        This opinion is subject to revision before publication

          UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
            Michael C. GLEASON, Staff Sergeant
                United States Army, Appellant

                           No. 18-0305
                     Crim. App. No. 20150379
         Argued February 19, 2019—Decided June 6, 2019
          Military Judges: Rebecca K. Connally (trial) and
                 Jacob D. Bashore (DuBay hearing)
   For Appellant: Robert Feldmeier, Esq. (argued); Major
   Todd W. Simpson and Captain Joseph C. Borland.
   For Appellee: Captain Natanyah Ganz (argued); Colonel
   Steven P. Haight and Lieutenant Colonel Eric K. Stafford
   (on brief); Captain Jeremy S. Watford.
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judge OHLSON
   joined. Judge RYAN and Judge MAGGS each filed a
   separate dissenting opinion.
                          _______________

   Judge SPARKS delivered the opinion of the Court.

   Contrary to his pleas at a general court-martial,
Appellant was convicted by a panel of officer members of six
specifications of assault consummated by battery, two
specifications of aggravated assault, one specification of
adultery, and one “novel” specification of interfering with an
emergency call, in violation of Articles 128 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 928, 934
(2012). The adjudged and approved sentence provided for a
reduction to E-1, seven years of confinement, and a
dishonorable discharge. The United States Army Court of
Criminal Appeals set aside the guilty finding as to the
adultery specification but affirmed the remaining findings
and the sentence. Appellant then petitioned this Court, and
we granted review on the following issue:
             United States v. Gleason, No. 18-0305/AR
                       Opinion of the Court

      Whether the Army Court erred by affirming a novel
      specification covered by an enumerated Art. 134,
      UCMJ offense.
    For the reasons set forth below, we hold the “novel”
Article 134, UCMJ, charge of interfering with an emergency
call fails to state an offense because the offense is already
listed inside Article 134’s framework and is therefore barred
by pt. IV, para. 60.c.(6)(c) of the Manual for Courts-Martial,
United States (2012 ed.) (MCM).
                       I. Background
   Specialist (SPC) JW and Appellant were involved in a
romantic relationship and lived together. On the evening in
question, SPC JW returned home to find Appellant upset.
When SPC JW tried to leave the house to avoid a
confrontation, Appellant “clotheslined” her with his arm,
jumped on top of her, and stuck his fingers down her throat.
When SPC JW stood up, she punched Appellant in the face.
Appellant then put SPC JW into a chokehold until she
nearly passed out. Shortly thereafter, SPC JW told
Appellant she wanted to die and Appellant responded by
pointing a gun at her face. SPC JW explained when
Appellant pointed the gun at her, he:
      asked me if I wanted to die, and I said no, and then
      he pointed it at himself and said you know, because
      I’ll kill myself too, and that was when I was
      devastated, and you know, I was crying, and I told
      him I can’t believe you’d do this to me, this is
      wrong, and as I was saying this, he was dumping
      the bullets into his hands, and then he turned the
      gun around to where he could see inside the thing
      and he said look, it wasn’t loaded this whole time,
      and I was like you just did that right in my face, I
      saw you, and he tried to argue with me, and I told
      him what he was doing wasn’t right. So my phone
      was behind me along with my keys, and I told him I
      was calling the police, and he jumped on top of me
      at that point and he took my phone and my keys
      and told me that I wasn’t calling anyone and I
      wasn’t going anywhere.
   Appellant kept SPC JW’s phone and keys but permitted
her to leave the house. After SPC JW left the house,
Appellant followed her down the street and offered to return
her belongings if she returned home. SPC JW complied and
Appellant returned her phone and keys. After receiving her

