United States v. Humphries

           UNITED STATES, Appellant and Cross-Appellee

                                    v.

                 Ryan D. HUMPHRIES, Senior Airman
           U.S. Air Force, Appellee and Cross-Appellant

                              No. 10-5004

                         Crim. App. No. 37491

       United States Court of Appeals for the Armed Forces

                       Argued February 13, 2012

                        Decided June 15, 2012

RYAN, J., delivered the opinion of the Court, in which ERDMANN,
J., and EFFRON, S.J., joined. BAKER, C.J., filed a dissenting
opinion. STUCKY, J., filed a dissenting opinion.


                                 Counsel

For Appellant and Cross-Appellee: Gerald R. Bruce, Esq.
(argued); Lieutenant Colonel Linell A. Letendre.

For Appellee and Cross-Appellant: Dwight H. Sullivan, Esq.
(argued); Major Michael S. Kerr (on brief).


Military Judge:   Grant L. Kratz




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Humphries, 10-5004/AF


     Judge RYAN delivered the opinion of the Court.

     Contrary to his pleas, a panel of officer and enlisted

members, sitting as a general court-martial, convicted Appellee

of consensual sodomy and of adultery, in violation of Articles

125 and 134, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 925

, 934 (2006).   The adjudged and approved sentence provided

for a bad-conduct discharge and reduction to the grade of E-1.

The United States Air Force Court of Criminal Appeals (AFCCA)

determined that a bad-conduct discharge was inappropriately

severe under the facts of the case.   On certification under

Article 67(a)(2), UCMJ, 

10 U.S.C. § 867

(a)(2) (2006), the Judge

Advocate General of the Air Force (TJAG) asked us to hold that

the AFCCA’s action was an impermissible exercise of appellate

clemency.1   In addition, on December 15, 2011, we granted

Appellee’s cross-petition to determine the following issue:

     WHETHER A CONTESTED ADULTERY SPECIFICATION THAT FAILS TO
     EXPRESSLY ALLEGE AN ARTICLE 134 TERMINAL ELEMENT BUT THAT




1
  On September 15, 2011, TJAG requested that action be taken with
respect to the following issue:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN
     FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER
     THE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN
     ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE
     CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE
     CONVENING AUTHORITY MAY APPROVE AN ADJUDGED SENTENCE NO
     GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A
     REDUCTION TO THE GRADE OF E-1.

                                 2
United States v. Humphries, 10-5004/AF


     WAS NOT CHALLENGED AT TRIAL STATES AN OFFENSE.2

     Appellee did not object to the form of the adultery

specification at trial.   Consistent with our recent decisions in

United States v. Fosler, 

70 M.J. 225

 (C.A.A.F. 2011), and United

States v. Ballan, 

71 M.J. 28

 (C.A.A.F. 2012), we hold that it

was error to omit the terminal element of Article 134, UCMJ,

from the adultery specification.       Because the law at the time of

trial was settled and clearly contrary, it is enough that the

error is plain now, and the error was forfeited rather than

waived.   See United States v. Harcrow, 

66 M.J. 154, 156-58

(C.A.A.F. 2008).   Applying the remainder of the plain error

test, we further hold that, under the particular facts of this

case, Appellee has shown material prejudice to a substantial

right -- his right to notice under the Fifth and Sixth

Amendments.   Given that we are dismissing the finding of guilty

to the Article 134, UCMJ, adultery charge, and returning the

record of trial to TJAG for remand to the AFCCA for reassessment

or, if necessary, for ordering a rehearing on the sentence, we

do not reach the certified issue.

                             I.    FACTS

     The events relevant to the decisional issue in this case

relate to a sexual encounter between Appellee, who was married

2
  United States v. Humphries, 

71 M.J. 6

 (C.A.A.F. 2011) (order
granting review).

                                   3
United States v. Humphries, 10-5004/AF


at the time, and AEH, a family friend of Appellee’s and the wife

of a deployed airman.   Relative to this incident, the Government

referred the following charges:    (1) one charge and one

specification of rape, in violation of Article 120, UCMJ, 

10 U.S.C. § 920

 (2006); (2) one charge and one specification each

of adultery and wrongfully communicating a threat, violations of

Article 134, UCMJ; and (3) one additional charge and one

specification of forcible sodomy on divers occasions, in

violation of Article 125, UCMJ.3       As charged, neither the

adultery specification nor the communicating a threat

specification alleged the terminal element of Article 134, UCMJ.

     At the close of the Article 39(a), 

10 U.S.C. § 839

(a)

(2006), session, the parties agreed to a slightly modified

charge sheet, admitted as the “flyer,” which still did not

allege the terminal element for the Article 134, UCMJ,

specifications.   Appellee pleaded not guilty to the charges and

specifications as described in the flyer.       There was no mention

of the terminal element of the Article 134, UCMJ, offenses

during the Article 39(a), UCMJ, session, during opening

statements, or at any point up until the military judge provided

the parties with his draft panel instructions.       In these

instructions, which were provided to the panel, the military

3
  Appellee was also charged with having committed similar
offenses with a second woman, but was acquitted of all conduct
relative to that incident.

                                   4
United States v. Humphries, 10-5004/AF


judge defined clauses 1 and 2 of the terminal element and listed

it as a necessary element of each Article 134, UCMJ, offense.

     Throughout the proceedings, the Government’s theory of

guilt was that Appellee had forcibly raped and sodomized AEH.

Even during closing arguments, the Government made only the

briefest mention of the adultery charge and specification and at

no point referenced the terminal element of Article 134, UCMJ.

     After deliberation, the panel convicted Appellee of

adultery, in violation of Article 134, UCMJ, and of consensual

sodomy, as a lesser included offense of the Article 125, UCMJ,

forcible sodomy charge.    The panel found Appellee not guilty of

rape and forcible sodomy.   Appellee’s sentence, which the

convening authority approved, was a bad-conduct discharge and

reduction to the grade of E-1.

     As relevant to the certified issue, the AFCCA found that

Appellee’s crimes were “aggravated by the fact that they were

committed:   (1) in base housing; (2) with the spouse of a

deployed service member; and (3) at a time when he was married

and the father of three minor children.”   United States v.

Humphries, No. ACM 37491, 

2010 CCA LEXIS 236

, at *7, 

2010 WL 2266324

, at *2 (A.F. Ct. Crim. App. May 24, 2010) (unpublished).

Nonetheless, it determined that “given the consensual nature of

his crimes, an unsuspended punitive discharge [was]

inappropriately severe.”    

2010 CCA LEXIS 236

, at *8, 

2010 WL

          5
United States v. Humphries, 10-5004/AF


226634, at *2.   While there is additional procedural history

relevant to the certified issue, it is not relevant to the

decisional issue in this case.

       II.   THE ARTICLE 134, UCMJ, ADULTERY SPECIFICATION

     “Whether a specification is defective and the remedy for

such error are questions of law, which we review de novo.”

Ballan, 

71 M.J. at 33

 (citing United States v. Crafter, 

64 M.J. 209, 211

 (C.A.A.F. 2006); United States v. Girouard, 

70 M.J. 5, 10

 (C.A.A.F. 2011)).

