       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
              Malcolm R. TURNER, Specialist
               United States Army, Appellant
                          No. 19-0158
                    Crim. App. No. 20160131
       Argued November 6, 2019—Decided March 25, 2020
               Military Judge: Matthew A. Calarco
   For Appellant: Captain Zachary A. Gray (argued); Colonel
   Elizabeth G. Marotta, Lieutenant Colonel Tiffany D. Pond,
   and Jonathan F. Potter, Esq. (on brief); Major Todd W.
   Simpson.
   For Appellee: Captain Rene Tristan de Vega (argued); Colo-
   nel Steven P. Haight, Lieutenant Colonel Wayne H. Wil-
   liams, and Major Hannah E. Kaufman (on brief); Major
   Marc B. Sawyer and Captain Meredith M. Picard.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN and
   SPARKS, joined. Judge MAGGS filed a separate dissent-
   ing opinion.
                     _______________

   Judge OHLSON delivered the opinion of the Court.
    A panel composed of officer and enlisted members sitting
as a general court-martial convicted Appellant, contrary to
his pleas, of attempted killing with premeditation, conspiracy
to commit premeditated murder, maiming, and obstruction of
justice, in violation of Articles 80, 81, 124, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 881, 924,
and 934 (2012). The panel sentenced Appellant to be confined
for life without eligibility for parole, to be reduced to the grade
of E-1, to forfeit all pay and allowances, and to be dishonora-
bly discharged from the service. The convening authority ap-
proved the sentence and gave Appellant 599 days of confine-
ment credit against his sentence.
            United States v. Turner, No. 19-0158/AR
                     Opinion of the Court

    On appeal, the United States Army Court of Criminal Ap-
peals (CCA) dismissed Specification 1 of Charge IV (obstruc-
tion of justice in violation of Article 134, UCMJ), and condi-
tionally dismissed the sole specification of Charge II
(maiming, in violation of Article 124, UCMJ). United States v.
Turner, No. ARMY 20160131, 2018 CCA LEXIS 593, at *32,
2018 WL 6287965, at *11 (A. Ct. Crim. App. Nov. 30, 2018)
(unpublished). However, the CCA affirmed the remaining
findings and sentence following a sentence reassessment. Id.
at *32–33, 2018 WL 6287965, at *11.
    Appellant now argues before this Court that the Specifi-
cation of Charge I, which alleged that Appellant “attempt[ed]
to kill with premeditation Specialist [C.S.G.] by means of
shooting her with a loaded firearm,” fails to state an offense
because it makes no reference to the fact that this act was
unlawful. Accordingly, Appellant seeks dismissal of the
charge and specification. For the reasons cited below, how-
ever, we affirm Appellant’s conviction.
                 FACTUAL BACKGROUND
   In 2012, Appellant and the victim, Specialist CSG, served
together in Korea. Turner, 2018 CCA LEXIS 593, at *3, 2018
WL 6287965, at *1. They developed a sexual relationship and
the victim soon became pregnant with Appellant’s child. Id.,
2018 WL 6287965, at *1. The victim learned she was pregnant
shortly after she discovered that Appellant was married. Id.,
2018 WL 6287965, at *1.
    Soon thereafter, the victim was assigned to Fort Camp-
bell, Kentucky, and Appellant was assigned to Fort Carson,
Colorado. Id., 2018 WL 6287965, at *2. The two rarely com-
municated until the victim filed a claim against Appellant for
child support. Id., 2018 WL 6287965, at *2. Appellant agreed
to pay $200 a month, but then only made one payment of
$100. Id., 2018 WL 6287965, at *2. Appellant’s wife eventu-
ally discovered that Appellant was the father of the victim’s
child and that the victim was seeking child support. Id. at *3–
4, 2018 WL 6287965, at *2.
    On January 1, 2015, Appellant and his wife arrived
unannounced at the victim’s apartment in Tennessee after
driving there from Colorado. Id. at *5, 2018 WL 6287965, at
*2. Once inside they confronted the victim about her request


