UNITED STATES, Appellee
v.
Michael L. TREAT, Sergeant U.S. Army, Appellant
No. 14-0280
Crim. App. No. 20110402
United States Court of Appeals for the Armed Forces
Argued May 13, 2014
Decided July 16, 2014
OHLSON, J., delivered the opinion of the Court, in which ERDMANN, J., joined. BAKER, C.J., filed a separate opinion concurring in the result. STUCKY and RYAN, JJ., each filed separate dissenting opinions.
Counsel
For Appellant: Major Jacob D. Bashore (argued); Colonel Kevin Boyle and Lieutenant Colonel Peter Kageleiry Jr. (on brief); Captain Aaron Inkenbrandt.
For Appellee: Captain Daniel H. Karna (argued); Colonel John P. Carrell, Lieutenant Colonel James L. Varley, and Major Robert A. Rodrigues (on brief).
Military Judges: Jeffery R. Nance and Wendy Daknis
This opinion is subject to revision before final publication. United States v. Treat, No. 14-0280/AR
Judge Ohlson delivered the opinion of the Court.
We granted review in this case to determine whether the
military judge created a fatal variance and violated Appellant’s
due process rights when she made exceptions and substitutions to
a charge and specification and found Appellant guilty of the
revised charge and specification contrary to his plea. We hold
that the changes made to the charge and specification
constituted a material variance but did not prejudice Appellant.
We therefore affirm Appellant’s conviction.
During the relevant time period, Appellant was a Sergeant
(E-5) assigned to the 54th Engineering Battalion in Bamberg,
Germany. In September 2010, Appellant received orders notifying
him that he was being deployed with his unit to Afghanistan in
mid-November. However, when the unit deployment occurred,
Appellant was not present. He later reported he had been
kidnapped by Russian-speaking men during the time of the
deployment, preventing him from being present. Appellant was
subsequently charged with desertion, missing movement, willfully
disobeying a superior commissioned officer, and making a false
official statement in violation of Articles 85, 87, 90, and 107,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 885, 887,
890, 907 (2006). Appellant pleaded not guilty to the charges
and elected a judge-alone trial.
2 United States v. Treat, No. 14-0280/AR
The missing movement charge, in violation of Article 87,
UCMJ, initially stated as follows:
In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.
However, at trial the Government’s witnesses could not recall
the flight number of the aircraft on which Appellant’s unit
deployed. After hearing all the evidence, the military judge
convicted Appellant of the missing movement charge, but only
after excepting the words “Flight TA4B702,” and substituting
therefor the words “the flight dedicated to transport Main Body
1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to
Manas Air Base, Kyrgyzstan.”
The military judge also convicted Appellant of making a
false official statement in violation of Article 107, UCMJ,
acquitted him of the remaining charges, and sentenced him to a
bad-conduct discharge, confinement for three months, and
reduction to the grade of E-1. The convening authority approved
the findings and sentence as adjudged. Upon review the United
States Army Court of Criminal Appeals affirmed, finding that the
exceptions and substitutions were neither material nor
prejudicial. United States v. Treat, 72 M.J. 845, 849 (A. Ct.
Crim. App. 2013). On Appellant’s petition we granted review of
the following issue:
3 United States v. Treat, No. 14-0280/AR
WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF APPELLANT’S DUE PROCESS RIGHT TO NOTICE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.
United States v. Treat, 73 M.J. 241-42 (C.A.A.F. 2014) (order
granting review). We affirm Appellant’s conviction for the
reasons stated below.
BACKGROUND
Appellant was a combat engineer assigned to the 54th
Engineer Battalion, 370th Sapper Company, which was stationed in
Bamberg, Germany. In September 2010, Appellant was ordered to
deploy to Afghanistan with his unit on or about November 19,
2010. Appellant’s orders did not include instructions to move
on a particular flight.
