words of criminality” “remains elusive,” id.,
n.21, it nonetheless “endorse[d] the principle enunciated in Davis and applied in Farence, that
the words of the terminal element pled in an Article 134 specification constitute words of
criminality sufficient to support a specification alleging acts that would not otherwise constitute
a crime.” Id. at 711.

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The Government, quite understandably, relies on Tevelein to assert that because the
specification at issue alleged the terminal element, that by itself establishes criminality. In my
view, this notion—that the terminal element by itself fully satisfies the requirement for words of
criminality—is so plainly wrong that, even with due deference to stare decisis, I would explicitly
overrule Tevelein. But at any rate, practitioners should take note that all the judges of this Court
unanimously agree that Tevelein was decided on its facts, that pleading the terminal element does
not per se suffice as words of criminality, nor do Article 134 offenses always require particular
words of criminality, such as “wrongfully” or “unlawfully,” and that, instead, what suffices as
words of criminality depends on the nature of each offense.

But from there, I would take a different analytical approach. Understanding words of
criminality, in my view, starts with a simple premise: an accused is entitled to notice, through
charging documents, of the ingredients—the elements—necessary to prove his conduct falls
within the ambit of the specific prohibition alleged—not might fall or sometimes falls within it.
As the Supreme Court long ago said:
Offences created by statute, as well as offences at common law, must be
accurately and clearly described in an indictment, and if they cannot be, in any
case, without an allegation that the accused is not within an exception contained
in the statute defining the offence, it is clear that no indictment founded upon the
statute can be a good one which does not contain such an allegation, as it is
universally true that no indictment is sufficient if it does not accurately and
clearly allege all the ingredients of which the offence is composed.

United States v. Cook, 84 U.S. 168, 174 (1872).

If the facts alleged in and of themselves describe a violation of unwritten, customary law,
nothing further is needed. If, on the other hand, those acts might or might not fall within the
prohibition at issue—depending on missing information—more is needed. For the latter, military
courts have long required words of criminality such as “wrongfully.” United States v. Brice,
17 C.M.A. 336, 340, 38 C.M.R. 134, 138 (1967). As explained in Brice:
[T]he Court, in times past, has held that where a specific action alleges the
violation of a particular article of the Code and the acts committed by the accused
in and of themselves constitute an offense, the required allegation of
wrongfulness . . . is inapplicable. Yet, we have said with equal force that if the act

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charged does not of itself constitute criminal conduct without an allegation of
wrongfulness, the omission thereunder renders the specification legally deficient.

Id. (citation omitted).

The Brice court went on to hold that a specification alleging attempted sale of marijuana,
which at that time was charged under Article 134, failed to state an offense because it did not
allege wrongfulness. Its reasoning had nothing to do with the terminal element: “[W]e cannot say
with any degree of certainty that the attempted sale of marihuana is of itself, under all
circumstances, a criminal act sufficient to forego the need of words denoting a mens rea.” Brice,
17 C.M.A. at 341, 38 C.M.R. at 139 (emphasis added).

Conversely, if a specification “excludes any possibility that [an] accused’s behavior was
accidental or that the conduct charged could reasonably be interpreted as innocent,” then
omitting words of criminality like “wrongfully” is “not fatal.” United States v. Gaskin,
12 C.M.A. 419, 421, 31 C.M.R. 5, 7 (1961).

When required, wrongfulness “is independent, not redundant,” of other elements of an
offense and “obviously relates to mens rea (not elsewhere specified amongst the elements) and
lack of a defense, such as excuse or justification.” United States v. King, 34 M.J. 95, 97 (C.M.A.
1992). In Fosler, the court emphasized that words of criminality such as “wrongfully” are
distinct from Article 134’s terminal element: “while potentially necessary—depending on the
nature of the alleged conduct—such words do not imply the terminal element in the charge and
specification.” Fosler, 70 M.J. at 231.