                              2
            United States v. Turner, No. 19-0158/AR
                     Opinion of the Court

for child support and they leveled spurious accusations
against her which the victim heatedly denied. Id. at *5–6,
2018 WL 6287965, at *2–3. After a short time, Appellant’s
wife said to Appellant, “ ‘Well, the choice is up to you. What
are you going to do about it?’ ” Id. at *6, 2018 WL 6287965, at
*3. Appellant turned to the victim and said, “ ‘You think
you’re bad, huh? You think you’re bad?’ ” Id., 2018 WL
6287965, at *3. Appellant then proceeded to pull out a
handgun and shoot the victim from less than ten feet away
with three .40 caliber hollow point bullets, hitting her in the
arm, back, and head. Id. at *6–7, 2018 WL 6287965, at *2–3.
Miraculously, the victim survived and identified her assailant
to law enforcement officials. Id. at *7–8, 2018 WL 6287965, at
*3. Appellant subsequently was charged with multiple
offenses related to the incident.
   One of the charges and specifications with which Appel-
lant was charged reads as follows:
       CHARGE I: Violation of the UCMJ, Article 80.
       Specification: In that Specialist Malcolm R. Turner,
       U.S. Army, did, at or near Clarksville, Tennessee, on
       or about 1 January 2015, attempt to kill with
       premeditation Specialist [C.S.G.] by means of
       shooting her with a loaded firearm, causing grievous
       bodily harm.
    At the court-martial, the panel convicted Appellant of this
charge and specification, as well as several others. After the
guilty verdicts were announced, however, Appellant moved to
dismiss Charge I and its specification on the ground that it
failed to state an offense. Specifically, Appellant argued that
because the Government used the term “kill” rather than the
term “unlawfully kill” or “murder,” the charge and specifica-
tion failed to allege that Appellant’s act was unlawful and
“[u]lawfulness is an element of this offense that must be
proven [by the Government] beyond a reasonable doubt” in
order for the conviction to stand.
    The military judge denied the defense motion and the CCA
affirmed. Turner, 2018 CCA LEXIS 593, at *32, 2018 WL
6287965, at *11. This Court then granted the following issue:
       Whether the Specification of Charge I alleging an
       attempted killing fails to state an offense because it




                                 3
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

       does not explicitly, or by necessary implication,
       allege the attempted killing was unlawful.
                      APPLICABLE LAW
    The Sixth Amendment provides that an accused shall “be
informed of the nature and cause of the accusation” against
him. U.S. Const. amend. VI. Further, the Fifth Amendment
provides that no person shall be “deprived of life, liberty, or
property, without due process of law,” and no person shall be
“subject for the same offence to be twice put in jeopardy.” U.S.
Const. amend V. Thus, when an accused servicemember is
charged with an offense at court-martial, each specification
will be found constitutionally sufficient only if it alleges, “ei-
ther expressly or by necessary implication,” “every element”
of the offense, “so as to give the accused notice [of the charge
against which he must defend] and protect him against dou-
ble jeopardy.” United States v. Dear, 40 M.J. 196, 197 (C.M.A.
1994) (internal quotation marks omitted) (quoting Rule for
Courts-Martial (R.C.M.) 307(c)(3)).
     The lens through which this Court evaluates the suffi-
ciency of a specification differs depending on when counsel
first raised the issue. “[W]hen [a] charge and specification are
first challenged at trial, we read the wording . . . narrowly and
will only adopt interpretations that hew closely to the plain
text.” United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011)
(emphasis added). Hewing closely to the plain text means we
will consider only the language contained in the specification
when deciding whether it properly states the offense in ques-
tion. See United States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010).
However, “[a] flawed specification first challenged after trial
. . . is viewed with greater tolerance than one which was at-
tacked before findings and sentence.” United States v. Wat-
kins, 21 M.J. 208, 209 (C.M.A. 1986) (emphasis added). Under
the latter scenario, the specification will be viewed with “max-
imum liberality.” United States v. Bryant, 30 M.J. 72, 73
(C.M.A. 1990).
   If a specification fails to state an offense, the appropriate
remedy is dismissal of that specification unless the Govern-
ment can demonstrate that this constitutional error was
harmless beyond a reasonable doubt. United States v. Hum-
phries, 71 M.J. 209, 213 n.5 (C.A.A.F. 2012). The question of



                                4
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

whether a specification fails to state an offense is a question
of law which this Court reviews de novo. United States v.
Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006) (citing Dear, 40 M.J.
at 197).
                             ANALYSIS
   This case underscores the peril that lies in wait for any
government attorney1 who, when drafting charges, fails to
meticulously follow the language contained in the UCMJ
sample specifications.2
    The Government in the instant case sought to charge Ap-
pellant with the offense of attempted premeditated murder.
One of the elements of the completed offense of premeditated
murder under Article 118, UCMJ, 10 U.S.C. § 918, is that “the
killing was unlawful.” Manual for Courts-Martial, United
States pt. IV, para. 43.b.(1)(c) (2016 ed.) (MCM) (emphasis
added).
  The sample specification for “Attempts” under Article 80,
UCMJ, reads as follows:
       In that ____ (personal jurisdiction data) did, (at/on
       board—location) (subject-matter jurisdiction data, if
       required), on or about ___ 20__, attempt to (describe
       offense with sufficient detail to include expressly or
       by necessary implication every element).