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              United States v. Gleason, No. 18-0305/AR
                        Opinion of the Court

possessions, SPC JW again left the house, got in her car and
drove a short distance away, where she called a friend to
pick her up. The next morning, SPC JW reported the
incident to her section noncommissioned officer.
                          II. Discussion
    Although he did not raise the issue at trial, Appellant
now argues the “novel” offense of interfering with an
emergency call fails to state an offense because it covers the
same ground as the enumerated Article 134, UCMJ, offense
of obstructing justice.1
    Whether a specification fails to state an offense is a
question of law we review de novo.2 United States v. Crafter,
64 M.J. 209, 211 (C.A.A.F. 2006). Because Appellant did not
challenge the specification at trial, we review his challenge
to the “novel” specification for plain error. See United States
v. Tunstall, 72 M.J. 191, 196 (C.A.A.F. 2013) (reviewing
whether a specification failed to state offense for plain error
where the appellant failed to object to the specification at
trial).
   As we stated in United States v. Guardado, 77 M.J. 90
(C.A.A.F. 2017):
       [T]he President has constrained the Government’s
       charging strategy: “[i]f conduct by an accused does
       not fall under any of the listed offenses for
       violations of Article 134 in this Manual
       (paragraphs 61 through 113 of this Part), a
       specification not listed in this Manual may be used
       to allege the offense.” MCM pt. IV, ¶ 60.c.(6)(c).
       Relying on the plain language of the President’s
       guidance, this Court has held that the government

   1  The version of Rule for Courts-Martial (R.C.M.) 907(b) in
effect at the time of Appellant’s court-martial provided that the
failure to state an offense was nonwaivable grounds for dismissing
a specification at any stage of the proceedings. MCM pt. II, R.C.M.
907(b)(1)(B) (2012 ed.). We have interpreted this provision as
follows: “[W]hen 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 ….” United States v.
Humphries, 71 M.J. 209, 213–14 (C.A.A.F. 2012).
   2   At the outset, we emphasize that this opinion relates
specifically to novel offenses drafted against an accused under
clauses 1 and 2 of Article 134, UCMJ.

                                   3
              United States v. Gleason, No. 18-0305/AR
                        Opinion of the Court

       may not charge a “novel” offense if the offense is
       otherwise listed as an Article 134, UCMJ, offense.
       In other words, if an offense is “already listed
       inside [Article 134’s] framework,” it may not be
       charged as a “novel” general disorder offense.
Id. at 95 (alterations in original) (citations omitted). Thus,
as expressed in the context of this case, if the alleged
conduct falls under any of the offenses listed by the
President in the MCM under Article 134, UCMJ, then the
conduct is necessarily already listed within the framework of
Article 134, UCMJ.
    The Government referred a “novel” Article 134, UCMJ,
specification against Appellant. Specification 1 of Charge III
alleged in pertinent part that:
       [Appellant] knowingly and wrongfully interfere[d]
       with Private First Class J.W.’s ability to place an
       emergency phone call by taking her telephone from
       her when she went to call the police and that such
       conduct was to the prejudice of good order and
       discipline in the armed forces and of a nature to
       bring discredit upon the armed forces.
   Part IV, para. 96 of the MCM already contains an offense
of obstruction of justice which lists four elements. The
elements of obstruction of justice are:
       (1) That the accused wrongfully did a certain act;
       (2) That the accused did so in the case of a certain person
       against whom the accused had reason to believe there were
       or would be criminal proceedings pending;
       (3) That the act was done with the intent to influence,
       impede, or otherwise obstruct the due administration of
       justice; and
       (4) 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.
Id. pt. IV, para. 96.b.(1)–(4).
   The gravamen of Appellant’s Article 134, UCMJ, general
disorder specification is Appellant’s interference with SPC
JW’s ability to place an emergency call to the police. One
must necessarily view this conduct within the circumstances
in which it arose. In determining whether this alleged
conduct already falls under a listed offense, the focus is on