In the context of the offense of communicating a threat under Article 134, CAAF
explains that the word “wrongful”:
is properly understood to reference the accused’s subjective intent. “The
wrongfulness of [an] act obviously relates to mens rea (not elsewhere specified
amongst the elements) and lack of a defense, such as excuse or justification.”
United States v. King, 34 M.J. 95, 97 (C.M.A. 1992); accord United States v.
Thomas, 65 M.J. 132, 134 (C.A.A.F. 2007) (citation omitted) (“The word
‘wrongful,’ like the words ‘willful,’ ‘malicious,’ ‘fraudulent,’ etc., when used in
criminal statutes, implies a perverted evil mind in the doer of the act.”).

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United States v. Rapert, 75 M.J. 164, 169 (C.A.A.F. 2016). 18

The MCM, too, demonstrates that a particular word of criminality, such as “wrongfully,”
may, depending on the nature of the offense, be necessary to fully establish criminality. First, in
explaining how to draft specifications, the Discussion to R.C.M. 307(c)—separate from
discussing the requirement to allege the terminal element, R.C.M. 307(c)(3) Discussion, para.
(G)(i)—urges the use of words of criminality:
If the alleged act is not itself an offense but is made an offense either by
applicable statute (including Articles 133 and 134), or regulation or custom
having the effect of law, then words indicating criminality such as “wrongfully,”
“unlawfully,” or “without authority” (depending on the nature of the offense)
should be used to describe the accused’s acts.

R.C.M. 307(c)(3) Discussion, para. (G)(ii).

Second, presidential explanations of enumerated Article 134 offenses plainly consider the
necessity for words of criminality on a case-by-case basis considering the nature of the offense
and do not view them as synonymous with the terminal element. The President, in delineating
elements and sample specifications for enumerated Article 134 offenses, sometimes includes
words of criminality like “wrongfully,” “unlawfully,” or “dishonorably” 19 and other times does
not 20—depending on the nature of the offense. A survey of these demonstrates that the inclusion
of such words depends not on the source of prohibition under customary military law, but on
whether the prohibition is universal. When conduct is universally prohibited, no further words of
criminality are required. When, on the other hand, there are exceptions excluding the conduct
from the prohibition, words of criminality such as “wrongfully” are required to distinguish
between criminal and innocent conduct. Some illustrations will make this clearer.

The Article 134 offense of possessing child pornography requires proof that: (1) the
accused knowingly and wrongfully possessed child pornography; and (2) under the

18
Communicating threats is now codified as Article 115, UCMJ, including a wrongfulness requirement for two of
its subcategories (and maliciousness for the third). Art. 115, UCMJ.
19
See, e.g., MCM, pt. IV, paras. 93 (wrongful bigamy), 96 (dishonorable failure to pay debt), 99 (wrongful
extramarital conduct), 103 (unlawful killing of another through negligence), 108 (wrongful straggling).
20
See, e.g., MCM, pt. IV, para. 98 (disorderly conduct), 101 (fraternization).

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circumstances, the accused’s conduct was either prejudicial to good order and discipline in the
armed forces or of a nature to bring discredit upon the armed forces. MCM, pt. IV, para. 95.b.(1).
Note that for this customary offense, wrongfulness is a fact that the Government must prove to
satisfy Article 134’s first element. Despite a well-known general prohibition against possessing
child pornography, the actus reus of possession accompanied by the mens rea of knowledge and
proof of the terminal element is not enough. It must also, independent of those elements, be
wrongful. The MCM explains, “Any facts or circumstances that show that a visual depiction of
child pornography was unintentionally or inadvertently acquired are relevant to
wrongfulness . . . .” MCM, pt. IV, para. 95.c.(12). A person can therefore knowingly—yet
innocently—possess child pornography irrespective of impact on good order and discipline or
tendency to discredit the armed forces. The added requirement of wrongfulness is not a throw-in:
it is a necessary element to separate criminal from innocent conduct.

The Article 134 offense of gambling with a subordinate, on the other hand, has no such
requirement. Beyond the terminal element, it requires proof that a petty or noncommissioned
officer accused gambled with a servicemember he or she knew was a subordinate and not a
noncommissioned or petty officer. MCM, pt. IV, para. 103.b. There is no innocent explanation
for gambling with a subordinate under these circumstances, so the requirement for further words
of criminality is inapplicable. See Gaskin, 31 C.M.R. at 7.