   1 We note, of course, that trial counsel are not the only persons
responsible for ensuring that charges properly state an offense. The
attorney who drafts the charges (if different from the trial counsel),
the preliminary hearing officer (whose duty it is “to consider the
form of the charge(s)),” R.C.M. 405(a)), the chief of criminal justice,
and the general court-martial staff judge advocate who advises the
commander to refer the charges to trial also are obligated to ensure
that every element is properly charged in each charge and specifi-
cation.
   2  The United States Court of Appeals for the Fourth Circuit has
made a similar observation but in a far blunter manner: “It is be-
yond . . . understanding that a [prosecutor] would undertake to
[draft a charge] without having before him the statute which de-
fines the offense, or, having the statute before him could be so care-
less as to omit allegations meeting the statutory definition of one of
the essential elements of the crime.” United States v. Hooker, 841
F.2d 1225, 1232 (4th Cir. 1988) (citation omitted).



                                  5
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

MCM pt. IV, para. 4.f. (emphasis added). Consistent with this
mandate to “include expressly or by necessary implication
every element” of the offense, in United States v. Norwood,
this Court held that although “in order to state the elements
of an inchoate offense under Articles 80 and 81, UCMJ, a
specification is not required to expressly allege each element
of the predicate offense,” “sufficient specificity is required so
that an accused is aware of the nature of the underlying tar-
get or predicate offense.” 71 M.J. 204, 205, 207 (C.A.A.F.
2012) (citing Bryant, 30 M.J. 72; United States v. Resendiz-
Ponce, 549 U.S. 102 (2007); Wong Tai v. United States, 273
U.S. 77 (1927)).
   In the instant case, the charge sheet reads as follows:
       CHARGE I: Violation of the UCMJ, Article 80.
       Specification: In that Specialist Malcolm R. Turner,
       U.S. Army, did, at or near Clarksville, Tennessee, on
       or about 1 January 2015, attempt to kill with
       premeditation Specialist [C.S.G.] by means of
       shooting her with a loaded firearm, causing grievous
       bodily harm.
    As can be seen, this specification fails to explicitly allege
that the attempted killing was “unlawful.” Because this ele-
ment of the completed offense of premeditated murder was
not alleged “expressly,” we must determine whether it was
alleged by “necessary implication” such that Appellant would
have been “aware of the nature of the underlying target or
predicate offense.” Norwood, 71 M.J. at 207.3



   3  The resolution of this issue would have been much more
straightforward if the Government had cited “Article 118, UCMJ”
in the text of the charge and specification. If it had done so, “by
necessary implication” all of the elements of premeditated murder
under Article 118—which includes the element that the killing was
“unlawful”—would have been incorporated into the attempt of-
fense. See Resendiz-Ponce, 549 U.S. at 108 (holding that an indict-
ment for an attempt offense that cites the relevant criminal statute
for the completed offense and notes the time and place of the de-
fendant’s criminal behavior sufficiently states an offense); Bryant,
30 M.J. at 74 (holding that a conspiracy charge that “specifically
refers to the statute on which the object offense is based” suffi-
ciently stated an offense under the UCMJ (internal quotation
marks omitted) (citation omitted)). Similarly, if the Government


                                 6
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

   Before we reach this question, however, we first must de-
termine what analytical standard controls our review of this
specification.
    In Watkins, a specification alleging that the accused was
absent without leave (AWOL) failed to explicitly state that
the seaman’s absence was “without authority,” which is one
of the elements of the offense. 21 M.J. at 209. The defense
raised this issue for the first time on appeal. Id. The Watkins
Court stated that although a specification must aver all the
elements of an offense at least by fair implication:
            A flawed specification first challenged after trial
       . . . is viewed with greater tolerance than one which
       was attacked before findings and sentence. Although
       failure of a specification to state an offense is a
       fundamental defect which can be raised at any time,
       we choose to follow the rule of most federal courts of
       liberally construing specifications in favor of validity
       when they are challenged for the first time on
       appeal.
Id. (footnotes omitted) (citations omitted).
    The key takeaway from this passage may be summarized
as follows: Although a claim that a specification fails to state
an offense may be made “at any time,” if the claim is first
raised “after trial” then the deficient specification will be
viewed with “greater tolerance” and will be “liberally con-
stru[ed]” in favor of validity.4 However, two important ques-
tions inevitably flow from this holding: (a) What is meant by




had used the term “murder,” “unlawfully” would have been incor-
porated into the attempt offense by necessary implication because
a “murder” only occurs when “[a]ny person subject to this chapter .
. . , without justification or excuse, unlawfully kills a human being.”
Article 118, UCMJ (emphasis added).
   4  This approach is consistent with R.C.M. 905(e), which author-
izes the defense to raise an objection to a specification’s failure to
allege an offense at any time, including after “the court-martial is
adjourned.” Thus, it is the rule that sets forth when an objection is
timely for the purposes of waiver, but it is our case law that sets
forth the proper standard for determining whether a timely motion
is meritorious.