                                  4
             United States v. Gleason, No. 18-0305/AR
                       Opinion of the Court

specific conduct committed under specific circumstances.
After all, the proof required for such an offense is:
      (1) That the accused did or failed to do a certain act, and;
      (2) That under the circumstances, the accused’s conduct
      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. 60.b.(1)–(2) (emphasis added).
Additionally, the earlier quoted language from Guardado
anticipates a relatively broad approach in analyzing conduct
alleged in novel specifications. Thus, we need not confine
ourselves to an element-by-element comparison between the
drafted offense and the offense listed in the MCM.
   Here, the circumstances are that Appellant assaulted
and pointed a gun at SPC JW moments before she tried to
place the emergency call to the police. We need only look to
the President’s explanation of the listed offense of
obstructing justice, which states:
      Examples of obstruction of justice include … by
      means of bribery, intimidation, misrepresentation,
      or force or threat of force delaying or preventing
      communication of information relating to a
      violation of a criminal statute of the United States
      to a person authorized by a department, agency, or
      armed force of the United States to conduct or
      engage in investigations or prosecutions of such
      offenses; or endeavoring to do so.
MCM pt. IV, para. 96.c. The nature of the acts leading to
Appellant taking SPC JW’s telephone suggests Appellant
was by intimidation and by force or the threat of force
delaying or preventing communication of information to
police relating to an assault. This conduct falls squarely
within the President’s explanation of the obstruction of
justice offense.
    By using a “novel” specification, the Government relieved
itself of having to prove the second and third elements of
obstructing justice. MCM pt. IV, paras. 96.b.(2), (3). As we
stated in Guardado, “In deleting a vital element, the
Government, in effect improperly reduced its burden of
proof. Such an outcome illustrates the reason for the limits
of pt. IV, ¶ 60.c.(6)(c) and cannot be countenanced.” 77 M.J.
at 96. The Government contends it did not charge this


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              United States v. Gleason, No. 18-0305/AR
                        Opinion of the Court

“novel” offense to avoid these elements, but because
Appellant engaged in unique misconduct, different from
obstruction of justice. As the Government later conceded at
oral argument, however, the “novel” offense could have been
charged as obstruction of justice. If an offense is already
listed inside Article 134’s framework, it may not be charged
as a “novel” general disorder offense. Guardado, 77 M.J. at
95.
    Finally, we are cognizant of the fact that there are
myriad examples of conduct posing a threat to good order
and discipline that are not accounted for in the listed
offenses included in the MCM under Article 134, UCMJ.
And, it is beyond cavil that the UCMJ must retain enough
flexibility for the commander to address such conduct. On
the other hand, we are reminded of the United States
Supreme Court’s observation in Parker v. Levy, albeit the
Supreme Court was addressing a vagueness and
overbreadth challenge, that “[Article 134] has been
construed by the United States Court of Military Appeals or
by other military authorities in such a manner as to at least
partially narrow its otherwise broad scope.” 417 U.S. 733,
752 (1974). The Supreme Court saw military appellate
courts as stewards of Article 134, UCMJ, and as checks
against its potentially over-expansive use. Here, the
ultimate military authority, the Commander-in-Chief, has
already listed the Article 134, UCMJ, offense of obstruction
of justice, and Appellant’s conduct under the circumstances
of this case clearly falls under that offense.
    We hold the “novel” offense arising from Appellant’s
interference with SPC JW’s ability to place an emergency
call to the police was barred by MCM pt. IV, para. 60.c.(6)(c)
and, therefore, fails to state an offense under the UCMJ.3
Accordingly, the Government plainly erred in charging the
“novel” offense.




   3  There might very well be circumstances in which wrongfully
interfering with the response of certain authorities, such as
medical personnel for example, might be appropriately charged in
a novel specification. That case is not before us, and nothing in
this opinion should be taken as a pronouncement on any such case
in the future.

                                 6
             United States v. Gleason, No. 18-0305/AR
                       Opinion of the Court

                       III. Judgment
    The decision of the United States Army Court of
Criminal Appeals regarding Specification 1 of Charge III is
set aside and that offense is dismissed. The remaining
findings are affirmed. The sentence is set aside. The record
is returned to the Judge Advocate General of the Army for
remand to the Court of Criminal Appeals to either reassess
the sentence based on the affirmed findings or order a
sentence rehearing.




                                7
                United States v. Gleason, 18-0305/AR

   Judge RYAN, dissenting.