Approximately six weeks before the scheduled departure,
Appellant was informed that he would deploy with Main Body 1 of
the 54th Engineer Battalion on or about November 17, 2010. He
was also informed that the unit’s actual departure could be
moved forward or backward by forty-eight hours or more.
Ultimately, on November 19, 2010, Appellant’s unit boarded an
aircraft at Ramstein Air Base that was bound for Manas Air Base,
Kyrgyzstan. Appellant was required to be on that flight, but he
was not present at company formation and did not get on the
plane.
4 United States v. Treat, No. 14-0280/AR
When Appellant returned to post the next day, he was
immediately stopped by the military police. Appellant later
told investigators that he had been abducted at a German bar by
Russian-speaking men on November 15, 2010, held for five days in
an unknown location and for unknown reasons, and then suddenly
released on November 20, 2010, which was after his unit had
deployed. Appellant was subsequently charged with desertion,
missing movement by design, willfully disobeying a superior
commissioned officer, and making a false official statement.
At the military judge-alone trial, the Government’s theory
of the case was that several days prior to his unit’s departure,
Appellant intentionally left post, holed up at a local inn, and
waited until he was confident that his unit had left Germany.
The Government asserted that Appellant’s purported kidnapping
was an elaborate story that Appellant invented in order to avoid
the deployment and to avoid being disciplined for his absence.
In support of its case, the Government put First Sergeant
Barker of the 370th Sapper Company on the stand. Barker
testified that he first became aware Appellant was missing on
the morning of November 17, when Appellant did not show up for
accountability formation. Barker stated that Appellant remained
missing and was not with the 370th on November 19. Barker
testified that just before the company boarded the bus from
Bamberg to Ramstein Air Base, he used the flight manifest to
5 United States v. Treat, No. 14-0280/AR
call the roll. Barker noted that the flight number was printed
on the left-hand side of the manifest, which listed each soldier
assigned to the flight by rank, name, and Social Security
number. Barker explained that he could not remember the
specific flight number, but after looking at the manifest shown
to him by the trial counsel, he testified that the 370th,
including Appellant, was assigned to fly on flight TA4B702.
On cross-examination trial defense counsel questioned
Barker’s recollection of the flight number. Defense counsel
asked Barker: “[Y]ou don’t remember the flight number other
than . . . looking at the document, right?” Barker answered:
“No, ma’am.” On redirect, trial counsel tried to ask whether
Barker had any reason to believe that the actual flight number
was not the number printed on the manifest he had consulted, but
the defense objected. The military judge then asked Barker:
“[D]o you have any way of knowing what the [flight] number was
compared to what you just looked at [on the flight manifest]?”
Barker responded: “No, ma’am.” The military judge sustained
the defense’s objection and Barker was excused.
Next, the Government called Appellant’s company commander,
Captain Looney, to testify. Trial counsel asked Looney whether
he had traveled to Afghanistan on the same flight with his
company, and Looney stated that he did. Then there was the
6 United States v. Treat, No. 14-0280/AR
following exchange between trial counsel, Looney, and the
military judge:
[TC]: Do you remember what the flight number of that plane was?
[WIT]: I do not recall off the top of my head.
[TC]: Is there anything that might jog your memory?
[WIT]: Like the manifest roster would be something that would have it.
TC: Ma’am, may I approach?
MJ: You may. Captain Looney, did you . . . at any point know the flight number without referring to a document?
WIT: No, Ma’am.
MJ: Okay. Then it doesn’t appear as though approaching this witness is going to help refresh his memory because he doesn’t have any independent knowledge of the flight number.
Trial counsel continued to question Looney in an attempt to show
that he knew the flight number at some point in the past but
could no longer remember it without help. The defense objected
to trial counsel’s second attempt to refresh Looney’s
recollection with a copy of the flight manifest. The military
judge sustained the objection, and trial counsel moved on to
other topics.