                                  7
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

the phrase “after trial”?;5 and (b) What does it mean to view
a specification with “greater tolerance” and to “liberally con-
strue” that specification?
    In regard to the first question, Appellant argues that the
phrases “after trial” and “on appeal” are synonymous. In other
words, Appellant contends that if an accused raises a failure
to state an offense claim at any point before the court-martial
adjourns, then the trial and appellate courts must “hew
closely to the plain text” of the challenged specification when
deciding whether it is fatally defective. Fosler, 70 M.J. at 230.
    The Watkins opinion indicates, however, that Appellant is
mistaken. In actuality, the line of demarcation that separates
the “trial” stage of a court-martial and the “after trial” stage
of a court-martial is the moment of time “before findings and
sentence.” Watkins, 21 M.J. at 209 (emphasis added).6 Thus,
as soon as the finder of fact announces a guilty verdict regard-
ing the facially deficient specification, the trial has ended, and
the “liberal construction” and “greater tolerance” standards
apply. Id.; Bryant, 30 M.J. at 75.
    This conclusion can be deduced not only from the plain
language of the first sentence of the passage cited above
where the opinion explicitly refers to the import of
challenging the specification “before findings and sentence,”
but also from the Watkins Court’s citation to authority.
Watkins, 21 M.J. at 209 & n.2 (emphasis added). Specifically,
the Watkins Court favorably cited to several cases from our
sister federal circuit courts of appeals, making clear that
“before findings and sentence” is actually synonymous with
“before the verdict.”


   5  This temporal distinction is critical to answering the granted
issue because Appellant raised his objection after findings but be-
fore the adjournment of his court-martial.
   6  It is important to note that not only in the Watkins case but
also in other relevant opinions, this Court has consistently used the
phrase “at trial” rather than the phrase “at the court-martial.” See,
e.g., Humphries, 71 M.J. at 211–12; Fosler, 70 M.J. at 230–31; Bry-
ant, 30 M.J. at 73–75. The term “court-martial” has a specialized,
well-defined meaning in the military. A court-martial is not over
until it is, in fact, adjourned, and adjournment occurs after the sen-
tencing phase of the proceeding.



                                  8
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

    The Watkins Court cited United States v. Previte, in which
the United States Court of Appeals for the First Circuit held,
“[F]ailure to object until after the verdict dictates that the in-
dictment be construed liberally.” 648 F.2d 73, 80 (1st Cir.
1981) (emphasis added). Similarly, the Watkins Court cited to
United States v. Pheaster, in which the United States Court
of Appeals for the Ninth Circuit explained that the liberal
construction standard applies “when an indictment is not
challenged before the verdict.” 544 F.2d 353, 361 (9th Cir.
1976) (emphasis added). Finally, the Watkins Court cited
United States v. Hart, in which the United States Court of
Appeals for the Sixth Circuit held as follows: “[U]nless the de-
fendant can show prejudice, a conviction will not be reversed
where the indictment is challenged only after conviction un-
less the indictment cannot within reason be construed to
charge a crime.” 640 F.2d 856, 857–58 (6th Cir. 1981) (empha-
sis added).
    The federal circuit courts’ distinction between “before con-
viction” and “before verdict,” versus “after conviction” and “af-
ter verdict” is significant. In the civilian federal court system
there almost always is a considerable lapse of time between
when the government obtains a verdict convicting a defend-
ant, and when the defendant’s sentencing occurs (and, of
course, when an appeal is filed). Thus, the temporal distinc-
tion referenced by several other federal circuit courts is a
bright line; in order for a defendant to receive the benefit of a
more favorable analytical standard, the defendant must raise
a claim that the indictment failed to state an offense before he
is convicted.7 The Watkins Court clearly chose to adopt this
approach—which, in the military context, means before find-
ings are announced—and we hold that this analysis serves as
binding precedent here.



   7  This temporal distinction removes any incentive for trial de-
fense counsel to wait until the verdict is announced before playing
the “failure to state an offense” card. Indeed, the Ninth Circuit
noted as much when it explained the rationale behind the rule in
Pheaster: “Such a long delay in raising the issue suggests a purely
tactical motivation of incorporating a convenient ground of appeal
in the event the jury verdict went against the defendants.” 544 F.2d
at 361.



