                         UNITED STATES, Appellee

                                         v.

                     Bradley W. MARSHALL, Private
                         U.S. Army, Appellant

                                  No. 08-0779
                         Crim. App. No. 20060229

       United States Court of Appeals for the Armed Forces

                          Argued April 14, 2009

                          Decided June 18, 2009

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER and ERDMANN, JJ., joined. RYAN, J., filed a
separate opinion concurring in the judgment.


                                     Counsel


For Appellant: Captain William Jeremy Stephens (argued);
Lieutenant Colonel Matthew M. Miller, Lieutenant Colonel Mark
Tellitocci, and Major Bradley M. Voorhees (on brief).


For Appellee: Captain Stephanie R. Cooper (argued); Colonel
Denise R. Lind and Captain Philip M. Staten (on brief).


Military Judge:    Thomas Berg


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Marshall, No. 08-0779/AR


    Judge STUCKY delivered the opinion of the Court.

    Appellant pled not guilty to escaping from the custody of

Captain (CPT) Kreitman but was convicted, by exceptions and

substitutions, of escaping from the custody of Staff Sergeant

(SSG) Fleming.   We granted review to consider whether the

military judge’s findings created a fatal variance.    We hold

that it did.   We reverse the decision of the United States Army

Court of Criminal Appeals and remand for sentence reassessment.

                          I.    Background

     A military judge sitting as a special court-martial

convicted Appellant, in accordance with his pleas, of one

specification of failing to go to his appointed place of duty at

the time prescribed and two specifications of absenting himself

from his unit; wrongfully using marijuana; and disobeying the

order of a superior commissioned officer.    Articles 86, 112a,

and 90, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

886, 912a, and 890 (2000).     The military judge also convicted

Appellant, contrary to his pleas, of escaping from custody.      The

convening authority approved the adjudged sentence of a bad-

conduct discharge, confinement for six months, and forfeiture of

$500 pay per month for six months.     The United States Army Court

of Criminal Appeals (CCA) affirmed in a summary disposition over

the dissent of Judge Chiarella.    United States v. Marshall, No.

ARMY 20060229 (A. Ct. Crim. App. June 30, 2008).


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                             II.   Facts

     The Government alleged that Appellant “did, at Fort Polk,

Louisiana, on or about 19 December 2005, escape from the custody

of CPT Kelvin K. Kreitman, a person authorized to apprehend the

accused.”   The evidence established that CPT Kreitman directed

one SSG Fleming to go to the local police department and assume

custody of Appellant from the police.      SSG Fleming did so,

assuming custody of Appellant and returning him to the company

offices.    Appellant was told that pretrial confinement orders

were being prepared and that, in the meantime, he was to sit

down and not leave his seat without an escort.     Appellant was

permitted to step outside the building to smoke.     During one of

his smoke breaks, Appellant walked away.

     At the conclusion of the Government’s case, the defense

counsel moved for a finding of not guilty under Rule for Courts-

Martial (R.C.M.) 917, asserting that the Government had failed

to establish that Appellant escaped from the custody of CPT

Kreitman.   The military judge denied the motion.

     In his closing argument, the defense counsel stated the

following concerning the escape from custody allegation:

          Escape from custody. The defense would reiterate
     that the person he is charged with violating custody
     from is Captain Kreitman. We have no testimony
     regarding the actions of Captain Kreitman as it
     relates to the accused, as it relates to Staff
     Sergeant Fleming, yes, we do.



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          As far as Captain Kreitman giving the order
     saying, “You are confined to the limits of this area.
     You are in custody.” We have nothing.

          We have the previous counseling statement he got
     a few days before, which, I guess, would be breaking
     restriction because he violated that. It’s not the
     same thing as custody. We don’t have any testimony
     whatsoever as to what additional restrictions Captain
     Kreitman placed upon Private Marshall. In the absence
     of that, we don’t have escape from custody.

The military judge thereafter convicted Appellant, by exceptions

and substitutions, of escaping from the custody of SSG Fleming.