                              A.   Error

     The alleged error in this case, as in Ballan and Fosler, is

that the Article 134, UCMJ, specification was defective because

it failed to allege the terminal element of that offense.      See

id. at 34

; Fosler, 

70 M.J. at 232-33

.       As in those cases, the

specification at issue here was legally sufficient at the time

the case was referred (February 13, 2009) and tried (March

through May, 2009) and is “problematic today only because of

intervening changes in the law.”       Ballan, 

71 M.J. at 34

 n.4

(citing Fosler, 

70 M.J. at 232

; United States v. Mayo, 

12 M.J. 286, 293-94

 (C.M.A. 1982)).   Under current law, “the terminal

element of Article 134, UCMJ, like any element of any criminal

offense, must be separately charged and proven.”      Id. at 33.

And, “regardless of context, it is error to fail to allege the

terminal element of Article 134, UCMJ, expressly or by necessary

                                   6
United States v. Humphries, 10-5004/AF


implication.”   Id. at 34; see also Fosler, 

70 M.J. at 232

 (“The

Government must allege every element expressly or by necessary

implication, including the terminal element.”).   Although

Appellee did not object to the defective specification at trial,

this is hardly surprising, as any such objection would have been

futile based on the state of the law at the time of trial.

Where the law was settled at the time of trial and has

subsequently changed, we apply the law as it exists today.     See

Girouard, 

70 M.J. at 11

 (“Given ‘this legal and factual context,

defense counsel’s trial strategy could not be considered an

intentional relinquishment or abandonment’ of a known right.”

(quoting Harcrow, 

66 M.J. at 158

)).

                        B.   Applicable Test

                                 i.

     The existence of error alone does not dictate that relief

in the form of a dismissal is available.   While a specification

that fails to properly allege an element of a charged offense is

defective, and while such a defect affects constitutional

rights, it does not constitute structural error subject to

automatic dismissal.   See Girouard, 

70 M.J. at 11

; see also

Neder v. United States, 

527 U.S. 1, 8

 (1999) (“[W]e have found

an error to be ‘structural,’ and thus subject to automatic

reversal, only in a ‘very limited class of cases.’” (quoting

Johnson v. United States, 

520 U.S. 461, 468

 (1997))).

                                  7
United States v. Humphries, 10-5004/AF


                                ii.

     Nor does the apparently straightforward language of Rule

for Courts-Martial (R.C.M.) 907(b)(1)(B) -- which provides that

“[a] charge or specification shall be dismissed at any stage of

the proceedings if . . . [t]he specification fails to state an

offense” (emphasis added) -- survive the erosion of the legal

basis for its existence and thus mandate automatic dismissal of

a defective specification.   When this R.C.M. provision was

enacted, it was based on the then-existing version of Federal

Rules of Criminal Procedure 12(b)(2) and 34.   See Manual for

Courts-Martial, United States, Analysis of the Rules for Courts-

Martial app. 21 at A21-56 (2008 ed.) (MCM); see also Fed. R.

Crim. P. 12(b)(1), (2) advisory committee’s note (1944 adoption)

(establishing a set of objections and defenses, including

“failure of an indictment or information to state an offense,”

which if not raised by motion were nonetheless not waived).     At

that time, in accordance with Supreme Court precedent, where an

indictment was found defective for failing to list all elements

of an offense, it was necessarily dismissed on jurisdictional

grounds (regardless of when the error was raised).   Ex parte

Bain, 

121 U.S. 1, 13-14

 (1887) (holding that the lower court

lacked jurisdiction to render judgment due to defects in the

indictment).   Jurisdictional requirements were even more

stringent in the military context, where failure to allege a

                                 8
United States v. Humphries, 10-5004/AF


“service connection” stripped the military court of jurisdiction

and mandated dismissal.   O’Callahan v. Parker, 

395 U.S. 258, 272-73

 (1969); see also Relford v. Commandant, 

401 U.S. 355

,

367-69 (1971) (listing the factors to be considered in the

context of the “‘service-connected’ test”); MCM ch. XII para.

68b (1969 rev. ed) (“If the court lacks jurisdiction or if the

charges fail to allege any offense under the code, the

proceedings are a nullity.”); United States v. Alef, 

3 M.J. 414, 416

 (C.M.A. 1977); United States v. Sims, 

2 M.J. 109, 112

(C.M.A. 1977); United States v. Hedlund, 

2 M.J. 11, 13

 (C.M.A.

1976).

     In more recent history, however, “[b]ecause the

consequences that attach to the jurisdictional label may be so

drastic,” the Supreme Court has “tried in recent cases to bring

some discipline to the use of this term.”      Henderson v.

Shinseki, 

131 S. Ct. 1197, 1202

 (2011).       It has “urged that a

rule should not be referred to as jurisdictional unless it

governs a court’s adjudicatory capacity, that is, its subject-

matter or personal jurisdiction.       Other rules, even if important

and mandatory . . . should not be given the jurisdictional

brand.”4   

Id. at 1202-03

 (internal citations omitted).


4
  No one disagrees that in the absence of subject-matter
jurisdiction a charge must be dismissed. See, e.g, Gonzalez v.
Thaler, 

132 S. Ct. 641, 648

 (2012) (“[A] valid objection [to
subject-matter jurisdiction] may lead a court midway through

                                   9
United States v. Humphries, 10-5004/AF


     Moreover, the Supreme Court overtly reversed itself with

respect to the effect on jurisdiction of indictments that are

defective because they fail to allege elements, see, e.g.,

United States v. Cotton, 

535 U.S. 625, 631-32

 (2002) (overruling

Bain, 

121 U.S. 1

, “[i]nsofar as it held that a defective

indictment deprives a court of jurisdiction”), and those that

are defective because they fail to allege a “service

connection.”   Solorio v. United States, 

483 U.S. 435, 450-51

(1987) (overruling O’Callahan, 

395 U.S. 258

, and holding that

court-martial jurisdiction depends solely on the accused’s

status as a member of the armed forces).   Instead, the Court

subjected such error to a plain error analysis.   Cotton, 

535 U.S. at 631-32

.

                               iii.

     This Court’s precedent is consistent with the limits set by

the Supreme Court on the application of structural error and its

holding with respect to the nonjurisdictional status of

defective specifications.   A defective specification does not




briefing to dismiss a complaint in its entirety.”); Steel Co. v.
Citizens for a Better Env’t, 

523 U.S. 83, 94

 (1998) (“Without
jurisdiction the court cannot proceed at all in any cause.”
(quoting Ex parte McCardle, 

74 U.S. (7 Wall.) 506, 514

 (1868)
(quotation marks omitted))); R.C.M. 907(b)(1)(A) (it is a
nonwaivable ground for dismissal where “[t]he court-martial
lacks jurisdiction to try the accused for the offense”). And no
one suggests that the court-martial lacked either jurisdiction
over Appellee or jurisdiction over the offenses.

