                     UNITED STATES, Appellee

                                 v.

              Raymond L. GIROUARD, Staff Sergeant
                      U.S. Army, Appellant

                            No. 10-0642

                     Crim. App. No. 20070299

    United States Court of Appeals for the Armed Forces

                     Argued January 12, 2011

                     Decided April 14, 2011

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


                              Counsel

For Appellant: Tillman J. Finley, Esq. (argued);
Lieutenant Colonel Jonathan F. Potter, Captain A. Jason
Nef, and Daniel Marino, Esq. (on brief).

For Appellee: Major Adam S. Kazin (argued); Colonel
Michael E. Mulligan and Major Christopher B. Burgess (on
brief); Lieutenant Colonel Jan E. Aldykiewicz.


Military Judge:    Theodore E. Dixon




     THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Girouard, No. 10-0642/AR


        Judge RYAN delivered the opinion of the Court.

        Contrary to his pleas, Appellant was found guilty by a

panel of officer and enlisted members sitting as a general

court-martial and convicted of conspiracy to obstruct

justice, obstruction of justice, violating a lawful general

order, and three specifications of negligent homicide,1 in

violation of Articles 81, 92, and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 934 (2006).

Appellant was found not guilty of conspiracy to commit

premeditated murder and premeditated murder, under Articles

81 and 118, UCMJ, 10 U.S.C. §§ 881, 918 (2006).    The

adjudged sentence included a dishonorable discharge,

confinement for ten years, forfeiture of all pay and

allowances, and reduction to Private E-1.    Except for the

forfeitures, the convening authority approved the adjudged

sentence and also gave Appellant 368 days of confinement

credit against the approved confinement.

        The United States Army Court of Criminal Appeals

(ACCA) affirmed the findings and sentence on April 23,

2010.    See United States v. Girouard, No. ARMY 20070299,

2010 CCA LEXIS 49, 2010 WL 3529415 (A. Ct. Crim. App. Apr.

23, 2010).    Appellant petitioned for reconsideration on May

1
  Relevant to the granted issue, Appellant was charged with
three specifications of premeditated murder, in violation
of Article 118, UCMJ, and not negligent homicide.

                                2
United States v. Girouard, No. 10-0642/AR


19, 2010, arguing that this Court’s April 19, 2010,

decision in United States v. Jones, 68 M.J. 465 (C.A.A.F.

2010), prohibited his conviction for negligent homicide as

a lesser included offense (LIO) of premeditated murder.

The ACCA granted the motion for reconsideration, but denied

relief on May 25, 2010.    United States v. Girouard, No.

ARMY 20070299 (A. Ct. Crim. App. May 25, 2010) (order).

     Appellant filed a petition for review on July 23,

2010, and on September 24, 2010, we granted Appellant’s

petition of the following issue:

     WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
     IN FAILING TO DISMISS APPELLANT’S NEGLIGENT
     HOMICIDE CONVICTION PURSUANT TO THIS COURT’S
     OPINION IN UNITED STATES V. JONES, 68 M.J. 465
     (C.A.A.F. 2010), BECAUSE NEGLIGENT HOMICIDE IS
     NOT A LESSER INCLUDED OFFENSE TO MURDER.

United States v. Girouard, 69 M.J. 277 (C.A.A.F. 2010)

(order granting review).

     We conclude that the ACCA erred in failing to dismiss

Appellant’s negligent homicide conviction:    negligent

homicide is not a lesser included offense of premeditated

murder and under the facts of this case the conviction

constitutes plain error.

                               I.

     The following facts are undisputed.     On May 9, 2006,

Third Squad –- including Staff Sergeant Raymond Girouard



                               3
United States v. Girouard, No. 10-0642/AR


(Appellant) and Third Squad members Sergeant Leonel Lemus

(SGT Lemus), Specialist William Hunsaker (SPC Hunsaker),

Specialist Justin Graber (SPC Graber), Specialist Jeremy

Moore (SPC Moore), Private First Class Corey Clagett (PFC

Clagett), and Private First Class Bradley Mason (PFC Mason)

-- participated in an air assault of an island in Iraq

reported to be an Al Qaeda training camp occupied by

terrorists.

     In the course of carrying out the assault, Third Squad

was ordered to secure a house (H1) on the island.   Led by

Appellant, Third Squad raided H1, killing one military-age

male (MAM) and detaining three others, MAM 1, MAM 2, and

MAM 3, in the process.   The detainees were secured with zip

ties,2 and placed face down outside of H1.