                                 9
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

    Accordingly, because Appellant in the instant case waited
until after the guilty verdict was handed down to raise his
claim that the specification failed to adequately allege each
element of the charged offense, he is not entitled to have this
Court “only adopt [those] interpretations [of the specification]
that hew closely to the plain text.” Fosler, 70 M.J. at 230. Ra-
ther, this Court will apply the analytical standard articulated
in Watkins that is more favorable to the Government.
    In terms of the second issue—what it means to “liberally
construe[]” a specification in favor of validity and to view it
with “greater tolerance”—the Watkins precedent again pro-
vides guidance. To begin with, the opinion refers to “viewing
post-trial challenges with maximum liberality.” Watkins, 21
M.J. at 210 (emphasis added). Further, the Watkins Court fa-
vorably cited the United States Court of Appeals for the Sec-
ond Circuit case of United States v. Thompson, 356 F.2d 216
(2d Cir. 1965), which states that when a failure to state an
offense claim is “first raised after trial,” the claim will fail “ab-
sent a clear showing of substantial prejudice to the accused—
such as a showing that the indictment is ‘so obviously defec-
tive that by no reasonable construction can it be said to charge
the offense for which conviction was had.’ ” Id. at 226 (cita-
tions omitted). As explained below, under these analytical
standards of review Appellant’s claim must fail.
   First, when viewed with “maximum liberality,” it is a “rea-
sonable construction” of the phrase “did . . . attempt to kill
with premeditation Specialist [C.S.G.] by means of shooting
her with a loaded firearm, causing grievous bodily harm,”
that Appellant was being charged with the offense of at-
tempted premeditated murder (i.e., an unlawful killing).
   Second, in applying this maximum liberality standard, we
also are persuaded by the Government’s response to Appel-
lant’s argument that “U.S. Army Soldiers regularly use
loaded firearms to attempt to kill [enemy combatants] with
premeditation,” and that is not a crime. Brief for Appellant at
22, United States v. Turner, No. 19-0158 (C.A.A.F. Aug. 22,
2019). As the Government states in its brief:
       It is of no moment that a deployed Soldier may
       lawfully use force to kill an enemy combatant. Such
       a scenario is antithetical to Appellant’s
       premeditated attempt to kill his infant son’s mother


                                 10
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

       over a child support dispute. Simply put, there is no
       doubt that the specification notified Appellant that
       he was charged with an unlawful attempt to kill.
       The specification alleges that Appellant attempted
       to kill with premeditation while in Clarksville,
       Tennessee. SPC CSG’s Clarksville apartment is
       thousands of miles away from the battlefields to
       which Appellant alludes. Furthermore, the
       specification alleges that Appellant attempted to kill
       SPC CSG, a title that expressly indicates that the
       alleged victim is a fellow soldier and thus was an
       unlawful target . . . .
Brief for the Government at 16, United States v. Turner, No.
19-0158 (C.A.A.F. Sept. 23, 2019) (footnote omitted) (citations
omitted). Therefore, we conclude that the unlawfulness ele-
ment of the offense was sufficiently alleged by necessary im-
plication.8
    Even if this conclusion is susceptible to debate, it is un-
questionably true that there simply is no prejudice to be found
in this case—even when the stringent constitutional standard
of harmlessness beyond a reasonable doubt is applied. Hum-
phries, 71 M.J. at 213 n.5. A recitation of the following addi-
tional facts underscores this point:
          In the defense motion to release Appellant from
           pretrial confinement, defense counsel attached doc-
           uments that list “attempted murder” as one of the
           charges against Appellant.

          The Article 32, UCMJ, 10 U.S.C. § 832 (2012),
           memorandum of findings lists “attempted premed-
           itated murder” as the violation of Article 80, UCMJ,
           under the specification of Charge I. Further, that
           memorandum lists Appellant’s counsel as the same
           counsel that represented him at trial, and the rec-
           ord indicates that the memorandum was emailed
           as an attachment to those lawyers.


   8 Notably, this is consistent with the rationale in Norwood when
the appellant for the first time on appeal challenged an attempted
adultery specification which did not include the terminal element
for an Article 134, UCMJ, offense. 71 M.J. at 204.



                                11
      United States v. Turner, No. 19-0158/AR
               Opinion of the Court

   In Appellant’s pretrial request for a ballistics ex-
    pert and crime scene reconstruction, defense coun-
    sel stated, “ ‘The Accused is presently charged with
    attempted premeditated murder in violation of Ar-
    ticle 80, UCMJ.’ ” Turner, 2018 CCA LEXIS 593,
    *26, 2018 WL 6287965, at *9.

   Elsewhere on the charge sheet, the Specification of
    Charge III charged Appellant with conspiring with
    his wife to “murder” SPC CSG on the same date and
    at the same location as the Specification of Charge
    I, and the Specification of Charge III also detailed
    the same overt act as alleged in the Specification of
    Charge I. Id. at *26–27, 2018 WL 6287965, at *9.

