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

                         UNITED STATES, Appellee
                                      v.
              Lieutenant Colonel DOUGLAS K. WINCKELMANN
                        United States Army, Appellant

                                    ARMY 20070243

             Headquarters, CECOM Life Cycle Management Command
                          David L. Conn, Military Judge
           Lieutenant Colonel Gregory S. Mathers, Staff Judge Advocate


For Appellant: Ms. Mary T. Hall, Esquire (argued); Captain Candace N. White
Halverson, JA; Ms. Mary T. Hall, Esquire (on brief); Captain A. Jason Nef, JA;
Ms. Mary T. Hall, Esquire (on brief in response to specified issue).

For Appellee: Captain Jonathan P. Robell, JA (argued); Lieutenant Colonel Francis
C. Kiley, JA; Major Christopher B. Burgess, JA; Captain Jonathan P. Robell, JA (on
brief); Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha Foss, JA;
Major Christopher B. Burgess, JA; Captain Jonathan P. Robell, JA (on brief in
response to specified issue).


                                     30 August 2012

                       ---------------------------------------------------
                        SUMMARY DISPOSITION ON REMAND
                       ---------------------------------------------------
YOB, Judge:

       Pursuant to his pleas, appellant was found guilty of two specifications of
conduct unbecoming an officer and a gentleman, and two specifications of indecent
acts with another, in violation of Articles 133 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 933, 934 (2006) [hereinafter UCMJ], respectively. A panel of
officer members convicted appellant, contrary to his pleas, of two specifications of
conduct unbecoming an officer and a gentleman, one specification of possession of
child pornography, three specifications of attempted enticement of a minor in
violation of 18 U.S.C. § 2422(b), two specifications of communicating indecent
language, and two specifications of obstruction of justice, in violation of Articles
133 and 134, UCMJ. The members sentenced appellant to a dismissal, confinement
for thirty-one years, and forfeiture of all pay and allowances. The convening
authority ultimately approved “only so much of the sentence as provides for 31 years
confinement and a dismissal.”
WINCKELMANN—ARMY 20070243

       In our initial Article 66, UCMJ, review of appellant’s case, we set aside two
of the findings: (1) Specification 2 of Charge III, involving the attempted enticement
of a minor by sending a nude picture of a male, for failure to state an offense; and,
(2) the finding of guilty for possession of child pornography. United States v.
Winckelmann, No. ARMY 20070243, 2010 WL 4892816 (Army Ct. Crim. App. 30
Nov. 2010) (mem. op.). We affirmed the remaining charges and specifications,
reassessed the sentence, and reduced appellant’s confinement to twenty years’
confinement and otherwise affirmed the approved sentence. 1

       On 12 December 2011, The United States Court of Appeals for the Armed
Forces (CAAF) affirmed our decision regarding Specification 2 of Charge III and
Charge VII and its specifications, but reversed our decision as to Specification 3 of
Charge III, and set aside the finding of guilty and dismissed that specification.
United States v. Winckelmann, 70 M.J. 403 (C.A.A.F. 2011). In addition, CAAF
vacated our decision as to Charges IV, V, and VI, and the sentence, and returned the
record of trial to The Judge Advocate General of the Army for remand to this court
for further consideration of those charges in light of United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011), and for reassessment of the sentence or, if appropriate, for
ordering a rehearing on sentence.

                              LAW AND DISCUSSION

       In Fosler, our superior court cited Schmuck v. United States, 489 U.S. 705
(1989), as well as a line of cases drawing on the holding of Schmuck, 2 for the
proposition that the historical practice of implying Article 134’s terminal element in
every enumerated offense was no longer permissible. Fosler held that notice
pleading in the military requires charges and specifications to allege every element
of an offense expressly or by necessary implication to ensure that an accused
understands what he must defend against. Fosler, 70 M.J. at 229. Fosler applied
this principle to charges brought under Article 134, UCMJ, and thus required the


1
  In our opinion, we stated that we affirmed only so much of the sentence as
provided for “dismissal, twenty years confinement, and total forfeiture of pay and
allowances.” However, the convening authority did not approve a sentence
including total forfeitures. Nevertheless, this court’s erroneous affirmance of total
forfeitures did not result in material prejudice to appellant. United States v.
Winckelmann, 70 M.J. 403, 409 (C.A.A.F. 2011). See UCMJ art. 58b.
2
 The cases cited by the Fosler Court include: United States v. McMurrin, 70 M.J. 15
(C.A.A.F. 2011); United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011); United
States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); United States v. Miller, 67 M.J. 385
(C.A.A.F. 2009); United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).



                                           2
WINCKELMANN—ARMY 20070243

terminal element of Article 134, UCMJ, offenses to be expressly alleged or
necessarily implied. 3

       Charges IV, V, and VI alleged Article 134, UCMJ, offenses, none of which
expressly alleged the terminal elements. Prior to its holding in Fosler, our superior
court routinely approved the practice of not including the terminal element when
charging offenses in violation of Article 134, UCMJ. See Fosler, 70 M.J. at 228
(collecting cases). In addition, non-binding, explanatory language present in the
Manual for Courts-Martial at the time charges were referred clearly stated that “[a]
specification alleging a violation of Article 134 need not expressly allege that the
conduct was a ‘disorder or neglect,’ that it was ‘of a nature to bring discredit upon
the armed forces,’ or that it constituted ‘a crime or offense not capital.’” Manual for
Courts-Martial, United States, pt. IV, ¶ 60.c.(6)(a) (2005 ed.). Thus, the form of the
Article 134, UCMJ, specifications against appellant conformed to the law as
understood by practitioners at the time. However, Fosler and subsequent opinions
of our superior court clearly applied new standards that would not imply the terminal
element for Article 134, UCMJ, offenses.

