There is some reason to believe that the result in United States v. Fosler may only benefit him.
Fosler objected at trial. It is believed that all of the Fosler trailers are either guilty plea cases or not guilty plea cases where the accused did not object at trial. There’s a good argument – stated in Fosler — that those who plead guilty will not benefit from Fosler. But what of those who plead not guilty and didn’t raise the issue at trial? There is a hint in Fosler. We know the objection can be raised at any time including on appeal – but what will CAAF decide?
In the meantime, we know what NMCCA will do in a case where it’s a contested trial at which there is apparently [n.1] no motion to dismiss, and the charge is adultery? See United States v. Lonsford. NMCCA set aside two adultery specifications based on Fosler. The clock is running on whether NTJAG will certify the issue in light of the Fosler trailer park still located on E Street.[n.2]. Ah, but is Lonsford the way NMCCA will handle all such cases?
“A flawed specification first challenged after trial, however, is viewed with greater tolerance than one which was attacked before findings and sentence. . . . Although failure of a specification to state an offense is a fundamental defect which can be raised at any time, we choose to follow the rule of most federal courts of liberally construing specifications in favor of validity when they are challenged for the first time on appeal.” United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986)(internal citation and
footnotes omitted). “[W]e view standing to challenge a specification on appeal as considerably less where an accused knowingly and voluntarily pleads guilty to the offense.” Id. at 210 (citation omitted).
United States v. Gibson, NMCCA 201000669 (N. M. Ct. Crim. App. 30 August 2011)(unpub. op.) (emphasis added) discussing Fosler.
The court in Gibson went on to find that the GoD/SD elements were necessarily implied. Gibson is a guilty plea case. For example the court noted:
The specifications further alleged that the appellant either wrongfully made, forged or counterfeited; wrongfully sold; or wrongfully used “an official military pass, to wit “gold liberty card” as defined by Chapter 2, Marine Corps Base Japan/III Marine Expeditionary Force Order 1050.7 with change 2 dated 15 June 2009.”
Because of Gibson we know how NMCCA may decide a GP case with no motion – they will analyze for implied elements.
In light of the specifications’ language, the facts of this case, and the principle found in Watkins, we find the terminal element is necessarily implied and the six specifications state an offense. Should Watkins for some reason be overruled or severely limited, we note that the military judge, in informing the appellant of the elements, included the “prejudice” and “discredit” aspects of the two statutory elements of Article 134. The appellant did not object to what is arguably a major change, see RULE FOR COURTS-MARTIAL 603(d), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), and thus waived the objection.
Question — was it a knowing, intelligent, and informed waiver? Can NMCCA assume the waiver? If the accused didn’t know to object at the time how can he know a voluntary waiver? Doesn’t this build in another issue if in fact Watkins is overruled and NMCCA gets a do over. When there is an issue about changes to the charges and specifications don’t we normally have some sort of colloquy on the record?
So what we may see out of the CAAF trailer park is a decision in one (perhaps two) of the trailers where the accused plead guilty and then summary affirmances on the similar cases, and a mass remand to the CCA’s on the NG, but not motion cases, to do an analysis similar to NMCCA’s in Gibson.
[n.1] The opinion does not state whether the issue was raised at trial. I’m ass-u-ming that it wasn’t else that would have been referenced in the opinion. And see, United States v. Gibson.
[n.2] For those worried about CA actions http://www.caaflog.com/2011/09/08/nmcca-issues-published-opinion-about-a-legal-nullity/, check out footnote 1 in Lonsford, which is a USMC case from MCAS Beaufort.