In addition to First Sergeant Barker and Captain Looney,
the Government also put Appellant’s battalion commander and
squad leader on the stand. Neither of them testified about the
7 United States v. Treat, No. 14-0280/AR
specific flight number of the aircraft on which Main Body 1 of
the 54th Engineer Battalion deployed.
The Government also presented a soldier who testified that
Appellant said that he did not deploy with his unit because he
felt like his squad leader, his platoon sergeant, and First
Sergeant Barker “were out to get him.” The Government’s final
witness was a soldier who testified that Appellant had told him
that the alleged kidnapping by Russians “didn’t happen,” and
that during the time of the deployment Appellant “just hid out
for a few days.” At the close of the Government’s case, defense
counsel did not move pursuant to Rule for Courts-Martial
(R.C.M.) 917 for a finding of not guilty.
The defense’s theme throughout the trial was “the truth is
stranger than fiction.” On cross-examination of the
Government’s witnesses, trial defense counsel elicited testimony
that Appellant transferred into the 370th knowing that the
company was about to deploy, that Appellant did not attempt to
get out of the deployment during the pre-deployment training,
that Appellant had previously deployed to Iraq, and that
Appellant was packed and ready to leave for Afghanistan.
During the defense case, trial defense counsel called three
witnesses. The first, Appellant’s former platoon sergeant,
testified that Appellant knew he would be deploying when he
transferred into the 54th Engineering Battalion. The second
8 United States v. Treat, No. 14-0280/AR
witness, who also was a sergeant, testified to an incident in
which he was grabbed outside a Bamberg bar, put into the back of
a car, robbed, and left several miles away approximately five
hours later. The third witness, a detective with the Bamberg
police department, testified that he investigated Appellant’s
alleged kidnapping and found a piece of rope and footprints that
were a possible match for Appellant’s shoes outside of an inn
nearby that matched Appellant’s description of the location
where he had been released. Appellant did not testify.
After brief deliberations the military judge announced her
findings. She found Appellant guilty of making a false official
statement, and not guilty of the charges of desertion and
willfully disobeying a superior commissioned officer. In regard
to the missing movement offense, Charge II and its Specification
initially read:
In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of Flight TA4B702 with which he was required in the course of duty to move.
The military judge announced her findings on this charge
and specification as follows:
Guilty, except the words and figures, “Flight TA4B702,” substituting therefor, “the flight dedicated to . . . transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.” Of the excepted words and figures, Not Guilty. Of the substituted words and figures, Guilty.
9 United States v. Treat, No. 14-0280/AR
APPELLANT’S ARGUMENT ON APPEAL
Appellant argues that “[t]he military judge’s findings
caused a material variance because she convicted [him] of an
offense not charged after he successfully defended himself on
the charged offense.” Brief for Appellant at 3, United States
v. Treat, No. 14-0280/AR (C.A.A.F. Mar. 25, 2014). Appellant
further argues that he “thus suffered prejudice because the
military judge substantially changed the nature of the offense
and denied him the right to prepare and defend against the
specification as convicted.” Id. Accordingly, Appellant
concludes that the military judge’s findings by exceptions and
substitutions constituted a fatal variance, and that this Court
must therefore set aside and dismiss the missing movement charge
and specification, set aside the sentence, and order a sentence
rehearing.
STANDARD OF REVIEW
Whether there was a fatal variance is a question of law
reviewed de novo. United States v. Salazar, 44 M.J. 464, 471
(C.A.A.F. 1996) (“Questions of law are reviewed de novo.”);
United States v. Ivory, 9 C.M.A. 516, 522, 26 C.M.R. 296, 302
(1958) (Quinn, C.J., concurring in the result) (“[W]hether there
was a fatal variance . . . . was a legal question to be decided
by the law officer.”); United States v. Useche, 70 M.J. 657, 661
(N-M. Ct. Crim. App. 2012) (“Whether an amended specification
10 United States v. Treat, No. 14-0280/AR
materially deviates from a charged specification is a question
of law we review de novo.”).