     Part of Third Squad then moved to secure a second

house (H2) located nearby.   As they approached H2, an MAM

(MAM 4) emerged shielding himself with a baby.   Appellant

immediately took the baby out of MAM 4’s hands, and MAM 4

was detained.   Later, out of the sight of Appellant, SGT

Lemus and SPC Hunsaker began to physically beat MAM 4.

When Appellant realized what was going on, he ordered them




2
  Zip ties are plastic bands used to fasten hands or objects
together.

                              4
United States v. Girouard, No. 10-0642/AR


to stop.   After finishing the search of H2, Third Squad,

escorting MAM 4, returned to H1.

     While processing the detainees back at H1, SPC

Hunsaker expressed his desire, in Appellant’s presence, to

kill the detainees.   SPC Hunsaker stated: “We should kill

these mother fuckers.   There [sic] G-D terrorists. These

dudes are bad.   They are using the women for sex, and to

cook for them and everything.”       Soon thereafter, Appellant

convened a meeting with the squad members.       At that meeting

Appellant assigned SPC Hunsaker and PFC Clagett the task of

guarding MAM 1, MAM 2, and MAM 3 in the courtyard of H1.

After the meeting, SGT Lemus, SPC Graber, PFC Mason, and

Appellant (escorting MAM 4) separated from SPC Hunsaker and

PFC Clagett, leaving them alone with MAM 1, MAM 2, and

MAM 3.

     They proceeded to cut the detainees’ restraints and

told them to run.   As they ran, SPC Hunsaker and PFC

Clagett fired on them, killing MAM 1 and MAM 2 immediately,

and mortally wounding MAM 3.3       After hearing the gunshots,

Appellant returned to the courtyard and discovered that SPC


3
  Shortly after the shooting, a medic came to look at the
detainees’ bodies. At that time, MAM 3 was still
breathing, but the medic noted that “[t]here’s nothing I
can do for him.” SPC Graber proceeded to fire his M4 rifle
into MAM 3’s head to, in his own words, “ease the
suffering.”

                                5
United States v. Girouard, No. 10-0642/AR


Hunsaker and PFC Clagett had murdered MAM 1, MAM 2, and MAM

3.   Appellant, SPC Hunsaker, and PFC Clagett made a split-

second decision to fabricate a story -- that the detainees

had attempted to escape, and were shot in the process -- to

cover up what had actually happened.

        The fabricated story, however, did not hold up for

long.    A government investigation discovered the truth:

that SPC Hunsaker and PFC Clagett had in fact freed the

detainees and then unlawfully shot them.    According to the

version of the events provided by SPC Hunsaker and PFC

Clagett, Appellant had ordered them to murder the detainees

at the group meeting held in H1.    SPC Hunsaker and PFC

Clagett subsequently pled guilty to premeditated murder and

conspiracy to commit premeditated murder and received life

sentences.    In exchange for their agreement to testify

against Appellant during his court-martial, SPC Hunsaker

and PFC Clagett’s life sentences were reduced to eighteen

years, with the possibility of parole in six years.

        The Government then sought to hold Appellant liable

both for the detainee killings themselves and for assisting

Hunsaker and Clagett in the cover-up of the killings,

charging Appellant with, inter alia, premeditated murder

and conspiracy to commit premeditated murder.    At

Appellant’s court-martial, the Government’s theory of the


                                6
United States v. Girouard, No. 10-0642/AR


case was that Appellant ordered SPC Hunsaker and PFC

Clagett to kill the detainees during the H1 squad meeting.

This claim was based, in part, on the testimony of SPC

Hunsaker and PFC Clagett secured by the Government as part

of their plea deal.   Defense counsel’s theory, however, was

that SPC Hunsaker and PFC Clagett committed the killings of

their own volition.   Appellant testified at trial, and

denied ever having ordered SPC Hunsaker and PFC Clagett to

kill the detainees.