    In United States v. Guardado, 77 M.J. 90 (C.A.A.F.
2017), and United States v. Reese, 76 M.J. 297 (C.A.A.F.
2017), we examined the application of a long-standing limi-
tation, prescribed by the President in Manual for Courts-
Martial, United States pt. IV, para. 60.c.(6)(c) (2012 ed.)
(MCM),1 on the government’s ability to charge novel specifi-
cations under Article 134, UCMJ, 10 U.S.C. § 934. The ma-
jority misunderstands that limitation, and reads Guardado
and by extension Reese, on which Guardado relies, far too
broadly and, indeed, misapplies them. United States v.
Gleason, __ M.J. __ (6) (C.A.A.F. 2019).
     The President has placed two discrete limitations on the
government’s ability to draft specifications under Article
134, UCMJ, 10 U.S.C. § 934.2 The first, referred to as the
preemption doctrine, “prohibits application of Article 134 to
conduct covered by Articles 80 through 132.” MCM pt. IV,
para. 60.c.(5)(a). The second constraint, at issue here, limits
the government’s charging decisions by preventing the draft-
ing of a novel specification where the President has already
listed3 an offense under Article 134, UCMJ, containing the


   1  This limitation was first introduced in the 1984 MCM. MCM,
pt. IV, para. 60.c.(6)(c) (1984 ed.).
   2  There is no question in my mind that the President has the
authority to place these narrowing constraints on the govern-
ment’s charging decisions under Article 134, UCMJ. See Parker v.
Levy, 417 U.S. 733, 753–56 (1974). The Constitution vests in the
President “[t]he executive Power,” and provides that he “shall be
Commander in Chief” of the armed forces, U.S. Const. art. II, §§ 1,
2, and the “[p]ower of the executive to establish rules and regula-
tions for the government of the army, is undoubted.” United States
v. Eliason, 41 U.S. 291, 301 (1842); see United States v. Czeschin,
56 M.J. 346, 348–49 (C.A.A.F. 2002); United States v. Davis, 47
M.J. 484, 486 (C.A.A.F. 1998); United States v. Miller, 47 M.J.
352, 356 (C.A.A.F. 1997); cf. United States v. Jones, 68 M.J. 465,
471 (C.A.A.F. 2010).
   3  MCM pt. IV, para. 60.c.(6)(c) refers to offenses described by
the President within Article 134, UCMJ, as “listed offenses,”
whereas MCM pt. IV, para. 60.c.(5)(a) refers to offenses outside of
Article 134 as “covered” by the other punitive articles in the con-
              United States v. Gleason, No. 18-0305/AR
                     Judge RYAN, dissenting.

core of the elements contemplated by the novel specification.
The MCM instructs that: “[i]f conduct by an accused does
not fall under any of the listed offenses for violations of
Article 134, UCMJ, in this Manual (paragraphs 61
through 113 of this Part) a specification not listed in this
Manual may be used to allege the offense.” MCM pt. IV,
para. 60.c.(6)(c).
    Importantly, paragraphs 60.c.(5)(a) and 60.c.(6)(c) in pt.
IV of the MCM are the only limitations placed by the Presi-
dent on the government’s ability to charge offenses under
Article 134, UCMJ. The clear purpose of both limitations is
to prevent the government from taking Article 134, UCMJ,
as far as the statutory language might permit. See Parker,
417 U.S. at 753–56. They do so by precluding the govern-
ment from taking an existing UCMJ offense or a presiden-
tially listed Article 134, UCMJ, offense, removing an im-
portant element—such as the requisite intent—and
charging the remaining elements as a “novel” Article 134,
UCMJ, offense. See Guardado, 77 M.J. at 95; Reese 76 M.J.
at 302. Just as prosecutorial interpretation of a criminal
statute gives way to Congress’ determination that an of-
fense, such as larceny, Article 121, UCMJ, 10 U.S.C. § 921,
contains certain elements, see generally Jones, 68 M.J. at
471; United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979), so
too must it give way to the President’s determination that
an offense, such as obstruction of justice, MCM pt. IV, para.
96.b., contains certain elements. See United States v. For-
rester, 76 M.J. 479, 485–87 (C.A.A.F. 2017); see also United
States v. Wilson, 76 M.J. 4, 7–8 (C.A.A.F. 2017); United
States v. Miller, 67 M.J. 87, 88–91 (C.A.A.F. 2008); United
States v. Guess, 48 M.J. 69, 71–72 (C.A.A.F. 1998); Miller, 47
M.J. 356–57.
   Reese and Guardado implicated obvious examples of the
government taking an offense listed by the President under
Article 134, UCMJ, and drafting a novel specification that




text of the preemption doctrine. I adhere to this nomenclature for
clarity.