When defense counsel fails to object at trial, we review a
military judge’s findings by exceptions and substitutions for
plain error. United States v. Finch, 64 M.J. 118, 121 (C.A.A.F.
2006).
DISCUSSION
Rule for Courts-Martial (R.C.M.) 918(a)(i) explicitly
authorizes a court-martial to make findings by exceptions and
substitutions. However, at times this authority lies in tension
with an accused’s constitutional right “to receive fair notice
of what he is being charged with.” United States v. Girouard,
70 M.J. 5, 10 (C.A.A.F. 2011); see also Schmuck v. United
States, 489 U.S. 705, 717 (1989) (“It is ancient doctrine of
both the common law and of our Constitution that a defendant
cannot be held to answer a charge not contained in the
indictment brought against him.”).
In the instant case, Appellant acknowledges that the court-
martial had the authority to make findings by exceptions and
substitutions, but also avers that the resulting differences
between the initial charge sheet and the military judge’s
findings constituted a fatal variance because he was not
provided fair notice of the crime he ultimately was convicted of
11 United States v. Treat, No. 14-0280/AR
committing. 1 However, it is well established that in order “to
prevail on a fatal variance claim, an appellant must show both
that the variance was material and that he was substantially
prejudiced thereby.” United States v. Marshall, 67 M.J. 418,
420 (C.A.A.F. 2009) (emphasis added).
It is both clear and uncontested that a variance occurred
in the instant case. Therefore, the first question this Court
must answer is whether the exceptions and substitutions made by
the military judge constituted a “material” variance. The test
for whether a variance is material is whether it “substantially
changes the nature of the offense, increases the seriousness of
the offense, or increases the punishment of the offense.”
Marshall, 67 M.J. at 420 (citation and internal quotation marks
omitted). Appellant does not argue, and there is no basis to
conclude, that the military judge’s exceptions and substitutions
increased the seriousness of the offense or increased the
punishment of the offense. Rather, Appellant solely argues that
the military judge’s exceptions and substitutions substantially
changed the nature of the offense.
1 We do not find that, pursuant to the provisions of R.C.M. 905(e), waiver applies here. First, during his closing argument on the merits, Appellant challenged the Government’s theory of the case regarding the flight number. Second, the Army Court of Criminal Appeals held that Appellant did not waive this issue at trial, and the Government did not appeal this adverse decision to this Court. 12 United States v. Treat, No. 14-0280/AR
It is a close question as to whether the military judge’s
exceptions and substitutions did, indeed, substantially change
the nature of the offense. The offense charged continued to be
a violation of Article 87, UCMJ, and Appellant knew from the
outset of the court-martial proceedings that regardless of how
the specific flight was characterized or described, the gravamen
of the offense with which he was charged was that he failed to
be present on the aircraft with his unit when it deployed from
Germany to Afghanistan.
On the other hand, we note that “[i]f a person . . . is
ordered to move as a passenger aboard a particular ship or
aircraft, . . . then missing the particular sailing or flight is
essential to establishing the offense of missing movement.” See
Manual for Courts-Martial, United States pt. IV, para.
11.c.(2)(b); cf. United States v. Kapple, 40 M.J. 472, 473–74
(C.A.A.F. 1994) (requiring the government to prove that the
accused had been ordered to move aboard a specific aircraft).
In the original charging document in the instant case, the
Government chose to describe the specific aircraft as Flight
TA4B702, and thus that specific flight number became an integral
part of an element of the offense. Under these circumstances,
we decline to hold that only a minor variance occurred.
Although we find that a material variance occurred, that is
not the end of our inquiry. Consistent with our long-standing
13 United States v. Treat, No. 14-0280/AR
precedent, we must next turn our attention to the question of
whether the material variance in the instant case prejudiced
Appellant. Indeed, as we stated in Finch, this Court has
“placed an increased emphasis on the prejudice prong” of the
fatal variance analysis. 64 M.J. at 121.