     At the conclusion of the evidence at trial, the

military judge held a Rule for Courts-Martial (R.C.M.) 802

conference with Government and defense counsel to discuss

findings instructions.   During the R.C.M. 802 conference,

trial defense counsel requested an instruction on the LIO

of negligent homicide, and filed a brief with the trial

court arguing that Appellant was entitled to such an

instruction.   During a subsequent Article 39(a), UCMJ,

session, trial defense counsel reiterated her request for

the negligent homicide instruction, and the military judge

agreed to the defense request.    Notwithstanding the

instruction, however, the Government’s case throughout

trial was premised upon a theory of premeditated murder,

and not negligent homicide.   Negligent homicide was never

addressed by either of the parties before the close of


                              7
United States v. Girouard, No. 10-0642/AR


evidence, and was not stressed by either side during

closing arguments.   Relevant to the granted issue,

Appellant was acquitted of the premeditated murder and

conspiracy to commit premeditated murder charges, but was

convicted of negligent homicide.4

     Appellant appealed the decision to the ACCA, arguing

inter alia, that “the government failed to prove appellant

guilty beyond a reasonable doubt of negligent homicide by

failing to offer any evidence of the standard of care, any

evidence appellant violated that standard, or any evidence

any conduct by appellant proximately caused the deaths of

the military detainees.”   Girouard, 2010 CCA LEXIS 49, at

*15, 2010 WL 3529415, at *5.   The ACCA unanimously affirmed

the findings of guilty and sentence as approved by the

convening authority.   Girouard, 2010 CCA LEXIS 49, at *20,

2010 WL 3529415, at *7.

     However, four days before the ACCA decision, on April

19, 2010, this Court’s decision in United States v. Jones,


4
 There is nothing in the record to suggest that the court-
martial was improperly convened or that the charges on the
charge sheet before the court-martial were not properly
referred. R.C.M 201(b)(3). The problem is not, as the
dissent suggests, jurisdictional. R.C.M. 603 recognizes
that major changes or amendments may be made to a charge
and specification absent objection by the accused. In the
present case, where the accused did not object to the
change in the charge, the change is tested for plain error.


                               8
United States v. Girouard, No. 10-0642/AR


68 M.J. 465, 467 (C.A.A.F. 2010), was released where we

returned to the elements test approach to defining lesser

included offenses.   Id. at 470.    Based on Jones, Appellant

petitioned for reconsideration arguing that negligent

homicide was not an LIO of premeditated murder under the

elements test.   Specifically, Appellant asserted that

negligent homicide requires two elements that premeditated

murder does not:   (1) “that the act or failure to act of

the accused which caused the death amounted to simple

negligence,” and that (2) “under the circumstances, the

conduct of the accused 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.”    Manual for Courts-

Martial, United States, pt. IV, para. 85.b. (2008 ed.).

The ACCA issued a one-sentence per curiam order denying

Appellant’s petition for reconsideration.    United States v.

Girouard, No. ARMY 20070299 (A. Ct. Crim. App. May 25,

2010) (order).

     Appellant then filed a petition for review on July 23,

2010, and on September 24, 2010, we granted Appellant’s

petition.   Girouard, 69 M.J. 277 (order granting review).

                                   II.

     Article 79, UCMJ, provides the statutory authority for

a military judge to instruct on, and for an appellate court


                              9
United States v. Girouard, No. 10-0642/AR


to affirm, an LIO.    Article 79, UCMJ, 10 U.S.C. § 879

(2006) (permitting an accused to “be found guilty of an

offense necessarily included in the offense charged”).

Whether an offense is an LIO is a question of law that is

reviewed de novo.     United States v. Miller, 67 M.J 385, 387

(C.A.A.F. 2009).    In determining whether an offense is an

LIO, this Court applies the elements test.    United States

v. Jones, 68 M.J. 465, 469-70 (C.A.A.F. 2010) (citing

Schmuck v. United States, 489 U.S. 705, 716 (1989)); see

United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010)

(noting that the elements test encompasses ordinary

principles of statutory construction, “‘permit[ing] lesser

offense instructions only in those cases where the

indictment contains the elements of both offenses,’ and as

a result ‘gives notice to the defendant that he may be

convicted on either charge’”) (quoting Schmuck, 489 U.S. at

718).

        Appellant was charged with premeditated murder under

Article 118, UCMJ, which requires: (1) a death; (2) that

the accused caused the death by an act or omission; (3) the

killing was unlawful; and (4) at the time of the killing,

the accused had a premeditated design to kill.    MCM pt. IV,

para. 43.b.(1).    Appellant was convicted, however, of

negligent homicide, Article 134, UCMJ, which requires:    (1)


                                10
United States v. Girouard, No. 10-0642/AR


that a certain person is dead; (2) that this death resulted

from an act or failure to act of the accused; (3) that the

killing by the accused was unlawful; (4) that the accused’s

act or failure to act that caused the death amounted to

simple negligence; and (5) that, under the circumstances,

the conduct of the accused 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.   MCM pt. IV,

para. 85.b.