   The first voir dire question submitted to the court-
    martial by defense counsel began, “ ‘One of the of-
    fenses alleged in this case is attempted premedi-
    tated murder.’ ” Id. at *27, 2018 WL 6287965, at *9.

   During closing argument, defense counsel told the
    members “The [G]overnment has attempted to
    convince you that this was a case of attempted
    premeditated murder and it is not that.” (Emphasis
    added.)


   The military judge provided findings instructions
    to the members which explained that “the accused
    is charged with the offense of Attempted Premedi-
    tated Murder.” (Emphasis added.) Additionally, the
    military judge instructed the members, “The killing
    of a human being is unlawful when done without
    legal justification or excuse,” and, “Proof that a per-
    son was actually killed is not required. However, it
    must be proved beyond a reasonable doubt that the
    accused specifically intended to kill [the victim]
    without justification or excuse.” (Emphasis added.)
    Appellant’s trial defense counsel reviewed these in-
    structions and did not object to them.



                        12
             United States v. Turner, No. 19-0158/AR
                      Opinion of the Court

    In light of these facts, there is no basis to conclude that if
the Government had properly included the word “unlawfully”
in Charge I and its Specification that Appellant would have
handled his defense at court-martial any differently; that the
result of the court-martial would have been any different; or
that Appellant would have been provided any additional pro-
tection from double jeopardy.
    Accordingly, the decision by the United States Army Court
of Criminal Appeals is affirmed.




                               13
             United States v. Turner, No. 19-0158/AR


   Judge MAGGS, dissenting.
   Appellant challenges the Specification of Charge I on the
ground that the specification fails to state an offense. This
specification alleges a violation of Article 80, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 880 (2012):
       In that, Specialist Malcolm R. Turner, U.S. Army,
       did, at or near Clarksville, Tennessee, on or about 1
       January 2015, attempt to kill with premeditation
       Specialist [C.S.G.] by means of shooting her with a
       loaded firearm, causing grievous bodily injury.
 The Court holds that because Appellant did not object to the
sufficiency of this specification until after the members had
found him guilty, it must construe the specification using the
“maximum liberality” standard described in United States v.
Watkins, 21 M.J. 208, 210 (C.M.A. 1986). This judicially cre-
ated standard requires us to construe specifications in favor
of validity when they are challenged for the first time on ap-
peal. See id. at 209. Applying this standard, the Court holds
that the quoted specification states the offense of attempted
murder. I disagree with this conclusion because I do not be-
lieve that we should apply the “maximum liberality” standard
in this case. I therefore respectfully dissent.
                                I.
    I agree with the Court on three basic points. The first
point of agreement is that Appellant’s objection to the specifi-
cation at issue was timely. The applicable version of Rule for
Courts-Martial (R.C.M.) 907(b)(1)(B) lists failure to state an
offense as a “[n]onwaivable ground” for dismissal.1 This rule
provides: “A charge or specification shall be dismissed at any
stage of the proceedings if . . . (B) [t]he specification fails to
state an offense.” And while R.C.M. 905(e) establishes dead-



   1  This rule is found in the Manual for Courts-Martial, United
States (2012 ed.). It applies because Appellant was tried in March
2016. The President subsequently amended R.C.M. 907 in Exec. Or-
der No. 13,730, 81 Fed. Reg. 33,331 (May 20, 2016). The revised
R.C.M. 907(b)(2)(E), which is not applicable to this case, provides
that a “specification shall be dismissed upon a motion made by the
accused before the final adjournment of the court-martial in that
case if . . . (E) [t]he specification fails to state an offense.”
             United States v. Turner, No. 19-0158/AR
                   Judge MAGGS, dissenting

lines during the proceedings for raising certain kinds of objec-
tions and specifies that failing to meet these deadlines consti-
tutes a waiver, these deadlines do not apply to an objection
based on “failure of a charge to allege an offense.” Accord-
ingly, in this case, Appellant violated no rule by waiting until
after the members announced their findings before he moved
to dismiss the specification.
    The second point is that the Court implies, while not stat-
ing outright, that without the “maximum liberality” stand-
ard, the specification would fail to state an offense expressly
or by necessary implication. Assuming that the Court in-
tended this implication, I agree explicitly. Under R.C.M.
307(c)(3), a “specification is sufficient if it alleges every ele-
ment of the charged offense expressly or by necessary impli-
cation.” Article 80(b), UCMJ, provides: “Any person subject to
this chapter who attempts to commit any offense punishable
by this chapter shall be punished as a court-martial may di-
rect, unless otherwise specifically prescribed.” Pursuant to
this language, one element of an Article 80, UCMJ, offense is
that the accused attempted to commit an “offense punishable
by this chapter.” Accordingly, under R.C.M. 307(c)(3), a spec-
ification of an offense under Article 80, UCMJ, is sufficient
only if it “expressly or by necessary implication” identifies an
offense that the accused attempted to commit.
   The specification at issue in this case could have alleged
“expressly or by necessary implication” that Appellant at-
tempted to commit murder in violation of Article 118, UCMJ,
10 U.S.C. § 918, by referencing Article 118, UCMJ, by using
the term “murder,” or perhaps even by stating generically
that the act attempted was an offense under the UCMJ.2 But
the specification did none of those things. Alternatively, the