                                10
United States v. Humphries, 10-5004/AF


constitute structural error or warrant automatic dismissal.      An

accused’s claim that a charge fails to allege all elements of an

offense can be raised at any time during court-martial or

appellate proceedings.   See R.C.M. 907(b)(1)(B).   However, where

defects in a specification are raised for the first time on

appeal, dismissal of the affected charges or specifications will

depend on whether there is plain error -- which, in most cases,

will turn on the question of prejudice.5   Cotton, 

535 U.S. at 631-32

 (applying plain error review); United States v. Sinks,

473 F.3d 1315, 1320-21

 (10th Cir. 2007) (applying plain, not

harmless, error review); see also Ballan, 

71 M.J. at 34-36

;

Girouard, 

70 M.J. at 10-12

; United States v. Velasco-Medina, 

305 F.3d 839, 846-47

 (9th Cir. 2002); United States v. Rios-

Quintero, 

204 F.3d 214, 215-16

 (5th Cir. 2000); United States v.

Glick, 

142 F.3d 520

, 523 n.3 (2d Cir. 1998).


5
  In Fosler, a contested case where the military judge denied the
appellant’s motion to dismiss, “[t]he remedy for th[e]
erroneously denied motion to dismiss [was] dismissal.” 70 M.J.
at 233. Implicit in this determination was our application of
the harmless error test and finding that the government had
failed to demonstrate that the constitutional error in that case
was harmless beyond a reasonable doubt. Id. at 230 (the error
was a deficient specification, and principles of fair notice
require that “[a]n accused must be given notice as to which
clause or clauses he must defend against”); see, e.g., Neder,

527 U.S. at 8

 (only a “very limited class of cases” involving
“structural” error are “subject to automatic reversal”; “there
is a strong presumption that any other [constitutional] errors
that may have occurred are subject to harmless-error analysis”
(quotations marks and citations omitted)); Chapman v.
California, 

386 U.S. 18, 22

 (1967).

                                11
United States v. Humphries, 10-5004/AF


                         C.   Plain Error Review

                                   i.

        In the context of a plain error analysis of defective

indictments, “[the] [a]ppellant 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.”    Girouard, 

70 M.J. at 11

 (citing United States v.

Powell, 

49 M.J. 460, 463-65

 (C.A.A.F. 1998)); see also Cotton,

535 U.S. at 631-32

; United States v. Paige, 

67 M.J. 442, 449

(C.A.A.F. 2009); United States v. Maynard, 

66 M.J. 242, 244

(C.A.A.F. 2008) (citing United States v. Hardison, 

64 M.J. 279, 281

 (C.A.A.F. 2007)); United States v. Carter, 

61 M.J. 30, 33

(C.A.A.F. 2005); United States v. Carpenter, 

51 M.J. 393, 396

(C.A.A.F. 1999).    “The standard that we apply here is the

constitutional [error] standard as it has been articulated by

this [C]ourt in plain error cases since [Powell, 

49 M.J. 465

n.*].”    Paige, 

67 M.J. at 449

 n.7 (citing, as examples, Harcrow,

66 M.J. at 160

; United States v. Brewer, 

61 M.J. 425, 432

(C.A.A.F. 2005); Carpenter, 

51 M.J. at 396

).

        The statutory basis for this Court’s standard is Article

59(a), UCMJ, 

10 U.S.C. § 859

(a) (2006), which states:    “A

finding or sentence of court-martial may not be held incorrect

on the ground of an error of law unless the error materially




                                  12
United States v. Humphries, 10-5004/AF


prejudices the substantial rights of the accused.”6   Where an

error of law materially prejudices a substantial right, either

this Court or the CCA may notice the error, keeping in mind the

need “to encourage timely objections and reduce wasteful

reversals;” and to “respect the particular importance of the

finality of guilty pleas.”   United States v. Dominguez-Benitez,

542 U.S. 74, 82

 (2004).

     Nothing in Article 59(a), UCMJ, mandates reversal even

where an error falls within its terms.   Powell, 

49 M.J. at 465

.

In our view the statutory text of Article 59(a), UCMJ, with the

high threshold of “material[] prejudice” to a “substantial

right” and discretion to redress error, when considered in light

of the principles the Supreme Court has articulated in its

consideration of a different rule, preserves the “careful

balance . . . between judicial efficiency and the redress of

injustice.”   Puckett v. United States, 

556 U.S. 129, 135

 (2009).

6
  The statutory basis for the Supreme Court’s standard,
meanwhile, is Federal Rule of Criminal Procedure 52(b), which,
at the time of United States v. Olano, 

507 U.S. 725, 731-38

(1993), required only that an error “‘affect[] substantial
rights,’” 

id.

 at 732 (quoting Fed. R. Crim. P. 52(b) (1944)), a
less onerous standard by its terms. Fed. R. Crim. P. 52(b) was
amended, effective Dec. 1, 2002. It now reads, “A plain error
that affects substantial rights may be considered even though it
was not brought to the court’s attention.” The Notes of
Advisory Committee on 2002 Amendments state that “[t]he change
was intended to remove any ambiguity in the rule” and to conform
it with Supreme Court precedent. Fed. R. Crim. P. 52(b)
advisory committee’s note (citing Olano, 

507 U.S. at 732

; United
States v. Young, 

470 U.S. 1

, 15 n.12 (1985)).

                                13
United States v. Humphries, 10-5004/AF


                                 ii.

     We turn, then, to the application of plain error review in

this case, having already held that under the law as it exists

today, it was plain and obvious error for the Government to fail

to allege the terminal element of Article 134, UCMJ, in the

adultery specification.   See Ballan, 

71 M.J. at 34-35

; 

id.

 at 34

n.4 (citing Fosler, 

70 M.J. at 232

, as having overruled Mayo, 

12 M.J. at 293-94

); see also Johnson, 

520 U.S. at 468

 (finding

plain and obvious error by applying the law at the time of

appeal); United States v. Sweeney, 

70 M.J. 296, 304

 (C.A.A.F.

2011) (same).

     Having found plain and obvious error that was forfeited

rather than waived, the remaining question is “whether there is

a remedy for the error,” which “will depend on whether the error

has prejudiced the substantial rights of the accused.”   Ballan,

71 M.J. at 30

 (citing Article 59, UCMJ); see also Puckett, 

556 U.S. at 142

.

     The error here -- that Appellee, in a contested case, was

charged with and convicted of a specification that failed to

allege an element of the offense charged -- implicates

Appellee’s substantial right to notice under the Fifth and Sixth

Amendments.    See Girouard, 

70 M.J. at 10

 (“Both [the Fifth and

Sixth] amendments ensure the right of an accused to receive fair

notice of what he is being charged with.”); see also Fosler, 70

                                 14
United States v. Humphries, 10-5004/AF


M.J at 232-33 (noting that, in the context of lesser included

offenses, “constitutional notice requirements no longer permit[]

such broad implication of the terminal element,” and imposing

similar limits on implying the terminal element in cases

involving charged violations of Article 134, UCMJ).    The

question, then, is whether the defective specification resulted

in material prejudice to Appellee’s substantial right to notice.

See Article 59(a), UCMJ.

     In Ballan, a guilty plea case where there was no objection

at court-martial, we applied plain error review and held that it

was error for the military judge to accept the appellant’s plea

of guilty to a specification that failed to allege an element of

the offense charged.   71 M.J. at 34-35.    But, despite the error,

we held that there was no material prejudice to the appellant’s

substantial right to notice.   Id. at 35.    This is a conclusion,

which, as a result of the unique requirements for accepting a

guilty plea in the military context, will likely be true in most

factually comparable cases (although each case must still be

tested for prejudice).   See United States v. Nealy, 

71 M.J. 73, 77-78

 (C.A.A.F. 2012); Ballan, 

71 M.J. at 34-35

.     The same

contextual analysis is required in contested cases like Fosler,

where the error was preserved -- each case must be reviewed for

harmless error to determine whether the constitutional error was

harmless beyond a reasonable doubt.   See supra note 5.

