                        UNITED STATES, Appellee

                                      v.

                   James H. FINCH, Staff Sergeant
                    U.S. Marine Corps, Appellant

                                No. 05-0453

                       Crim. App. No. 200000056


       United States Court of Appeals for the Armed Forces

                         Argued March 21, 2006

                      Decided September 29, 2006

CRAWFORD, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. GIERKE, C.J., filed a separate
opinion concurring in part and dissenting in part. ERDMANN, J.,
filed a separate opinion concurring in part and dissenting in
part.


                                  Counsel

For Appellant:    Lieutenant Brian L. Mizer, JAGC, USNR (argued).

For Appellee: Lieutenant Craig A. Poulson (argued); Commander
Charles N. Purnell, JAGC, USN (on brief); Lieutenant Kathleen A.
Helmann, JAGC, USNR.

For Amicus Curiae: Candice Cleere (law student) (argued);
Michael F. Noone Jr., Esq. (supervising attorney) and Lieutenant
Rachel Mangas, JAGC, USN (law student) (on brief) – The Catholic
University of America, Columbus School of Law, Military and
National Security Law Students Association.

Military Judge:   S. F. Day

         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Finch, No. 05-0435/MC


     Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, Appellant was convicted by a

military judge sitting as a general court-martial of conspiracy

to violate a general order, failure to obey a lawful general

order, failure to obey a lawful order, making a false official

statement, and being drunk on duty, in violation of Articles 81,

92, 107, and 112, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 881, 892, 907, 912 (2000).   Appellant was found not

guilty of involuntary manslaughter arising from the same

circumstances.   Appellant was sentenced to confinement for five

months, reduction to pay grade E-1, and a bad-conduct discharge.

The convening authority approved the sentence as adjudged and,

except for the bad-conduct discharge, ordered it executed.     The

United States Navy-Marine Corps Court of Criminal Appeals

affirmed the findings and sentence.

                      STATEMENT OF THE ISSUES

     On November 14, 2005, this Court granted review of the

following issues:

     I.    WHETHER APPELLANT WAS DENIED THE OPPORTUNITY TO
           DEFEND HIMSELF AGAINST CHARGE I WHERE THE
           MILITARY JUDGE’S FINDINGS OF GUILTY BY EXCEPTIONS
           AND SUBSTITUTIONS RESULTED IN A MATERIAL
           VARIANCE.

     II.   WHETHER THE MILITARY JUDGE ERRED TO THE
           SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE FAILED
           TO SUPPRESS APPELLANT’S STATEMENT IN ACCORDANCE
           WITH THIS COURT’S RULING IN UNITED STATES V.



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United States v. Finch, No. 05-0435/MC


          McOMBER, 1 M.J. 380 (C.M.A. 1976), AND THE FIFTH
          AMENDMENT TO THE UNITED STATES CONSTITUTION.

     III. WHETHER APPELLANT HAS BEEN DENIED HIS DUE PROCESS
          RIGHT TO TIMELY REVIEW OF HIS APPEAL.1

                         STATEMENT OF FACTS

     At the time of the offenses, both Appellant and Staff

Sergeant (SSgt) Charles D. Teffeau, Jr. were recruiters in the

United States Marine Corps assigned to the recruiting substation

in Wichita, Kansas.    JT and JK were recruits awaiting entry

through the delayed entry program.    Appellant originally tried

to recruit JK when she was in high school.    After failing the

Armed Services Vocational Aptitude Test, JK enrolled in

Coffeyville Community College, which was outside Appellant’s

recruiting district.   JK was eventually able to pass the

aptitude test and enrolled in the Marine Corps through SSgt

Raymond Sutton, the local recruiter in Coffeyville.   Although JK

had not enlisted in his recruiting district, Appellant

maintained communications with her.   SSgt Sutton complained

about the communication between Appellant and JK and Appellant

was ordered to have no further contact with her.

     The incidents in this case occurred on January 3, 1997.

Appellant and SSgt Teffeau had worked part of the day


1
  We heard oral argument in this case at The Catholic University
of America, Columbus School of Law, Washington, D.C., as part of
the Court’s “Project Outreach.” See United States v. Mahoney,
58 M.J. 346, 347 n.1 (C.A.A.F. 2003).

                                  3
United States v. Finch, No. 05-0435/MC


interviewing potential recruits in Arkansas City.    The two

recruiters had a government vehicle and were planning to meet JT

and JK at JT’s residence to celebrate JK’s acceptance to boot

camp.    JK was scheduled to ship to boot camp on January 6, 1997.

Before meeting the two recruits, Appellant and SSgt Teffeau

stopped at a gas station and purchased a case of beer, which

they put into the trunk of the government vehicle.    They then

proceeded to JT’s residence.

        While at JT’s residence, Appellant and SSgt Teffeau

consumed an unspecified quantity of bourbon and Coke.2      JK

consumed an unspecified amount of schnapps.    JT did not consume

alcohol because she had to work later that day.    After

approximately three hours, JT had to go to work and asked her

companions to leave.    Appellant, SSgt Teffeau, and JK decided to

go to Winfield Lake.    As her friends left, JT overheard

Appellant tell SSgt Teffeau, “Grab the beer and let’s go. . .”

Appellant and JK rode in JK’s Ford Mustang to the lake, while

SSgt Teffeau followed in the government vehicle.

        When they arrived at Winfield Lake, Appellant and JK each

consumed at least one of the beers.    They did not stay long at


2
  JT testified that Appellant and SSgt Teffeau consumed bourbon
mixed with Coke and JK consumed schnapps at JT’s residence.
SSgt Teffeau testified that he did not consume any alcohol at
JT’s residence. The court below held that Appellant and SSgt
Teffeau did consume the bourbon.



                                   4
United States v. Finch, No. 05-0435/MC


Winfield Lake (five minutes according to SSgt Teffeau).