     Assuming without deciding that simple negligence is

subsumed within premeditation, it is nonetheless apparent

that negligent homicide contains additional elements that

are not elements of premeditated murder:    the terminal

elements of Article 134, UCMJ, prejudice to good order or

service discredit.   MCM pt. IV, para. 85.b.; see Miller, 67

M.J. at 388-89 (rejecting the notion that clauses 1 and 2

of Article 134, UCMJ, are per se included in every

enumerated offense, and overruling cases that held to the

contrary); Jones, 68 M.J. at 471 (same).    Therefore,

negligent homicide is not an LIO of premeditated murder.5




5
  This problem could be avoided by charging in the
alternative and seeking to have ordinary criminal offenses,
such as negligent homicide, kidnapping, etc., enacted via
statute without the terminal elements of Article 134, UCMJ.

                              11
United States v. Girouard, No. 10-0642/AR


        The Government appears to concede this point, but

argues that it is immaterial to the outcome of this case.

Brief of Appellee at 14, United States v. Girouard, No. 10-

0642 (C.A.A.F. Nov. 23, 2010).       In the Government’s view,

Appellant asked that the members be instructed on negligent

homicide and therefore either waived or invited the error.

Alternatively, the Government asserts that Appellant was

not prejudiced by his conviction for negligent homicide

because he was on notice.    We deal with these assertions in

turn.

                                A.

        “Deviation from a legal rule is ‘error’ unless the

rule has been waived.”    United States v. Olano, 507 U.S.

725, 732-33 (1993).    Waiver is the “intentional

relinquishment or abandonment of a known right.”       United

States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008)

(quoting United States v. Olano, 507 U.S. 725, 732-33

(1993)).     “Whether a particular right is waivable; whether

the defendant must participate personally in the waiver;

whether certain procedures are required for waiver; and

whether the defendant's choice must be particularly

informed or voluntary, all depend on the right at stake.”

Id. (quoting Olano, 507 U.S. at 733).




                                12
United States v. Girouard, No. 10-0642/AR


      The rights at issue in this case are constitutional in

nature.   The Fifth Amendment provides that no person shall

be “deprived of life, liberty, or property, without due

process of law,” U.S. Const. amend. V, and the Sixth

Amendment provides that an accused shall “be informed of

the nature and cause of the accusation,” U.S. Const. amend.

VI.   Both amendments ensure the right of an accused to

receive fair notice of what he is being charged with.     See

Apprendi v. New Jersey, 530 U.S. 466, 476 (2000); Cole v.

Arkansas, 333 U.S. 196, 200 (1948); see also Jones, 68 M.J.

at 468.   But the Due Process Clause of the Fifth Amendment

also does not permit convicting an accused of an offense

with which he has not been charged.   See United States v.

Marshall, 67 M.J. 418, 421 n.3 (C.A.A.F. 2009) (noting the

government’s dual due process obligations of fair notice

and “proof beyond a reasonable doubt of the offense

alleged” (emphasis added)).   As the Supreme Court explained

in Patterson v. New York, “the Due Process Clause requires

the prosecution to prove beyond a reasonable doubt all of

the elements included in the definition of the offense of

which the defendant is charged.”   432 U.S. 197, 210 (1977)

(emphasis added); see also United States v. Wilcox, 66 M.J.

442, 448 (C.A.A.F. 2008) (“To satisfy the due process

requirements of the Fifth Amendment, the Government must


                              13
United States v. Girouard, No. 10-0642/AR


prove beyond a reasonable doubt every element of the

charged offense.” (emphasis added)).   Thus, when “all of

the elements [are not] included in the definition of the

offense of which the defendant is charged,” then the

defendant’s due process rights have in fact been

compromised.   See Patterson, 432 U.S. at 210.    “[T]here is

a presumption against the waiver of constitutional rights,

and for a waiver to be effective it must be clearly

established that there was an intentional relinquishment or

abandonment of a known right or privilege.”   Harcrow, 66

M.J. at 157 (citations and quotations omitted).