                                15
United States v. Humphries, 10-5004/AF


     The prejudice analysis in cases like Appellee’s is more

nuanced than in Ballan or Fosler:     the protections afforded in

the context of a military guilty plea inquiry are absent, as are

the inherent difficulties of proving that a constitutional error

is harmless beyond a reasonable doubt.     As a result, such cases

demand close review of the trial record.     See Girouard, 

70 M.J. at 11-12

.   After such review, we find that under the totality of

the circumstances in this case, the Government’s error in

failing to plead the terminal element of Article 134, UCMJ,

resulted in material prejudice to Appellee’s substantial,

constitutional right to notice.7     See id.; McMurrin, 70 M.J. at

19-20; see also Fosler, 70 M.J at 229.




7
  We disagree that Dominguez-Benitez, 

542 U.S. 74

, which held
that the prejudice burden in the federal system “requir[es] the
showing of ‘a reasonable probability that, but for [the error
claimed], the result of the proceeding would have been
different,’” 

id.

 at 82 (quoting United States v. Bagley, 

473 U.S. 667, 682

 (1985)), controls this case. In the first
instance, that case is interpreting a federal rule, not applying
Article 59(a), UCMJ. Moreover, even if it were, the Supreme
Court specifically noted that such a standard was appropriate:
(1) “to encourage timely objections and reduce wasteful
reversals;” (2) to “respect the particular importance of the
finality of guilty pleas;” and (3) where “the violation claimed
was of [a Federal Rule of Criminal Procedure], not of due
process.” Id. at 82-83. Dominguez-Benitez is inapposite given
that: (1) any objection by Appellee at trial would have been
futile based on the law at the time -- which also alleviates the
“sandbagging” concerns noted in Puckett, 

556 U.S. at 134

; (2)
this is a contested case, not a guilty plea case; and (3) the
rights at issue are constitutional.

                                16
United States v. Humphries, 10-5004/AF


                                iii.

       Mindful that in the plain error context the defective

specification alone is insufficient to constitute substantial

prejudice to a material right, see Puckett, 

556 U.S. at 142

;

Cotton, 

535 U.S. at 631-32

, we look to the record to determine

whether notice of the missing element is somewhere extant in the

trial record, or whether the element is “essentially

uncontroverted.” Cotton, 

535 U.S. at 633

; Johnson, 

520 U.S. at 470

.   On this record, there is no such notice, and the missing

element was controverted.   This is particularly problematic in

the context of an Article 134, UCMJ, offense, which allows

several theories of criminality:      “[A]lthough the terms Congress

chose for [Article 134, UCMJ] are broad, what is general is made

specific 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. Jones, 

68 M.J. 465, 472

 (C.A.A.F.

2010) (citing Parker v. Levy, 

417 U.S. 733, 756

 (1974)).

Neither the specification nor the record provides notice of

which terminal element or theory of criminality the Government

pursued in this case.

       In its opening statement, the Government never mentioned

the adultery charge -- let alone how Appellee’s conduct

satisfied either clause 1 or 2 of the terminal element of

                                 17
United States v. Humphries, 10-5004/AF


Article 134, UCMJ.8   The Government also did not present any

specific evidence or call a single witness to testify as to why

Appellee’s conduct satisfied either clause 1, clause 2, or both

clauses of the terminal element of Article 134, UCMJ.    The

Government also made no attempt to tie any of the evidence or

witnesses that it did call to the Article 134, UCMJ, adultery

charge.   Although the military judge’s panel instructions

correctly listed and defined the terminal element of Article

134, UCMJ, as an element of the adultery specification, this

came after the close of evidence and, again, did not alert

Appellee to the Government’s theory of guilt.   See Fosler, 

70 M.J. at 230

 (“The three clauses of Article 134 constitute three

distinct and separate parts.   Violation of one clause does not

necessarily lead to a violation of the other clauses.”


8
  The issue in this case -- whether Appellee was prejudiced by
the Government’s failure to allege the terminal element of an
Article 134, UCMJ, charge -- should not be confused with the
issue in United States v. Phillips, 

70 M.J. 161

 (C.A.A.F. 2011)
(addressing whether evidence was legally sufficient to support a
finding of guilty as to a properly pleaded Article 134, UCMJ,
specification). Specifically, while the Government here
presented evidence during the proceedings from which a
reasonable trier of fact could conclude that Appellee’s conduct
satisfied either clause 1 or 2 of the terminal element of
Article 134, UCMJ, see Humphries, 

2010 CCA LEXIS 236

, at *7,

2010 WL 2266324

, at *2 (listing aggravating factors), that
answers a quite different question than whether Appellee was on
notice of the Government’s theory of guilt with respect to the
terminal element in this case. Were legal sufficiency enough,
the purpose of retroactivity -- “the principle of treating
similarly situated defendants the same,” Griffith v. United
States, 

479 U.S. 314, 323

 (1987) -- would be undermined.

                                18
United States v. Humphries, 10-5004/AF


(quotation marks and citation omitted)); 

id.

 (principles of fair

notice require that “[a]n accused must be given notice as to

which clause or clauses he must defend against”).

        The Government’s only direct discussion of the adultery

specification at issue came during its closing argument when

counsel stated the following:    “[I]f you are unpersuaded as to

what happened between the accused and [AEH], one thing is for

sure.    That this married man had sex with [AEH].   Members, that

constitutes adultery.”    This statement provides the lay

definition of adultery, but does not provide constitutional

notice of the elements of the Article 134, UCMJ, offense of

adultery.9    Specifically, it fails to provide Appellee with

notice of which clause of the terminal element of Article 134,

UCMJ -- the element that was missing from the specification and

which, in turn, makes the action described criminal -- the

Government relied on.

                                  iv.

        In sum, the Government did not plead the terminal element

of Article 134, UCMJ, and, after a close reading of the trial

record, there was nothing during its case-in-chief that

reasonably placed Appellee on notice of the Government’s theory

as to which clause(s) of the terminal element of Article 134,

9
  Assuming, even, that such notice could be sufficient at this
point in the proceeding.

                                  19
United States v. Humphries, 10-5004/AF


UCMJ, he had violated.   See Girouard, 

70 M.J. at 11

 (noting that

the case was not tried on the theory under which the appellant

was convicted).   Nor is Appellee’s assertion during closing

arguments that the Government had failed to present evidence

that his conduct was prejudicial to good order and discipline or

service discrediting sufficient for this Court to find either

that the charging error was cured, or that the prejudice from

that error was dissipated.   Appellee was not on notice of

whether he needed to defend against this charge on the basis

that his conduct was not service discrediting, not prejudicial

to good order and discipline, both, or neither.   See Fosler, 

70 M.J. at 230

 (finding constitutional notice deficient because the

appellant could not know which theory of criminality he needed

to defend against); Girouard, 

70 M.J. at 11

 (noting that the

appellant had not defended against the charge on the theory

under which he was convicted).   But see Ballan, 

71 M.J. at 34

n.7 (noting that prejudice from the charging error highlighted

in Fosler, 

70 M.J. 230

, and United States v. Medina, 

66 M.J. 21, 26

 (C.A.A.F. 2008), was not present where the unique

requirements for acceptance of a guilty plea safeguarded against

prejudice to the substantial right to notice).