Appellant and JK left in her Mustang while SSgt Teffeau drove

the government vehicle.    As they departed the lake area, JK’s

car slid off the road, struck a tree, and went into Winfield

Lake.    JK was killed in the accident and Appellant suffered

cracked ribs, a concussion, lacerations, and abrasions.       JK’s

blood-alcohol content (BAC) was .07 grams of alcohol per 100

milliliters of blood.    Appellant’s BAC was .15 grams per 100

milliliters of blood.

                                Issue I

Facts Specific to Issue I

        Appellant was arraigned under the following charge:

        Charge I, violation of the UCMJ, Article 81 and the single
        specification: In that Staff Sergeant James H. Finch on
        active duty did at or near Winfield, Kansas on or about 3
        January 1997 conspire with Staff Sergeant Charles E.
        Teffeau, Jr., U.S. Marine Corps, to commit an offense under
        the Uniform Code of Military Justice to wit: Providing
        alcohol for consumption to a person enrolled into the
        delayed-entry program in violation of a general order to
        wit: Marine Corps Recruit Depot, San Diego order
        1100.4(alpha), paragraph 6(d) dated 21 May 1992; and in
        order to effect the object of the conspiracy Staff Sergeant
        Finch planned with Staff Sergeant Teffeau to meet and
        consume alcohol with [JK] and [JT], persons enrolled in the
        delayed-entry program. And Staff Sergeant Finch and Staff
        Sergeant Teffeau purchased Bud Light beer at the Phillips
        66 service station in Winfield, Kansas, and transported
        that beer to the [T] residence.

When announcing his findings, the military judge excepted the

words, “Staff Sergeant Finch planned with Staff Sergeant Teffeau

to meet and consume alcohol with [JK] and [JT], persons enrolled


                                   5
United States v. Finch, No. 05-0435/MC


in the delayed-entry program” and “Staff Sergeant Finch and

Staff Sergeant Teffeau purchased Bud Light Beer at the Phillips

66 Service Station in Winfield, Kansas, and transported that

beer to the [T] residence.”   He substituted these words:

            Staff Sergeant Finch and Staff Sergeant Teffeau
       agreed to accompany [JK], a person enrolled in the
       delayed-entry program, to the Winfield City Lake for
       the purpose of talking and consuming Bud Light Beer
       that Staff Sergeant Finch had recently purchased at
       the Phillips 66 service station in Winfield, Kansas,
       and Staff Sergeant Finch, Staff Sergeant Teffeau, and
       [JK] did thereafter drive in two separate vehicles to
       the Winfield City Lake where Staff Sergeant Finch and
       [JK] did consume some of the aforesaid Bud Light Beer.

Discussion

       Appellant’s trial defense counsel did not object to the

exceptions and substitutions at trial.     Failure to object at

trial constitutes waiver of that issue.3    When an objection is

waived at trial, it can only be reviewed by establishing plain

error.    In United States v. Powell, 49 M.J. 460, 463-64

(C.A.A.F. 1998), this Court set forth the three elements for the

plain error test:    (1) that there was an error; (2) that the

error was plain, that is, clear or, equivalently, obvious; and

(3) the plain error affected substantial rights.    49 M.J. at

463.    In this case, we hold that there was no clear error on the




3
    R.C.M. 905(e).

                                  6
United States v. Finch, No. 05-0435/MC


part of the military judge.   In doing so, we utilize this

Court’s material variance test in our plain error analysis.4

     “To prevail on a fatal-variance claim, appellant must show

that the variance was material and that it substantially

prejudiced him.”   United States v. Hunt, 37 M.J. 344, 347

(C.M.A. 1993).   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.    See United States v. Teffeau,

58 M.J. 62, 66 (C.A.A.F. 2003); Rules for Courts-Martial

(R.C.M.) 918(a)(1).   When applying this two-part test, this

Court has placed an increased emphasis on the prejudice prong,

noting that “Even where there is a variance in fact, the

critical question is one of prejudice.”   United States v. Lee,

1 M.J. 15, 16 (C.M.A. 1975) (citing United States v. Craig,

8 C.M.A. 218, 24 C.M.R. 28 (1957); United States v. Hopf,

1 C.M.A. 584, 5 C.M.R. 12 (1952)).    In Lee, this Court goes

further and broke down the prejudice prong into a two-part

analysis:   “(1) has the accused been misled to the extent that

he has been unable adequately to prepare for trial; and (2) is


4
  Although I apply this Court’s plain error analysis in this
case, I would employ the Supreme Court’s plain error analysis
from Johnson v. United States, 520 U.S. 461 (1997). See United
States v. Cary, 62 M.J. 277, 279 (C.A.A.F. 2006) (Crawford, J.,
concurring in result); United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000) (Crawford, C.J., concurring in result).

                                  7
United States v. Finch, No. 05-0435/MC


the accused fully protected against another prosecution for the

same offense.”   Id.

     In the present case, the variance is not material.    The

charged offense here is violating Article 81, UCMJ, on January

3, 1997, by conspiring to violate a general order by providing

alcohol for consumption to a person enrolled in the delayed

entry program.   The military judge’s exceptions and

substitutions did not substantially change the nature of the

offense.    The primary difference between the charged offense and

the offense of which the military judge found Appellant guilty

went to the acts taken in furtherance of that conspiracy -–

specifically, in the location of the consumption of the alcohol

that was provided and the exact manner by which it was provided.

This Court has held that “minor variances, such as the location

of the offense or the date upon which an offense is allegedly

committed, do not necessarily change the nature of the offense

and in turn are not necessarily fatal.”   Teffeau, 58 M.J. at 66.

Compare United States v. Wray, 17 M.J. 375, 376 (C.M.A. 1984)

(holding that changing the date and amount of the larceny under

the circumstances of that case changed the identity of the

offense).