                          III.    Analysis

     The Government argues that by failing to object to the

finding of guilty by exceptions and substitutions at the time it

was announced, Appellant forfeited the issue in the absence of

plain error.   We do not agree.   The purpose of the forfeiture1

rule is to ensure that the trial judge has the opportunity to

rule on issues arising at trial, and to prevent the raising of

such issues for the first time on appeal, after any chance to

correct them has vanished.   United States v. Frady, 456 U.S.

152, 163 (1982); United States v. Reist, 50 M.J. 108, 110

(C.A.A.F. 1999); United States v. Causey, 37 M.J. 308,

311 (C.M.A. 1993).   The motion to dismiss under R.C.M. 917

placed the fundamental issue -- whether there was any evidence



1
  “Forfeiture” and “waiver,” although frequently conflated, are
not the same. See United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009).

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United States v. Marshall, No. 08-0779/AR


that the accused escaped from the custody of CPT Kreitman rather

than SSG Fleming -- squarely before the military judge as trier

of fact.    Once that motion was denied, Appellant had no duty to

engage in the empty exercise of repeating the objection after

the military judge announced his findings.   United States v.

Richardson, 1 C.M.A. 558, 567, 4 C.M.R. 150, 159-60 (1952).     The

issue was preserved.

     From the earliest days of this Court, we have held that to

prevail on a fatal variance claim, an appellant must show both

that the variance was material and that he was substantially

prejudiced thereby.    United States v. Finch, 64 M.J. 118, 121

(C.A.A.F. 2006); United States v. Hunt, 37 M.J. 344, 347 (C.M.A.

1993); United States v. Lee, 1 M.J. 15, 16 (C.M.A. 1975); United

States v. Hopf, 1 C.M.A. 584, 586-87, 5 C.M.R. 12, 14-15 (1952).

“A variance that is ‘material’ is one that, for instance,

substantially changes the nature of the offense, increases the

seriousness of the offense, or increases the punishment of the

offense.”   Finch, 64 M.J. at 121 (citing United States v.

Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003)).    A variance can

prejudice an appellant by (1) putting “him at risk of another

prosecution for the same conduct,” (2) misleading him

“to the extent that he has been unable adequately to prepare for

trial,” or (3) denying him “the opportunity to defend against

the charge.”   Teffeau, 58 M.J. at 67.


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United States v. Marshall, No. 08-0779/AR


     The elements of escape from custody under Article 95, UCMJ,

10 U.S.C. § 895 (2000), are as follows:

     (a)   That a certain person apprehended the accused;
     (b)   That said person was authorized to apprehend the
           accused; and
     (c)   That the accused freed himself or herself from
           custody before being released by proper authority.

Manual for Courts-Martial, United States pt. IV, para. 19.b(4)

(2005 ed.) (MCM).

     Here, Appellant was charged with escaping from the custody

of CPT Kreitman.    Assuming, arguendo, that CPT Kreitman was in

fact authorized to apprehend Appellant, no evidence was

presented that Appellant was in his custody at any time.    In

response to the R.C.M. 917 motion, the Government attempted to

argue an agency theory that SSG Fleming was ordered by the

captain to place Appellant in custody.    The military judge

denied the motion, and later found that Appellant had escaped

from SSG Fleming.

     At trial and on appeal, the Government has argued that the

substitution of SSG Fleming for CPT Kreitman created only a

minor variance, similar to the changes in Hopf and Finch.

Appellant’s case is different and requires a different result.

     In Hopf, the appellant was convicted of aggravated assault

on a named Korean male, but the court substituted for the

victim’s name the term “unknown Korean male,” when the victim

was unable to testify due to his injuries and the two American


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United States v. Marshall, No. 08-0779/AR


soldiers who witnessed the assault did not know the victim’s

name.    1 C.M.A. at 586, 5 C.M.R. at 14.   This Court concluded

the variance was not fatal because neither the nature nor

identity of the offense was changed.    Id.    The appellant was

convicted of the same assault for which he was charged, and the

defense preparations to meet the charge were unaffected.       Id.