                                  2
              United States v. Gleason, No. 18-0305/AR
                     Judge RYAN, dissenting.

failed to allege one of the elements of that offense.4 It is that
charging strategy that is prohibited by MCM pt. IV, para.
60.c.(6)(c), and precisely the conduct that this Court focused
on and disallowed in Guardado and Reese.
    In contrast, the Government’s charging decision in this
case was entirely consonant with the plain language of
MCM pt. IV, para. 60.c.(6)(c). As Judge Maggs ably ex-
plains, Gleason, __ M.J. at __ (1–4) (Maggs, J., dissenting),
the novel specification here is not contained within the ele-
ments of the listed Article 134, UCMJ, of obstruction of jus-
tice—“knowingly and wrongfully interfer[ing] with [the]
ability to place an emergency phone call”—and thus does not
fall under a listed Article 134, UCMJ, offense. See generally
MCM pt. IV, para. 61-113.
    Moreover, the Government’s burden of proof was not
lessened by removing an element as was the case in
Guardado and Reese; the Government’s burden changed to
include the elements of the novel offense, elements that the
Government would not have had to prove if it had charged
Appellant with obstruction of justice. Gleason, __ M.J. at __
(3–4) (Maggs, J., dissenting). In essence, what happened
here is in contradistinction with the facts of Guardado,
where, “[i]n deleting a vital element, the Government, in ef-
fect improperly reduced its burden of proof.” 77 M.J. at 96.
    I further agree with Judge Maggs that the Court’s rea-
soning is flawed because it looks to the “ ‘circumstances’
proved at trial to determine the ‘nature of the acts’ of which
Appellant was charged,” and thus “improperly relies on the
evidence presented at trial in determining the nature of the
acts alleged in the novel specification.” Gleason, __ M.J. at
__ (2) (Maggs, J., dissenting). Whether a novel specification


   4  As Reese makes clear, these cases do not deal with the
preemption doctrine, which compares the novel specification with
UCMJ offenses outside Article 134, UCMJ. 76 M.J. at 302. In-
stead, they analyze MCM pt. IV, para. 60.c.(6)(c), which prevents
the government from charging a novel specification where the
“gravamen” of the elements of the novel charge are already con-
tained in an offense listed inside Article 134, UCMJ. Guardado,
77 M.J. at 96.




                                 3
             United States v. Gleason, No. 18-0305/AR
                    Judge RYAN, dissenting.

fails to state an offense because it falls under a listed of-
fense, is determined by comparing the language of the speci-
fication to the elements the President delineated for the
listed offense. See United States v. Sutton, 68 M.J. 455, 457
(C.A.A.F. 2010) (“[T]he standard for determining whether a
specification states an offense is whether the specification
alleges ‘every element’ of the offense either expressly or by
implication.” (quoting United States v. Crafter, 64 M.J. 209,
211 (C.A.A.F. 2006))); United States v. Mayo, 12 M.J. 286,
288 (C.M.A. 1982) (“A specification fatally flawed because it
does not contain an allegation of fact essential to proof of the
offense charged is not restored to legal life by the Govern-
ment’s production at trial of evidence of the fact.”), overruled
on other grounds by United States v. Fosler, 70 M.J. 225, 232
(C.A.A.F. 2011). This can (and most often should) be decided
prior to trial. Consistent with this principle, the Court in
Reese and Guardado looked only at what was alleged in the
respective novel specifications and did not consider the evi-
dence presented at trial. Reese, 76 M.J. at 302−03;
Guardado, 77 M.J. at 95−96.
    The majority here focuses not on elements, but instead
breezily concludes that: “Guardado anticipates a relatively
broad approach in analyzing conduct alleged in novel speci-
fications. Thus, we need not confine ourselves to an element-
by-element comparison between the drafted offense and the
offense listed in the MCM.” Gleason, __ M.J. at __ (5). I disa-
gree. Instead, I agree with Judge Maggs that when analyz-
ing whether a novel specification comports with MCM pt. IV,
para. 60.c.(6)(c), it is the elements set forth in the novel
charge that control, not the “conduct” apart from the ele-
ments, and not on evidence adduced at trial. See Sutton, 68
M.J. at 457; Mayo, 12 M.J. at 288. I part ways with Judge
Maggs’ opinion only because I disagree that Reese and
Guardado, “recognized a new limitation on charging offenses
under Article 134, UCMJ.” Gleason, __ M.J. at __ (1) (Maggs,
J., dissenting). Rather, it is today’s majority’s understanding
of that limitation that is novel. I respectfully dissent.