     In light of the ongoing socializing on the fatal day, any

of a host of acts might have been cited as an act in furtherance

of the agreement between Appellant and SSGT Teffeau to provide


                                  8
United States v. Finch, No. 05-0435/MC


alcohol to these young women for their consumption.   Although an

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

Article 81, UCMJ; Manual for Courts-Martial, United States

pt. IV, para. 5.b. (2005 ed.) (MCM), it is not the core of the

offense.   Rather, its purpose as an element is to demonstrate

that the agreement to commit a crime –- which is the inherent

nature of the offense of conspiracy -- is alive and in motion.

See United States v. Collier, 14 M.J. 377, 380 (C.M.A. 1983).

Under the circumstances of this case, a variance between the

pleadings and findings as to any or all of those acts did not

substantially change the nature or seriousness of the offense or

increase the punishment to which Appellant was subject.

     Location usually is not a substantial part of the offense

of conspiracy.   To be found guilty of conspiracy, only two

things need to be found:   (1) the accused entered into an

agreement with another to commit an offense, and (2) the accused

acts to effect the object of the conspiracy.   Article 81, UCMJ.

In the present case, the object of the conspiracy was agreed to

provide alcohol to a person admitted to the delayed entry

program in violation of a general order.   To find a material

variance, the elements proven must be substantially different

from those charged.   See R.C.M. 918(a)(1).

     Unlike Appellant’s assertion, there were not two criminal

conspiracies in this case.   Conspiracy is a continuing offense.


                                 9
United States v. Finch, No. 05-0435/MC

MCM pt. IV, para. 5.c.   Specifying JT’s house as the location of

the alcohol consumption was not an essential part of the

conspiracy.   Substituting the lake as the location of the

alcohol consumption likewise was unnecessary.    All that needed

to be charged was the fact that Appellant and SSgt Teffeau

agreed to provide alcohol to a person enrolled in the delayed

entry program in violation of a general order.   Without the

details of the specific location, Appellant is still guilty of

the offense charged.   The quantity and location of the alcohol

consumption was at issue throughout this case, indicating that

Appellant was on notice that both issues would be litigated.

Therefore the variance between the offense charged and the

offense of which the military judge found Appellant guilty was

not material.

     Under the circumstances of this case, the change in the

description of the alleged acts taken in furtherance of that

conspiracy did not prejudice Appellant -- that is, it neither

misled Appellant in preparing or presenting his defense, nor

failed to protect him against a subsequent prosecution for the

same misconduct.   First, Appellant has not shown that he was

unable to prepare adequately for trial.   Significantly,

Appellant did not object to the military judge’s findings at the

time they were announced.   In addition, the defense did not ask

the military judge to make special findings as to the conspiracy


                                10
United States v. Finch, No. 05-0435/MC

offense.5   See R.C.M. 918(b).6   The conduct of the four

participants that day was fully revealed by evidence presented

by the Government and the defense and was subject to cross-

examination and further amplification by the opposing party.

The central nature of the offense was whether Appellant

conspired with another to provide alcohol to delayed entry

trainees.   The location where Appellant was to accomplish the

intended offense is not essential to the existence of a

conspiracy.   Indeed, there is no requirement that the offense,

which is the object of the conspiracy, be committed.    The

offense was complete when Appellant or his coconspirator

performed some overt act to bring about the object of the

conspiracy.

     Second, the facts were presented at trial on the conspiracy

offense.    The judge found Appellant guilty of conspiracy based

on those facts.   Thus, Appellant cannot be tried again for the

same offense.   See R.C.M. 907(b)(2)(C).    Appellant has not

explained on appeal how, if at all, this preparation or

presentation of his defense was affected.    In addition,


5
  Appellant also did not raise a variance issue regarding the
judge’s findings in his post-trial submission to the convening
authority.
6
  R.C.M. 918(b) provides that any party may request special
findings as “to matters of fact reasonably in issue as to an
offense and need be made only as to offenses of which the
accused was found guilty.”



                                  11
United States v. Finch, No. 05-0435/MC

Appellant has not established any prejudice by demonstrating

that he was misled as to (1) what he had to defend against at

trial, or (2) whether he could be tried again for the same

offense or a similar one.    The variance was not material.    Even

assuming there was an error, Appellant has failed to show

prejudice stemming from that error.       Therefore, we hold that

there is no plain error in this case based on a claim of

material variance.

                               Issue II

Facts specific to Issue II

     When Appellant was interviewed by the military

investigator, he unquestionably was represented by civilian

counsel for the incident that forms the basis of the charges in

this case.     Appellant’s civilian counsel had been in contact

with the civilian investigators regarding Appellant’s case and

instructed them that any contact with Appellant should be

coordinated through him.    On March 12, 1997, Appellant was

interviewed by a military investigator, Captain (CPT)

Montgomery.7    Detective Shaw, a civilian investigator, told CPT

Montgomery that Appellant had retained a “hot shot lawyer.”         CPT

Montgomery was on notice that Appellant had counsel.      During the

7
  This was the second of three meetings between Appellant and
military investigators. The first meeting occurred on March, 5
1997 with Major Bettendorf. The final meeting, also with CPT
Montgomery, occurred on March 24, 1997. The final meeting was
terminated once Appellant unequivocally requested counsel.

                                  12
United States v. Finch, No. 05-0435/MC

interview with CPT Montgomery, Appellant signed a waiver of his

Article 31, UCMJ, 10 U.S.C. § 831 (2000), rights and

subsequently made a number of statements that became the subject

of a defense motion to suppress.     The military judge denied the

motion and admitted Appellant’s statements to CPT Montgomery at

trial.   Appellant now claims this was a violation of his rights

to have counsel notified and given an opportunity to be present

during the interview.   This requirement was derived from United

States v. McOmber, 1 M.J. 380 (C.M.A. 1976).

Discussion

     The legal question raised by Appellant in this case is

whether the notice to counsel requirement under the McOmber rule

is still valid.   In McOmber, this Court ruled:

     If the right to counsel is to retain any vitality, the
     focus in testing for prejudice must be readjusted
     where an investigator questions an accused known to be
     represented by counsel. We therefore hold that once
     an investigator is on notice that an attorney has
     undertaken to represent an individual in a military
     criminal investigation, further questioning of the
     accused without affording counsel reasonable
     opportunity to be present renders any statement
     obtained involuntary under Article 31(d) of the
     Uniform Code.