     Therefore, in the case at bar, the rights at stake are

Appellant’s constitutional rights to notice and to not be

convicted of a crime that is not an LIO of the offense with

which he was charged.6   U.S. Const. amend. V; U.S. Const.

amend. VI.   Appellant could not have waived either of these

rights given that at the time of Appellant’s court-martial

neither Miller nor Jones had been decided, the President

had determined negligent homicide to be an LIO of murder


6
 Our analysis in Jones was primarily focused upon
Appellant’s constitutional right to notice. See Jones, 68
M.J. at 468 (noting that “[t]he question presented . . .
implicates constitutional due process imperatives of
notice”). But as this decision makes clear, the
constitutional rights of an accused to be charged with the
offense of which he is convicted encompass more than
notice.

                              14
United States v. Girouard, No. 10-0642/AR


and listed it as such in MCM pt. IV, para. 43.d.(2)(c), and

it had been recognized as an LIO of murder by prior case

law.   See, e.g., United States v. Davis, 53 M.J. 202, 205

(C.A.A.F. 2000) (recognizing that negligent homicide is an

LIO of murder); United States v. Varraso, 21 M.J. 129, 131

(C.M.A. 1985) (same).

       Nor is Appellant’s request for an instruction on

negligent homicide after the close of the evidence

dispositive:   under R.C.M. 920(e)(2), the military judge

had a sua sponte duty to instruct the court members on LIOs

under the prevailing law at the time regardless of

Appellant’s request.    See United States v. McDonald, 57

M.J. 18, 20 (C.A.A.F. 2002).   Here, the evidence reasonably

raised negligent homicide -- as the Government itself

concedes.   Thus, had negligent homicide been a proper LIO,

the military judge would have been obligated to instruct

the panel on that offense.   Given “this legal and factual

context, defense counsel’s trial strategy could not be

considered an intentional relinquishment or abandonment” of

a known right.   Harcrow, 66 M.J. at 158 (finding no waiver

of Sixth Amendment confrontation rights announced in

Crawford v. Washington, 541 U.S. 36 (2004)); United States

v. Stines, 313 F.3d 912, 917 (6th Cir. 2002) (stating that

there was no waiver because it “would have been impossible


                               15
United States v. Girouard, No. 10-0642/AR


for the defendants to have intentionally relinquished or

abandoned their Apprendi based claims considering Apprendi

was decided after they were sentenced”).

                              B.

     Where there is no waiver, and in the absence of an

objection, we test the instructions provided by the

military judge for plain error based on the law at the time

of appeal.   See Harcrow, 66 M.J. at 159 (“where the law at

the time of trial was settled and clearly contrary to the

law at the time of appeal -- it is enough that an error be

plain at the time of appellate consideration”) (citations

omitted); United States v. McMurrin, __ M.J. __ (8)

(C.A.A.F. 2011); see also United States v. Robinson, 38

M.J. 30, 32 (C.M.A. 1993); R.C.M. 920(f).   In the context

of a plain error analysis, Appellant has the burden of

demonstrating that:   (1) there was error; (2) the error was

plain or obvious; and (3) the error materially prejudiced a

substantial right of the accused.   See United States v.

Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998).7   As noted


7
 There is some disagreement about the application of the
fourth prong of Olano –- whether the error “seriously
affected the fairness, integrity or public reputation of
judicial proceedings.” Puckett v. United States, 129 S.
Ct. 1423, 1429 (2009) (quoting Olano, 507 U.S. at 736)
(citations omitted); see United States v. Paige, 67 M.J.
442, 453 (C.A.A.F. 2009) (Stucky, J., dissenting in part
and concurring in the result).

                              16
United States v. Girouard, No. 10-0642/AR


above, negligent homicide is not an LIO of premeditated

murder.    Therefore, instructing on negligent homicide as an

LIO was error that was clear and obvious.    See Jones, 68

M.J. at 473 n.11.

        Thus, having fulfilled the first two plain error

prongs, the only question that remains is whether Appellant

suffered prejudice to a substantial right.    The rights at

issue in this context are substantial, given that they are

rooted in both the Fifth and Sixth Amendments.     And under

the facts of this case, the prejudice is clear -- Appellant

was convicted of an offense that was not an LIO of the

charged offense.    Appellant did not agree to, and the

military judge did not, amend the charge or specification.8

Nor did the Appellant defend against the charged offense of

premeditated murder on a theory that he was guilty of

negligent homicide.    Rather, his defense was that his only

involvement in the deaths was in covering them up after the

fact.    Nor was the case tried on a theory of negligent

homicide by the Government.    Rather, the Government’s

position from start to finish was that Appellant ordered


8
  The Government’s reliance on Jones is misplaced. While,
consistent with R.C.M. 603, the Government may amend the
charge sheet in the course of trial, there was no amendment
to the charge sheet in this case. See Jones, 68 M.J. at
473.



