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No
.

12
-
_____


I
N
T
HE

Supreme Court of the United States


A
NTHONY
P.

B
ALLAN
,

Machinist’s Mate

Second Class,

United States Navy,


Petitioner
,

v.


U
NITED
S
TATES OF
A
MERICA
,


Respondent
.


On Petition for a Writ of Certiorari

to the Un
ited States Court of
Appeals for the Armed Forces


PETITION FOR A WRIT OF CERTIORARI



Toren G. E. Mushovic

Lieutenant, JAGC, USN

Counsel of Record

1254 Charles Morris
Street, SE

Washington, D.C. 20374

(202) 685
-
7390




i


QUESTION PRESENTED


When a charge omits an element of the offense,
must it be dismissed, or may such an error instead
be excused after a court tests for prejudice?



ii



TABLE OF CONTENTS


QUESTION PRESENTE
D

................................
......

i

TABLE OF CONTENTS

................................
.........

ii

TABLE OF AUTHORITIES

................................
..

iv

OPINIONS BELOW

................................
...............

1

JURISDICTION

................................
.....................

1

CONSTITUTIONAL AND STATUT
ORY
PROVISIONS INVOLVED

................................
.....

2

STATEMENT OF THE CASE

................................

3

REASONS FOR GRANTING THE PETITION

......

8

I.
Certiorari Should Be Granted To
Determine Whether A Court May Test for
Harmlessness When An Indictment Omits
An Element Of An Offense
.
.............................

8

A.

Clear and well
-
established
circuit
conflict exists.
Error! Bookmark not defined.

B.

This case is an ideal vehicle to resolve

the circuit conflict

................................
....

11

1. Here the military and civilian
justice systems are similar.

................

11

2. A guilty plea case will resolve the
circuit split
.

................................
........

13


C. Fai
lure to allege an essential element
is structural error.

................................
...

14


CONCLUSION

................................
.....................

15




iii


APPENDICES

APPENDIX A: United States Court of Appeals
for the Armed Forces Opinion of March 1,
201
2
.



APPENDIX B: United States Navy
-
Marine Corps
Court of Criminal Appeals Opini
on of January 27,
2011
.


APPENDIX C:

Petition for Writ of Certiorari,
United States v. Resendiz
-
Ponce
, 549 U.S. 102
(2007).












iv


TABLE OF AUTHORITIES


Cases

Supreme Court of the United States


Chapman

v. California
, 386 U.S. 18 (1967)

...........

14


Cole v. Arkansas
, 333 U.S. 196 (1948)

...................

13


Hamling v. United States
, 418 U.S. 87 (1974)

......

12


Parker v. Levy
, 417 U.S. 733 (1974)

......................

13


United States v. Carll
, 105 U.S. 611 (1881)

.............

8


United States v. Cotton
,
535 U.S. 625,
632
-
33
(2002)


................................
................................
...

15


United States v. Resendiz
-
Ponce
, 549 U.S. 102
(2007)

................................
............................

passim


United States Circuit Courts of Appeal


O’Leary v. United States
, 856 F.2d 1142 (8th Cir.
1988) (per curiam)
................................
................

14


United States v. Allen
, 406 F.3d 940 (8th Ci
r
. 2005)

(en banc),

cert. denied
, 549 U.S. 1095 (2006)

.......

9


United States
v.
Caperell
,
935

F.2d
975 (9th Cir.
1991
)

................................
................................
.....

14




v


United States v. Cor
-
Bon Custom Bullet Co
., 287
F.3d 576 (6th Cir. 2002)
,
cert
.
denied
, 537 U.S.
880 (2002)

................................
...............................

9


United States v. Corporan
-
Cuevas
, 244 F.3d 19
9
(1st Cir. 2001)
,
cert
.
denied
, 534 U.S. 880
(2001)

................................
................................

9
,

13


United States v. Di Fonzo
,

603 F.2d 1260 (7th Cir.
1979)

................................
................................
.....

14


United States v. Du Bo
,

186 F.3d 1177 (9th Cir.
1999)

................................
................................
.....

10


United States v. Higgs
, 353 F.3d 281 (4th Cir.
2003)
,
cert
.
denied
, 543 U.S.
999 (2004)

...............

9


United States

v. Montilla
,
870 F.
2d
549

(
9th Cir.
1989
)
, amended at 907 F.2d 115 (9
th

Cir. 1990
...

14


United States v. Omer
,

429 F.3d 835 (9th Cir.
2005)

................................
................................
.....

10


United States v.
Pickett
, 353 F.3d
62

(
D.C.

Cir.
200
4
)

................................
................................
.....

10


United States v. Prentiss
,
256 F.3d 921
(10th Cir.
2001)

................................
................................
....

10


United States v. Rivera
, 879 F.2d 1247 (5th Cir.
1989)

................................
................................
.....

14


United States v. Robinson
, 367 F.3d 278 (5th Cir.
2004),
cert. denied
, 543 U.S. 1005 (2004)

.............

9




vi


United States v. Sinks
, 473 F.3d 1315 (10th Cir.
2007)

................................
................................
..
9
-
10


Unite
d States v. S
pinner
,
180 F.3d 514

(
3d

Cir.
1999
)

................................
................................
........

10, 13


United States v. Trennell
, 290 F.3d 881 (7th Cir.
2002)
,
cert
.
denied
, 537 U.S. 1014 (2002)

..............

9


United States
Court of Appeals for the Armed Forces


United States v. Ballan
,
71

M.J.

28 (C.A.A.F.
2012)

................................
.............................

passim


United States v. Jones
, 68 M.J. 465 (C.A.A.F.
2010)

................................
................................
.....

12


United States v. Sell
, 3 C.M.A. 202 (C.M.A. 1953)

12


Statutes

10 U.S.C. § 934 (
2006
)

................................
....

passim


Rules

F
ED
.

R.

C
RIM
.

P.

12

................................
..................

13


F
ED
.

R.

C
RIM
.

P.

52

................................
....................

8


R
.

FOR
C
OURTS
-
M
ARTIAL

307

................................
..

12


R
.

FOR
C
OURTS
-
M
ARTIAL

907

................................
..

13



vii


Miscellaneous Authority


4 Wayne R. LaFave et al., Criminal Procedure §
19.3(a) (2d ed. Supp. 2006)

................................
10
-
11



1


PETITION FOR A WRIT OF CERTIORARI


Machinist’s Mate

Second

Class
Anthony P.
Ballan
,

United States Navy, respectfully petitions for
a writ of certiorari to review the decision of the
United States Court of App
eals for the Armed Forces
(CAAF)
.

OPINIONS BEL
OW


The 201
2

CAAF
opinion
(App.,

infra
,
1a
-
21
a
)

is
reported at
71

M.J.

28
. The 20
11

unpublished
opinion of the Navy
-
Marine Corps Court of Criminal
Appeal
s (NMCCA) (App.,
infra
,

22
a
-
29
a
) is
not
reported
,
No. 201000242, slip op. (N
-
M. Ct. Crim.
App. Jan. 27, 2011)
.

JURISDICTION



The CAAF entered its opinion on

March 1
, 201
2
.
T
his Court
has jurisdiction pursuant to
28 U.S.C.
§
1259(3).



2


CONSTITUTIONAL

AND

STATUTORY
PROVISIONS INVOLVED


The Fifth Amendment to the United States
Constitution reads, in pertinent part:


“nor shall any person be subject for the same
offense
to be twice put in jeopardy of life or limb”
.


The Sixth Amendment to the United States
Constitution provides in relevant part:



“the accused shall enjoy the right . . . to be informed
of the nature and cause of the accusation
”.


Article 134, UCMJ
,
10 U.S.C.
§ 934

prohibits:


“all disorders and neglects to the prejudice of good
order and discipline in the armed forces, all conduct
of a nature to bring discredit upon the armed forces,
and crimes and offenses not capital, of which persons
subject to

this chapter may be guilty”.



3


STATEMENT OF THE CASE


This case presents the precise question on which
the Court
previously
granted certiorari


but which
the Court
did not

decide


in
United States v.
Resendiz
-
Ponce
, 549 U.S.
102 (2007). In this case,
the Government charged Petitioner
with one
count
1

of indecent acts with a child and eight
counts

of
indecent acts with another, violations of Article 134,
UCMJ, 10 U.S.C. § 934 (2006)
.