Words of criminality play the same role in congressionally-enumerated offenses. For
possession of a controlled substance to be prohibited under Article 112a, UCMJ, for instance, the
possession must be not just knowing and conscious, but wrongful, which the MCM defines in
this context as without legal justification or authorization. Art. 112a, UCMJ; MCM, pt. IV, para.
50.b.(1), c.(2), (c).(5). See also, Tucker, 82 M.J. at 564 (noting that the “concept of wrongfulness
is meaningful, for instance, in the context of Article 112a, UCMJ. It generally prohibits the use
of controlled substances, but because there may be lawful reasons for such use, criminality also
requires wrongfulness, meaning the absence of legal justification or excuse for otherwise-
forbidden conduct.) (emphasis omitted). Article 112, on the other hand, prohibits being drunk
while on duty. There is no circumstance where being drunk on duty is permissible under the law,
so no further words of criminality are required. Art. 112, UCMJ; MCM, pt. IV, para. 49.b.(1).

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Although civilian courts do not appear to use the phrase “words of criminality,” they, too,
recognize that words military courts would categorize as such can describe distinct, essential
elements of crimes. See, e.g., United States v. Enmons, 410 U.S. 396, 399–400 (1973)
(explaining that the term “wrongful” in an extortion statute is not redundant with follow-on
terms. “Rather, ‘wrongful’ has meaning in the Act only if it limits the statute’s coverage to those
instances where the obtaining of the property would itself be ‘wrongful’ because the alleged
extortionist has no lawful claim to that property.”); Masters v. United States, 42 App. D.C. 350,
356 (D.C. Cir. 1914), cited in United States v. Thomas, 65 M.J. 132, 133 (C.A.A.F. 2007) (“The
word ‘wrongful’ in its legal signification must be defined from a criminal standpoint, since it is
here used in a penal statute to define a crime. . . . The word ‘wrongful,’ like the words ‘wilful,’
‘malicious,’ ‘fraudulent,’ etc., when used in criminal statutes, implies a perverted evil mind in
the doer of the act.”).

One final illustration, United States v. Rapert, evinces the independent work that a word
of criminality like “wrongfully” can do. There, the court considered “whether the military
judge’s interpretation of what constitutes communicating a threat under Article 134, UCMJ,
conflicts with the Supreme Court’s recent holding in Elonis v. United States, [575 U.S. at 723].”
Rapert, 75 M.J. at 165. The specific concern was whether the Article 134 offense of
communicating a threat suffered from the same infirmity as the prevailing interpretation of the
statute at issue in Elonis: that it required a mens rea of only negligence, which the Supreme
Court deemed inadequate to separate lawful from unlawful conduct. Id. at 165, 168. CAAF held
that the Article 134 offense did not share this infirmity. The key was that the military offense
had, as an element, a requirement that the communication be “wrongful,” a word that eliminates
innocent explanations, here “that the speaker intended the statements as something other than a
joke or idle banter, or intended the statements to serve something other than an innocent or
legitimate purpose.” Id. at 169. This word of criminality, then, is an essential element of proof to
“separate[] lawful conduct from unlawful conduct and thereby distinguishes the offense at bar
from the one at issue in Elonis.” Id. at 165. 21

21
For further support that a word of criminality such as “wrongful” can be a critical discriminator between lawful
and unlawful conduct, see United States v. Coss, 677 F.3d 278, 288 (6th Cir. 2012) (concluding that 18 U.S.C.

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Therefore, although I join the rest of the Court in concluding that whether an Article 134
offense requires pleading and proof of words of criminality like “wrongfully” depends not on
whether the terminal element is pleaded and proven, but on the nature of each offense, I would
conclude that if a specification describes conduct that is, without exception, prohibited and
excludes the possibility that the described conduct was, under customary military law, lawful,
then nothing further is needed. If, on the other hand, a specification describes conduct that, even
if true, may or may not be prohibited, then further words of criminality are necessary to separate
innocent from prohibited conduct.

