                         UNITED STATES, Appellee

                                         v.

        Anthony P. BALLAN, Machinist’s Mate Second Class
                      U.S. Navy, Appellant

                                  No. 11-0413

                        Crim. App. No. 201000242

       United States Court of Appeals for the Armed Forces

                        Argued December 13, 2011

                          Decided March 1, 2012

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


                                     Counsel

For Appellant: Lieutenant Toren G. E. Mushovic, JAGC, USN
(argued); Lieutenant Jentso Hwang, JAGC, USN, and Lieutenant
Ryan Santicola JAGC, USN.

For Appellee: Captain Samuel C. Moore, USMC (argued); Colonel
Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on brief).

Military Judges:    Moira D. Modzelewski, Tierney M. Carlos, and
Glen R. Hines




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ballan, No. 11-0413/NA


     Judge RYAN delivered the opinion of the Court.

     A military judge, sitting as a general court-martial,

convicted Appellant, pursuant to his pleas, of one specification

of sodomy with a child under age twelve, one specification of

indecent acts with a child,1 and eight specifications of indecent

acts with another, violations of Articles 125 and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2006).2

A panel of members sentenced Appellant to a dishonorable

discharge, confinement for a period of twenty-five years, and

forfeiture of all pay and allowances.

     In accordance with Appellant’s pretrial agreement, the

convening authority agreed to suspend confinement in excess of

twenty years for the period of confinement served plus twelve

months.

     Addressing an unrelated issue on appeal, the United States

Navy-Marine Corps Court of Criminal Appeals (NMCCA) set aside


                                                        
1
     Relevant to Specified Issue II, Appellant was charged with rape
of a child, in violation of Article 120, UCMJ, 10 U.S.C. § 920
(2006), not indecent acts with a child, a violation, at the
time, of Article 134, UCMJ, see Manual for Courts-Martial,
United States, Punitive Articles Applicable to Sexual Assault
Offenses Committed Prior to 1 October 2007 app. 27 at A27-3
(2008 ed.) (MCM).
2
  Appellant was properly tried and convicted under the pertinent
provisions of the UCMJ and MCM as in effect prior to the October
1, 2007, effective date of the amendments to the UCMJ and MCM
made by the National Defense Authorization Act for Fiscal Year
2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3256-63
(2006).

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United States v. Ballan, No. 11-0413/NA


the findings of guilty and dismissed Specifications 6, 7, and 8

of Charge III as legally insufficient.    United States v. Ballan,

No. NMCCA 201000242, slip op. at 3, 5 (N-M. Ct. Crim. App. Jan.

27, 2011).   The NMCCA reassessed Appellant’s sentence, but found

that the members would have nevertheless imposed the same

sentence.3   Id. at 4.

     Consistent with our decision in United States v. Wilkins,

29 M.J. 421 (C.M.A 1990), we hold that action by the convening

authority showing an intent to refer a particular charge to

trial is sufficient to satisfy the jurisdictional requirements

of the Rules for Courts-Martial (R.C.M.).   Further, we hold that

while it is error to fail to allege the terminal element of
                                                        
3
     Appellant submitted a petition for a grant of review with no
assignment of error, and, on June 2, 2011, this Court specified
the following two issues:

     I. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT
     FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
     STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN
     UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED
     STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER,
     AND JONES.

     II. ALTHOUGH THE CRIME OF INDECENT ACTS WITH A CHILD TO
     WHICH APPELLANT PLEADED GUILTY WAS NOT A LESSER INCLUDED
     OFFENSE OF THE CHARGED CRIME OF RAPE OF A CHILD AND THUS
     HAD NOT BEEN FORMALLY REFERRED TO TRIAL BY COURT-MARTIAL BY
     THE CONVENING AUTHORITY, WHETHER APPELLANT WAIVED SUCH
     IRREGULARITY BY PLEADING GUILTY UNDER A PRETRIAL AGREEMENT
     TO INDECENT ACTS WITH A CHILD IN VIOLATION OF ARTICLE 134,
     WHERE NEITHER THE PRETRIAL AGREEMENT NOR APPELLANT’S PLEA
     AT ARRAIGNMENT EXPRESSLY SET FORTH EITHER POTENTIAL
     TERMINAL ELEMENT FOR AN ARTICLE 134 CLAUSE 1 OR 2
     SPECIFICATION, BUT BOTH ELEMENTS WERE DISCUSSED AND
     ADMITTED DURING THE PROVIDENCE INQUIRY.

