UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            KERN, YOB and ALDYKIEWICZ
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Specialist JUSTIN P. SWIFT
                          United States Army, Appellant

                                   ARMY 20100196

                              Headquarters, Fort Bliss
                        Michael J. Hargis, Military Judge
            Colonel Michael J. Benjamin, Staff Judge Advocate (pretrial)
             Colonel Francis P. King, Staff Judge Advocate (post-trial)


For Appellant: Major Richard E. Gorini, JA; Major Meghan M. Poirier, JA; Mr.
William E. Cassara, Esquire (on brief); Major Meghan M. Poirier, JA; Mr. William
E. Cassara, Esquire (reply brief).

For Appellee: Major Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain
John D. Riesenberg, JA (on brief).


                                  29 November 2012
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                               SUMMARY DISPOSITION
                             ------------------------------------

YOB, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of two specifications of indecent acts or liberties
with a child in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C.
§ 934 (2000) [hereinafter, UCMJ]. See Manual for Courts-Martial, United States
(2002 ed.), pt. IV, ¶ 87.b. The panel sentenced appellant to a dishonorable
discharge, confinement for fourteen years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged.

      The case is now before this court for review under Article 66, UCMJ. We
have considered the record of trial and the assignments of error raised by appellant.
In consideration of our superior court’s decision in United States v. Humphries,
71 M.J. 209 (C.A.A.F. 2012), we are compelled to set aside The Charge and its
SWIFT—ARMY 20100196

specifications without prejudice. See United States v. Saintaude, 56 M.J. 888, 891
(Army Ct. Crim. App. 2002), aff’d, 61 M.J. 175 (C.A.A.F. 2005).

       The sole charge in this case and its two specifications allege appellant
committed indecent acts upon his daughter, a female child under sixteen years of
age. In one of his assignments of error, appellant argues this court must set aside
and dismiss his conviction because neither specification of The Charge alleges the
Article 134, UCMJ, terminal elements of conduct that is prejudicial to good order
and discipline (Clause 1) or of a nature to bring discredit upon the armed forces
(Clause 2). Pursuant to United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), it was
error to omit the terminal elements from these specifications. However, appellant
did not object to the form of either specification at trial, and “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.” Humphries, 71 M.J. at 213–14 (citing
United States v. Cotton, 535 U.S. 625, 631–32 (2002)). Therefore, appellant must
demonstrate “the Government’s error in failing to plead the terminal element of
Article 134, UCMJ, resulted in material prejudice to [appellant’s] substantial,
constitutional right to notice.” Id. at 215; UCMJ art. 59(a). To assess prejudice,
“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.’” Id. at 215–16 (citing Cotton, 535 U.S. at 633; Johnson v. United
States, 520 U.S. 461, 470 (1997)).

        After thoroughly reviewing the record, we do not find any indication that
notice of the missing terminal element is “somewhere extant in the trial record,” and
the evidence was controverted as to at least one clause of Article 134, UCMJ. See
id. at 215–16. Neither specification provides any notice of which terminal element
or theory of criminality upon which the government relied to prove this case. No
witness testified as to how appellant’s conduct violated either Clause 1 or 2 of
Article 134, UCMJ. During closing arguments, the trial counsel never referenced
why the alleged misconduct should be considered prejudicial to good order and
discipline or service discrediting. Although the military judge properly instructed
the panel on the terminal elements, this instruction came after the close of evidence,
and “did not alert [appellant] to the Government’s theory of guilt.” Id. at 216 (citing
Fosler, 70 M.J. at 230).

       Based on a totality of the circumstances, we are not convinced appellant was
placed on sufficient notice of the government’s theory as to which clause(s) of
Article 134, UCMJ, he violated. As a result, the Government’s failure to allege the
terminal elements constituted material prejudice to appellant’s substantial right to
notice. See UCMJ art. 59(a).




                                           2
SWIFT—ARMY 20100196

                                  CONCLUSION

       Accordingly, on consideration of the entire record and in light of Humphries,
the findings of guilty and the sentence are set aside. The Charge and its
specifications are dismissed without prejudice, for there is no bar to a new trial on
the underlying misconduct. A new trial may take place under the jurisdiction of the
same or different convening authority. All rights, privileges, and property, of which
appellant has been deprived by virtue of the approved sentence, hereby set aside by
this decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge KERN and Judge ALDYKIEWICZ concur.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:



                                       JOANNE P. TETREAULT ELDRIDGE
                                       Deputy Clerk of Court
                                       JOANNE P. TETREAULT




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