Davis, 26 M.J. at 448, does not compel a conclusion to the contrary. First, this 1988 case
preceded a “sea change” in Article 134 jurisprudence. United States v. Richard, 82 M.J. 473, 479
(C.A.A.F. 2022) (“What the Government’s reliance on these older cases neglects, however, is the
sea change that occurred in this Court’s Article 134 jurisprudence between 2008 and 2011.”).
“More recent cases have required a greater degree of specificity in charging.” Fosler, 70 M.J. at
228.

Second, despite Davis’s dicta, neither it, nor any other case, holds that whether an
unenumerated Article 134 offense requires proof of wrongfulness is determined by which
category it falls into: “that which is or generally has been recognized as illegal under the
common law or under most statutory criminal codes” or “that which—however eccentric or
unusual—would not be viewed as criminal outside the military context.” Davis, 26 M.J. at 448.
Although the court stated that for an offense in the first category, “it can be argued that a
specific allegation of ‘wrongfulness or ‘unlawfulness’ is surplusage,” it went on to note that the
conduct fell into the second category and therefore “we need not decide that issue in this case.”
Id. (emphasis added). It then proceeded to consider the “particular facts and surrounding
circumstances recited in the specifications”—specifically, a man dressed in women’s clothing on
a military installation near a barracks or a theater—to conclude that the conduct alleged
“virtually always would be prejudicial to good order and discipline and discrediting to the Armed
Forces.” Id. In other words, the court did not apply a categorical approach, and instead looked to

§ 875(d) implicitly required a threat to be wrongful, and that the indictment was sufficient because it alleged
wrongfulness).

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 United States v. Andrew J. SHAFRAN, No. 1480 (C.G. Ct. Crim. App. 2023)

the particular acts alleged, which, applying the mores of its time, it found fully expressed
criminality under customary military law.

Viewed through a post-Fosler lens, Davis’s dictum appears, frankly, outdated and
unhelpful to the question of how to plead a particular Article 134 offense. Fosler instructs that
wrongfulness and Article 134’s terminal elements are two distinct concepts; one does not imply
the other. Fosler, 70 M.J. at 230–31. Further, one only need consider the previously-discussed
example of possession of child pornography to recognize the fallacy of using Davis’s two
categories to decide whether a word of criminality like “wrongfully” is required. Possession of
child pornography is, undoubtedly, generally recognized as illegal, yet wrongfulness is an
essential element, necessary to differentiate innocent from prohibited conduct. This is due to the
particular nature of possession of child pornography, not the category into which it falls.

To reiterate, a word of criminality is not an add-on, meaning something akin to “and
that’s illegal.” When required, it is a factual predicate necessary to make the conduct illegal. It
indicates that the otherwise-described conduct is not always illegal, that there are exceptions or
other circumstances rendering the conduct innocent under the law, and places the burden on the
Government—with or without the benefit of a presumption—to prove the accused’s conduct was
within the prohibited rather than the innocent realm.

3. Whether This Specification Required Words of Criminality
Applying this framework, I would conclude that the customary offense of providing
alcohol to a person under the age of 21 years requires allegation and proof of wrongfulness or
unlawfulness, and that because the specification did not allege this expressly or by necessary
implication, it was insufficient.

To the extent we can look to state law as a source of notice of what is prohibited under
customary military law, Vaughan, 58 M.J. at 31, we can look to the same to determine what is
not prohibited. Although there is a widely-held general prohibition against providing alcohol to
those under the age of 21 years, 31 states expressly provide exceptions where doing so is not

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illegal. 22 As an example—merely an example, as it is not any one particular state law being
enforced here, but rather customary military law as informed by state laws and other sources
collectively—Virginia law carves seven exceptions, ranging from medicinal purposes to
providing alcohol in-residence when a parent, guardian, or spouse of the person under 21 is
present. Va. Code § 4.1-306.A1, 4.1-200.1–7; see also, Mejia v. Commonwealth, 23 Va. App.
173, 175, 474 S.E.2d 866, 867 (Va. Ct. App. 1996) (holding that “illegally” is a distinct and
express element of the offense of operating a motor vehicle by a person under the age of 21 after
illegally consuming alcohol because “despite the general prohibition against possession and
consumption, there exist circumstances under which possession and consumption of alcohol by a
person less than twenty-one years of age may be legal,” such as medicinal and sacramental
possession and consumption.).