        The appellant in Finch was charged with conspiracy to

commit the offense of providing alcoholic beverages to a person

enrolled in the delayed-entry program, in violation of a general

order.    Id. at 119-20.   The military judge found the appellant

guilty of the offense but substituted a different location for

the place at which the overt act in furtherance of the

conspiracy was alleged to have occurred.      Id. at 120-21.    We

held this change did not result in a major variance.      “Although

an overt act is an element of the offense of conspiracy, it is

not the core of the offense” and did not “substantially change

the nature or seriousness of the offense or increase the

punishment to which Appellant was subject.”     Id. at 122

(citations omitted).

        On the facts in this case, we are convinced the

substitution was material.    The military judge convicted

Appellant by exceptions and substitutions of an offense that was

substantially different from that described in the specification

upon which he was arraigned.    See Teffeau, 58 M.J. at 67.


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United States v. Marshall, No. 08-0779/AR


Although the nature of the offense remained the same -- escape

from custody -- by substituting SSG Fleming for CPT Kreitman as

the custodian from whom Appellant escaped, the military judge

changed the identity of the offense against which the accused

had to defend.   This denied him the “opportunity to defend

against the charge.”   Id.

     Having found the variance to be material, we must test for

prejudice.   Appellant argues that the military judge’s findings

by exceptions and substitutions “gave the appellant no chance to

defend himself against this new charge.”    The Government argues

that there is no prejudice, because regardless of whose custody

he escaped from, there was only one event, Appellant knew the

nature of the offense, and was able to defend against it.     We

disagree.    Appellant was charged with escaping from CPT

Kreitman’s custody; the Government presented no evidence that he

was in the captain’s custody, but attempted to prove that SSG

Fleming was acting as CPT Kreitman’s agent; the military judge

found Appellant guilty by exceptions and substitutions of

escaping from SSG Fleming’s custody.   Had he known that he would

be called upon to refute an agency theory or to defend against a

charge that he escaped from SSG Fleming, Appellant is unlikely

to have focused his defense and his closing argument on the lack

of evidence that CPT Kreitman placed him in custody or that he

escaped from the custody of CPT Kreitman.   “Fundamental due


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United States v. Marshall, No. 08-0779/AR


process demands that an accused be afforded the opportunity to

defend against a charge before a conviction on the basis of that

charge can be sustained.”   Teffeau, 58 M.J. at 67; accord Dunn

v. United States, 442 U.S. 100, 106-07 (1979).       Under these

circumstances, we do not believe that Appellant could have

anticipated being forced to defend against the charge of which

he was ultimately convicted.2     Accordingly, we find the material

variance prejudiced Appellant such that the military judge’s

finding by exceptions and substitutions cannot stand.3

                            IV.    Decision

     The decision of the United States Army Court of Criminal

Appeals is set aside as to the findings of guilty to Charge III

and its specification and the sentence.       Charge III and its

specification are dismissed.      The remaining findings of guilty

are affirmed.   The case is returned to the Judge Advocate

General of the Army for remand to the CCA for sentence

reassessment.



2
  We need not address the Government’s double jeopardy argument
as the two prongs of the prejudice test are alternatives.
Teffeau, 58 M.J. at 67 n.2.
3
  The Government also argues that it is immaterial from whom
Appellant escaped, because the escape was wrongful in any event.
The fact that two alternative theories of a case may both
involve criminal conduct does not relieve the government of its
due process obligations of notice to the accused and proof
beyond a reasonable doubt of the offense alleged. See United
States v. Ellsey, 16 C.M.A. 455, 458-59, 37 C.M.R. 75, 78-79
(1966).