     No single fact or lacuna in the record itself definitively

demonstrates material prejudice to the substantial right to

constitutional notice implicated by the charging error.   Under

                                 20
United States v. Humphries, 10-5004/AF


the totality of the circumstances in this case, however, the

error in the Article 134, UCMJ, specification was not cured by

the Government in any respect in the course of trial, as there

is not a single mention of the missing element, or of which

theory of guilt the Government was pursuing, anywhere in the

trial record.10   Compare Girouard, 70 M.J. at 11-12 (finding

prejudice on plain error review), with Ballan, 

71 M.J. at 35-36

(finding no prejudice on plain error review where “any notice

issues or potential for prejudice [were] cured while there [was]

still ample opportunity . . . for a change in tactics”).   And,

while the mere showing of error cannot be “recast[]” as the

effect on substantial rights, Puckett, 

556 U.S. at 142

, nor can

the certain error, failure to allege an element, be conflated

with the constitutional prejudice, lack of notice --

particularly in the context of Article 134, UCMJ, where the

missing element represents alternative theories of criminal

liability.   See Fosler, 

70 M.J. at 230

.

10
  To be clear, it is Appellee’s burden to prove material
prejudice to a substantial right, see Girouard, 

70 M.J. at 11

,
and Appellee has not provided an exemplary brief in support of
this point. However, even from a cursory review of the record,
the material prejudice to the substantial right to
constitutional notice in this case is blatantly obvious, in
large part because it appears the charge was, as Appellee argued
at trial, a “throw away charge[].” While the convening
authority was authorized to refer it, the Government essentially
ignored the adultery charge at trial insofar as they did not
even mention it until a cursory reference during their closing
argument.

                                 21
United States v. Humphries, 10-5004/AF


                         III.    DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed in part.    That portion of the

decision affirming Appellee’s conviction of Charge II,

Specification 1, is reversed.   The finding of guilty to that

charge and specification is set aside, and the charge and

specification are dismissed.    The record of trial is returned to

the Judge Advocate General of the Air Force for remand to the

Court of Criminal Appeals for reassessment of the sentence, or,

if necessary, for ordering a rehearing on the sentence.




                                 22
United States v. Humphries, No. 10-5004/AF


     BAKER, Chief Judge (dissenting):

     I adhere to my position in United States v. Fosler, 

70 M.J. 225

 (C.A.A.F. 2011) (Baker, J., dissenting), and

United States v. Ballan, 

71 M.J. 28

 (C.A.A.F. 2012) (Baker,

J., concurring in the result).   “A specification is

sufficient to allege an offense if ‘it contains the

elements of the offense intended to be charged, including

words importing criminality or an allegation as to intent

or state of mind where this is necessary.’”   Fosler, 

70 M.J. at 244

 (Baker, J. dissenting) (quoting United States

v. Tindoll, 

16 C.M.A. 194, 195

, 

36 C.M.R. 350, 351

 (1966)).

Here, as in Fosler, the specification was pleaded under

Article 134, UCMJ, 

10 U.S.C. § 934

 (2006), and alleged that

a married man wrongfully engaged in sexual intercourse with

a woman not his wife.   I reiterate the point I made in

Fosler:

     Outside the military context, words of
     criminality alone might not provide such notice.
     In the military, however, not all adultery is or
     should be criminalized. . . . In the military,
     the offense of adultery can only be prosecuted if
     it offends good order and discipline or is
     service discrediting. Thus, this specification
     was more than sufficient to meet the
     constitutional requirement.

70 M.J. at 244.   “Fair notice under the due process clause,

which is surely demonstrated by actual notice, is satisfied

whether that notice comes in the form of the plea colloquy,
United States v. Humphries, No. 10-5004/AF


mutual agreement between the parties, or by judicial

determination before or during the trial.”   Ballan, 

71 M.J. at 37

 (Baker, J., concurring in the result).

     Appellee was on notice that his conduct was charged

under Article 134(1), (2), or both.   Moreover, this is a

textbook case for why adultery in the military is subject

to criminal sanction and can be both service discrediting

and undermine good order and discipline:   the acts occurred

in base housing; the acts occurred with the spouse of a

deployed servicemember; the allegations caused AEH’s

deployed spouse to return home; Appellee was the father of

three minor children; AEH was the mother of two minor

children; AEH’s children were present and one witnessed

Appellee trying to kiss AEH; and the evening involved heavy

quantities of alcohol, which Appellee brought to the home.

Furthermore, even were I to agree with the majority that

there was error in the drafting of the adultery

specification at issue here, it remains far from “blatantly

obvious” how Appellee was prejudiced in the preparation of

his defense in this case.   United States v. Humphries, __

M.J. __ (21 n.10) (C.A.A.F. 2012).

     In light of my position based on Fosler that there was

no error here, I therefore must address the underlying

issues behind the question certified to this Court.    The


                              2
United States v. Humphries, No. 10-5004/AF


first issue is whether this Court has jurisdiction to

review a Court of Criminal Appeals opinion where the Court

of Criminal Appeals has purported to rule on the basis of

sentence appropriateness.   On the one hand, sentence

appropriateness review is a discretionary grant of

authority provided to the Courts of Criminal Appeals.

These courts have broad authority to review or modify

sentences:   “[T]he Court of Criminal Appeals . . . . may

affirm only such findings of guilty, and the sentence or

such part or amount of the sentence, as it finds correct in

law and fact and determines, on the basis of the entire

record, should be approved.”   Article 66(c), UCMJ, 

10 U.S.C. § 866

(c) (2006).

     On the other hand, in United States v. Nerad, this

Court recognized that in certain contexts the exercise by a

Court of Criminal Appeals of sentence appropriateness could

raise questions of law reviewable by this court.

     While the [Court of Criminal Appeals] clearly has
     the authority to disapprove part or all of the
     sentence and findings, nothing suggests that
     Congress intended to provide the [Courts of
     Criminal Appeals] with unfettered discretion to
     do so for any reason, for no reason, or on
     equitable grounds, which is a function of command
     prerogative.

69 M.J. 138, 145

 (C.A.A.F. 2010).   “[T]he statutory phrase

‘should be approved’ does not involve a grant of unfettered



                               3
United States v. Humphries, No. 10-5004/AF


discretion but instead sets forth a legal standard subject

to appellate review.”    

Id. at 146

 (citations omitted).

     Where, for example, the exercise of such authority

results in “obvious miscarriages of justice or abuses of

discretion,” we may review whether a sentence “should be

approved.”   United States v. Tardif, 

57 M.J. 219, 223-24

(C.A.A.F. 2002).   This mimics other areas of the law that

at first glance appear to be rooted in fact or discretion,

but otherwise present reviewable questions of law when

exercised in an arbitrary manner.   Thus, for example, facts

-- which are ordinarily outside the scope of this Court’s

jurisdiction -- are reviewed for an abuse of discretion and

may be reversed where they are clearly erroneous.