B
ut the
Government’s charging document fail
ed to allege an
element of that offense. The
CAAF
held that the
error is subject to
plain

error revi
ew
, and
subsequently found no prejudice
. As a result,
Petitioner

faces
twenty

years in prison because he
ple
a
d
ed

guilty to a charging document that failed

to
allege an actual criminal offense. There is a circuit
split
regarding

whether
such

error is subject to
harmless
/plain

error review

or structural error
review
, a split acknowledged by the United States in
its petition for certiorari in
Resendiz
-
Ponce
.


App.,
infra
,

39
a
-
40
a
.



On April 22, 2009, the Government charge
d

Petitioner

with
: one
count

of rape of a child, in
violation of Article 120, UCMJ, 10 U.S.C.
§

920, one
count

of sodomy with a child under age twelve, in
violation of Article 125, UCMJ, and
eight
counts

of
indecent acts or liberties with a child, in violation of
Article 134, UCMJ.





1

In

the military justice system, specifications equate to counts.
This petition will use “counts” instead of specifications.



4


To establish a violation of Article 134, UCMJ, the
Government must prove beyond a reasonable doubt
that (1) the accused engaged in certain conduct, and
(2) the c
onduct satisfied at least one of three listed
criteria. The latter element is commonly referred to
as the “terminal element” of Article 134, UCMJ, and
the Government must prove that at least one of the
Article’s three clauses has been met: that the
accuse
d’s conduct was (1) “to the prejudice of good
order and discipline”; (2) “of a nature to bring
discredit upon the armed forces”; or (3) a “crime[ or]
offense[] not capital.” Article 134, UCMJ.
As
charged
, none of the
count
s of indecent acts or
liberties
with a child contained the terminal element
of

Article 134, UCMJ.


In
July 2009,
the Government negotiated a
pretrial

agreement which Petitioner signed. The
pretrial
agreement

amended the charges
.
2


With



2

The
pretrial agreement an
d
charge sheet made the following
allegations in regards to the Article 134, UCMJ, offenses:


Charge I


Specification: “In that
[
Petitioner
]

… d
id
,

at or near Butte,
Montana, on
divers

occasions from on or about February 2007,
[commit indecent acts with MB
], a person under the age of 12.”


Charge III


Specification 1: “
In that
[
Petitioner
]

… d
id
,

at or near Butte,
Montana, on divers occasions from

[sic]

on or about
January
2006
,

[wrongfully] commit an indecent [act with MB] . . . by
digitally penetrating [M
B]’s vagina . . . .”


Specification 2: “
In that
[
Petitioner
]

… d
id
,

at or near Butte,


5


regard to Charge I

alleging a single
count

of rape

of
a child, in violation of Article 120, UCMJ

Ball
a
n
agreed to plead
“NOT GUILTY

[to the Article 120,
UCMJ, violation,
]

but
“GUILTY to the
[
lesser
-
included

offense
]

of indecent act with a child”

in
violation of Article
134
, UCMJ
.


App.,
infra
,

5
a.


Neithe
r the original
count to
Charge I
,

nor the
count
to which
Petitioner

agreed to plead guilty
,

included
the terminal element for Article 134, UCMJ.
I
d
.

Petitioner

also agreed to plead guilty to th
e Article
125, UCMJ, violation essentially as charged and, fo
r
the eight
count
s of the indecent acts with a child in
Charge III, to the lesser
-
included offense of indecent
acts with another, both violations of Article 134,




Montana, on divers occasions from on or about
August 2005 to
April 2007
,

… [wrongfully commit an] indecent [act with DB] . .
. by showing DB pornographic videos and pict
ures . . . .”


Specification 3
: “
In that
[
Petitioner
]

… d
id
,

at or near

San
Diego, California and or near Butte, Montana
, on divers
occasions from on or about
September 2000 to on or about April
2007
,

… [wrongfully commit an] indecent [act with DB] . . . b
y
engaging in sexual intercourse, anal sex, and oral sex while
[DB] was in the same room . . . .”


Specification 4: “
In that

[
Petitioner
]

… d
id
,

at or near

San
Diego, California and or near Butte, Montana
, on divers
occasions from on or about
May 2002 to
on or about April 2007
,

… [wrongfully commit an] indecent [act with SB] . . . by
engaging in sexual intercourse while [SB] was in the same room
. . . .”


Specification 5: “
In that
[
Petitioner
]

… d
id
,

at or near

San
Diego, California and or near Butte, Mont
ana
, on divers
occasions from on or about
June 2004 to on or about April 2007
,

… [wrongfully commit an] indecent [act with MB] . . . by
engaging in oral sex while [MB] was in the same room . . . .”



6


UCMJ.
Id
.

The
counts to
Charge III in the pretrial
agreement again failed to allege the term
inal
element for Article 134, UCMJ.


Id
.

at 5a
-
6a.


O
n December 14, 2009, a military judge, sitting
as a general court
-
martial,
accepted
Petitioner
’s
guilty
pleas

to

sodomy with a child

under age twel
v
e

(Article 125
, UCMJ
)
, indecent acts with a child

(Arti
cle 134
, UCMJ
)
, and eight
counts
of indecent
acts with another

(Article 134
, UCMJ
).

At trial
,
n
either the charge sheet nor the pretrial agreement
expressed
the

terminal element

for the Article 134
,
UCMJ,

offenses, although the
terminal element

clauses (1)

and (2) were discussed and admitted to
during the providence inquiry and included in the
stipulation
-
of
-
fact.
Id
. at

6a
-
7a
.


Yet the military
judge never explained to the
P
etitioner that he was
admitting an element of the offense


the terminal
element


that was
not on the charg
ing document
.
A panel of
military
members sentenced
Petitioner

to
a dishonorable discharge, confinement for a period of
twenty
-
five years, and forfeiture of all pay and
allowances.



In accordance with
Petitioner
’s pretrial
agre
ement, the convening authority suspended
confinement in excess of twenty years.


On

January 27, 2011,

the
NMCCA

a
ddress
ed

an
unrelated issue on appeal,
and
set aside the findings
of guilt and dismissed
count
s 6, 7, and 8 of the
indecent acts

charge

(Charg
e III)

as legally
insufficient.

Id
. at

2
5a
.

The Court reassessed
Petitioner
’s sentence

to confinement for twenty
-
four


7


years
.
Id
.

at 27a
-
28a.


On March 1, 2012, t
he CAAF affirmed the
conviction.
Id
.

at 4a.

The Court first noted that the
terminal elemen
t

is an “actual and distinct element
of an Article 134, UCMJ, offense,”
id
. at
12a
,

that
“must be separately charge
d

and proven,”
id
. The
Court
reaffirmed
its earlier decisions

and held that
“it is error to fail to allege
the terminal element of
Article 1
34, UCMJ, expres
sly or by necessary
implication


because the due process principles of
fair notice require that an accused know which
clause he must defend against or is pleading guilty
to.

Id
. at
12a
-
13a
.
H
owever,
because
Petitioner

failed to object to
the faulty specifications, the CAAF
tested for plain error.

Id
. at 13a
-
14a.

A
fter holding
that the omission was plain error, the Court
nevertheless found th
e
error
to be harmless because
it was a guilty
-
plea case, not a contested case, and
therefore P
et
itioner was effectively on notice of the
charges against him.
Id
.
at 15a
-
18a.



In
Chief Judge Baker
’s

concurre
nce, he stated
that “the distinction made between a guilty plea case
and a contested case is unpersuasive.”

Id
. at 19a
.
He reasoned that “[i]
t is not clear why, for example,
given the same specification, proceeding on a
common understanding during a guilty plea should
be treated differently than proceeding on the basis of
the same common understanding of judicial
determination at the outset of
a contested case.”
Id
.
Chief Judge Baker
highlighted

the inconsistency

that
,

under CAAF precedent, “the former is not
prejudicial error, while the latter is reversible error


8


on the basis of insufficient notice


whether objection
is made or not.”
Id
. at

20a
.



REASON
S

FOR GRANTING THE PETITION


I.

Certiorari Should Be Granted To Determine
Whether
A

Court May
Test for Harmlessness
When

A
n Indictment Omits
A
n Element
O
f
A
n
Offense
.


As this Court stated over a ce
ntury ago, the
omission of a necessary element of an offense is a
“matter of substance, and not a defect or
imperfection in the matter of form only…
.