                                 4
             United States v. Gleason, No. 18-0305/AR


   Judge MAGGS, dissenting.
    In United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017),
and United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017),
this Court recognized a new limitation on charging offenses
under Article 134, UCMJ, 10 U.S.C. § 934 (2012). The new
limitation is that the government cannot use a novel
specification to allege an offense if the conduct alleged in the
novel specification is within the “framework” of an Article
134, UCMJ, offense that the President has already
enumerated and defined in pt. IV of the Manual for Courts-
Martial, United States (2012 ed.) (MCM). Reese, 76 M.J. at
302−03; Guardado, 77 M.J. at 95−96. The Court today holds
that the specification at issue in this case violates this newly
recognized limitation and therefore fails to state an offense.
I disagree.1




   1  The opinions in Reese and Guardado did not identify any ar-
ticle of the UCMJ that empowers the President to declare, either
directly or by implication, that military judges must dismiss
charges alleging misconduct that otherwise meets the statutory
requirements of Article 134, UCMJ, for failing to state an offense.
The Court’s opinion today also cites no article conferring such
power. Because I conclude that the novel specification in this case
does not fall under the enumerated specification of obstruction of
justice in pt. IV of the MCM, the issue of the President’s power is
not essential to my analysis. The Court should entertain argu-
ments about this subject in future cases.
    The new limitation first recognized in Reese and Guardado is
distinct from the traditional Article 134, UCMJ, preemption doc-
trine described in MCM pt. IV, para. 60.c.(5)(a). Since 1953, this
Court has held that the UCMJ’s punitive articles—as opposed to
the specifications that the President has listed in the MCM—can
preempt novel specifications under Article 134, UCMJ. See United
States v. Norris, 8 C.M.R. 36, 40 (C.M.A. 1953). We have identified
a statutory basis for this traditional form of preemption. It follows
from the text of Article 134, UCMJ, in particular that article’s ini-
tial “disclaiming phrase, ‘[t]hough not specifically mentioned in
this chapter.’ ” United States v. Herndon, 36 C.M.R. 8, 10 (C.M.A.
1965) (citing United States v. Deller, 3 C.M.A. 409, 12 C.M.R 165
(1953), and other decisions). This phrase would not appear to cov-
er offenses enumerated only in pt. IV of the MCM.
            United States v. Gleason, No. 18-0305/AR
                   Judge MAGGS, dissenting

                                I.

  The novel specification at issue in this case accused
Appellant of violating Article 134, UCMJ, when he:
       knowingly and wrongfully interfere[d] with Private
       First Class J.W.’s ability to place an emergency
       phone call by taking her telephone from her when
       she went to call the police and that such conduct
       was to the prejudice of good order and discipline in
       the armed forces and of a nature to bring discredit
       upon the armed forces.
The Court today concludes that this specification fails to
state an offense because the misconduct alleged falls within
the framework of the enumerated offense of obstruction of
justice in MCM pt. IV, para. 96.b., but the specification does
not require the Government to prove all of the elements of
obstruction of justice.
    The first step of the Court’s reasoning is to look at the
“circumstances” proved at trial to determine the “nature of
the acts” of which Appellant was charged. United States v.
Gleason, __ M.J. __ (5–6) (C.A.A.F. 2019). The Court
concludes in this case that “[t]he nature of the acts leading
to Appellant taking SPC JW’s telephone suggests Appellant
was by intimidation and by force or the threat of force
delaying or preventing communication of information to
police relating to an assault.” Id. at __ (5). To the Court, this
sounds like a possible case of obstruction of justice.
    A problem with this reasoning is that the Court
improperly relies on the evidence presented at trial in
determining the nature of the acts alleged in the novel
specification. Whether a specification states an offense
depends on the language of the specification, not on what
facts are proved at trial. See United States v. Crafter, 64
M.J. 209, 211 (C.A.A.F. 2006). Consistent with this
principle, the Court in Reese and Guardado looked only at
what was alleged in the respective novel specifications and
did not consider the evidence presented at trial. Reese, 76
M.J. at 302−03; Guardado, 77 M.J. at 95−96. In my view, if
the Court had limited itself to considering the words of the
novel specification in this case, it would have reached a
different conclusion.