1 M.J. at 383.

     McOmber sought to fulfill the statutory purpose of Article

27, UCMJ, regarding the right to counsel in a manner consistent

with parallel developments in the Supreme Court’s constitutional



                                13
United States v. Finch, No. 05-0435/MC

analysis of the right to counsel (e.g., the constitutional

“overtones” discussed in the McOmber opinion regarding the right

to counsel in the context of interrogations).   The McOmber rule,

which was codified in the Military Rules of Evidence and titled

“Notice to Counsel,” read:

     When a person subject to the code who is required to
     give warnings under subdivision (c) intends to
     question an accused or person suspected of an offense
     and knows or reasonably should know that counsel
     either has been appointed for or retained by the
     accused or suspect with respect to that offense, the
     counsel must be notified of the intended interrogation
     and given a reasonable time in which to attend before
     the interrogation may proceed.

Military Rule of Evidence (M.R.E.) 305(e) (1994).   The analysis

of the rules states explicitly, “Rule 305(e) is taken from

United States v. McOmber.”   Manual for Courts-Martial, United

States, Analysis of the Military Rules of Evidence app. 22 at

A22-15 (1994 ed.).   Essentially, the McOmber rule and the old

M.R.E. 305(e) required an investigator to notify an accused’s

attorney that the accused is about to be interrogated and then

to give the attorney a reasonable opportunity to be present at

the interrogation.

     In United States v. LeMasters, 39 M.J. 490, 492 (C.M.A.

1994) this Court ruled that the notification requirement could

be waived if the suspect or accused initiates the discussion

with authorities and is made aware of his right to have his

counsel notified and present.


                                14
United States v. Finch, No. 05-0435/MC

       Shortly after the decision in LeMasters, the Military Rules

of Evidence were amended.   The new (and current) version of

M.R.E. 305(e)8 was renamed “Presence of Counsel” and provides for

two situations where counsel must be present, absent waiver:

(1) custodial interrogations and (2) post-preferral

interrogation.    These changes were instituted to conform the

Military Rules of Evidence to the Supreme Court’s decisions in

Minnick v. Mississippi, 498 U.S. 146 (1990),9 and McNeil v.

Wisconsin, 501 U.S. 171 (1991).10     Manual for Courts-Martial,

United States, Analysis of the Military Rules of Evidence app.



8
    M.R.E. 305(e) states:

       Presence of counsel. (1) Custodial interrogation. Absent
       a valid waiver of counsel under subdivision (g)(2)(B), when
       an accused or person suspected of an offense is subjected
       to custodial interrogation under circumstances described
       under subdivision (d)(1)(A) of this rule, and the accused
       or suspect requests counsel, counsel must be present before
       any subsequent custodial interrogation may proceed.
       (2) Post-preferral interrogation. Absent a valid waiver of
       counsel under subdivision (g)(2)(C), when an accused or
       person suspected of an offense is subjected to
       interrogation under circumstances described in subdivision
       (d)(1)(B) of this rule, and the accused or suspect either
       requests counsel or has an appointed or retained counsel,
       counsel must be present before any subsequent interrogation
       concerning that offense may proceed.
9
   The Court in Minnick held that once a suspect has requested
counsel, interrogators may not reinitiate questioning unless the
attorney is present, regardless of whether or not there has been
an outside consultation. 498 U.S. at 153.
10
    The Court in McNeil states that the Sixth Amendment right to
counsel applies “at the first formal proceeding against an
accused.” 501 U.S. at 181.

                                 15
United States v. Finch, No. 05-0435/MC

22 at A22-15 through A22-16 (2005 ed.).    Absent in the revised

rule is the notice requirement originally created in McOmber:

     Subdivision (e)(2) supersedes the prior notice to
     counsel rule. The prior rule, based on United States
     v. McOmber . . . is not consistent with Minnick and
     McNeil. . . . Minnick and McNeil reexamine the Fifth
     and Sixth Amendment decisions central to the McOmber
     decision; the amendments to subdivision (e) are the
     result of that reexamination.

Id. at 16.   We cannot rely solely on the President’s change to

M.R.E. 305(e) to overrule McOmber.     McOmber was a statutorily

based decision and the underlying statute has not changed.     A

change in a rule cannot supplant a statute, including a

statutorily based judicial decision.    See United States v.

Kossman, 38 M.J. 258, 260-61 (C.M.A. 1993) (stating that the

President cannot overrule or diminish an act of Congress or the

Court of Appeals for the Armed Forces’ interpretation of the

statute).    However, McOmber represented an attempt to ensure

that the statutory right to counsel under Article 27, UCMJ, was

administered in a manner consistent with then-current Supreme

Court constitutional precedent regarding the right to counsel.

Minnick and McNeil subsequently modified that precedent.     In the

absence of a distinct military rationale justifying its

continued application in light of these changes, McOmber is

overruled.   M.R.E. 305(e) remains controlling authority.

     Applying M.R.E. 305(e) to the facts of this case, the

military judge did not err in admitting Appellant’s pretrial


                                16
United States v. Finch, No. 05-0435/MC

statement to CPT Montgomery.     Appellant was advised of his

Article 31(b), UCMJ, rights and signed a valid, written waiver

of his rights in accordance with M.R.E. 301(g).    One of the

rights Appellant acknowledged and waived, as indicated by his

initials, reads, “I expressly do not desire to consult with

either a civilian lawyer retained by me or a military lawyer

appointed as my counsel without cost to me prior to

questioning.”