                                17
United States v. Girouard, No. 10-0642/AR


PFC Clagett and SPC Hunsaker to murder the prisoners and

not, as the ACCA found, that Appellant proximately caused

the deaths by failing to properly supervise his men as it

was his duty to “protect the detainees under his charge

from harm.”   Girouard, 2010 CCA LEXIS 49, at *17, 2010 WL

3529415, at *6.   But for the error Appellant would not have

been convicted of negligent homicide.   And while one might

assume that but for the instruction on negligent homicide

the members would have convicted Appellant of premeditated

murder instead of acquitting him altogether, this

assumption is speculative at best.   Such a conviction would

have required the members to be convinced beyond a

reasonable doubt that he possessed the specific intent to

murder, a far cry from the negligent intent they actually

found in this case.9   Appellant’s conviction for negligent

homicide was clearly prejudicial.

                             III.

     The decision of the United States Army Court of

Criminal Appeals is reversed in part and affirmed in part.

That portion of the decision affirming Appellant’s

convictions of Charge III and its specifications and the


9
  Moreover, the court members determined that Appellant
lacked the specific intent necessary for conspiracy to
commit premeditated murder, finding him not guilty of this
offense as well.

                              18
United States v. Girouard, No. 10-0642/AR


sentence is reversed.   The part of the court’s decision

affirming Appellant’s convictions of the remaining charges

and specifications is affirmed.    The findings of guilty to

Charge III and its specifications are set aside.   Charge

III and its specifications are dismissed.   The record of

trial is returned to the Judge Advocate General of the Army

for remand to the Court of Criminal Appeals for

reassessment of the sentence, or, if necessary, for

ordering a rehearing on the sentence.




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United States v. Girouard, No. 10-0642/AR


     BAKER, Judge (dissenting):

     I dissent for two reasons.    First, consistent with my views

in United States v. Jones, 68 M.J. 465, 475 (C.A.A.F. 2010)

(Baker, J., dissenting), negligent homicide is a lesser included

offense (LIO) of murder.   Second, although I agree with the

majority that a person may not be convicted of a crime for which

he has not been charged, the majority fails to explain why it is

appropriate to test for prejudice in light of Rule for Courts-

Martial (R.C.M.) 201.   R.C.M. 201(b)(3) plainly states that

unless an offense is properly referred to a court-martial the

court-martial is without jurisdiction to try that offense.     If

the majority is correct that negligent homicide is not a lesser

included offense of murder, then the court-martial at which

Appellant was convicted was without jurisdiction to try this

offense and there is no need to test for prejudice.

                                  I.

     As stated, I adhere to the views expressed in my separate

opinion in Jones.   The history and purpose of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006),

offenses indicate that the majority’s adoption of a strict

“elements test” from Schmuck v. United States, 489 U.S. 705, 716

(1989), is inapt in the context of military justice and Article

134, UCMJ.   Parker v. Levy, 417 U.S. 733, 743-45 (1974),

illustrates that the Supreme Court recognizes that case law
United States v. Girouard, No. 10-0642/AR


addressed to civilian society may not apply in the same manner

in military practice.                                          Recall that it was twenty years after

Schmuck that this Court in Jones decided otherwise.                                          Indeed,

there can be no clearer method for determining that an offense

is a lesser included offense of a greater offense than to state

so in the Manual for Courts-Martial.1                                         Neither does the new

strict elements test provide the intended clarity of notice, as

evidenced by litigation in this Court since Jones was decided.

See, e.g., United States v. Girouard, __ M.J. __ (C.A.A.F.

2011); United States v. McMurrin, __ M.J. __ (C.A.A.F. 2011);

United States v. Bonner, __ M.J. __ (C.A.A.F. 2011); United

States v. Alston, 69 M.J. 214 (C.A.A.F. 2010).                                          Consistent with

this Court’s prior precedent as well as Levy, as the majority

notes, the President has listed negligent homicide as a lesser

included offense of murder.                                         Girouard, __ M.J. at __ (15).      He

has, in fact, done so for all homicide offenses in the MCM since

1951.               See, e.g., MCM paras. 197., 198. (1951 ed.) (discussing

murder under Article 118, UCMJ, and manslaughter under Article

119, UCMJ); MCM paras. 197., 198. (1969 ed.) (same); MCM paras.