United
States v. Carll
, 105 U.S. 611, 613 (1881) (internal
quotation marks omitted). Yet lower courts c
ontinue
to struggle with whether the omission of an element
of an offense from a charge is subject to automatic
reversal as structural error, or instead subject to
harmless error review
.
3

This is a critically important
and recurring question in criminal l
aw
,

which has
bedeviled the lower courts. The need for this Court

to

review this question is underscored by the Court’s
prior
order granting certiorari to decide whether an
indictment’s omission of an element of an offense is
structural error, or instead
may be excused as



3

In federal courts, if a party commits forfeiture of erro
r (
e.g.,

by failing
to raise a timely objection) then on appeal the burden of proof is on that
party to show that plain error occurred. If the party did raise a timely
objection that was overruled, then on appeal the burden is on the other
party to show t
hat the error was harmless.
F
ED
.

R.

C
RIM
.

P
. 52. While
CAAF tested for plain error review, the distinction is immaterial for
purposes of this Petition as both standards test for prejudice.



9


harmless error.
See

United States v. Resendiz
-
Pon
c
e
,
549 U.S. 102 (2007). The Court, however, was
unable to answer that important question in
Resendiz
-
Ponce
because further review determined
that the indictment in that case contained no

such
omission. This case presents an ideal vehicle to
finally resolve the recurring circuit conflict.


A.
Clear and well
-
established circuit conflict

exists
.


This Court
’s review is required to resolve a
“clear
and well
-
established circuit conf
l
ict


conc
erning
whether the omission of an element of a charged
offense can be tested for prejudice.

App.,
infra
,

39a

(
Petition

for Writ of Certiorari
,
United States v.
Resendiz
-
Pon
c
e
)
.


Seven

other courts of appeals

have considered the
issue
, and

held that such a
n omission is subject to
harmless

error
review
.
See
United States v. Allen
,
406 F.3d 940, 943
-
45 (8th Ci
r
. 2005)

(en banc),
cert.
denied
, 549 U.S. 1095 (2006);
United States v.
Trennell
, 290 F.3d 881, 889
-
90 (7th Cir. 2002)
,
cert
.
denied
, 537 U.S. 1014 (2
002)
;
United States v. Cor
-
Bon Custom Bullet Co
., 287 F.3d 576, 580
-
81 (6th
Cir. 2002)
,
cert
.
denied
, 537 U.S. 880 (2002)
;
United
States v. Robinson
, 367 F.3d 278, 285
-
86 (5th Cir.
2004),
cert. denied
, 543 U.S. 1005 (2004);
United
States v. Higgs
, 353 F.3d

281, 304
-
07 (4th Cir. 2003)
,
cert
.
denied
, 543 U.S. 999 (2004)
;
United States v.
Corporan
-
Cuevas
, 244 F.3d 199, 202 (1st Cir. 2001)
,
cert
.
denied
, 534 U.S. 880 (2001)
;
United States v.
Sinks
, 473 F.3d 1315, 1321 (10th Cir. 2007)


10


(
although

the government c
onceded that the failure
of the indictment to charge an interstate commerce
element was error and was plain, since the interstate
commerce element was proven by overwhelming and
uncontroverted evidence, the failure to charge it did
not rise to the level of

plain error
).


By contrast, t
he Third and District of Columbia

(D.C.)

Circuits

have held th
at such an omission
requires
automatic
reversal.
See United States v.
Spinner
, 180 F.3d 514, 515
-
16 (3d Cir. 1999);
United
States v. Pickett
, 353 F.3d 62, 68 (D.C.

Cir. 2004)
(expressly declining to decide whether harmless
error review is available).


The Ninth Circuit’s rule,
in contrast
, seems to
incorporate a
hybrid between the diametrically
opposed positions.

In that Circuit
,

if properly
challenged prior to t
rial, an indictment’s failure to
recite an element of the charged offense is not a
minor flaw subject to harmless error analysis, but a
structural error requiring dismissal.
United States
v. Du Bo
,

186 F.3d 1177, 1179
-
81 (9
th

Cir. 1999).
However,
if the
challenge to the indictment
did not
occur at trial
,

then the indictment is subject to plain
error review.
See United States v. Velasco
-
Medina
,
305 F.3d 839, 846
-
47 (9th Cir. 2002).



Judges and commentators alike have recognized
the existence of this c
onflict.
See
,

e.g.,
United States
v.
Omer
,

429
F
.3d 835 (9th Cir. 2005)
(Graber, J.,
dissenting from denial of rehearing en ban
c
);

United
States v. Prentiss
, 256 F.3d 921, 992
-
93

(10th Cir.
2001) (en banc)

(Henry, J., dissenting in part); 4


11


Wayne R. LaFav
e et al., Criminal Procedure §
19.3(a), at 155, 161 n.39.51 (2d ed. Supp. 2006).


B.
This case is an i
deal vehicle to resolve the
circuit conflict.


This case squarely presents the issue and offers
this Court an ideal vehicle to resolve the circuit
conflic
t.

There is no dispute that the terminal
element is a
n

element of a
n

Article 134, UCMJ,
offense,
or that the
count
s

omitted that element.

Here, Article 134
, UCMJ,

criminalizes conduct that
is (1) prejudicial to good order and discipline; and/or
(2) “of a

nature to bring discredit upon the armed
forces”. Either “terminal element,” or both
depending on the Government’s theory, is critical to
stating a criminal offense under the statute; in the
absence of either “terminal element,” there is no
crime.
The
fact that this is a (1) military case
,

and
(2) a guilty plea does not diminish this case’s ability
to resolve the circuit conflict
; indeed, this case is
squarely in the middle of the circuit conflict
.


1.
Here the military and civilian justice
systems are

similar.


The Petitioner in
Resendiz
-
Pon
c
e

attempted to
frame this issue to solely

implicate

the Grand Jury
Clause of the Fifth Amendment. However,
the lack
of an element in an indictment
extends
beyond

the
Grand Jury Clause and involves
fundamental
cons
titutional protection
s

that
apply equally to both
civilian and military criminal defendants.

To
comport with the Fifth and Sixth Amendments, a


12


criminal indictment must (1) contain all the
elements of the offense so as to fairly inform the
defendant of the

charges against him, and (2) enable
the defendant to plead double jeopardy in defense of
future prosecutions for the same offense.

Hamling v.
United States
, 418 U.S. 87, 117 (1974);
see also
Resendiz
-
Ponce
, 549 U.S. at 108 (citations and
quotation marks
omitted). The requirement that an
indictment contain all of the elements of the offense
provides a defendant with notice and protection from
double jeopardy.
See

U.S. Const. amend. V (“nor
shall any person be subject for the same offense to be
twice put
in jeopardy of life or limb”); Const. amend.
VI (“the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation”).





Similar to the federal system, the military is a
notice pleading jurisdiction.
United States v. Se
ll
, 3
C.M.A. 202, 206 (C.M.A. 1953).

The rules governing
court
-
martial procedure encompass the notice
requirement: “A
[count]
is sufficient if it alleges
every element of the charged offense expressly or by
necessary implication.”
R
.

FOR
C
OURTS
-
M
ARTIAL

3
07(c)(3).


The requirement to allege every element
expressly or by necessary implication ensures that a
defendant understands what he must defend
against: “[A]lthough the terms Congress chose for
[Article 134] are broad, . . . what is general is made
spec
ific through the language of a given specification.
The charge sheet itself gives content to that general
language, thus providing the required notice of what
an accused must defend against.”
United States v.


13


Jones
, 68 M.J. 465, 472 (C.A.A.F. 2010)

(citi
ng
Parker v. Levy
, 417 U.S. 733, 756 (1974)). Indeed,
“[n]o principle of procedural due process is more
clearly established than . . . notice of the specific
charge”.
Cole v. Arkansas
, 333 U.S. 196, 201 (1948).


2.
A
guilty plea

case will resolve the ci
rcuit
split
.



The circuit conflict encompasses guilty plea and
contested cases.

Both the First and Third Circuits
decided
cases involving guilty pleas to an indict
ment
missing an
essential
element of the offense

first
challenged on appeal
.
See United St
ates v. Spinner
,
180 F.3d 514 (3d Cir. 1999);
United States v.
Corporan
-
Cuevas
, 244 F.3d 199

(
1st Cir. 2001).