   2  In United States v. Bryant, 30 M.J. 72, 74 (C.M.A. 1990), we
held that a specification sufficiently alleged a conspiracy to distrib-
ute controlled substances because it provided “express notice that
the object of the conspiracy was the violation of a federal statute, a
provision of the [UCMJ].” In this case, by contrast, the specification
did not incorporate the offense of murder by name or reference to
Article 118, UCMJ, and did not even minimally allege that the at-
tempted act was a violation of a criminal statute.




                                  2
             United States v. Turner, No. 19-0158/AR
                   Judge MAGGS, dissenting

specification could have met the test by alleging that Appel-
lant attempted to commit each of the elements of Article 118,
UCMJ, but it did not do that either. Article 118, UCMJ, de-
fines murder as follows: “Any person subject to this chapter
who, without justification or excuse, unlawfully kills a human
being, when he—(1) has a premeditated design to kill . . . is
guilty of murder . . . .” Although the specification alleged that
Appellant attempted “to kill with premeditation Specialist
[C.S.G.],” the specification did not allege the element that the
attempted killing was “unlawful.”3
    In this regard, the present case is indistinguishable from
decisions such as United States v. Brice, 17 C.M.A. 336, 38
C.M.R. 134 (1967). In Brice, a specification alleged that the
appellant “did . . . attempt to sell to [WCW] marihuana (hash-
ish) at Landstuhl, Germany, on or about 19 August 1966.” Id.
at 339, 38 C.M.R. at 137 (internal quotation marks omitted).
This Court held that the specification failed to state an of-
fense because it did not allege the sale was “wrongful.” Id. at
340–41, 38 C.M.R. at 138–39 (internal quotation marks omit-
ted) (citation omitted). The specification therefore lacked “an
allegation of criminality.” Id. at 341, 38 C.M.R. at 139. The
same conclusion is true here because the specification at issue
fails to indicate that the killing attempted was “unlawful.”
Thus, I agree with the Court’s implication that apart from the
“maximum liberality” standard, the specification fails to al-
lege criminality either expressly or by necessary implication.


   3   Including this element in the charge is necessary because
some killings are lawful. R.C.M. 916(c), for example, provides: “A
death, injury, or other act caused or done in the proper performance
of a legal duty is justified and not unlawful.” The discussion to this
rule provides two examples: “For example, the use of force by a law
enforcement officer when reasonably necessary in the proper exe-
cution of a lawful apprehension is justified because the duty to ap-
prehend is imposed by lawful authority. Also, killing an enemy com-
batant in battle is justified.” R.C.M. 916(c) Discussion. The charge
sheet need not include the word “unlawfully” or say that the killing
was without justification or excuse if it uses alternative words that
“convey the same meaning.” Davis v. People, 151 U.S. 262, 266
(1894) (indictment did not use the word “unlawfully” but conveyed
the same meaning by specifying that the defendant acted “feloni-
ously” and “did kill and murder, contrary to the statute”).




                                  3
             United States v. Turner, No. 19-0158/AR
                   Judge MAGGS, dissenting

    The third point of agreement is that we could construe the
specification to state an offense, even though it omits the
word “unlawfully,” if we were to use the “maximum liberality”
standard announced in Watkins, 21 M.J. at 210.4 This conclu-
sion follows from cases such as United States v. Brecheen, 27
M.J. 67 (C.M.A. 1988), which followed Watkins and distin-
guished Brice. In Brecheen, the Court upheld a specification
of attempting to sell LSD even though the specification did
not allege the element of wrongfulness. Id. at 68–69. The
Court held that the ordinary test for assessing the sufficiency
of a specification that the Court had used in Brice did not ap-
ply. The Court emphasized that Watkins should control be-
cause the “appellant did not challenge these specifications at
trial, pleaded guilty, had a pretrial agreement, satisfactorily
completed the providence inquiry (including admitting his
distributions were wrongful) and suffered no demonstrable
prejudice.” Id. at 68.
                                II.
    My point of disagreement with the Court concerns the ap-
plicability of the “maximum liberality” standard to this case.
I do not think that we should use this standard for three rea-
sons. First, nothing in the Rules for Courts-Martial suggests
that a different standard of assessing the sufficiency of a spec-
ification should apply depending on whether an accused ob-
jects to a specification before or after findings. R.C.M.
307(c)(3) provides only one test for determining whether a
specification states an offense—whether it alleges every ele-
ment of the charged offense expressly or by necessary impli-
cation—without suggesting that the test varies depending on
when an objection is made. And R.C.M. 907(b)(1)(B) provides
that a specification that fails to state an offense shall be dis-
missed “at any stage of the proceedings.” Accordingly, under
the text of these rules, if a specification fails to state an of-
fense before findings, it also must be construed as failing to
state an offense at any time during the proceedings, even af-
ter findings.