“A variance can prejudice an appellant by (1) putting ‘him
at risk of another prosecution for the same conduct,’ (2)
misleading him ‘to the extent that he has been unable adequately
to prepare for trial,’ or (3) denying him ‘the opportunity to
defend against the charge.’” Marshall, 67 M.J. at 420 (quoting
United States v. Teffeau, 58 M.J. 62, 67 (C.A.A.F. 2003)).
Appellant argues that the last minute changes made by the
military judge denied him the opportunity to adequately prepare
his defense and defend against the missing movement charge.
This Court looks closely at the specifics of the defense’s
trial strategy when determining whether a material variance
denied an accused the opportunity to defend against a charge.
In so doing, we consider how the defense channeled its efforts
and what defense counsel focused on or highlighted. Marshall,
67 M.J. at 421; Teffeau, 58 M.J. at 67; United States v. Lovett,
59 M.J. 230, 236 (C.A.A.F. 2004).
In the instant case, Appellant’s defense was squarely
focused on the assertion that he was prevented from moving with
the 370th Sapper Company because he was kidnapped. Trial
14 United States v. Treat, No. 14-0280/AR
defense counsel did not claim in any manner that Appellant was
not present on the date of his unit’s movement because he was
unaware of the specific aircraft he was supposed to be on or the
unit he was supposed to move with. Rather, right from the
beginning of the case, Appellant channeled his efforts into
convincing first the investigators and then the court-martial
that, as stated by defense counsel in her opening statement,
Appellant “did not intend to miss the movement, but he was
prevented from going with his unit . . . because of what had
happened to him.”
While trial defense counsel did mention the lack of
evidence of the flight number in her closing argument, she did
not channel her efforts into disproving the Flight TA4B702
element. Furthermore, despite citing the lack of proof that it
was specifically Flight TA4B702 that Appellant missed, trial
defense counsel did not move pursuant to R.C.M. 917 for a
finding of not guilty on that particular charge.
Importantly, the defense has not identified for this Court
any different trial strategy it might have employed if Appellant
originally had been charged with “missing the flight dedicated
to transport Main Body 1 of 54th Engineer Battalion from
Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.” All
indications are that Appellant’s defense of impossibility due to
kidnapping would have remained precisely the same whether or not
15 United States v. Treat, No. 14-0280/AR
he was charged per the original specification or per the
exceptions and substitutions, and we see no reasonable
possibility that the verdict in this case would have been any
different. Accordingly, we find Appellant was not denied the
opportunity to defend against the charge on which he was
convicted. We therefore hold that the variance created by the
military judge, although material, did not prejudice Appellant
and thus was not fatal. 2
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
2 When counsel fails to object at trial, we review a military judge’s findings by exceptions and substitutions for plain error. Finch, 64 M.J. at 121. Under plain error review, Appellant has the burden of demonstrating that: (1) there was error, (2) the error was plain or obvious, and (3) the error materially prejudiced a substantial right of the accused. Id. Regardless of whether the error in the instant case was “plain or obvious,” Appellant cannot prevail because he has not successfully established the third prong –– material prejudice to a substantial right.
16 United States v. Treat, No. 14-0280/AR
BAKER, Chief Judge (concurring in the result):
I concur in the result for the following reasons. A
variance between pleadings and proof exists when evidence at
court-martial “establishes the commission of a criminal offense
by the accused, but the proof does not conform strictly with the
offense alleged in the charge.” United States v. Teffeau, 58
M.J. 62, 66 (C.A.A.F. 2003) (citation and internal quotation
marks omitted). A variance is material if it “substantially
change[s] the nature of the offense or . . . increase[s] the
seriousness of the offense or the maximum punishment for it.”