The
Third Circuit held the failure of the indictment to
allege an essential element was structural error
requiring automatic reversal,
Spinner
,
180 F.3d at
515
-
16, while the First Circuit
subjected the
omission to harmless error review
,
Corporan
-
Cuevas
,
244 F.3d at 202.


Furthermore, the
q
uestion
p
resented is identical
in both guilty plea and contes
ted cases, and this case
will resolve this recurr
ing and important issue.
When, as in this case, an indictment fails to
sufficiently state an offense
,

it constitutes a
fundamental defect that can be raised for the first
time on appeal.
See
F
ED
.

R.

C
RIM
.

P
. 12(b)(2);
R
.

FOR
C
OURTS
-
M
ARTIAL

907(b)(1)(B) (

A charge or
[count]

shall

be dismissed
at any stage

of the proceedings if
:

the specification fails to state an offense”

(emphasis added)).



14



Lastly, a jurisdictional defect is not waived by a
guilty plea. In
United States v. Caperell
, the Ninth
Circuit

held that “
[
a
]
lthough a guilty plea generally
waives all claims of constitutional violation occurring
before plea, ‘jurisdictional’ claims are an exception to
this rule.” 938 F.2d 975, 977 (9th Cir. 1991) (quoting
United States v. Montilla
, 870 F.2d 549,

552 (9th Cir.
1989), amended at 907 F.2d 115 (9th Cir. 1990)
(“Claims that ‘the applicable statute is
unconstitutional or that the indictment fails to state
an offense’ are jurisdictional claims not waived
by
the guilty plea”));
see also United States v.
Rivera
,
879 F.2d 1247, 1251 (5th Cir. 1989);
O’Leary v.
United States
, 856 F.2d 1142, 1143 (8
th

Cir. 1988)

(per curiam);
United States v. Di Fonzo
, 603 F.2d
1260, 1263 (7th Cir. 1979).

Thus, the question
presented is identical in both guilty plea and
cont
ested cases, and this case will resolve the circuit
split.


C. Failure to allege an essential element is
structural error.


A

charge that omits an essential element of the
offense is not susceptible to plain
or harmless error
review.
An error is harmless
only if it can be found
“beyond a reasonable doubt that the error
complained of did not contribute to the verdict
obtained.”
Chapman v. California
, 386 U.S. 18, 24
(1967).
That cannot be said when, as here, the
indictment fails to allege an element

indee
d, the
element that draws the line between criminal and
non
-
criminal conduct

and thus
fails to properly


15


allege an offense.

Simply put, when an element of an
offense is omitted, and one is therefore convicted of a
crime never charged, no further harm shoul
d need to
be shown; the omission of the element is a structural
error because it affects the entire framework of the
criminal prosecution.


Some circuits disagree
with this analysis and rely
on this
Court’s decision in
United States v.
Cotton
,

for the pr
oposition that the omission of an element of
an offense in an indictment does not constitute
structural error.
See
App.,
infra
13a
-
14a. In
Cotton
,
the Court held that the failure both to allege a
sentence
-
enhancing fact (
e.g
.
,

drug quantity) in the
indic
tment and to obtain a finding on that fact from
the petit jury did not constitute reversible error. 535
U.S. 625, 632
-
33 (2002). But
Cotton
was decided
before the Court granted certiorari on the exact same
issue presented in this case that was granted in

Resendiz
-
Ponce
. Thus, it is not entirely clear that
Cotton
supports the proposition that omitted
elements in the indictment are subject to harmless
error review.
Moreover, the question presented is a
recurring and important issue. There are a
significa
nt number of cases in which an element of
the offense is omitted from federal indictments.
App.,
infra
47a. The Court’s intervention is
warranted to resolve the clear and entrenched circuit
conflict on this important issue.

CONCLUSION


Had this case arisen in the Third or possibl
y

even
the D.C. Circuits, assuming Article 134, UCMJ, was


16


a crime in those jurisdictions, the court of appeals
would have reversed petitioner’s conviction. But the
alleged conduct’s location should not dictate

d
issimilar outcomes.

A defective charge raises the
issue whether a trial should have occurred at all. It
should not. The error
in this case was structural
because it
affects the entire framework of the
criminal prosecution. Harmless error analysis is no
t
appropriate when the error eliminates the very basis
for the prosecution to proceed.


For the foregoing reasons, the petition for a writ
of
certiorari

should be granted.


Respectfully submitted,




Toren G. E. Mushovic

Lieutenant, JAGC, USN


Counsel
of Record

1254 Charles Morris St, SE

Washington, D.C. 20374

(202) 685
-
7295


1
a




APPENDIX A


UNITED STATES, Appellee


v.


Anthony P. BALLAN,
Machinist's Mate Second Class
U.S. Navy, Appellant


No. 11
-
0413


UNITED STATES COURT OF
APPEALS FOR THE ARMED
FORCE
S


71 M.J. 28
;
2012 CAAF LEXIS
238


December 13, 2011, Argued

March 1, 2012, Decided


Military Judges: Moira D. Modzelewski, Tierney M.
Carlos, and Glen R. Hines.


COUNSEL:

For Appellant: Lieutenant Toren G. E.
Mushovic, JAGC, USN (argued); Lieutenant Jen
tso
Hwang, JAGC, USN, and Lieutenant Ryan Santicola
JAGC, USN.


For Appellee: Captain Samuel C. Moore, USMC
(argued); Colonel Kurt J. Brubaker, USMC, and
Brian K. Keller, Esq. (on brief).

2
a





JUDGES:

RYAN, J., delivered the opinion of the
Court, in which ERDM
ANN and STUCKY, JJ., and
EFFRON, S.J., joined. BAKER, C.J., filed a separate
opinion concurring in the result. BAKER, Chief
Judge (concurring in the result).


OPINION BY:
RYAN


OPINION

Judge RYAN delivered the opinion of the Court.

A military judge, sittin
g as a general court
-
martial, convicted Appellant, pursuant to his pleas,
of one specification of sodomy with a child under age
twelve, one specification of indecent acts with a
child,
1

and eight specifications of indecent acts with
another, violations of
Articles 125 and 134, Uniform
Code of Military Justice

(UCMJ),
10 U.S.C. §§ 925
,
934 (2006)
.
2

A panel of members sentenced Appellant
to a dishonorable discharge, confinement for a period



1

Relevant to Specified Issue II, Appellant was charged with
rape

of a child, in violation of Article 120, UCMJ,
10 U.S.C. §
920 (2006)
, not indecent acts with a child, a violation, at the
time, of
Article 134, UCMJ
, see Manual for Courts
-
Martial,
United States, Punitive Articles Applicable to Sexual Assault
Offenses Co
mmitted Prior to 1 October 2007 app. 27 at A27
-
3
(2008 ed.) (MCM).


2

Appellant was properly tried and convicted under the
pertinent provisions of the UCMJ and MCM as in e
f
fect prior to
the October 1, 2007, effective date of the amendments to the
UCMJ and
MCM made by the Natio
n
al Defense Authorization
Act for Fiscal Year 2006, Pub. L. No. 109
-
163, § 552, 119 Stat.
3136, 3256
-
63 (2006).

3
a




of twenty
-
five years, and forfeiture of all pay and
allowances.

In ac
cordance with Appellant's pretrial
agreement, the convening authority agreed to
suspend confinement in excess of twenty years for
the period of confinement served plus twelve months.

Addressing an unrelated issue on appeal, the
United States Navy
-
Marine Co
rps Court of Criminal
Appeals (NMCCA) set aside the findings of guilty
and dismissed Specifications 6, 7, and 8 of Charge III
as legally insufficient.

United States v. Ballan
, No.
NMCCA 201000242, slip op. at 3, 5 (N
-
M. Ct. Crim.
App. Jan. 27, 2011). The
NMCCA reassessed
Appellant's sentence, but found that the members
would have nevertheless imposed the same
se
n
tence.
3

Id
. at 4.




3

Appellant submitted a petition for a grant of review with no
assignment of error, and, on June 2, 2011, this Court specif
ied
the following two issues:




I. W
hether an

Article 134

clause 1 or 2 specification that
fails to expressly allege either potential terminal element
states an offense under the Supreme Court’s holding in
United States v. Resendiz
-
Ponce

and
Russell v. Un
ited
States
,
and this Court’s recent opinions in
Medina
,

Miller
,
and

Jones
.