     Appellant also acknowledged waiver of these rights when

questioned by the military judge at trial regarding the written

waiver.11   Furthermore, Appellant acknowledged that his civilian

attorney told him not to go into questioning without him and

Appellant intentionally ignored that advice.    Based on

Appellant’s own testimony and actions in reviewing and signing

the Article 31, UCMJ, rights form at the time of the

11
     MJ:     And it says here you don’t desire to talk to
             the civilian lawyer, and you had a civilian
             lawyer, Mr. Moses, right?

     App:    Yes, sir.

     MJ:     Or a military lawyer?

     App:    Yes, sir.

     . . . .

     MJ:    As you were going over this form with him in that
            room that he described, did you say, “Get me a
            military lawyer”?

     App:   No, sir, I didn’t.

                                  17
United States v. Finch, No. 05-0435/MC

interrogation, Appellant waived any right he may have had to

have his counsel notified of and be present at the

interrogation.   See LeMasters, 39 M.J. at 493 (holding that

notice to counsel may be waived).

     The current version of M.R.E. 305(e) does not require an

investigator to notify an accused’s or suspect’s counsel prior

to initiating an interview, regardless of whether the

investigator knows or reasonably should know that the accused or

suspect is represented by counsel on the offenses about which

the investigator intends to question him.   The McOmber

notification rule and the subsequent codification of the rule in

the Military Rules of Evidence were not constitutionally

required under the Fifth or Sixth Amendments of the Constitution

and are not consistent with the law set forth in Minnick and

McNeil.12   Thus, there is no constitutional requirement to

provide an accused with more rights than those set out in the

rules.   Accordingly, we hold that the military judge did not err

in admitting Appellant’s statement to CPT Montgomery.

                              ISSUE III

Facts specific to Issue III

     The court-martial was decided on July 21, 1998.      The

convening authority acted on August 6, 1999.   The record was

12
  The new M.R.E. 305(e) does not address the ethical
implications of dealing with accuseds or suspects who are
represented by counsel. See generally M.R.E. 305(e).

                                 18
United States v. Finch, No. 05-0435/MC

sent to the Navy-Marine Corps Court of Criminal Appeals (NMCCA)

on January 28, 2000, and docketed on March 1, 2000.     The defense

filed twenty motions for enlargement between July 5, 2000, and

May 31, 2002, when their brief was filed.     The Government filed

eight motions for enlargement; the last one was filed on March

26, 2003.    The defense did not oppose any of the Government

enlargements until April 2, 2003.      The Government brief was

filed with the court below on May 19, 2003.     On November 18,

2004, the defense filed a motion for expedited review.        Finally,

on March 10, 2005, the NMCCA delivered its opinion.

Discussion

     We review claims of post-trial and appellate delay using

the four-factor analysis from Barker v. Wingo, 407 U.S. 514, 530

(1972).    United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.

2006).13    If there has been a denial of due process, an appellant

is entitled to relief unless the Court is convinced that the

error was harmless beyond a reasonable doubt.     United States v.

Toohey, 63 M.J. 353, 363 (C.A.A.F. 2006).      Where we can

determine that any violation of the due process right to speedy

post-trial review and appeal is harmless beyond a reasonable

doubt, we need not undertake the four-factor Barker analysis


13
  I apply the analysis from the majority opinion in Moreno, but
see Moreno, 63 M.J. at 144-52 (C.A.A.F. 2006) (Crawford, J.,
concurring in part and dissenting in part).



                                  19
United States v. Finch, No. 05-0435/MC

prior to disposing of that post-trial or appellate delay issue.

See United States v. Allison, 63 M.J. 365, 370-71 (C.A.A.F.

2006).   In this case, we conclude that even if Appellant was

denied his due process right to speedy review and appeal, that

error was harmless beyond a reasonable doubt and no relief is

warranted.

                            CONCLUSION

     For the reasons stated above, we affirm the decision of the

United States Navy-Marine Corps Court of Criminal Appeals.




                                20
United States v. Finch, No. 05-0453/MC


     GIERKE, Chief Judge (concurring in part and dissenting in

part):

     I dissent from my colleagues’ treatment of Issues I and II;

however I join Judge Erdmann’s separate opinion concurring in

the result on Issue III.

                              ISSUE I

     No principle of procedural due process is more clearly
     established than that notice of the specific charge,
     and a chance to be heard in a trial of the issues
     raised by that charge, if desired, are among the
     constitutional rights of every accused in a criminal
     proceeding in all courts, state or federal.1

I respectfully dissent from the majority opinion because

changing the overt act by exceptions and substitutions resulted

in a material variance, which altered the very nature of the

offense, such that Appellant was denied this fundamental

principle of due process.

     The Manual for Courts-Martial describes the two distinct

elements of conspiracy:

     (1)   That the accused entered into an agreement with one or
           more persons to commit an offense under the code; and
     (2)   That, while the agreement continued to exist, and
           while the accused remained a party to the agreement,
           the accused or at least one of the co-conspirators
           performed an overt act for the purpose of bringing
           about the object of the conspiracy.2




1
 Cole v. Arkansas, 333 U.S. 196, 201 (1948).
2
  Manual for Courts-Martial, United States pt. IV, para. 5.b.
(2005 ed.) (MCM).
United States v. Finch, No. 05-0453/MC


     Thus, the overt act is an essential element of the offense,

which must be alleged and proven beyond a reasonable doubt.     In

this case, the military judge, without any notice to the

accused, announced findings by exceptions and substitutions to

overt acts that were not alleged in, or implied by, the

specification charged.   The alteration of the charge by the

military judge constituted a fatal variance in the pleadings and

materially prejudiced Appellant’s ability to defend against the

charge of conspiracy.

     Appellant was originally charged with conspiracy to provide

alcohol to persons involved in the delayed entry program.   Two

specific overt acts were alleged in the specification:

(1) purchasing beer at a service station, and (2) transporting

that beer to the [T] residence.

     After hearing all the evidence, the military judge found

Appellant not guilty of the overt acts alleged.    The military

judge then proceeded, by exceptions and substitutions, to find

Appellant guilty of two new, distinct overt acts, namely that:

(1) Appellant, Staff Sergeant Teffeau, and [JK] agreed to drive

to the Winfield City Lake to drink beer at the lake, and (2)

they then drove to the lake in two separate cars and drank beer.