43.d., 44.d. (1984 ed.) (same).                                         And, he has also done so

pursuant to the Take Care Clause, his authority as chief

executive, and most importantly as commander in chief.                                         See U.S.
                                                            
1
 The version currently in effect is Manual for Courts-Martial,
United States (2008 ed.) (MCM).  
                                                                        2
United States v. Girouard, No. 10-0642/AR


Const. art. II. §§ 1-3.    Indeed, this case highlights how the

application of Jones undermines the commander in chief’s

authority and ability to flexibly provide for the good order and

discipline of the armed forces, in this case in the context of

actions taken in combat.

     Therefore, based on my separate analysis in Jones, I would

affirm the conviction of negligent homicide.

                                 II.

     I also disagree with the majority’s approach of testing for

prejudice in this case.    R.C.M. 201(b)(3) states:   “[F]or a

court-martial to have jurisdiction . . . [e]ach charge before

the court-martial must be referred to it by [a] competent

authority.”   See also United States v. Adams, 66 M.J. 255, 258

(C.A.A.F. 2008) (citing R.C.M. 201(b) and stating “Jurisdiction

depends upon a properly convened court, composed of qualified

members chosen by a proper convening authority, and with charges

properly referred.” (emphasis added)).

     The majority states that, “in the case at bar, the rights

at stake are Appellant’s constitutional rights to notice and to

not be convicted of a crime that is not an LIO of the offense

with which he was charged,” and concludes that “under the facts

of this case, the prejudice [to these rights] is clear --

Appellant was convicted of an offense that was not an LIO of the

charged offense.”   Girouard, __ M.J. at __ (14, 17) (emphasis

                                  3
United States v. Girouard, No. 10-0642/AR


added).   If Appellant was convicted of an offense that was not a

lesser included offense of the charged offense, then Appellant

was also convicted of an offense with which he was not charged.

Thus, the majority seems to acknowledge the right to be properly

charged, but also seems to ignore the fact that the failure to

properly refer charges is jurisdictional error under R.C.M.

201(b)(3).   Instead, the majority applies a prejudice analysis,

incorrectly suggesting that this error is nonjurisdictional and

that there might be a circumstance in which the lack of a

referral would not be prejudicial to an accused’s material

rights.

      A review of the cases involving referral defects identifies

certain defects that are nonjurisdictional and others that are

jurisdictional.   See United States v. Cotton, 535 U.S. 625, 628-

31   (2002) (holding that a change of law after trial resulting

in an indictment that lacked an element of a charged offense was

nonjurisdictional); Adams, 66 M.J. at 259 (holding that the

failure to properly draft a convening order was administrative);

United States v. Wilkins, 29 M.J. 421, 424-25 (C.M.A. 1990)

(holding that where the accused pled guilty consistent with the

terms of the pretrial agreement with the convening authority,

the lack of swearing of the charges by an accuser, consideration

by a staff judge advocate, or an Article 32, UCMJ, 10 U.S.C. §

832, investigation, were nonjurisdictional errors); c.f. United

                                 4
United States v. Girouard, No. 10-0642/AR


States v. Henderson, 59 M.J. 350, 353-54 (C.A.A.F 2004) (holding

that a special court-martial lacked jurisdiction over capital

offenses where the tribunal failed to qualify for an exception

under R.C.M. 201(f)(2)(C)(ii)-(iii)).   Here, however, there is

no referral defect -- there is no referral at all.   In addition

to the plain language of R.C.M. 201(b)(3), it must follow that

if there are defects in the referral process that are

jurisdictional, then the complete absence of referral must be

jurisdictional.

     The majority seeks to avoid the jurisdictional issue by

suggesting that Appellant failed to object to a major amendment

to the charge and specification as required by R.C.M. 603,

resulting in a forfeiture of that right subject to plain error

review.   Girouard, __ M.J. at __ (8 n.4).   Presumably, if the

error is that Appellant failed to object to a major amendment of

the charge that was properly referred, the jurisdictional issue

goes away, and a plain error analysis is appropriate.   However,

there are two reasons that the majority’s approach falls short.

     First, an accused cannot retroactively forfeit a right.