II. A
lthough the crimes of indecent acts with a child to
which Appellant pleaded guilty was not a lesser included
offense of the charged crime of rape of a child and thus
had not b
een formally referred to trial by court
-
martial
by the convening authority
,

whether
A
ppellant waived
such irregularity by pleading guilty under a pretrial
agreement to indecent acts with a child in violation of
Article
134
,

where neither the pretrial agree
ment nor
4
a




Consistent with our decision in
United States v.
Wilkins,
29 M.J. 421 (C.M.A 1990)
,

we hold that
action by the convening author
ity showing an intent
to refer a particular charge to trial is sufficient to
satisfy the jurisdictional r
e
quirements of the Rules
for Courts
-
Martial (R.C.M.). Further, we hold that
while it is error to fail to allege the terminal element
of
Article 134, UC
MJ
, expressly or by necessary
implication, in the context of a guilty plea, where the
error is alleged for the first time on appeal, whether
there is a remedy for the error will depend on
whether the error has prej
u
diced the substantial
rights of the accus
ed. See Article 59, UCMJ,
10
U.S.C. § 859 (2006)
.


I. FACTUAL BACKGROUND

The Naval Criminal Investigative Service (NCIS)
began investigating Appellant in 2008 when his
three biological children
--

all living separately in
foster homes at the time
--

were
observed exhibiting
age
-
inappropriate sexual beh
a
vior. Pursuant to this
investigation, NCIS interviewed Appellant on July 9,
2008. During this and a subsequent inte
r
view,
Appellant admitted that h
e had engaged in a variety

of sexual misconduct with, and in

the presence of, his
children
--

all of whom were under age twelve at the
time of the events. The exact nature of the conduct is




Appellant’s plea at arraignment expressly set forth either
potential terminal element for an
Article 134

clause 1 or
2 specification, but both elements were discussed and
admitted during the providence inquiry
.


5
a




not relevant to either of the specified issues now
under consideration.

On April 22, 2009, the Government preferred the
follow
ing charges against Appellant: one
specification of rape of a child, in violation of
Article
120, UCMJ
, one specification of sodomy with a child
under age twelve, in violation of
Article 125, UCMJ
,

and eight specifications of indecent acts or liberties
wit
h a child, in violation of
Article 134, UCMJ
. As
preferred, none of the specifications of indecent acts
or liberties with a child contained the terminal
element for
A
r
ticle 134, UCMJ
.

On June 5, 2009, Appellant and his defense
counsel signed a valid uncond
itional waiver of
investigation under A
r
ticle 32, UCMJ,

10 U.S.C. §
832 (2006)
.
A month later, on July 6, 2009, Appellant
and his defense counsel signed a two
-
part
Memorandum of Pretrial Agreement. With regard to
Charge I
--

alleging a single specification

of rape of a
child, in violation of
Article 120, UCMJ

--

Appellant
agreed to plead "NOT GUILTY [to the
Article 120,
UCMJ
, viol
a
tion], but GUILTY to the LIO [Lesser
Included Offense] of indecent acts with a child," in
violation of
Article 134, UCMJ
. Neithe
r the original
Charge I specification nor the specification to which
Appellant agreed to plead guilty included the
terminal element for
Article 134, UCMJ
.

Appellant
also agreed to plead guilty to the
Article 125, UCMJ
,

violation essentially as charged and,

for the eight
specifications of indecent acts with a child in Charge
III, to the lesser
-
included offense (LIO) of indecent
acts with another, both violations of
Article 134,
UCMJ
.

The Charge III specific
a
tions in the pretrial
6
a




agreement again failed to all
ege the terminal
element for
Article 134, UCMJ
.

On July 10, 2009, the Staff Judge Advocate (SJA)
sent the convening authority a memorandum
regarding the charges pending against Appellant and
attached, inter alia, the original charge sheet and
Appellant's s
igned Memora
n
dum of Pretrial
Agreement. In this memorandum, the SJA first
noted that Appellant had agreed "to plead guilty to 1
specification of
Article 125, UCMJ
, and 9
specifications of
Article 134, UCMJ
" and then
recommended that the co
n
vening authority

"refer the
charges and specifications to general court
-
martial."
That same day, the convening authority referred the
charges originally preferred against Appellant to the
court
-
martial that he had ordered to be co
n
vened on
March 18, 2009, and approved bot
h parts of the
pretrial agreement.

Prior to the court
-
martial, the parties submitted a
stipulation of fact, which described the elements and
underlying facts of each charge and specification.
The stipulation's explanation of the offenses to which
Appellant

was pleading guilty included an
acknowledgement that his conduct was prejudicial to
good order and discipline and of a nature to bring
discredit upon the armed forces. During Appellant's
plea inquiry, the military judge explained each of the
el
e
ments, inc
luding the terminal element, of the
Charge I specification of indecent acts with a child,
in violation of
Article 134, UCMJ
. The military judge
verified that "these elements correctly describe[d]"
Appellant's conduct, and Appellant described the
conduct in

his own words. The military judge then
7
a




asked Appellant, "[W]ere these acts prejudicial to
good order and discipline or service discrediting, or
both in your opinion?" Appellant responded that they
were "[s]ervice discrediting," and explained why he
believ
ed this to be true.

The military judge repeated the same plea
inquiry for each of the eight
Article 134, UCMJ
,

specifications in Charge III: the military judge
explained the elements, had Appellant describe the
underlying conduct, and then asked Appellant
whether
--

and if so, how
--

his actions were service
discrediting or prejudicial to good order and
discipline. For each of the eight specifications,
Appellant explained how his conduct was service
discrediting.


II. ISSUE II: THE CHARGED ARTICLE 120,
UCMJ
, OFFENSE

"We review jurisdictional questions de novo."
United States v. Alexander,
61 M.J. 266, 269
(C.A.A.F. 2005)
.

"A j
u
risdictional defect goes to the
underlying authority of a court to hear a case . . .
[h]owever, where an error is procedural rather
than
jurisdictional in nature we test for material prejudice
to a substantial right to determine whether relief is
warranted."
Id
. (citing
Article 59(a), UCMJ
;
United
States v. Morgan,
57 M.J. 119, 122 (C.A.A.F. 2002))
.

Appellant alleges that the court
-
mar
tial lacked
jurisdiction over the Charge I,
Article 134, UCMJ
,
indecent acts with a child offense to which he
pleaded guilty because this offense is not in fact an
LIO of the
Article 120, UCMJ
, offense that was
8
a




referred to court
-
martial by the convening au
thority.
Under R.C.M. 201(b)(3), "[e]ach charge before the
court
-
martial must be referred to it by competent
authority." R.C.M. 601(a) defines referral as "the
order of a co
n
vening authority that charges against
an accused will be tried by a specified cour
t
-
martial."

That indecent acts with a child is not an LIO of
rape of a child is easily determined by reference to
settled case law, given that the offenses at issue are
the same ones discussed in
United States v. Jones

--

albeit with a child victim rather
than an adult.
68
M.J. 465, 473 (C.A.A.F. 2010)

(applying the elements
test and holding that "the elements of rape do not
include all (or indeed any) of the elements of
indecent acts"). We disagree, however, that the
Article 134, UCMJ
,

indecent acts with a

child offense
to which Appellant pleaded guilty was not itself
referred to the court
-
martial, in which case its status
as an LIO for purposes of referral has no bearing on
jurisdiction over that offense in this case.

The law is well settled that "[a]lthou
gh the
[referral] order is a jurisdictional prerequisite, the
form of the order is not jurisdictional."
Wilkins,
29
M.J. at 424
.

Here, as in
Wilkins
, the convening
authority referred one offense to court
-
martial on the
charge sheet, but entered into a pret
rial agreement
whereby he agreed to accept a plea of guilty from
Appellant to a different charge that was also not an
LIO of the original charge.
See

id.
at 422
. The
holding in
Wi
l
kins

as to whether a court
-
martial has
jurisdiction over the latter offense
is directly on point
here: "[i]mplicit" in the convening authority's entry
into a pretrial agreement that provided for a plea of
9
a




guilty to the charge and specification of indecent acts
with another, in violation of
Article 134, UCMJ
,

"was
his personal deci
sion that the . . . charge be referred
to the general court
-
martial . . . ."
See

id
. at 424
. We
held in
Wilkins
, and reiterate today, that the
convening authority's entry into the pretrial
agreement was the "functional equivalent" of a
referral order and t
hat it satisfied R.C.M. 201(b)(3).
See

id.