The specification as amended by the military judge’s announced

findings focused on two allegations of fact:   an agreement to

drive to the lake and drinking beer at the lake.   The charge


                                  2
United States v. Finch, No. 05-0453/MC


originally alleged made absolutely no mention of either of these

allegations.

     The majority quotes United States v. Hunt, which states,

“To prevail on a fatal-variance claim, appellant must show that

the variance was material and that it substantially prejudiced

him.”3   An accused can show prejudice from a material variance in

several ways.   One way includes a showing of a due process

violation “where he was ‘misled to the extent that he has been

unable adequately to prepare for trial . . . or where the

variance at issue changes the nature or identity of the offense

and he has been denied the opportunity to defend against the

charge.’”4

     Appellant and his counsel prepared a defense and presented

evidence to refute the overt acts alleged by the Government.

This defense was directed at demonstrating that the overt acts

alleged occurred before any criminal agreement took place.

Specifically, Appellant presented evidence at trial that the

purpose of purchasing beer at a service station was for

consumption during that weekend’s football playoff games. The

military judge’s verdict indicates that Appellant and his

counsel were successful in their defense to the offense as

alleged.

3
  37 M.J. 344, 347 (C.M.A. 1993).
4
  United States v. Teffeau, 58 M.J. 62, 67 (C.A.A.F. 2003)
(quoting United States v. Lee, 1 M.J. 16 (C.M.A. 1975)).

                                 3
United States v. Finch, No. 05-0453/MC


        In United States v. Collier, this Court held “[a] variance

between a single overt act averred in an indictment and the act

proved at trial may constitute harmless error beyond a

reasonable doubt.”5    “‘Substantial similarity between the facts

alleged in the overt act and those proved is all that is

required.’”6    In Collier, this Court concluded the proven overt

act of leaving the squad bay was substantially similar to the

alleged overt act of leaving the barracks in furtherance of the

agreement to rob junior Marines at the back gate of Camp Geiger.7

The terms “squad bay” and “barracks” are sometimes used

synonymously.    A person standing in the squad bay of a squad-bay

type of barracks has to leave the squad bay before he or she can

exit the barracks. Thus, the act of leaving the squad bay was

included in and implied by the act alleged, leaving the

barracks.

        This case is distinguishable from Collier.   Here, the

alleged overt acts of buying beer and traveling to a private

residence, which Appellant successfully defended against, are

not substantially similar to, included in, or implied by the

substituted acts of driving to a lake and drinking a beer at the

lake.    The changing of the overt act element of the conspiracy


5
  United States v. Collier, 14 M.J. 377, 380 (C.M.A. 1983).
6
  Id. (quoting Strauss v. United States, 311 F.2d 926, 932 (5th
Cir. 1963)).
7
  See id.

                                   4
United States v. Finch, No. 05-0453/MC


charge did not constitute harmless error.    On the contrary, it

altered the language of the alleged overt act element in a

manner which produces a material variance.   Appellant was

substantially prejudiced by this material variance because he

was denied the opportunity to defend against the charge.

Appellant was successful in preparing and presenting a defense

to the crime charged by the Government.   He should have had an

opportunity to prepare a defense to the substantially different

charge created by the military judge when he announced his

findings of guilt.

     The majority’s decision on Issue I is particularly

troublesome because it focuses on the fact that Appellant did

not object to the announcement of the verdict.   The majority

therefore concludes that the military judge’s error in altering

the nature of the charge is waived by the failure to object

unless the error is deemed to be plain or “clear” error.

     I have not been able to find any criminal case from any

jurisdiction which places a requirement on the defendant to

object to the verdict in order to preserve a legal issue for

appeal.   Indeed, the entry of a plea of not guilty should

provide ample notice that a defendant would oppose and object to

any findings of guilt.   I therefore disagree with any notion

that an accused is expected to object to findings of guilt after

they are announced.   Appellant did not waive this issue by a


                                 5
United States v. Finch, No. 05-0453/MC


failure to object to the announcement of findings and the error

warrants reversal.

        Accordingly, I respectfully dissent.

                               ISSUE II

        I also dissent from the majority decision to overrule

United States v. McOmber,8 because doing so will “utterly defeat

the congressional purpose of assuring military defendants

effective legal representation without expense.”9     McOmber held

that “once an investigator is on notice that an attorney has

undertaken to represent an individual in a military criminal

investigation, further questioning of the accused without

affording counsel reasonable opportunity to be present renders

any statement obtained involuntary under Article 31(d) of the

Uniform Code.”10    This also includes “questioning with regard to

the accused’s future desires with respect to counsel as well as

his right to remain silent, for a lawyer’s counseling on these

two matters in many instances may be the most important advice

ever given his client.”11    The McOmber rule was codified in the

Military Rules of Evidence and titled “Notice of Counsel.”      It

read:



8
    United States v. McOmber, 1 M.J. 380 (C.M.A. 1976).
9
   Id. at 383. (citing Article 27, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 827 (2000)).
10
    Id.
11
    Id.

                                   6
United States v. Finch, No. 05-0453/MC


       When a person subject to the code who is required to give
       warnings under subdivision (c) intends to question an
       accused or person suspected of an offense and knows or
       reasonably should know that counsel either has been
       appointed for or retained by the accused or suspect with
       respect to that offense, the counsel must be notified of
       the intended interrogation and given a reasonable time in
       which to attend before the interrogation may proceed.12

       In 1994, the President amended M.R.E. 305(e) to remove the

McOmber notice requirement.13     McOmber was a statutorily based

decision, and the underlying statute, Article 27, UCMJ, has not

changed.    “The President. . .   cannot overrule or diminish an

Act of Congress via the promulgation of rules of procedure.