Based on states collectively carving such exceptions, it cannot be said that under
customary military law, providing alcohol to a person under the age of 21 is universally
prohibited. Providing alcohol, even knowing or ignoring a known risk the recipient is under the
age of 21, may or may not be a prohibited act, depending on the circumstances. Evidence that an
accused knowingly or recklessly provided alcohol to a person under the age of 21 therefore fails
to fully establish a prohibited act. To be prohibited, it must also be demonstrated that exceptions
expressly recognized by a majority of states do not apply. Therefore, to distinguish between
criminal and innocent conduct, proof of an added word of criminality, such as “wrongfully” or
“unlawfully,” is necessary. Because it is an essential fact to prove the offense, it must be pleaded
expressly or by necessary implication in the specification, Turner, 79 M.J. at 403, in the same
fashion as wrongfulness is pleaded as an element in several enumerated Article 134
specifications. See, e.g., MCM pt. IV, paras. 95.e, 99.e. 23

22
Furnishing Alcohol to Minors: Maps & Charts, Alcohol Policy Information System (nih.gov),
https://alcoholpolicy.niaaa.nih.gov/apis-policy-topics/furnishing-alcohol-to-minors/40/maps-and-charts?accordion-
jump-link=furnishing-alcohol-to-minors-exceptions-to-prohibitions-on-furnishing-of-alcohol-to-persons-under-age-
21-map-as-of-january-1-2022, last visited 6 Oct 2023.
23
Pre-Tevelein cases such as United States v. Hewitt, 61 M.J. 703, 703 (C.G. Ct. Crim. App. 2005) and United
States v. Molina, 68 M.J. 532, 533 (C.G. Ct. Crim. App. 2009) provide examples where the Government
successfully alleged and maintained that an accused wrongfully provided alcohol to an underaged person. Having
removed any confusion caused by Tevelein, charging authorities are urged to carefully consider the MCM’s
guidance to allege such words of criminality in Article 134 specifications. R.C.M. 307(c)(3) Discussion, para.
(G)(i)).

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The specification here failed to do so. It did not explicitly allege words of criminality,
and although it alleged Appellant provided several alcoholic beverages—which may be said to
necessarily imply the non-existence of some lawful explanations, such as medicinal or
sacramental use—it does nothing, even viewed with maximum liberality, to imply the non-
existence of other lawful explanations, such as the presence of a parent, guardian, or spouse.
Accordingly, I would hold that the specification fails to state an offense.

d. Prejudice
Unless the Government can demonstrate this error was harmless beyond a reasonable
doubt, the remedy for this failure is dismissal of the specification. Turner, 79 M.J. at 403. To
determine harmlessness, “we look to the record to determine whether notice of the missing
element is somewhere extant in the trial record, or whether the element is ‘essentially
uncontroverted.’ ” United States v. Humphries, 71 M.J. 209, 215–16 (C.A.A.F. 2012) (quoting
United States v. Cotton, 535 U.S. 625, 633 (2002)). Here, as in Humphries, nothing in the trial
record reasonably placed Appellant on notice of the wrongfulness element, thereby curing the
error. Id. at 216–17. Because wrongfulness was not addressed one way or the other in the record,
I also cannot say that it was “essentially uncontroverted.” Therefore, I would conclude that the
Government cannot prove harmlessness beyond a reasonable doubt.

III. Conclusion
Accordingly, I would set aside the finding of guilty to the specification.

Chief Judge McCLELLAND and Judge HERMAN concur.

For the Court,
JARAMILLO.CHRIS Digitally signed by
JARAMILLO.CHRISTOPHER.ROB
TOPHER.ROBIN.16 IN.1607630603
Date: 2023.10.06 13:12:16
07630603 -04'00'

Christopher R. Jaramillo
Acting Clerk of the Court

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