Changing the charge from a violation of
Article
120, UCMJ
, to a violation of
Article 134, UCMJ
, was,
admittedly, a major change.
See

R.C.M. 603(a). And
R.C.M. 603(d) provides that major "[c]hanges or
amendments to

charges or specifications . . . may not
be made over the objection of the accused unless the
charge or specification affected is preferred anew."
Here, however, Appellant not only did not object to
the change, he proposed the change in his pr
e
trial
agreem
ent, explained to the military judge why he
was guilty before the plea was accepted, and
benefited from the amendment. Therefore, as in
Wilkins
, we consider Appellant's actions as agreeing
to an amendment to the charge and specification,
even though the ch
arge sheet itself was not
physically amended.
See

29 M.J. at 424

(noting that
an appe
l
lant can waive both the SJA opinion
required by Article 34, UCMJ,
10
U.S.C. § 834
(2006)
,

and the "swearing to the charges against him,
as long as it was clear what charg
es were to be
considered by the court
-
martial" (citing R.C.M.
603(d))); see also
United States v. Morton,
69 M.J.
12, 16 (C.A.A.F. 2010)
;
Jones,
68 M.J. at 473
.

10
a




We conclude that Appellant pleaded guilty to a
charge and specification of indecent acts with a

child,
which, by virtue of his pretrial agreement, was
referred to court
-
martial and which he agreed to
have considered by the court
-
martial. And yet, even
as referred in the pretrial agreement, the
specification did not allege the terminal element of
the

Article 134, UCMJ
, offense. Since it shares this
deficiency with the other
Article 134, UCMJ
, offenses
in this case, that issue will be treated in the next
section.


III. ISSUE I: THE ARTICLE 134, UCMJ,
OFFENSES

Whether a specification is defective and t
he
remedy for such error are questions of law, which we
review de novo.
See

United States v. Crafter
, 64 M.J.
209, 211 (C.A.A.F. 2006)
;
see also

United States v.
Girouard,
70 M.J. 5, 10 (C.A.A.F. 2011)

(determining
the appropriate remedial standard by mean
s of a de
novo review of the rights at stake).


A. Defective Article 134, UCMJ, Specifications

In
United States v. Fosler
, we provided a synopsis
of this Court's jurisprudence on sufficiency of
indictments and the doctrine of LIOs.
70 M.J. 225,
229
-
34 (C.
A.A.F. 2011)
.

We held that, in a contested
case, the terminal element of
Article 134, UCMJ
,
could not be implied from language in a specification
alleging that the appellant had "wrongfully"
committed adultery in violation of
Article 134,
UCMJ
.
Id.
at 234
.

In coming to this conclusion, we
rejected the arg
u
ment that the Supreme Court's
11
a




decision in
Parker v. Levy,
417 U.S. 733, 94 S. Ct.
2547, 41 L. Ed. 2d 439 (1974)

(upholding the
constitutionality of
Article 134, UCMJ
, in part on the
basis of its unique his
tory in the military), allowed
the Court to imply the terminal element where it had
not been alleged.
Fosler,
70 M.J. at 232
. Reviewing
"the charge and specification more narrowly than we
might at later stages," we determined that the
phrase "
Article 134
"
did not allege the terminal
element expressly or by necessary implication. Id.
This decision is consonant with
United States v.
Miller,
67 M.J. 385 (C.A.A.F. 2009)
,

which rejected
both the doctrine of "implied elements," and the
corollary notion that the t
erminal element of
"prejudicial to good order and discipline" or service
discrediting was "inherent" in every enumerated
offense.
See

id.
at 388
-
89
.

Thus, whether specifications for charged
violations of
Article 134, UCMJ
, may be upheld in
the guilty plea
context where the terminal element is
not alleged cannot be answered by determining that
the act that an accused "did or failed to do," MCM pt.
IV, para. 60.b.(1), is inherently, impliedly, or as a
matter of common sense, prejudicial to good order
and disc
ipline or service discrediting.
See

Jones,
68
M.J. at 471

(overruling prior precedent, which
allowed the terminal element of
Article 134, UCMJ
,
to be implied from the offense charged);
Miller
, 67
M.J. at 389

(overruling prior precedent, which held
"that cl
auses 1 and 2 of
Article 134, UCMJ
, are per
se included in every enumerated offense").

While in the case of a guilty plea where the
appellant raises the validity of a specification for the
12
a




first time on a
p
peal, 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 b
eyond allegations of the act or
failure to act itself. We emphasize yet again that the
terminal element, which may be charged in three
different ways, is an actual and distinct element of
an
Article 134, UCMJ
, offense.
See, e.g
.,
Fosler,
70
M.J. at 228
-
30
;

United States v. Medina,
66 M.J. 21,
24
-
26 (C.A.A.F. 2008)
.

As such, the terminal element
of
Article 134, UCMJ
, like any element of any
criminal offense, must be separately charged and
proven.
See, e.g
.,
Jones v. United States,
526 U.S.
227, 232, 119 S. C
t. 1215, 143 L. Ed. 2d 311 (1999)

(noting that any fact that is an element of an offense
"must be charged in the indictment, submi
t
ted to a
jury, and proven by the Government beyond a
reasonable doubt");
Schmuck v. United States,
489
U.S. 705, 718, 109 S.
Ct. 1443, 103 L. Ed. 2d 734
(1989)
;
see also

United States v. Denmon,
483 F.2d
1093, 1096 (8th Cir. 1973)

("heartily applaud[ing] the
salutory trend in recent years to simplify the
indictment," but noting that it "cannot go so far in
economy of words as to

approve the omission in an
indictment of essential elements of an offense").
Consequently, a violation of any of the three clauses
of
Article 134, UCMJ
, "does not necessarily lead to a
violation of the other clau
s
es,"
Fosler,
70 M.J. at 230
,
and the princ
iple of fair notice requires that an
accused know to which clause he is pleading guilty,
13
a




Medina,
66 M.J. at 26
, and against which clause or
clauses he must defend,
Fosler,
70 M.J. at 230
. We
therefore hold that regardless of context, it is error to
fail to

allege the terminal element of
Article 134,
UCMJ
, expressly or by necessary implication.


B. Plain Error Review and Remedies

As charged in this case, none of the specifications
alleging violations of
Article 134, UCMJ
, to which
Appellant pleaded guilty,
alleged clause 1 or 2 of the
terminal element of
Article 134, UCMJ
, which is
error.
4

See

R.C.M. 307(c)(3). Error alone does not,
however, warrant dismissal. While the rules state
that a charge or specification that fails to state an
offense should be dismi
ssed, 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.
5

See
,

e.g
.,

United States v. Cotton,



4

The
Article 134, UCMJ
, specificat
ions in this case were legally
sufficient at the time of trial and are pro
b
lematic today only
because of intervening changes in the law.
See, e.g.,

United
States v. Mayo,
12 M.J. 286, 293
-
94 (C.M.A. 1982)

(holding that
the clause 1 terminal element of
Arti
cle 134, UCMJ
, need not
be alleged in the specification), overruled by
Fosler,
70 M.J. at
232
.


5

The Committee on Rules of Practice and Procedure is
currently seeking comments on the Preliminary Draft of
Proposed Amendments to the Federal Rules of Crimina
l
Procedure, which seeks to clarify "which motions must be
raised before trial," and addresses the "consequences of an
untimely motion." The proposed rule, in r
e
levant part, states:

If a party does not meet the deadline . . . for making a
Rule 12(b)(3) mot
ion, the motion is u
n
timely. In such a
case,
Rule 52

does not apply, but a court may consider
14
a




535 U.S. 625, 631
-
32, 122 S. Ct. 1781, 152 L. Ed. 2d
860 (2002)

(rejecting precedent that defects in the
indictment are jurisdictional and applying plain
error review);
United States v. Sinks,
473 F.3d 1315,
1320
-
21 (10th Cir. 2007)

(affirming that failure to
allege an element of a crime does not affect a court's
subje
ct matter jurisdiction, but stating that plain not
harmless error review applies). In
Fosler

--

a
contested case where the appellant objected
--

we
dismissed the charge.
70 M.J. at 226
. In
G
i
rouard

--

a contested case with no objection where the
specificat
ion 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 prej
u
dice.
6

70 M.J. at 11
-
12
.
However, neither of those cases 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.


C. Prejudice and the Plea Inquiry





the defense, objection, or request if: (A) the party shows
cause and prejudice; or

(B) the defense or objection is
failure to state an offense or double jeopardy,

and the
party shows prejudice
only.