Likewise, the President cannot overrule or diminish our

interpretation of a statute.”14     Thus, Article 27, UCMJ, and our

decisions interpreting and applying it “reign[ ] preeminent over

anything propounded by the President.”15

       The majority bases its conclusion that the President can

overrule McOmber on the idea that McOmber was not an application

and interpretation of Article 27, UCMJ, but rather an attempt to

ensure that Article 27, UCMJ, was administered in a manner

consistent with parallel developments in civilian constitutional

law.    The majority apparently draws this conclusion from the

reference to constitutional “overtones” in the McOmber opinion.16


12
     Military Rule of Evidence (M.R.E.) 305(e) (1994).
13
     M.R.E. 305(e) (2005).
14
     United States v. Kossman, 38 M.J. 258, 260-61 (C.M.A. 1993).
15
     Id.
16
     McOmber, 1 M.J. at 382.

                                   7
United States v. Finch, No. 05-0453/MC


It is important to put that phrase in context to understand that

the decision was directly based on Article 27, UCMJ.   What this

Court said was, “Although the question presented has certain

constitutional overtones, our disposition of the matter on

statutory grounds makes it unnecessary to resolve the Sixth

Amendment claim.”17   Judge Cook’s concurring opinion is even more

explicit in rejecting any notion that civilian constitutional

precedent was being followed.   Judge Cook cites two federal

cases which have allowed questioning without counsel’s presence

and then states, “As the principal opinion observes, however,

our cases have leaned squarely in the opposite direction.    It

may, indeed, be time to prescribe the strong medicine of

explicit disapproval.”18   Accordingly, the majority opinion’s

conclusion that McOmber was crafted to follow developments in

constitutional law is contradicted by the very language of the

McOmber decision.

     In many instances servicemembers are afforded more rights

in the criminal justice system than their civilian

counterparts.19   For example, the rights advisement required by


17
   Id. (emphasis added).
18
   Id. at 383 (Cook, J., concurring) (emphasis added and
quotation marks omitted).
19
   See United States v. Warner, 62 M.J. 114, 121 n.31 (C.A.A.F.
2005), which states:

     In defining the rights of military personnel, Congress was
     not limited to the minimum requirements established by the

                                 8
United States v. Finch, No. 05-0453/MC


Article 31, UCMJ,20 predates Miranda v. Arizona21 by sixteen

years, and the protections afforded servicemembers by Article

31, UCMJ, are, in some respects, even more expansive than those

required by Miranda.22   Similarly, this Court, focusing on the

differences between a court-martial and a civilian jury trial,

has held that a military defendant is entitled to “a reasonable,

racially neutral explanation” for a prosecutor’s challenge of a

minority member of a court-martial, while a civilian defendant

is not.23

     The majority opinion fails to recognize that McOmber was

based on the interpretation of a statute crafted by Congress to

address special military circumstances.   As Congress recognized

in drafting Article 31, UCMJ, it is appropriate that more

protection be afforded to servicemembers in the interrogation

setting than to their civilian counterparts because of the


     Constitution, and in many instances, it has provided
     safeguards unparalleled in the civilian sector. United
     States v. Mapes, 59 M.J. 60, 65 (C.A.A.F. 2003) (quoting
     United States v. McGraner, 13 M.J. 408, 414 (C.M.A. 1982)
     (quotation marks omitted)); see, e.g., Francis A. Gilligan,
     The Bill of Rights and Service Members, 1987 Army Law. 3,
     10 (Dec. 1987) (servicemembers’ rights broader than
     constitutionally required).
20
   10 U.S.C. § 831 (2000).
21
   Miranda v. Arizona, 384 U.S. 436 (1966).
22
   H. F. “Sparky” Gierke, The Use of Article III Case Law in
Military Jurisprudence, Army Law., Aug. 2005, at 25, 36.
23
   United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997)
(declining to follow the Supreme Court’s holding in Purkett v.
Elem, 514 U.S. 765, 769 (1995), that the explanation for the
challenge need not “make[ ] sense”).

                                 9
United States v. Finch, No. 05-0453/MC

characteristically coercive nature of the military.      The

prophylactic rule announced in McOmber was intended to ensure

the right to effective assistance of counsel set forth in

Article 27, UCMJ, and to extend that right to servicemembers

facing an interrogation into allegations of misconduct.

     The recognition that the military environment is inherently

coercive is substantiated by the very facts of this case.      It

cannot be ignored that Appellant, with the assistance of

counsel, was able to successfully invoke his rights in several

attempted interrogations by civilian police, but eventually

agreed to waive his rights when confronted by a military

superior for the second time.   The military setting, the

influence of rank, and the absence of the assistance of counsel

almost certainly created an environment in which Appellant’s

ability to invoke the rights previously asserted was

compromised.

     The rights afforded by Article 27, UCMJ, and McOmber are

separate and distinct from the constitutional rights addressed

in Minnick v. Mississippi24 and McNeil v. Wisconsin.25    The change


24
   Minnick v. Mississippi, 498 U.S. 146 (1990) (holding that
once a suspect has requested counsel, interrogators may not
reinitiate questioning unless the attorney is present,
regardless of whether or not there has been an outside
consultation).
25
   McNeil v. Wisconsin, 501 U.S. 171 (1991) (finding that the
assertion of the Sixth Amendment right to counsel did not imply
an assertion of the Miranda right to counsel).

                                10
United States v. Finch, No. 05-0453/MC

to M.R.E. 305(e), removing the McOmber protections prior to

preferral of charges, was enacted to apply Minnick and McNeil.26

But, in the military environment, counsel rights extending

beyond those in civilian society are particularly important.

Our country has soldiers, sailors, airmen, and marines deployed

in every corner of the globe for extensive periods of time.      In

these remote areas, they may find themselves facing

investigations into allegations of criminal conduct for months,

even years, before a charge can be preferred.27    These young men

and women deserve unique protections to ensure that they receive

the effective assistance of counsel in the unique circumstances

they face as a result of their military service.    McOmber is

based on military-specific statutory provisions designed to

protect this important right to counsel rather than the

constitutional provisions involved in Minnick and McNeil.     Since

a change in a rule cannot supplant a statute, including a

statutorily based judicial decision,28 the attempt to overrule

McOmber by amending the Military Rules of Evidence should fail.

