United States v. Richard, 83 M.J. ___ (CGCCA)
(Record of Trial) **

Appellant with two specifications of murder under Article 118, UCMJ[.] The first murder specification alleged Appellant did “with an intent to kill or inflict great bodily harm, murder [SFG], a child under the age of 16 years, by asphyxia.” The second murder specification alleged Appellant did “with knowledge that death or great bodily harm was a probable consequence, murder [SFG], a child under the age of 16 years, while engaging in an act which is inherently dangerous to another and evinces a wanton disregard of human life, to wit: by asphyxia.”
. . . 
​[CGCCA] conclude[s] that the specification failed to provide adequate notice of the act(s) or omission(s) on which the involuntary manslaughter conviction was based and that this error was not harmless beyond a reasonable doubt.

 The MCM’s sample specification for the charged offense of murder reads, in relevant part, that the accused did “murder ______ by means of (shooting (him) (her) with a rifle (_______)).” MCM, para. 56.e at IV-78. The shortcoming of the specification charged is not that charging authorities omitted the words “by means of.” It is that they missed the point: the model specification calls for alleging that the accused murdered someone by doing a specific thing—like “by means of shooting him with a rifle,” not by means of a cause of death like asphyxia or exsanguination. In the same vein, the Military Judges’ Benchbook advises instructing that the “death resulted from the (act) (omission) of the accused in (state the act or failure to act alleged).” Together, these should act as guideposts to charging authorities not just to charge that some act or omission resulted in a certain cause of death, but to state what that act or omission was. 

United States v. Shultz

As an allegation of mere wrongful sexual intercourse, the specification lacks an averment (and proof) of “such conditions of publicity or scandal as to enter that area of conduct given over to the police responsibility of the military establishment.” United States v. Snyder, supra at 427, 4 CMR at 19. As an allegation of “adultery,” it lacks utterly the essence of the offense—that at least one of the parties is married to another person. See generally 2 Am.Jur.2d Adultery and Fornication § 24 at 976; United States v. Neville, 7 CMR 180, 190 (ABR), pet. denied, 7 CMR 84 (1952).​

While in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, the Court “view[s] [the] specification[ ] with maximum liberality,” United States v. Bryant, 30 M.J. 72, 73 (C.M.A.1990); see also United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986), such construction still does not permit us to “necessarily imply” a separate and distinct element from nothing beyond allegations of the act or failure to act itself.

Error alone does not, however, warrant dismissal. While the rules state that a charge or specification that fails to state an offense should be dismissed, R.C.M. 907(b)(1), a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error. . .  In Fosler — a contested case where the appellant objected — we dismissed the charge. 70 M.J. at 226. In Girouard—a contested case with no objection where the specification of which the appellant was convicted was not an LIO of the charged offense and did not allege all of the elements — we applied plain error review and tested for prejudice. 70 M.J. at 11-12. However, neither of those eases involved a guilty plea, and thus they did not address prejudice or the ramifications of a guilty plea in the unique context of the military justice system.

Appellant asserts the evidence is legally insufficient to support his convictions for disrespect in two ways: (1) Article 91, UCMJ, does not cover disrespect by remote means of communication, such as a text message; and (2) because the Government specifically alleged he was disrespectful in deportment, as opposed to in language, it was required, but failed, to prove that the acts were done “in the presence” of the victims. We disagree and hold that Article 91 is broad enough to encompass disrespectful text messages sent directly to the victim, whether they are disrespectful in language or in deportment.

Similarly, going all the way back to 1917—when the MCM was issued under the authority of the Secretary of War, not the President—it explained:

     “The phrase ‘while in the execution of his office’ limits the application of this part of the article to language and behavior within sight or hearing of the noncommissioned officer toward whom it is used; the word ‘toward’ not being used in the same sense as in [Article of War 63, disrespect toward a commissioned officer].

​MCM (1917 ed.), para. 415.

​Prior to trial, Appellant challenged the sufficiency of the specification on the basis that it was impossible that Appellant created a hostile work environment at PO3 C.L.’s “A” school because he had no connection to it. During argument on the motion to dismiss the specification, the military judge asked trial defense counsel whether there would be any issue if he simply struck that language. Trial defense counsel responded that would leave an insufficient specification because the language is necessary to allege a violation of the sexual harassment order. The Government did not dispute that an effect on the working environment needed to be alleged and proved. Rather, it argued that the entire Coast Guard was the working environment and that it was therefore possible for Appellant to affect it.

Following the close of evidence, the military judge reversed course. He found Appellant guilty of the specification except the words, “while she was attending ‘A’ school which created an offensive work environment.” He issued special findings where he now stated that “ACN 085/18 defines sexual harassment as ‘other verbal or physical conduct of a sexual nature . . .’ and ‘encompasses unwelcome display or communication of sexually offensive materials.’” App. Ex. XXVIII at 9 (ellipsis in original). He found that Appellant “was on notice that, as part of the specification, he had sexually harassed the named victim by communicating sexually offensive materials” and that while the Government had proved beyond a reasonable doubt that Appellant sent an unwelcome video, it had not proven that it created an offensive working environment. Id. In short, upon reconsideration, the military judge interpreted ACN 085/18 as not requiring the Government to prove that Appellant’s conduct created an offensive working environment.

​We conclude that an impact on the workplace, as alleged in the specification, was required to prove a violation of ACN 085/18. By finding Appellant not guilty of that portion of the specification alleging the required workplace impact, the military judge effectively acquitted Appellant of the specification. 

Cheers, Phil Cave.

We apply the conclusion we reached in United States v. Tucker, __ M.J. __ , slip op. at 26 (C.G.Ct.Crim.App. 7 Apr 2022): that Moreno’s use of the convening authority’s action as a terminal benchmark prior to docketing has been superseded by statute and regulation. As in Tucker, there was no presumptively unreasonable delay in this case. Further, even under a full due-process analysis, Appellant was not deprived of due process.

[W]e apply a presumption of unreasonable delay triggering a full due-process analysis when: (1) the record of trial is not docketed with this Court within a total of 150 days of the completion of trial; or (2) we do not complete appellate review and render a decision within eighteen months of docketing. Tucker, slip op. at 26.