Similarly, notwithstanding the Court of Criminal Appeals’

sentence review authority, where a sentencing disparity

results, this Court will review sentences in similarly

situated cases for “obvious miscarriages of justice or

abuses of discretion.”   United States v. Lacy, 

50 M.J. 286, 288

 (C.A.A.F. 1999) (quotation marks and citations

omitted).

     Ultimately, however, I do not need to reach a decision

as to whether and when this court can or should review a

Court of Criminal Appeals’ exercise of sentence

appropriateness, because it is not clear on what basis the


                               4
United States v. Humphries, No. 10-5004/AF


lower court in fact remanded Appellee’s case to the

convening authority for a new action.   The language used is

cast as an exercise in sentence appropriateness.   However,

if the Court of Criminal Appeals was exercising its

sentence appropriateness power, then there would be no need

to remand to the convening authority for a new action, for

the review of a sentence for appropriateness is an

authority granted to the Court of Criminal Appeals, not the

convening authority.   Thus, it would appear if actions

speak louder than words, this case was not remanded on the

basis of sentence appropriateness.

     However, if the Court of Criminal Appeals was seeking

to accomplish an appropriateness end to which it did not

itself have the authority to reach -- suspension of a bad-

conduct discharge -- then it was acting beyond its legal

authority.    Whether a court has legal authority to act

clearly presents a question of law subject to review by

this Court.   The Court of Criminal Appeals cannot direct

the manner in which the convening authority exercises his

or her independent clemency power under the guise of

sentence appropriateness.

     However, in this case it did not do so.    The plain

language of the lower court’s remand indicates that it was

providing the convening authority an opportunity to


                               5
United States v. Humphries, No. 10-5004/AF


reconsider his earlier action.     But if so, on what basis

did the Court of Criminal Appeals act if not under its

appropriateness power?    Does the Court of Criminal Appeals

have the authority to require the convening authority to

reconsider actions in the absence of legal or factual

error?   If so, it has not articulated this authority in its

opinion.

     Therefore, rather than decide this case on the basis

of Fosler, I would remand this case to the Court of

Criminal Appeals for a new review.    In the event the Court

of Criminal Appeals sets aside the convening authority’s

original action and remands for a new action, it should

specify with clarity the basis for doing so.    In the event

it disapproves the bad-conduct discharge as a matter of

sentence appropriateness, it should indicate why such

action does not amount to a miscarriage of justice in a

case where the accused received far less than the maximum

allowable sentence and where all of the factors relevant to

sentence appropriateness for this act of adultery appear to

be aggravating factors.




                               6
United States v. Humphries, No. 10-5004/AF


     STUCKY, Judge (dissenting):

     Appellee and Cross-Appellant, Senior Airman Humphries,

failed to demonstrate that the failure of the adultery

specification to allege the terminal element was plain error.     I

would further hold that the United States Air Force Court of

Criminal Appeals (CCA) was without authority to remand the case

to the convening authority with directions to approve a sentence

not to exceed what the CCA thought appropriate.    Therefore, I

respectfully dissent.

                        I.   The Specification

     The specification in question (Charge II, Specification 1)

alleged the following under Article 134, Uniform Code of

Military Justice (UCMJ), 

10 U.S.C. § 934

 (2006):

     In that SENIOR AIRMAN RYAN D. HUMPHRIES, United States
     Air Force, 7th Aircraft Maintenance Squadron, Dyess
     Air Force Base, Texas, a married man, did, at or near
     Dyess Air Force Base, Texas, on or about 2 February
     2005, wrongfully have sexual intercourse with [AH], a
     woman not his wife.

Appellee pled not guilty but did not object to the specification

at trial.   Whether the specification is defective and the

appropriate remedy for such a defect are matters of law we

review de novo.    United States v. Ballan, 

71 M.J. 28, 33

(C.A.A.F. 2012).   When, as here, an appellant alleges for the

first time on appeal that a specification fails to state an

offense because it does not contain every element of the
United States v. Humphries, No. 10-5004/AF


offense, we review for plain error.    

Id.

 at 34 (citing United

States v. Cotton, 

535 U.S. 625

, 631–32 (2002)).

                         II.    Plain Error

     The plain error doctrine “reflects a careful balancing of

our need to encourage all trial participants to seek a fair and

accurate trial the first time around against our insistence that

obvious injustice be promptly redressed.”     United States v.

Frady, 

456 U.S. 152, 163

 (1982), quoted in United States v.

Young, 

470 U.S. 1

, 15–16 (1985).

     There are four elements to the Supreme Court’s plain error

doctrine.   The appellant has the burden of establishing the

first three:   (1) there was error; (2) the error was “clear or

obvious, rather than subject to reasonable dispute”; and (3) the

error “affected the appellant’s substantial rights, which in the

ordinary case means . . . ‘it affected the outcome of the

district court proceedings.’”    Puckett v. United States, 

556 U.S. 129, 135

 (2009) (quoting United States v. Olano, 

507 U.S. 725, 734

 (1993)); see Cotton, 

535 U.S. at 631

.     “Fourth and

finally, if the above three prongs are satisfied, the court of

appeals has the discretion to remedy the error -- discretion

which ought to be exercised only if the error seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.”   Puckett, 

556 U.S. at 135

 (alteration in

original) (quotation marks and citation omitted).    The Supreme


                                   2
United States v. Humphries, No. 10-5004/AF


Court has admonished lower courts that “any unwarranted

extension” of the plain error doctrine “would disturb the

careful balance it strikes between judicial efficiency and the

redress of injustice.”   

Id.

 (quotation marks and citations

omitted); see also United States v. Marcus, 

130 S. Ct. 2159

,

2164 (2010) (“Lower courts, of course, must apply the Rule as

this Court has interpreted it.”).

     There is some disagreement about the application of the

plain error doctrine in the military.   See United States v.

Girouard, 

70 M.J. 5

, 11 n.7 (C.A.A.F. 2011); United States v.

Flores, 

69 M.J. 366, 373

 (C.A.A.F. 2011) (Stucky, J., dissenting

in part and concurring in the result); United States v. Paige,

67 M.J. 442, 452

 (C.A.A.F. 2009) (Stucky, J., dissenting in part

and concurring in the result).   We originally adopted the

Supreme Court’s plain error test.    See United States v. Fisher,

21 M.J. 327

 (C.M.A. 1986).

          In order to constitute plain error, the error must not
     only be both obvious and substantial, it must also have
     “had an unfair prejudicial impact on the jury’s
     deliberations.” [Young, 

470 U.S. at 16

 n.14]. The plain
     error doctrine is invoked to rectify those errors that
     “seriously affect the fairness, integrity or public
     reputation of judicial proceedings,” United States v.
     Atkinson, 

297 U.S. 157, 160

 (1936). As a consequence, it
     “is to be used sparingly, solely in those circumstances in
     which a miscarriage of justice would otherwise result.”
     [Frady, 

456 U.S. at 163

 n.14].

Id.

 at 328–29.




                                 3
United States v. Humphries, No. 10-5004/AF


      In United States v. Powell, however, we created a military

plain error doctrine because we concluded that the Supreme

Court’s doctrine was based on rules that do not apply to

appellate courts within the military justice system.      