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United States v. Marshall, No. 08-0779/AR


     RYAN, J. (concurring in the judgment):

     I write separately because I disagree that Appellant’s Rule

for Courts-Martial (R.C.M.) 917 motion for a finding of not

guilty preserved the issue of fatal variance for appeal by

placing the “fundamental issue . . . squarely before the

military judge.”   United States v. Marshall, __ M.J. __ (4-5)

(C.A.A.F. 2009).   Appellant’s R.C.M. 917 motion at trial and

Appellant’s argument before this Court -- that the military

judge created a fatal variance -- address two separate legal

issues.   In my view, because Appellant failed to object to the

variance when the military judge announced his findings,

Appellant forfeited the issue absent plain error.   See United

States v. Finch, 64 M.J. 118, 121 (C.A.A.F. 2006) (stating that

if trial defense counsel fails to object to findings by

exception and substitution at trial, the issue is waived and may

only be reviewed on appeal if the appellate court establishes

plain error); see also R.C.M. 905(e) (“Other motions, requests,

defenses, or objections, except lack of jurisdiction or failure

of a charge to allege an offense, must be raised before the

court-martial is adjourned for that case and, unless otherwise

provided in this Manual, failure to do so shall constitute

waiver.”).   But because I believe that the military judge’s

exception and substitution was error, that the error was plain
United States v. Marshall, No. 08-0779/AR


and obvious, and that Appellant was materially prejudiced by it,

I concur in the judgment.

     The Court granted the issue, “Whether the military judge’s

finding by exceptions and substitutions created a material fatal

variance in Charge III and its specification (escape from

custody).”   Although the same factual circumstances underlie

Appellant’s R.C.M. 917 motion and the granted issue, the legal

tests and standards of review for the legal issues involved are

distinct.    When considering whether a military judge should

grant a R.C.M. 917 motion, “the test is whether ‘there is any

substantial evidence before the court which, together with all

justifiable inferences to be drawn therefrom, reasonably tends

to establish every essential element of these offenses.’”

United States v. Davis, 37 M.J. 152, 153 (C.M.A. 1993) (quoting

United States v. Tobin, 17 C.M.A. 625, 628-29, 38 C.M.R. 423,

426-27 (1968)).   In contrast, as correctly stated by the

majority, “to prevail on a fatal variance claim, an appellant

must show both that the variance was material and that he was

substantially prejudiced thereby.”    Marshall, __ M.J. at __ (5)

(citing United States v. Hunt, 37 M.J. 344, 347 (C.M.A. 1993)).

     Appellant’s R.C.M. 917 motion for a finding of not guilty

raised the issue whether there was substantial evidence to

establish every element of the charged offense.   The motion

undoubtedly put the military judge on notice that the evidence

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United States v. Marshall, No. 08-0779/AR


was insufficient to convict Appellant of the escape from custody

offense, as that offense had been charged.   Although the

military judge denied the motion, he subsequently found guilt by

exception and substitution, something he is explicitly

authorized to do.   See R.C.M. 918(a)(1) (listing as one of the

permissible general findings to a specification, “guilty with

exceptions, . . . not guilty of the exceptions, but guilty of

the substitutions”).   What the military judge was not allowed to

do was create a fatal variance by exception and substitution --

one that is both material and prejudices the accused.      United

States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003).    Appellant

had a duty to object to the findings when they were announced.

Finch, 64 M.J. at 121.   Having failed to object, I believe that

Appellant forfeited the issue absent plain error.    Id.

     I would, however, hold that Appellant has established that

an error was committed, that the error was plain, and that it

resulted in material prejudice to his substantial rights.     See

United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)

(stating the three prongs of this Court’s plain error test).        As

demonstrated by the majority’s analysis, the first and third

prongs of the plain error test have been satisfied.   Turning to

the second prong, the military judge was already on notice from

both Appellant’s R.C.M. 917 motion and defense counsel’s closing

argument that there were significant problems with Charge III

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United States v. Marshall, No. 08-0779/AR


and its specification.   It should have been obvious to the

military judge that it was error to change the nature and

identity of the offense and thus deny Appellant the opportunity

to defend against the charge.   See Teffeau, 58 M.J. at 67

(listing three ways a material variance can prejudice an

accused).

     I respectfully concur in the judgment.




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