Memorandum from the Advisory Comm. on Fed. Rules of Crim.
Procedure to the Standing Comm. on Rules of Practice and
Procedure (May 12, 2011),
http://www.uscourts.gov/scourts/RulesAndPolicies/rules/Publica
tion%20Aug%20201
1/CR_May_2011.pdf.




6

"In the context of a plain error analysis, Appellant has the
burden of demonstrating: (1) there was error; (2) the error was
plain or obvious; and (3) the error materially prejudiced a
substantial right of the accused."
G
i
rouard,
7
0 M.J. at 11
.

15
a




In our view, in the context of a specification that
was legally sufficient at the time of tr
ial and to
which a plea of guilty was entered and accepted, the
real question is whether we will find prejudice and
disturb the providence of a plea where the
providence inquiry clearly delineates each element of
the offense and shows that the appellant un
derstood
"to what offense and under what legal theory [he
was] pleading guilty,"
Medina,
66 M.J. at 26
.
7

We
answer this question in the negative.

"[A] counseled plea of guilty is an admission of
factual guilt so reliable that, where voluntary and
intellige
nt, it quite validly removes the issue of
factual guilt from the case."
Menna v. New York
, 423
U.S. 61, 62 n.2, 96 S. Ct. 241, 46 L. Ed. 2d 195
(1975)
.

Nonetheless, a military judge may not accept
a plea of guilty until "the elements of each o
f
fense
charge
d [have] been explained to the accused" and
unless the military judge has questioned the accused
to ensure that he understands and agrees that "the
acts or the omissions . . . constitute the offense or
offenses to which he is pleading guilty."
United
State
s v. Care
,

18 C.M.A. 535, 541, 40 C.M.R. 247,
253 (1969)
;
see also

R.C.M. 910(d)
-
(h).




7

The notice problem highlighted in
Fosler
, where the appellant
could not know which theory of criminality he needed to defend
against, and in Medina, where the
appellant's providence
inquiry

failed to inform him that nothing in the charged
specification, which alleged a violation of a federal statute,
required him to a
d
mit guilt to clause 2 or
Article 134, UCMJ
,
which was not alleged, are not present in this case.
See

Fosler,
70 M.J. at 230
;
Medina
, 66 M.J at 26
.


16
a




The guilty plea process within the military justice
system thus ensures that an appellant has notice of
the offense of which he may be convicted and all
elements thereof
before his plea is accepted and,
moreover, protects him against double jeopardy.
8

See

Russell v. United States
, 369 U.S. 749, 763, 82 S. Ct.
1038, 8 L. Ed. 2d 240 (1962)
;

see also
United States
v. Resendiz
-
Ponce,
549 U.S. 102, 108, 127 S. Ct. 782,
166 L. E
d. 2d 591 (2007)

(citing
Hamling v. United
States
, 418 U.S. 87, 117, 94 S. Ct. 2887, 41 L. Ed. 2d
590 (1974))
.

This is illustrated by the providence
inquiry in the present case.

During the plea colloquy, the military judge
described clauses 1 and 2 of the
terminal element of
Article 134, UCMJ
, for each specification. And the
record "conspicuously reflect[s] that the accused
'clearly understood the nature of the prohibited
conduct' as being in violation of clause 1 [or] clause 2,
Article 134

. . . ."
Medina,

66 M.J. at 28

(quoting
United States v. Martinelli
, 62 M.J. 52, 67 (C.A.A.F.
2005))
, and comparing it to
United States v. Mason,
60 M.J. 15, 19 (C.A.A.F. 2004))
;
see also

R.C.M.
910(c)(1) Discussion. We have no doubt that



8

And it is both notice as
to the offense and an affirmative
agreement to be convicted of the charge, which distinguishes a
defective specification in the guilty plea context from a defective
specification or conviction of an uncharged offense in a
contested case.
See

Girouard
, 70 M
.J. at 10

(discussing the
Fifth Amendment

right to "due process of law" and the
Sixth
Amendment

right to "be informed of the nature and cause of the
accusation") (quotation marks omitted). Nonetheless, absent
objection, in either context the error is teste
d for prejudice.
See

Cotton
, 535 U.S. at 631
-
32
;
Girouard
, 70 M.J. at 11
-
12
.


17
a




Appellant understood both what he

was being
charged with and why his conduct was prohibited.

After this, in order to have the military judge
accept his pleas of guilty to the
Article 134, UCMJ
,
specifications, Appellant was required to admit that
his actions violated either clause 1 or 2
of the
terminal element of that offense, and he did in fact
admit that his actions were service discrediting.
While this same service discrediting admission in
Medina was superfluous,
66 M.J. at 28
, Appellant's
admissions that his acts were service discred
iting
were necessary in order for the military judge to
accept Appellant's guilty pleas.
See

Care
, 18 C.M.A.
at 541, 40 C.M.R. at 253
.

As such, Appe
l
lant, unlike
the appellant in Medina, "kn[ew] under what clause
he [was] pleading guilty" and "clearly unde
rstood the
nature of the prohibited conduct as being in violation
of . . . clause 2,
Article 134

. . . ."
See

66 M.J. at 28

(quoting
Ma
r
tinelli
, 62 M.J. at 67
) (quotation marks
omitted).

There was no prejudice to the substantial rights
of Appellant; this c
ase, involving a defective
specification and a proper plea inquiry, is
distinguishable from a contested case involving a
defective specification. In cases like this one, any
notice issues or potential for prejudice are cured
while there is still ample oppo
rtunity either for a
change in tactics or for the accused to withdraw from
the plea completely
--

not to mention that the
military judge must, sua sponte, enter a not guilty
plea to the affected charge and specification where
he has found a plea improviden
t.
See

R.C.M.
910(h)(1) (allowing an accused to withdraw a plea of
18
a




guilty); R.C.M. 910(h)(2) (requiring the military
judge to enter a plea of not guilty when the accused
makes statements inconsistent with a guilty plea). In
a contested case, on the other h
and, there is no
equivalent, timely cure that would necessarily be
present in every properly conducted court
-
martial.
9

In sum, while it was error in a retroactive sense
to accept a plea of guilty to an
Article 134, UCMJ
,

charge and sp
e
cification, which did

not explicitly or
by necessary implication contain the terminal
element, under the facts of this case, the showing of
error alone is insufficient to show prejudice to a
substantial right.
See

United States v. Puckett
, 556
U.S. 129, 142, 129 S. Ct. 1423, 1
73 L. Ed. 2d 266
(2009)

(finding that the mere showing of error cannot
be "recast[]" as the effect on substantial rights).


IV. DECISION

The decision of the United States Navy
-
Marine
Corps Court of Criminal Appeals is affirmed.







9

Which does not, of course, account for the Government's
ability to timely make a major change to the charge sheet under
R.C.M. 603(a), absent defense objection, or to withdraw
and re
-
refer a defective specific
a
tion.
See

United States v. Parker
, 59
M.J. 195, 201 (C.A.A.F. 2003)

(noting that the government can
address a "disconnect between pleading and proof through
withdrawal of the[] charges and preferral of new charges");
R.C.M
. 603(d) (allowing for re
-
referral of charges after a major
change to which the appellant has objected); see also R.C.M.
604(b) (allowing for charges withdrawn before the introduction
of evidence to be r
e
ferred to another court
-
martial).

19
a




CONCUR BY:

BAKER


CONCUR

BAKER, Chief Judge (concurring in the result):

I agree with the Court's resolution of the
jurisdictional issue in this case in light of the
convening authority's agre
e
ment to the express
statement in the pretrial agreement that Appellant
would plead "NOT
GUILTY [to the
Article 120,
UCMJ
, violation], but GUILTY to the LIO [Lesser
Included Offense] of indecent acts with a child."
United States v. Ballan
, M.J. , (5), 2012 CAAF
LEXIS 238 (C.A.A.F. 2012)

(brackets in original). I
also agree with the Cour
t's reliance on
United States
v. Medina
, 66 M.J. 21 (C.A.A.F. 2008)
,

for the
proposition that an accused has a right to know to
what offense, and in the Article 134, Uniform Code of
Military Justice (UCMJ),
10 U.S.C. § 934 (2006)
,

context, to what clause,
to which he is pleading
guilty. However, I adhere to my position regarding
United States v. Fosler
, 70 M.J. 225, 240 (C.A.A.F.
2011)

(Baker, J., dissenting), and therefore concur in
the result only.