49 M.J. 460

, 463–65 (C.A.A.F. 1998).      We focused on two differences in

the systems -- applicability of the Supreme Court’s third and

fourth prongs.

                          A.    The Third Prong

      The third prong of the Supreme Court’s plain error test --

that the clear or obvious error “affect[ed] substantial rights”

-- was derived from Fed. R. Crim. P. 52(b); but the federal

rules do not apply to the military justice system.      

Id.

 at 463–

64.   A finding or sentence of a court-martial, on the other

hand, “may not be held incorrect on the ground of an error of

law unless the error materially prejudices the substantial

rights of the accused.”    Article 59(a), UCMJ, 

10 U.S.C. § 859

(a)

(2006) (emphasis added).       We concluded that “materially

prejudices” sets a higher threshold for overturning convictions

and sentences than does “affect[s] substantial rights.”        Powell,

49 M.J. at 465

.   We nevertheless approved the Fisher

understanding of “materially prejudices the substantial rights

of the accused” -- that the “plain error have ‘an unfair

prejudicial impact on the jury’s deliberations.’”      

Id.

 (quoting

Fisher, 

21 M.J. at 328

); see United States v. Bresnahan, 

62 M.J.

                 4
United States v. Humphries, No. 10-5004/AF


137, 146 (C.A.A.F. 2005) (defining plain error as error that was

plain and obvious and resulted in an “unfair prejudicial impact

on the [members’] deliberations”) (alteration in original)

(citation omitted).   Meanwhile, the Supreme Court defined the

third prong in a manner consistent with our holdings in Powell

and Fisher -- the appellant must demonstrate “‘a reasonable

probability that, but for [the error claimed], the result of the

proceeding would have been different.’”    United States v.

Dominguez Benitez, 

542 U.S. 74, 81-82

 (2004) (quoting United

States v. Bagley, 

473 U.S. 667, 682

 (1985) (opinion of Blackmun,

J.) (alteration in original); accord Marcus, 130 S. Ct. at 2164

(“a reasonable probability that the error affected the outcome

of the trial”).

                       B.   The Fourth Prong

     We asserted in Powell that the fourth prong of the Supreme

Court’s plain error test -- “that an appellate court should not

correct a plain error unless the error ‘seriously affects the

fairness, integrity, or public reputation of judicial

proceedings’” -- “applies only to courts exercising

discretionary powers of review.”1    

49 M.J. at 465

 (quoting

Johnson v. United States, 

520 U.S. 461, 467

 (1997)).    In

reviewing this case, this Court is exercising its discretionary


1
  I would go further and hold that the Supreme Court’s four-prong
plain error test applies to the Courts of Criminal Appeals.

                                 5
United States v. Humphries, No. 10-5004/AF


powers of review.   See Article 67(a)(3), UCMJ, 

10 U.S.C. § 867

(a)(3) (2006).   Therefore, we should not overturn

Appellee’s convictions unless the error “seriously affects the

fairness, integrity, or public reputation of judicial

proceedings.”    Johnson, 

520 U.S. at 467

 (quotation marks and

citations omitted).

                            C.   Discussion

     I agree with the majority that the failure of the

specification to allege an essential element of the offense was

obvious error.   But I conclude that (1) Appellee failed to

establish that the error resulted in material prejudice to his

substantial rights; and (2) the error did not seriously affect

the fairness, integrity, or public reputation of the

proceedings.

     Appellee asserts that he was prejudiced because he was

“convicted of an obviously defective specification,” and by the

misleading nature of the record of conviction.   But that is the

error, or its possible effect, not the prejudice as defined in

the plain error doctrine.

     The majority concludes that the material prejudice to

Appellee’s substantial right was his constitutional right to

notice under the Fifth and Sixth Amendments.   United States v.

Humphries, __ M.J. __ (14) (C.A.A.F. 2012).    But, again, “that

is simply an ipse dixit recasting the conceded error -- [failure


                                   6
United States v. Humphries, No. 10-5004/AF


of the specification to give notice] -- as the [material

prejudice to] substantial rights.”     See Puckett, 

556 U.S. at 142

.

        To show prejudice, Appellee would have to demonstrate that

the error -- the lack of notice -- impaired his ability to

defend against the specification such that it had an unfair

prejudicial impact on the factfinder’s deliberations.    Fisher,

21 M.J. at 328

; accord Bresnahan, 

62 M.J. at 146

; Powell, 

49 M.J. at 465

; see Marcus, 130 S. Ct. at 2164.     This he has not

done.    Appellee has not alleged either that he lacked such

notice or that his ability to defend against the adultery

allegation was impaired.2    If Appellee has the burden of

demonstrating that the failure of notice somehow impaired his

ability to defend against the specification, we should require,

at a minimum, that he allege that it did so.    See United States

v. Washington, 

653 F.3d 1251, 1260

 (10th Cir. 2011), cert.

denied, 

132 S. Ct. 1039

 (2012).

        The majority concedes that Appellee has the burden but

ultimately lets him off the hook by suggesting that the


2
  This case demonstrates the difference between preserving an
issue for appeal by objecting at trial and raising the issue for
the first time on appeal. In United States v. Fosler, the
appellant preserved the issue by objecting to the specification
at trial. 

70 M.J. 225

 (C.A.A.F. 2011). Therefore, the burden
was on the government to show that the failure to allege all the
elements of the offense was harmless. The government was unable
to do so.

                                   7
United States v. Humphries, No. 10-5004/AF


Government had a burden of curing the error at trial.

Humphries, __ M.J. __ (19–21 & n.10).   Without further

explanation or analysis, the majority concludes that “even from

a cursory review of the record, the material prejudice to the

substantial right to constitutional notice in this case is

blatantly obvious, in large part because it appears the charge

was, as Appellee argued at trial, ‘a throw away charge.’”3   

Id.

at 21 n.10.

     Appellee was represented at trial by two military defense

counsel, one of whom was a senior defense counsel, each

qualified and certified under Article 27(b), UCMJ, 

10 U.S.C. § 827

(b) (2006), to represent accuseds in general courts-

martial.   As this was a general court-martial, it was preceded

by an Article 32, UCMJ, 

10 U.S.C. § 832

 (2006), investigation.

Appellee and his defense counsel were provided with copies of

the investigating officer’s report, which spelled out the

elements of the offense of adultery, including that such conduct

was prejudicial to good order and discipline or was of a nature

to bring discredit upon the armed forces.    Appellee’s closing

argument further demonstrates that he was fully aware of the

elements of the offense against which he had to defend.


3
  The majority does not define the term “throw-away charge.”
Apparently, it is an offense for which the evidence is legally
sufficient for conviction but one the majority would not have
charged if they were the convening authority.

                                 8
United States v. Humphries, No. 10-5004/AF


     Consider the husband’s overseas but consider that this was
     not open and notorious. Either one of these is not open
     and notorious, not service discrediting. Have they put any
     evidence before you that somehow that the unit fell apart
     because either one of these incidents ever occurred? Well
     certainly it couldn’t have been service discrediting with
     [S], because that never happened. And if he was the one
     that was with Ms. [H], was there any prejudice to good
     order and discipline? They haven’t shown that.