Forfeiture is “the failure to make a timely assertion of a

right.”   United States v. Olano, 507 U.S. 725, 733 (1993).    An

assertion of a right can only be “timely” if it was made when

the right existed.   R.C.M. 603(d) provides that “[c]hanges or

amendments to charges or specifications other than minor changes

                                 5
United States v. Girouard, No. 10-0642/AR


may not be made over the objection of the accused unless the

charge or specification is preferred anew.”   Thus, an accused’s

right to object only arises when trial counsel attempts to make

a major amendment to the charge or specification, and an

objection, in order to be “timely,” must be made then.

Retroactivity is only appropriate to determine whether there was

an error at the time of appeal, and does not permit this Court

to operate on the original proceedings as if the new law was in

force at that time.    The majority seems to acknowledge this much

when it correctly held that Appellant could not have waived any

error because no error existed given the state of the law at the

time of trial.   Girouard, __ M.J. __ (12-16).

     Second, the concept of retroactive amendment cannot exist

in the military system.    To do so would amount to this Court’s

approval of an amendment that was not authorized by the

convening authority.   Unlike the civilian system, neither the

parties nor the military judge has any authority on their own to

amend a charge or specification in a way that alleges a

completely different offense without the permission of the

convening authority.   This is a unique characteristic of the

military justice system.   “[T]he referral of charges to trial by

court-martial require[s] the personal decision of the convening

authority, which cannot be delegated.”   Wilkins, 29 M.J. at 424

(citation omitted).    R.C.M. 601(a) defines referral as “the

                                  6
United States v. Girouard, No. 10-0642/AR


order of a convening authority that charges against an accused

will be tried by a specified court-martial.”

              Thus, the majority’s citation to R.C.M. 603 is misplaced.

It is true that under R.C.M. 603(d) the parties may choose to

agree to a major amendment that changes the offense.                                           However,

the trial counsel may not do so without obtaining the convening

authority’s permission.                                           Wilkins is controlling on the issue:

              Although the order is a jurisdictional prerequisite, the
              form of the order is not jurisdictional. Therefore, if the
              convening authority issued an order -- however informal,
              oral or written -- that a charge against [the accused] be
              tried by the same court-martial which ultimately entered
              the findings of guilty, then jurisdiction existed to enter
              findings on that charge.

Wilkins, 29 M.J. at 424.                                           Therefore, assuming the convening

authority agrees to the proposed amendment, the result is a

constructive referral.                                           An accused may certainly waive any

attendant requirements such as a formal advice from the staff

judge advocate under Article 34, UCMJ, 10 U.S.C. § 834, the

swearing of the charges, and even an Article 32, UCMJ,

investigation.                                 Id.             However, the convening authority’s order of

referral is jurisdictional and cannot be waived.2


                                                            
2
  As a separate matter, I believe the majority has failed to
consider the potential double jeopardy implications of its
decision. As noted, it is my view that, given the majority's
conclusion, this court-martial had no jurisdiction to return the
findings on negligent homicide. Generally, conviction by a
tribunal lacking jurisdiction to hear the cause will not bar a
subsequent trial by one that is vested with jurisdiction. See
                                                                          7
United States v. Girouard, No. 10-0642/AR


              Therefore, application of the Jones decision along with

R.C.M. 201(b)(3) should lead to the logical conclusion that the

conviction of an offense that has not been referred to the

court-martial is jurisdictional error, not subject to a

prejudice analysis.




                                                                                                                                                                                               
                                                                                                                                                                                               

Wayne R. LaFave et al., Criminal Procedure § 25, at 1210-11 (5th
ed. 2009) (discussing United States v. Ball, 163 U.S. 662
(1896); Kepner v. United States, 195 U.S. 100 (1904); Serfass v.
United States, 420 U.S. 377 (1975)). Here, however, the
majority suggests that this court-martial in fact had
jurisdiction to return such findings. Thus, in theory and
arguably, Appellant has already been placed in jeopardy on a
charge of negligent homicide. Ordinarily, an appeal would waive
such a question of double jeopardy; however, here the context is
one in which Appellant’s case was automatically referred to the
CCA, which declined to apply Jones. As a result, Appellant’s
only recourse was to appeal to this Court. It is unclear
whether, for double jeopardy purposes, that should be viewed as
waiver of any double jeopardy claim. R.C.M. 201 would remove,
and does, remove any ambiguity on this point; however, the
majority’s R.C.M. 603 analysis muddies the question of whether
another trial on the affected findings in this case is barred by
Article 44, UCMJ, 10 U.S.C. § 844, or by the Fifth Amendment to
the Constitution in light of our system of mandatory appeal. 
               

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