                                2
            United States v. Gleason, No. 18-0305/AR
                   Judge MAGGS, dissenting

    The novel specification required the Government to prove
that Appellant “knowingly and wrongfully interfere[d] with
Private First Class J.W.’s ability to place an emergency
phone call by taking her telephone from her when she went
to call the police.” These words by themselves do not suggest
an offense having the nature of obstruction of justice. While
the words of the specification do embrace the circumstances
actually proved at trial, they also would cover circumstances
having no connection to a criminal proceeding or the
administration of justice. For example, the same
specification could have been used if Appellant had
prevented SPC JW from placing an emergency call to the
police to report a missing child or a traffic hazard requiring
urgent police attention. Thus, I do not agree that the nature
of the acts alleged in the specification bring the specification
within the framework offense of obstruction of justice.
    The second step of the Court’s reasoning is to examine
the elements of the enumerated offense of obstruction of
justice as they are listed in MCM pt. IV, paras. 96.b.(2) and
(3). The Court concludes that, by using a novel specification,
the Government reduced its burden of proof because it
“relieved itself of having to prove the second and third
elements of obstructing justice.” Gleason, __ M.J. at __ (5).
Specifically, the Court indicates that the Government did
not have to prove that there were “criminal proceedings
pending,” MCM pt. IV, para. 96.b.(2), or that the accused
acted with an “intent to influence, impede, or otherwise
obstruct the due administration of justice,” id. pt. IV, para.
96.b.(3). The Court therefore concludes that the new
limitation recognized in Reese and Guardado applies in this
case and that the novel specification fails to state an offense.
    A problem with this second step of the Court’s reasoning
is that the Court focuses only on what the Government did
not have to prove under the novel specification and not on
what the Government did have to prove. In fact, the wording
of the novel specification required the Government to prove
three elements that the Government would not have had to
prove if the Government had charged Appellant with
obstruction of justice. These elements are: (1) a person was
attempting to make an emergency phone call; (2) the
accused interfered with this attempt; and (3) the accused’s




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           United States v. Gleason, No. 18-0305/AR
                  Judge MAGGS, dissenting

interference was knowing and wrongful. Thus, even though
the Government did not have to prove everything that the
offense of obstruction of justice would require, the
Government took on a different burden. Accordingly, the
novel offense did not fall within the framework of the offense
of obstruction of justice.
                              II.

    In Parker v. Levy, 417 U.S. 733 (1974), the United States
Supreme Court considered, among other issues, a vagueness
challenge to a novel specification under Article 134, UCMJ.
The specification at issue alleged that the accused, an Army
officer, had uttered words to enlisted soldiers criticizing the
Vietnam war and telling them that African American
soldiers “should refuse to go to Viet Nam and if sent should
refuse to fight.” Id. at 738 n.5. The Supreme Court concluded
that the specification was not void for vagueness because the
accused “could have had no reasonable doubt” that his
conduct was “ ‘to the prejudice of good order and discipline in
the armed forces.’ ” Id. at 757 (quoting Article 134, UCMJ).
The same conclusion is true here. Although the President
has not yet defined the offense of interfering with an
emergency call in pt. IV of the MCM, preventing someone
from making an emergency call to the police is so inherently
wrongful that Appellant could have foreseen a charge under
Article 134, UCMJ. Indeed, as the Government points out,
some states by statute have specifically established the
crime of interfering with an emergency call. See, e.g., Tenn.
Code Ann. § 65-21-117 (effective July 1, 2012). Thus while I
agree with the Court’s expressed caution about the
“potentially over-expansive use” of novel specifications
under Article 134, UCMJ, see Gleason, __ M.J. at __ (6), I do
not see any overreach here. For these reasons, I respectfully
dissent.




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