          There was no prejudice to good order and discipline,
     those are throw away charges and I ask you to do just that.
     Throw them away.

     Even assuming Appellee could show prejudice, we should

apply the fourth prong to Appellee’s case.      Powell, 

49 M.J. at 465

; see Fisher, 

21 M.J. at 328

.       In light of the military’s

long history of not requiring the terminal element to be pled in

Article 134 specifications, Appellee’s representation by two

qualified and certified military defense counsel, Appellee’s

failure to allege any cognizable prejudice, and the quality of

the evidence establishing that Appellee’s conduct was

prejudicial to good order and discipline,4 the error in omitting

the terminal element from the specification did not seriously

affect the fairness, integrity, or public reputation of judicial

proceedings.

4
  Appellee had sexual intercourse with the wife of a deployed
airman in the government quarters she shared with her family.
Appellant’s conduct goes to the very heart of conduct
prejudicial to good order and discipline. It has a corrosive
effect on the relationship of members in the unit and the morale
of servicemembers who are deployed or may deploy in the future.
See Manual for Courts-Martial, United States pt. IV, ¶ 62.c.(2)



                                   9
United States v. Humphries, No. 10-5004/AF

       Appellee failed to establish prong three or prong four of

the plain error test.    He failed to demonstrate that his

conviction for adultery under Article 134, UCMJ, resulted in

material prejudice to his substantial rights or seriously

affected the fairness, integrity, or public reputation of

judicial proceedings.    By finding plain error and reversing

Appellee’s conviction, the majority disturbs the careful balance

the plain error doctrine was meant to strike between judicial

efficiency and the redress of justice.           Puckett, 

556 U.S. at 135

.

                        III.    The CCA’s Remand

                               A.   Background

       The first time the CCA reviewed this case, it did not rule

on the findings but nevertheless found “that portion of the

appellant’s sentence which provides for an unsuspended bad-

conduct discharge inappropriately severe.”          United States v.

Humphries, No. 37491, 

2010 CCA LEXIS 236

, at *7–*8, 

2010 WL 2266324

, at *2 (A.F. Ct. Crim. App. May 24, 2010).          The CCA set

aside the convening authority’s action and remanded for

reconsideration of the sentence “with full knowledge as to the

upper limit on appropriateness.”           

Id. at *10

, 

2010 WL 2266324

,

at *3 (citation and quotation marks omitted).          The CCA then


2012 ed.); William Winthrop, Military Law and Precedents 724 (2d
ed., Government Printing Office 1920) (1895).

                                      10
United States v. Humphries, No. 10-5004/AF

instructed the convening authority that he could approve “an

adjudged sentence no greater than one including a suspended bad-

conduct discharge.”   

Id.,

2010 WL 2266324

, at *3.

     As a result of certification by the Judge Advocate General,

this Court remanded the case back to the CCA for further action

on the findings.   United States v. Humphries, 

69 M.J. 491

(C.A.A.F. 2011) (summary disposition).   The CCA summarized its

previous ruling as follows:

     Specifically, we determined that the appellant’s
     convictions are legally and factually sufficient and his
     convictions do not unreasonably exaggerate his criminality.
     However, after reviewing the record of trial, the
     submission of briefs from both sides, we set aside the
     convening authority’s action because we believed that an
     unsuspended bad-conduct discharge was inappropriately
     severe.

United States v Humphries, No. 37491 (rem), 

2011 CCA LEXIS 312

,

at *3, 

2011 WL 6010056

, at *1 (A.F. Ct. Crim. App. Aug. 3,

2011).   The CCA again concluded that an unsuspended punitive

discharge was inappropriately severe for Appellee’s offenses,

set aside the convening authority’s action and “return[ed] [the

record of trial] to The Judge Advocate General for remand to the

convening authority for reconsideration of the sentence ‘with

full knowledge as to the upper limit on appropriateness.’”   

Id. at *8

, 

2011 WL 6010056

, at *3 (quoting United States v. Clark,

16 M.J. 239, 243

 (C.M.A. 1983) (Everett, C.J., concurring)).




                                11
United States v. Humphries, No. 10-5004/AF

                          B.   Discussion

     “[F]ederal courts have no inherent power to suspend a

sentence . . .; their authority derives solely from statutes.”

United States v. Anderson, 

583 F.3d 504, 508

 (7th Cir. 2009)

(citations omitted).   Thus, we must review the statutes to

determine who, if anyone, in the military has the power to

suspend a sentence.

     Under the Uniform Code of Military Justice, the following

may suspend a court-martial sentence:

     (1)   The convening authority, in his sole discretion;

Article 60(c)(2), UCMJ, 

10 U.S.C. § 860

(c)(2) (2006);

     (2)   The President, in a death penalty case, but not for

the part of the sentence providing for death; Article 71(a),

UCMJ, 

10 U.S.C. § 871

(a) (2006);

     (3)   The Secretary of the service, or Under or Assistant

Secretary so designated to act on his behalf, in officer cases

in which the sentence extends to a dismissal; Article 71(b),

UCMJ, 

10 U.S.C. § 871

(b) (2006);

     (4)   The Secretary, and when designated by him, the Under

or Assistant Secretary, the Judge Advocate General or commanding

officer; Article 74(a), UCMJ, 

10 U.S.C. § 874

(a) (2006).

Congress did not grant either military judges or CCAs authority

to suspend a sentence.   United States v. Healy, 

26 M.J. 394, 396

(C.M.A. 1988).


                                 12
United States v. Humphries, No. 10-5004/AF

     In the 1980s, Congress directed that a commission be

appointed to study changes to the UCMJ, including whether

military judges and the CCAs should be granted authority to

suspend sentences.   The commission recommended that the system

not be changed and Congress never implemented such a change.

See The Military Justice Act of 1983:   Advisory Commission

Report, vol. I, pt. II, § VI, at 7 (1984).

     In this case, the CCA thought the bad-conduct discharge

that the convening authority approved should be suspended.

Apparently recognizing that they did not have the power to

suspend the bad-conduct discharge, they remanded the case to the

convening authority for a new action, basically giving him two

options -- either approve a sentence that did not include an

unsuspended bad-conduct discharge or the CCA would set aside the

bad-conduct discharge.   The CCA was without authority to take

such action.

     In approving a sentence, the convening authority, “in his

sole discretion, may approve, disapprove, commute, or suspend

the sentence in whole or in part.”   Article 60(c)(2), UCMJ.

That authority has been characterized as “unfettered” as long as

there is no increase in the severity of the punishment.   United

States v. Finster, 

51 M.J. 185, 186

 (C.A.A.F. 1999); accord

United States v. Scalo, 

60 M.J. 435, 436

 (C.A.A.F. 2005); see

also United States v. Wiechmann, 

67 M.J. 456, 461

 (C.A.A.F.


                                13
United States v. Humphries, No. 10-5004/AF

2009).   By remanding in a case in which no legal error was

found, the CCA unlawfully fettered the convening authority’s

discretion.

     As the CCA held that the part of the sentence extending to

an unsuspended bad-conduct discharge was inappropriately severe,

I would remand the case to the CCA with direction to affirm a

sentence that does not include a punitive discharge.




                                14