Coast Guard Court of Criminal Appeals

United States v. Shultz

The CGCCA in Shultz tells us,

1. When charging ‘engaging in extramarital conduct,’ it is necessary to plead that at least one of the participants was married to someone else at the time of the offense. If not, then the specification is defective. The court cites United States v. King. Presumably this language,

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).​

2. Because the deficiency was not litigated, the providence inquiry was sufficiently detailed to show no prejudice to a substantial right--thus the conviction may be affirmed. The court cited United States v. Ballan, 71 M.J. 28, 35 (C.A.A.F. 2012). From Ballan.

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.