        Pursuant to United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), United
States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), and United States v. Humphries, 71
M.J. 209 (C.A.A.F. 2012), it is now plainly erroneous to omit the terminal elements
from an Article 134, UCMJ, specification. “[W]here 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.” 4 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.” Humphries, 71 M.J. 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)). In this case, we will analyze each charge separately.



3
 The terminal elements of all charges brought under Clauses 1 or 2 of Article 134,
UCMJ, require proof that the conduct at issue was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring discredit upon the armed
forces.
4
 In the instant case, appellant did not object to the form of the Article 134, UCMJ,
specifications or their failure to allege the terminal elements.



                                           3
WINCKELMANN—ARMY 20070243

       First, appellant contested but was found guilty of two specifications under
Charge IV, alleging he communicated indecent language to a person he believed to
be a fourteen year-old boy, in violation of Article 134, UCMJ. Neither of these
specifications allege the terminal element of Article 134, UCMJ, and they are
therefore plainly erroneous. As to Charge IV and its specifications, we conclude
this error materially prejudiced appellant’s substantial right to notice for the
following reasons: (1) appellant contested this charge, which did not afford him the
notice inherent in the “unique requirements for accepting a guilty plea in a military
context,” Humphries, 71 M.J. at 215 (citing United States v. Ballan, 71 M.J. 28, 34–
35 (C.A.A.F. 2012)); (2) the government’s opening statement at trial does not
address how appellant’s conduct in communicating indecent language to a person he
believed to be a minor satisfies the terminal elements; (3) no witness ever testified
during the government’s case in chief about how appellant’s conduct relating to
indecent language violated the terminal elements; (4) likewise, the government
never admitted any evidence during its case in chief pertaining to the terminal
elements of the indecent language offenses; (5) the military judge’s instructions on
the terminal elements occurred after the close of evidence and did not alert appellant
to the government’s theory of guilt; and (6) no other pretrial matters provided
appellant notice of the terminal elements of the indecent language specifications.
Therefore, under the holding of Humphries, we find substantial prejudice and are
compelled to disapprove the findings of guilt to Charge IV and its specifications.

       The specifications of Charge V allege appellant committed indecent acts in
violation of Article 134, UCMJ, but these specifications also fail to allege the
terminal elements. Again, the government’s failure to allege the terminal elements
constitutes plain error. However, in accordance with our superior court’s holding in
Ballan, we find the process employed for the acceptance of the guilty plea afforded
appellant notice of the terminal elements of the indecent acts specifications, and
therefore, he suffered no prejudice. See Ballan, 71 M.J. at 34–35. Accordingly, we
affirm the findings of guilty for Charge V and its specifications.

       Finally, appellant contested two specifications under Charge VI, alleging
obstruction of justice, in violation of Article 134, UCMJ. These specifications
failed to allege the terminal elements. Although the government’s failure to plead
the terminal elements in the specifications of Charge VI was plain error, we
conclude this error did not result in material prejudice to appellant’s substantial
right to notice. On 12 January 2007, over a month before appellant ultimately
entered his plea to Charge VI, the government submitted a written response to the
defense motion to dismiss Charge VI, in which the government listed all the
elements of the Article 134, UCMJ, offense of obstruction of justice, to include the
terminal elements. On 13 February 2007, a week before appellant entered a plea to
Charge VI, the military judge issued written findings, ruling on the defense motion
to dismiss, and listed all the elements of the Article 134, UCMJ, offense of
obstruction of justice, to include the terminal elements. Under the totality of the
circumstances, there can be no doubt appellant was aware of and on notice of the


                                          4
WINCKELMANN—ARMY 20070243

terminal elements for his obstruction charge as he was provided this in writing by
the government response to his motion to dismiss and in the military judge’s ruling
on this issue. Accordingly, the record demonstrates appellant was on notice of the
terminal elements of obstruction of justice and did not suffer prejudice as a result of
their omission from the specifications of Charge VI.

                                   CONCLUSION

       In light of the modifications to the findings, we find it appropriate that this
court again reassess the sentence. A sentence reassessment differs from our Article
66, UCMJ, responsibility to determine that the sentence is appropriate. In this
instance, we must assure not only that the sentence is appropriate in relation to the
affirmed findings of guilty, but we must also assure that the sentence is no greater
than that which would have been imposed if the prejudicial error had not been
committed. UCMJ Art. 66; United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006);
United States v. Peoples, 29 M.J. 426, 428 (C.M.A. 1990); United States v. Sales,
22 M.J. 305, 307–08 (C.M.A. 1986).

       On consideration of the entire record, and in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), and United States v. Fosler, 70 M.J. 225
(C.A.A.F. 2011), the findings of guilty of Charge IV and its specifications are set
aside and those specifications are dismissed. The remaining findings of guilty are
affirmed. Reassessing the sentence on the basis of the error noted, the entire record,
and in accordance with the principles of Sales and Moffeit, to include the factors
identified by Judge Baker in his concurring opinion in Moffeit, the court affirms
only so much of the sentence as provides for a dismissal and eleven years’
confinement. We conclude, pursuant to Article 66, UCMJ, that such a sentence is
appropriate for the offenses for which we have affirmed findings of guilty, and we
also conclude that such a sentence is at least that which would have been imposed by
a court-martial for the remaining findings of guilty. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of his
sentence 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
                                        JOANNE
                                        Deputy ClerkP.
                                                     of TETREAULT
                                                        Court     EL
                                        Act



                                           5
