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

                            UNITED STATES, Appellee
                                         v.
                            Sergeant LOUIS F. DIETZ
                           United States Army, Appellant

                                      ARMY 20081031

              U.S. Army Transportation Center and School and Fort Eustis
                        Theresa A. Gallagher, Military Judge


For Appellant: Earl G. Kauffman, Esquire (argued); Captain Todd Lindquist, JA;
Earl G. Kauffman, Esquire (on brief).

For Appellee: Captain Frank E. Kostik, Jr., JA (argued); Major LaJohnne A. White,
JA; Captain Frank E. Kostik, Jr., JA (on brief).

                                     28 December 2011
                         --------------------------------------------------
                         SUMMARY DISPOSITION ON REMAND
                         --------------------------------------------------

Per Curiam:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of one specification of forcible sodomy
with a child over the age of twelve but under the age of sixteen, one specification of
an indecent act upon a child under the age of sixteen, one specification of
wrongfully telling his daughter to kill him, one specification of communicating a
threat, and one specification of wrongfully forcing his sixteen-year old daughter to
drink beer, in violation of Articles 125 and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 925 and 934 (2008) [hereinafter UCMJ]. The panel sentenced
appellant to be confined for fifteen years and to be dishonorably discharged from the
service. The convening authority approved the adjudged sentence.

       On 18 May 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. On 21 September 2011, our superior court
vacated our decision and returned the record of trial to The Judge Advocate General
of the Army for remand to this court for consideration in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). Because the terminal elements for two of the
DIETZ—ARMY 20081031

four specifications charged under Article 134, UCMJ were not expressly alleged, we
review those two specifications in light of Fosler.

                                 LAW AND DISCUSSION

       Whether a charge and specification states an offense is a question of law that
is reviewed de novo. United States v. Roberts, __M.J.___, slip op. at 4 (Army Ct.
Crim. App. 14 Oct. 2011). Together, the charge and specification must “allege every
element of the offense either expressly or by necessary implication, so as to give the
accused notice and protect him against double jeopardy.” Id. (quoting United States
v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)). Rule for Courts-Martial 307(c)(3).

        In this case, appellant pleaded not guilty to committing an indecent act upon a
child who was under sixteen years of age and wrongfully communicating a threat to
that same child, and neither of those specifications expressly alleged that appellant’s
conduct was to prejudice of good order and discipline or service discrediting.
Appellant, however, did not object to the language of either of these specifications
at trial, nor on appeal. This is an important distinction from Fosler and informs our
decision. See United States v. Hoskins, 17 M.J. 134, 136 (C.M.A. 1984) (listing
factors that directly impact the ultimate decision of whether a charge and
specification necessarily imply an element). Where a charge and specification are
not challenged at trial, their language is to be liberally construed. Roberts, __M.J.
at ___, slip op. at 4 (citing United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A.
1986). Cf. Fosler, 70 M.J. at 230. This liberal rule of interpretation is applicable
even where an appellant does not plead guilty. United States v. Fox, 34 M.J. 99, 102
(C.M.A. 1992); Roberts, __M.J. at ___, slip op. at 5; United States v. Berner, 32
M.J. 570, 572 (A.C.M.R. 1991).

       Absent an objection at trial, we will not set aside a specification unless it is
“so obviously defective that it could not be reasonably construed to embrace [the]
terminal element.” Roberts, __M.J. at ___, slip op. at 5; United States v. Watkins,
21 M.J. 208, 209-10 (C.M.A. 1986). Here the indecent act with a child specification
states that appellant committed an indecent act upon DD, a female under the age of
sixteen, by fondling her and placing his fingers in and around her vagina with intent
to gratify the sexual desires of the appellant in violation of Article 134, UCMJ. The
communicating a threat specification states that appellant wrongfully communicated
at threat to injure and rape DD in violation of Article 134, UCMJ. These actions can
reasonably be construed to imply that appellant’s conduct was service discrediting,
especially considering that DD was appellant’s own daughter as can be derived from
the text of another charged specification. * Therefore, despite not expressly setting

*
 Specification 4 of Charge II states as follows: IN THAT SERGEANT LUIS R.
DIETZ, U.S. ARMY DID, AT OR NEAR NEWPORT NEWS, VIRGINIA, ON OR
ABOUT 19 JANUARY 2007, RENT A HOTEL ROOM LOCATED AT THE

                                                                 (continued. . . )
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DIETZ—ARMY 20081031

out the terminal elements, both specifications in question in this case necessarily
imply that appellant’s conduct was service discrediting and provided the appellant
fair notice.

       In addition, there is ample evidence in the record to indicate appellant was on
notice of the elements in the specifications against him. Two of the four
specifications charged under Article 134 actually alleged the service-discrediting
element. Moreover, in a challenge to one of those specifications, which was a non-
enumerated offense charged under Article 134, the trial defense counsel
distinguished that offense from enumerated offenses [such as indecent act upon a
child and communicating a threat] in a written motion:

             However, the difference is those examples are enumerated
             under other sections of the UCMJ, so accuseds are well on
             notice of criminal conduct, and the defense has the benefit
             of being able to identify specific statutory elements that
             the prosecution is required to prove.

Because both the indecent act and communicating a threat specifications are
enumerated offenses, it is clear from their written motion that the defense in this
case was able to identify all of the elements, including the terminal elements in the
aforementioned specifications.

       In addition, the panel in this case was instructed, without comment from the
defense, that the offenses in question contained the terminal elements and that
government was required to prove those elements beyond a reasonable doubt. Given
the presumption of competence by the defense counsel, it is apparent that appellant
was not misled about the nature of the charges and specifications leveled against
him. See Manual for Courts-Martial, United States, Part IV, paras. 60.c.(3), 87.b
and 110.b. Finally, the factual allegations in the specification, including dates and
locations, combined with the record of trial, sufficiently protect the appellant against
double jeopardy.

                                   CONCLUSION

      On consideration of the entire record and in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), we hold the findings of guilty and the sentence as


(. . . continued)
TRAVELODGE, 13700 WARWICK BOULEVARD, NEWPORT NEWS, VIRGINIA,
AND TOLD HIS 16-YEAR-OLD DAUGHTER D.D. TO MEET HIM AT THE
HOTEL, AND WRONGFULLY FORCED HER TO DRINK ALCOHOLIC BEER
AGAINST HER WILL, WHICH CONDUCT, UNDER THE CIRCUMSTANCES
WAS OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES
(emphasis added).

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DIETZ—ARMY 20081031

approved by the convening authority correct in law and fact. Accordingly, the
findings of guilty and the sentence are AFFIRMED.



                                      FOR THE COURT:
                                      FOR THE COURT:


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




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