   4I also agree with the Court that, if we were to apply the “max-
imum liberality” standard, Appellant could not show prejudice.




                                4
            United States v. Turner, No. 19-0158/AR
                  Judge MAGGS, dissenting

    Second, no precedent requires us to apply the “maximum
liberality” standard in this case. In the previous cases in
which this Court applied the standard, the appellant did not
challenge a specification before adjournment but instead
challenged it for the first time on appeal. See Watkins, 21 M.J.
at 209; United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F.
2012). To be sure, we have employed various expressions in
discussing when the “maximum liberality” standard applies.
In Watkins, for example, we used four different phrases. In
one passage, we said that the “maximum liberality” standard
applies when a specification is “challenged for the first time
on appeal.” Watkins, 21 M.J. at 209. In a second passage, we
quoted a federal case that said the standard applies when an
objection is “first raised after trial.” Id. at 209–10 (internal
quotation marks omitted) (quoting United States v. Thomp-
son, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied, 384 U.S.
964 (1966)). In a third passage, we called the “maximum lib-
erality” standard the “post-conviction liberal construction
rule.” Id. at 209. In a fourth passage, we said that the stand-
ard applies when a specification is not “attacked before find-
ings and sentence.” Id. Although the last of these phrases sug-
gests that the “maximum liberality” standard could apply in
this case, that phrase in Watkins is simply dicta because the
only issue in Watkins was what standard to apply when the
accused first challenged a specification on appeal. Id. at 210.
    Third, this Court should not expand the situations in
which the “maximum liberality” standard applies. In Wat-
kins, this Court adopted the “maximum liberality” standard
because it was “the rule of most federal courts . . . [in] con-
struing specifications in favor of validity when they are chal-
lenged for the first time on appeal.” Id. at 209. The Court did
not explain its reasons for looking to other federal courts for
guidance. Perhaps it took this approach because the Rules for
Courts-Martial did not specifically address challenges to spec-
ifications that are first raised on appeal. But in this case,
where Appellant challenged the specification at trial, the
Rules for Courts-Martial provide everything needed for our
decision. As discussed above, R.C.M. 907(b)(1)(B) and R.C.M.
905(e) permit the accused to challenge a specification for fail-
ing to state an offense at any stage of the proceedings, and




                               5
            United States v. Turner, No. 19-0158/AR
                  Judge MAGGS, dissenting

R.C.M. 307(c)(3) establishes the test for assessing such chal-
lenges. We therefore have no need to borrow different stand-
ards from other federal courts.
                              III.
    Two additional points deserve mention. First, I under-
stand that various policy arguments might support applying
a less strict standard when the accused first raises an objec-
tion to a specification after findings. One such policy argu-
ment is that the accused should be given an incentive to chal-
lenge specifications before findings so that the government
has a fair opportunity to take corrective actions that cannot
be taken after findings. Policy arguments, however, should be
addressed not to this Court but to the President and Congress
who may wish to consider future amendments to the Rules for
Courts-Martial or to the UCMJ.
    Second, attempted murder is undoubtedly a very serious
offense. Its seriousness, however, does not change the test for
assessing whether the Government has properly charged this
offense under R.C.M. 307(c)(3). Perhaps, though, the serious-
ness of the allegations in this case should have prompted
those with responsibility for drafting the charge and specifi-
cation to take the care necessary to avoid errors. This is a
matter to which lawyers must attend and in which judges
have no authority for interfering when the accused makes a
timely challenge at trial.
                              IV.
    In conclusion, the specification at issue failed to state an
offense under the test in R.C.M. 307(c)(3). Although the spec-
ification presumably would have been sufficient if tested un-
der the “maximum liberality” standard, we have not applied,
and should not apply, that judicially created standard when
an accused challenges a specification in a manner that is
timely under R.C.M. 907(b)(1)(B) and R.C.M. 905(e). Accord-
ingly, I would set aside the Specification of Charge I and the
sentence in this case.




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