Accordingly, I dissent from the majority’s decision to overrule

26
   Manual for Courts-Martial, United States, Analysis of the
Military Rules of Evidence app. 22 at A22-15 through A22-16
(2005 ed).
27
   See United States v. Wattenbarger, 21 M.J. 41, 42-45 (C.M.A.
1985) (finding a pre-preferral right to counsel in a situation
where a sailor stationed overseas was facing allegations of
criminal behavior for four months prior to preferral of any
charges).
28
   Kossman, 38 M.J. at 260-61.

                               11
United States v. Finch, No. 05-0453/MC

McOmber, based on the holdings of Minnick and McNeil, and the

changes to M.R.E. 305(e).    I would also overrule those portions

of M.R.E. 305(e) which are inconsistent with McOmber.

       In addition to overruling McOmber, the majority

alternatively concludes that Appellant waived any McOmber

protections that he was afforded.       In reaching this conclusion,

the majority relies on United States v. LeMasters, which found a

proper waiver of McOmber rights.29       Because I concurred in

LeMasters, I think it is important to note the significant

factual distinctions between that case and this one.

       The appellant in LeMasters contacted the Office of Special

Investigations (OSI) office on his own accord on four separate

occasions without requesting counsel, and he made statements

each time.30    In LeMasters, prior to taking the appellant’s

statement, a special agent in the OSI office instructed the

appellant to contact his attorney, and the agent provided the

appellant with an office, a phone, and the phone number of the

area defense counsel’s office.31     The interrogation proceeded

only after LeMasters returned to the agent and indicated that he

had spoken with counsel and desired to continue without counsel

present.32


29
     39 M.J. 490, 493 (C.A.A.F. 1994).
30
     Id. at 491.
31
     Id.
32
     Id.

                                   12
United States v. Finch, No. 05-0453/MC

     In stark contrast to LeMasters, who initiated four separate

discussions with law enforcement, Appellant here never initiated

an interrogation session and, through counsel, declined to speak

with the Winfield City Police Department.    In furtherance of law

enforcement’s continuing effort to successfully interrogate

Appellant, Detective Shaw, the civilian police officer, worked

with Captain (CPT) Montgomery, the military officer

investigating Appellant.   Detective Shaw told CPT Montgomery

that Appellant was represented by a “hot shot lawyer.”

Detective Shaw, who had been unable to question Appellant

because of his invocation of rights, provided CPT Montgomery

with a list of questions to ask.     On March 12, 1997, CPT

Montgomery, without making any effort to contact Appellant’s

lawyer or to give Appellant the opportunity to do so, gave

Appellant the standard rights acknowledgment warning and

obtained a waiver of Appellant’s Miranda rights and Article 31,

UCMJ, rights.33

     The Court in LeMasters ruled that the Appellant had waived

his rights because “there is no evidence of police overreaching

or badgering or attempting to surreptitiously deprive appellant

33
  The standard “Miranda waiver” should not equate to a waiver of
McOmber rights because, as we pointed out in McOmber, the
notification to counsel was required prior to “questioning with
regard to the accused’s future desires with respect to counsel
as well as his right to remain silent, for a lawyer’s counseling
on these two matters in many instances may be the most important
advice ever given his client.” 1 M.J. at 383.

                                13
United States v. Finch, No. 05-0453/MC

of the right to counsel.    Rather, this is a case in which

appellant intended to give a statement . . . to the OSI agents.

This discourse was initiated by appellant and not by the

agents.”34

       The facts of this case indicate that Appellant had no

desire to be interrogated and would not have done so absent the

repeated law enforcement efforts to subvert his invocation of

rights.    In LeMasters, law enforcement recognized and protected

the accused’s McOmber rights.     In the instant case, law

enforcement ignored and attempted to maneuver around the

undisputed fact that Appellant was represented by counsel.

These facts support the rationale for McOmber, not the

majority’s decision to overrule that important military case.   I

therefore respectfully dissent.




34
     39 M.J. at 492 (quotation marks omitted).

                                  14
United States v. Finch, No. 05-0453/MC


       ERDMANN, Judge (concurring in part and dissenting in part):

       I concur with the majority on Issue II.   I join the Chief

Judge’s dissent with respect to Issue I.

       Finally, I concur in the result on Issue III.   I conclude

that even though Finch should have prevailed on a meritorious

substantive issue, he did not suffer any prejudice under the

fourth prong of the appellate delay analysis.    See United States

v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004) (adopting the speedy

trial factors from Barker v. Wingo, 407 U.S. 514, 530 (1972),

for post-trial and appellate delays).    Although I would have

authorized a rehearing on the specification of Charge I and the

sentence, any delay in processing this appeal did not result in

oppressive incarceration.   See United States v. Moreno, 63 M.J.

129, 139 (C.A.A.F. 2006).   Finch would have been released after

serving the adjudged five months of confinement well before a

timely appeal could have been completed.   Further, although the

delay in this case may have impaired Finch’s ability to present

a defense at a rehearing, he has “not . . . identi[fied] any

specific harm that he would encounter at a rehearing.”    Id. at

141.   For those reasons, I would conclude that Finch was not

prejudiced under the fourth Barker factor.

       I would, however, find a violation of Finch’s due process

right to speedy post-trial and appellate review.    The 2,424 days

(six years, seven months and twenty days) from sentencing to
United States v. Finch, No. 05-0453/MC


completion of Finch’s appeal of right is excessive and is “so

egregious that tolerating it would adversely affect the public’s

perception of the fairness and integrity of the military justice

system.”   United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F.

2006).   However, I share the majority’s conclusion that this due

process violation was harmless beyond a reasonable doubt.   See

id. at 363.




                                 2
