United States v. Fosler: CAAF holds Article 134 adultery sample specification fails to state offense
A divided CAAF held yesterday that a charge and specification of adultery that did not specifically allege a prejudice to good order and discipline or that the conduct was service discrediting failed to state an offense. The holding calls into question convictions in at least 45 Fosler trailer cases and, according to a dissenting and worried Judge Baker, potentially even convictions in cases long considered final.
Fosler began, as many adultery cases do, as a contested rape case. The accused was a lance corporal and a drill instructor at the Rota, Spain NJROTC when he was accused of sexually assaulting a sixteen-year-old high school student. The case ended, as many of these cases do, with an acquittal of the Article 120 charge and a conviction for adultery. At the conclusion of the government’s case in chief, the accused moved to dismiss the adultery charge (mistakenly under R.C.M. 917 rather than R.C.M. 907) for failure to state an offense. The military judge noted that the specification was based on the sample specification in the Manual and denied the motion. She instructed the members that they could convict the accused if they found the conduct to be prejudicial to good order and discipline or of a nature to bring discredit to the service.
Judge Stucky, joined by Judges Erdmann and Ryan, acknowledged at the outset that longstanding precedent permitted omission of the terminal element from Article 134 specifications, and that the sample specifications in the Manual typically do not contain the terminal element. Changes in the legal landscape, beginning with the Supreme Court case of Schmuck v. United States, 489 U.S. 705 (1989), and continuing through the Jones line of cases involving pleadings and LIOs, drove the break from precedent. Both the majority and the dissents framed the decisional issue the same way: does the language in the sample specification necessarily imply the terminal element of Article 134 adultery? To decide if the sample specification implied the terminal element, the court considered the language of wrongfulness, the possibility that adulterous conduct itself implies the terminal element, the force of historical practice and pleadings, and R.C.M. 307’s general provision that elements may be necessarily implied, asking if each, alone or together, implied the terminal element of Article 134. The majority also took into consideration that the terminal element in an Article 134 charge may be met in three distinct ways; that an act might be prejudicial to good order and discipline without being service discrediting, and vice-versa. The majority found that the sample specification does not necessarily imply the terminal element, and dismissed the charge and specification for failure to state an offense.
Chief Judge Effron and Judge Baker considered essentially the same factors as the majority, but each dissented. Judge Baker called the holding a potential “sea change in practice and law” and correctly pointed out that other charges, such as larceny, traditionally rely on pleadings much less definite than the sample specification for adultery. Judge Baker took the majority to task for leaving so many questions unanswered: What will happen to the host of Fosler trailers (45 by Judge Baker’s count)? What about guilty plea cases, since an accused can’t be convicted of a specification that isn’t an offense? How could waiver apply? Will this lead to several decades worth of cases being revisited on error coram nobis? And, almost breathlessly, “[h]as Article 134, UCMJ, lost its capacity to serve as a . . . fair and predictable tool to uphold good order and discipline? . . . Is Parker v. Levy . . . still good law?”
Well. I don’t know about all that. But he’s right to marvel at the venerable century oaks of case law precedent uprooted and tossed aside, red Lexis stop signs twisted around their trunks. And who knows what’s left of the 45 Fosler trailers. (I know. I should stop.) I’m not sure it’s going to be total devastation, though; the guilty plea trailer next door to Fosler could miraculously emerge unscathed, in spite of it all. My guess is that the government will plead the terminal element from now on–it’s already been recommended out of caution–and our practice will come back down more or less on its foundation. Remember Prather? You might not. Lots of broad language that kind of blew itself out in Medina. Time will tell.