Id. A variance is prejudicial if it places an appellant “at
risk of another prosecution for the same conduct” or if it
prevented him from “adequately . . . prepar[ing] for” court-
martial or “denied [him] the opportunity to defend against the
charge.” Id. at 67 (citations omitted). Thus, a variance that
is both material and prejudicial is deemed to be “fatal,” a
rather grim and dramatic way to describe reversible error.
United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009)
(citations omitted). In short, the purpose of variance analysis
is to distinguish between those exceptions and substitutions
that merely clarify and correct and those that change the nature
of the offense, or the terms of exposure, and thus conflict with
due process principles. United States v. Treat, No. 14-0280/AR
A variance occurred in this case when the military judge
excepted “Flight TA4B702” and substituted “the flight dedicated
Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.”
Thus, the specification for which Appellant was ultimately
convicted read:
In that Sergeant Michael L. Treat, U.S. Army, did, at or near Bamberg, Germany, on or about 17 November 2010, through design, miss the movement of the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan[,] with which he was required in the course of duty to move.
However, this variance was not material because the offense
remained the same before and after the military judge’s
exception and substitution. Appellant was charged with missing
movement by missing the flight deploying his unit. The
government can charge this offense in a general way, by mode of
transport, or in a more specific way, by reference to the
movement of a particular unit. How the government charges the
offense may depend on whether a unit moved en masse or an
individual was ordered to join a unit already deployed. Yet
while the government has flexibility in how it charges an
Article 87, UCMJ, 10 U.S.C. § 887, offense, it must live with
the result; it cannot charge the missing of a flight and then
convict an accused for the missing of a unit movement (as
opposed to the flight carrying the unit) or the missing of a
ship.
Contrary to Appellant’s argument, the exception and
substitution in this case did not change the offense from the
missing of a flight to the missing of a unit. Appellant was
originally charged with missing his flight to Manas Air Base,
which was carrying his unit, and he was convicted of missing his
flight to Manas Air Base, which was carrying his unit. The
military judge’s exception and substitution did no more than
accurately describe the flight that Appellant was always charged
with missing. The change was akin to correcting the name of the
victim on a larceny charge or, by further illustration, to
saying, “I missed my flight to Dallas,” rather than “I missed
Mohawk Airways Flight 12345, which was en route to Dallas.” The
specification also used the language “on or about,” thus making
it clear from the outset that it was the missing of a flight and
not the particular aircraft used for that flight that formed the
gravamen of the offense. As a result, Appellant was on notice
regarding the nature of the offense before and after the
military judge’s exception and substitution.
In addition, none of the purposes behind material variance
doctrine were offended. Appellant is not at risk of another
prosecution for the same conduct. He was not misled as to the
nature of the offense or unable to prepare adequately for court-
martial. Nor was he denied the opportunity to defend against
the charge. Marshall, 67 M.J. at 420. In short, the military
judge’s substitution did not change the nature of the offense,
substantially or at all.
STUCKY, Judge (dissenting):
The military judge convicted Appellant by exceptions and
substitutions to the specification alleged in the charge sheet.
Appellant did not object to that finding until after the court-
martial was adjourned, when he submitted matters to the
convening authority under Rule for Court-Martial (R.C.M.) 1105.
Appellant’s failure to raise the issue before the court
adjourned constitutes waiver. R.C.M. 905(e). If Appellant did
not waive his ability to raise the issue on appeal, then the
finding by exceptions and substitutions was a fatal variance
(both material and prejudicial). Therefore, I respectfully
dissent.
I. Waiver
Citing United States v. Finch, 64 M.J. 118, 121 (C.A.A.F.
2006), the majority asserts that: “[W]e review a military
judge’s findings by exceptions and substitutions for plain
error.” United States v. Treat, __ M.J. __ (11) (C.A.A.F.
2014). I disagree.
Finch cites R.C.M. 905(e) as the basis for this plain error
standard but does not examine the language of the rule. R.C.M.
