In United States v. McLean, the AFFCA determined that aggravated assault is an LIO of maiming. The defense theory on appeal, but not at trial, was that the AA was not a listed LIO (an issue addressed in Jones). Just because it is or isn’t listed as an LIO in the RCM is not an automatic rule on the LIO in a particular case; and that the LIO didn’t meet the elements test.
This argument is unpersuasive. First, whether or not an offense is listed in the MCM as a lesser included offense is not dispositive because the MCM expressly states that such lists are “not all-inclusive.”
This is consistent with Jones and Schmuck. The court then went on to explain why they believe a Jones/Schmuck analysis favored the government.
It should be noted that the defense at trial:
used this distinction in his argument, and, contrary to the appellant’s lack of notice claim made on appeal, argued in the alternative for the lesser included offense which the appellant now attacks.
H/T to CAAFLog for posting the case before it went on the AFCCA website.