With respect to the Court's position regarding
pending so
-
called
Fosler

trailers, in my view, the
distinction made between a guilty plea case and a
contested case is unpersuasive. It is not clear why,
for example, given the same spec
i
fication, proceeding
on a common understanding during a guilty plea
should be t
reated differently than proceeding on the
basis of the same common understanding or judicial
determination at the outset of a contested case. Yet,
20
a




under this Court's precedent, the former is not
prejudicial error, while the latter is reversible error
on th
e basis of insuff
i
cient notice
--

whether objection
is made or not. Compare
Fosler
,

70 M.J. at 233

(reversible error in contested trial where accused
moved to dismiss defective specification that did not
plead terminal element of
Article 134, UCMJ
), with
U
nited States v. McMurrin
, 70 M.J. 15, 20 (C.A.A.F.
2011)

(reversible error under
United States v. Jones
,

68 M.J. 465 (C.A.A.F. 2010)
,

in contested case where
accused was improperly convicted of negligent
homicide as a lesser included offense of involuntary

manslaughter where no defense objection was raised
to military judge's conclusion that negligent
homicide was a lesser offense of involuntary
manslaughter), and
United States v. Girouard
, 70
M.J. 5 (C.A.A.F. 2011)

(reversible error under
United
States v.
Jones
, 68 M.J. 465 (C.A.A.F. 2010)
,

in
contested case where accused was co
n
victed of
negligent homicide as lesser included offense of
premeditated murder where there was no objection
by defense who requested instruction on negligent
homicide).

A defective
specification is necessarily addressed
differently in the guilty plea context than in the
contested trial context. In the guilty plea context,
uncertainty, confusion or doubt regarding the
terminal elements of
Article 134, UCMJ
, can be
addressed during the

plea inquiry, which the Court
now concludes provides an accused fair notice. If the
accused deems the notice in this context insufficient,
he is entitled to plead not guilty at the risk, of
course, of p
o
tentially losing any plea agreement. In a
21
a




contested
case, a defective specification can be
addressed at the outset through a bill of particulars,
or before the close of evidence by motion, as in
Fosler
. The key is that the accused must have the
opportunity to prepare his defense and argue his
case in a mann
er responsive to the government's
case
-
in
-
chief. If, in fact, the accused feels the notice
provided in the specification is insufficient to prepare
to meet the charges, he is free to ask the military
judge for a continuance in order to fully prepare. By
co
ntrast, an instruction to the members at the close
of the evidence clearly does not satisfy the fair notice
requirement.

Either the issue is one of notice or it is one purely
of form. However, this Court's case law now takes
the position that in a guilty p
lea context, the
Fosler

issue is one of actual notice, in which case there is no
prejudice when an
Article 134, UCMJ
, specification
omits the terminal elements, so long as the military
judge explains the terminal el
e
ments. Whereas, in a
contested case, the

issue is one of form rather than
actual notice; the same specification presents
reversible error, even if the parties proceed with
actual notice that the offense is based on either
clause (1) or (2), of
A
r
ticle 134, UCMJ
, or both.

In my view, the issue is

the same in either
context. Fair notice under the
due process clause
,
which is surely de
m
onstrated by actual notice, is
satisfied whether that notice comes in the form of the
plea colloquy, mutual agreement between the
parties, or by judicial determinatio
n before or during
the trial.


22
a




APPENDIX B


UNITED STATES NAVY
-
MARINE CORPS

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.




Before

J.A. MAKSYM, J.R. PERLAK, B.L. PAYTON
-
O'BRIEN

Appellate Military Judges




UNITED STATES OF AMERICA




v.




ANTHONY P. BALLAN

MACHINIST’S MATE SECOND CLASS (E
-
5),
U.S. NAVY




NMCCA 201000242

GENERAL COURT
-
MARTIAL

27 January 2011


For Appellant:

LT Ryan Santicola, JAGC, USN.

For Appellee:

LCDR Sergio Sarkany, JAGC,
USN.




PER CURIAM:



A military judge, sitting as a general cour
t
-
martial, convicted the appellant, pursuant to his
pleas, of one specification of indecent acts with a
child, sodomy with a child under age 12, and eight
23
a




specifications of indecent acts with another, in
violation of Articles 120, 125, and 134, Uniform Cod
e
of Military Justice, 10 U.S.C. §§ 920, 925, and 934.
The appellant was sentenced by members to
confinement for 25 years, forfeiture of all pay and
allowances, and a dishonorable discharge. The
convening authority (CA) approved the sentence as
adjudged,

and except for the punitive discharge,
ordered it executed. Pursuant to a pretrial
agreement, the CA suspended all confinement in
excess of 20 years for the period of confinement
served plus 12 months.




The appellant raises a single assignment of
er
ror, alleging that the military judge abused his
discretion in accepting the appellant’s guilty pleas to
Specifications 6, 7 and 8 under Charge III, each
individually alleging indecent liberties taken with
his three minor children, in that the providence
i
nquiry fails to establish greater interaction than
mere presence. The appellant avers that the
specifications be set aside and, based on a change in
the sentencing calculus, the case be sent back for a
rehearing on sentence.




The Government concedes t
he error but
disputes the remedy, recommending we affirm
general disorders under Article 134, conclude that
there has not been a dramatic change in the
sentencing landscape, and affirm the sentence.
10




Having examined the record of trial, the



10

Government’s An
swer of 20 Sep 2010 at 5.

24
a




appellant’s

brief, and the Government's answer, we
conclude that the findings as approved herein and
the sentence as reassessed are correct in law and fact
and that no error materially prejudicial to the
substantial rights of the appellant remains. Arts.
59(a) and 6
6(c), UCMJ.


Background



The appellant is a thirteen
-
year Sailor, rated
as a Machinist’s Mate but who had recently provided
service to the Naval Legal Service Office, MIDLANT,
working out of his rating in support of the Tax
Assistance Center (TAC). Dome
stic issues surfaced
within the civilian community, wherein his very
young children exhibited age
-
inappropriate sexual
behavior. The ensuing criminal investigation led to
the referral of the instant charges to a general court
-
martial. All of the offenses

at bar involve the
appellant’s three minor children. The
Commonwealth of Virginia has terminated all of the
appellant’s parental rights regarding his children.

Improvident Pleas


As briefed by the parties, we likewise find,
based on our review of the r
ecord, that the
appellant’s guilty pleas to Specifications 6, 7, and 8
of Charge III, alleging indecent liberties with his
three minor children but pled to as indecent acts
with another, fail to adequately establish the
requisite affirmative interaction wi
th another.
See
generally

United States v. Miller
, 67 M.J. 87
25
a




(C.A.A.F. 2008). The essence of the facts elicited
from the appellant establish indiscreet, frequent
masturbation, with his minor children being exposed
to and observing his actions by inadver
tence, rather
than circumstances amounting to deliberate
interaction. Record at 675
-
90.


We review a military judge’s decision to accept
a guilty plea for an abuse of discretion and questions
of law arising from a guilty plea
de novo
. In order to
rejec
t a guilty plea on appellate review, the record
must show a substantial basis in law or fact for
questioning the plea.
United States v. Inabinette
, 66
M.J. 320 (C.A.A.F. 2008). Applying the
de novo

standard, we find that the military judge did abuse
his
discretion in accepting the appellant’s pleas to
these three specifications, in that the elements and
the holding in
Miller

require more than mere
presence or inadvertent observation. As such, we are
left to conclude there is in fact a substantial basis i
n
law and fact to question the pleas. The findings of
guilty to Specifications 6, 7, and 8 under Charge III
are set aside.


In the absence of sufficient proof of the
charged offenses, the Government invites us to
consider the remaining evidence adduced an
d
otherwise affirm the specifications, under a lesser
included offense theory, as “simple disorders.”
Government’s answer of 20 Sep 2010 at 5
-
7. We
decline to do so.
See

generally

United States v.
Morton
, 69 M.J. 12 (C.A.A.F. 2010),
United States v.
Jon
es,

68 M.J. 465 (C.A.A.F. 2010), and
Miller
, 67
26
a




M.J. at 87.

Attention to Detail



While not assigned as error, two additional
matters require our attention. Under Charge III,
Specifications 3, 4, and 5, the appellant was charged