905(e) provides:
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 shall constitute waiver. The military judge for good cause shown may grant relief from the waiver. Other United States v. Treat, No. 14-0280/AR
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 and, unless otherwise provided in this Manual, failure to do so shall constitute waiver.
It does not say “forfeit,” “forfeit absent plain error,” or
“waive absent plain error.” It says “shall constitute waiver.”
Therefore, as Appellant failed to object before the court-
martial was adjourned, we should consider the variance issue
waived.
The majority cites two grounds for concluding that the
issue should not be considered waived: (1) Appellant challenged
the Government’s theory of the case concerning the flight number
during his closing argument; and (2) the Government did not
appeal the United States Army Court of Criminal Appeals’ adverse
ruling on this issue to this Court. Treat, __ M.J. at __ n.1
(12 n.1). But Appellant made no R.C.M. 917 motion for a finding
of not guilty, 1 and his findings argument alone, in which he
challenged the sufficiency of the Government’s evidence that he
missed flight TA4B702, is not an objection to the military
judge’s finding by exceptions and substitutions. And whether
1 Nor did the military judge raise the issue of her own accord. I recognize that the defense counsel may have intentionally not made an R.C.M. 917 motion, fearing that the military judge would have permitted the trial counsel to reopen the case. R.C.M. 917(b) Discussion. Nevertheless, choices have consequences. See United States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (concluding an R.C.M. 917 motion was sufficient to preserve the issue of a fatal variance for appeal).
the Government failed to raise the issue of waiver on this
particular issue is irrelevant. R.C.M. 905(e) clearly states
that an accused’s failure to raise the issue before the court-
martial is adjourned constitutes waiver, unless the objection is
covered by some other rule. In this case, Appellant failed to
object, and the objection is not covered by another rule.
Appellant’s failure constitutes waiver, and we should not
consider this assignment of error.
II. Plain Error
If, as the majority holds, we must review the finding by
exceptions and substitutions for plain error, Appellant has
established that the material variance was obvious error that
prejudiced his substantial rights: (1) he may have been
convicted of missing the very flight the military judge
acquitted him of missing; and (2) he was denied adequate notice
and the opportunity to defend.
Appellant was charged with missing the movement of a
specific flight, flight TA4B702. The defense counsel initiated
a three-pronged attack against the Government’s case. First,
she established that all elements of Appellant’s unit did not
deploy together, suggesting that Appellant may not have been
required to deploy with Main Body 1. Second, with the
assistance of the trial counsel and the military judge, the
defense counsel successfully frustrated the Government’s
attempts to prove the number of the flight that Appellant was
charged with missing and to enter the flight manifest into
evidence. And third, she highlighted the Government’s failure
to disprove the inability defense Appellant had raised in the
sworn statement he provided to a military policeman and which
the Government introduced into evidence: that he missed the
movement because he had been kidnapped.
The defense counsel made the failure of the Government to
prove the flight number one of the foci of her closing argument:
Well, the government has charged that Sergeant Treat missed a flight on that date. A flight that, according to all sources, never existed. It did not take off. There was no movement to miss on the 17th of November, ma’am, because that flight didn’t go anywhere. And what happened on the 17th according to Sergeant Mathis? He called Sergeant Treat and said, “We’re not leaving today. Stand down.”
There is simply no evidence with which to convict Sergeant Treat of missing a movement under Article 87 since that movement didn’t exist. We don’t even know the flight number for sure. There has been no credible evidence before this court as to what the actual the [sic] flight number was on the 17th of November. None of the witnesses knew the flight number. We don’t even know if the flight number would have stayed the same or changed when they actually flew on 19 November.
The military judge thereafter convicted Appellant by exceptions
and substitutions of missing “the movement of the flight
dedicated to transport Main Body 1 of the 54th Engineer
Battalion.”
The majority holds that the military judge’s finding was a
material variance. I agree. The military judge’s finding
substantially changed the nature of the offense. See Marshall,
67 M.J. at 420–21 (changing the name of the individual from whose
custody the appellant allegedly escaped was a material variance)
(citing Finch, 64 M.J. at 121). But I cannot agree with the
majority’s conclusion that Appellant was not prejudiced. Treat,
__ M.J. at __ (16).
In United States v. Nedeau, the appellant was charged in
one specification with larceny of various specific food items --
seven pounds of ground beef, ten pounds of canned ham, five
pounds of cheese, etc. 7 C.M.A. 718, 719, 23 C.M.R. 182, 183
(1957). The court members convicted him by exceptions and
substitutions of larceny of “foodstuffs.” Id., 23 C.M.R. at
183. The Court of Military Appeals held that the finding of the
court-martial changed the nature and identity of the offense
charged. Id. at 720, 23 C.M.R. at 184. As a finding by
exception “constitutes a finding that the accused is not guilty
of what is alleged in the excepted language,” it appears that
Staff Sergeant Nedeau must have been convicted of larceny of
food items other than those alleged in the specification. Id.,
23 C.M.R. at 184. This was a fatal variance. Id. at 721, 23
C.M.R. 185.
Sergeant Treat is in a somewhat similar situation. By
excepting the flight number, the military judge acquitted him of
missing the movement of flight TA4B702 but convicted him of more
general language -- “missing the movement of the flight
Battalion from Ramstein Air Base, Germany, to Manas Air Base,
Kyrgyzstan.” I see two related problems resulting from this
finding:
(1) Flight TA4B702 is necessarily a subset of the universe
of flights that could have transported Main Body 1. By
substituting for the excepted language the more general
language, Appellant may have been convicted of missing the
movement of TA4B702, the same flight he was acquitted of
missing. That would amount to a Double Jeopardy Clause
violation. See United States v. Stewart, 71 M.J. 38, 43
(C.A.A.F. 2012) (finding accused guilty of aggravated sexual
assault for engaging in a sexual act with a person who was
substantially incapable of declining participation in the sexual
act, after acquitting him of aggravated sexual assault for
engaging in a sexual act with a person who was substantially
incapacitated violated the Double Jeopardy Clause).
(2) If Appellant was convicted of missing the movement of
some flight other than TA4B702, then he was not given notice and
an opportunity to defend against it. By broadening the offense
from missing flight TA4B702 to missing whatever flight was
scheduled to transport Main Body 1, the military judge made
Appellant’s defense -- that the Government failed to establish
that he missed flight TA4B702 -- irrelevant.
Therefore, if Appellant did not waive the issue, I would
hold that the material variance in this case was fatal, and
would reverse.
RYAN, Judge (dissenting):
I join Judge Stucky’s dissent, with a single caveat. While
I agree with Judge Stucky’s analysis as to why the majority is
wrong that there is no waiver, United States v. Treat, 73 M.J.
__, __ (1-3) (C.A.A.F. 2014) (Stucky, J., dissenting), I am
nonetheless skeptical that we should find waiver where, as here,
the military judge clearly determined that the Government did
not prove one of the elements -- which is why she excepted the
language that pled it. See Rule for Courts-Martial (R.C.M.)
917(a) (“The military judge . . . sua sponte, shall enter a
finding of not guilty of one or more offenses charged after the
evidence on either side is closed and before findings on the
general issue of guilt are announced if the evidence is
insufficient to sustain a conviction of the offense affected.”).
Thus, irrespective of Appellant’s duty to object at trial, see
United States v. Finch, 64 M.J. 118, 121 (C.A.A.F. 2006), in my
view the military judge had an independent duty to dismiss the
charge, including giving the parties an opportunity to be heard,
and the military judge failed to fulfill that duty. See R.C.M.
917(a), (c). Absent waiver, I fully agree that there was
prejudice to a substantial right of the accused, see Article
59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a)
(2012), and would reverse the decision of the United States Army
Court of Criminal Appeals.