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United States v. Ballan, No. 11-0413/NA


Article 134, UCMJ, expressly or by necessary implication, in the

context of a guilty plea, where the error is alleged for the

first time on appeal, whether there is a remedy for the error

will depend on whether the error has prejudiced the substantial

rights of the accused.     See Article 59, UCMJ, 10 U.S.C. § 859

(2006).

                      I.    FACTUAL BACKGROUND

     The Naval Criminal Investigative Service (NCIS) began

investigating Appellant in 2008 when his three biological

children -- all living separately in foster homes at the time --

were observed exhibiting age-inappropriate sexual behavior.

Pursuant to this investigation, NCIS interviewed Appellant on

July 9, 2008.   During this and a subsequent interview, Appellant

admitted that he had engaged in a variety of sexual misconduct

with, and in the presence of, his children -- all of whom were

under age twelve at the time of the events.      The exact nature of

the conduct is not relevant to either of the specified issues

now under consideration.

     On April 22, 2009, the Government preferred the following

charges against Appellant:    one specification of rape of a

child, in violation of Article 120, UCMJ, one specification of

sodomy with a child under age twelve, in violation of Article

125, UCMJ, and eight specifications of indecent acts or

liberties with a child, in violation of Article 134, UCMJ.     As


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United States v. Ballan, No. 11-0413/NA


preferred, none of the specifications of indecent acts or

liberties with a child contained the terminal element for

Article 134, UCMJ.

        On June 5, 2009, Appellant and his defense counsel signed a

valid unconditional waiver of investigation under Article 32,

UCMJ, 10 U.S.C. § 832 (2006).    A month later, on July 6, 2009,

Appellant and his defense counsel signed a two-part Memorandum

of Pretrial Agreement.    With regard to Charge I -- alleging a

single specification of rape of a child, in violation of Article

120, UCMJ -- Appellant agreed to plead “NOT GUILTY [to the

Article 120, UCMJ, violation], but GUILTY to the LIO [Lesser

Included Offense] of indecent acts with a child,” in violation

of Article 134, UCMJ.    Neither the original Charge I

specification nor the specification to which Appellant agreed to

plead guilty included the terminal element for Article 134,

UCMJ.    Appellant also agreed to plead guilty to the Article 125,

UCMJ, violation essentially as charged and, for the eight

specifications of indecent acts with a child in Charge III, to

the lesser included offense (LIO) of indecent acts with another,

both violations of Article 134, UCMJ.    The Charge III

specifications in the pretrial agreement again failed to allege

the terminal element for Article 134, UCMJ.

        On July 10, 2009, the Staff Judge Advocate (SJA) sent the

convening authority a memorandum regarding the charges pending


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United States v. Ballan, No. 11-0413/NA


against Appellant and attached, inter alia, the original charge

sheet and Appellant’s signed Memorandum of Pretrial Agreement.

In this memorandum, the SJA first noted that Appellant had

agreed “to plead guilty to 1 specification of Article 125, UCMJ,

and 9 specifications of Article 134, UCMJ” and then recommended

that the convening authority “refer the charges and

specifications to general court-martial.”   That same day, the

convening authority referred the charges originally preferred

against Appellant to the court-martial that he had ordered to be

convened on March 18, 2009, and approved both parts of the

pretrial agreement.

     Prior to the court-martial, the parties submitted a

stipulation of fact, which described the elements and underlying

facts of each charge and specification.   The stipulation’s

explanation of the offenses to which Appellant was pleading

guilty included an acknowledgement that his conduct was

prejudicial to good order and discipline and of a nature to

bring discredit upon the armed forces.    During Appellant’s plea

inquiry, the military judge explained each of the elements,

including the terminal element, of the Charge I specification of

indecent acts with a child, in violation of Article 134, UCMJ.

The military judge verified that “these elements correctly

describe[d]” Appellant’s conduct, and Appellant described the

conduct in his own words.   The military judge then asked


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United States v. Ballan, No. 11-0413/NA


Appellant, “[W]ere these acts prejudicial to good order and

discipline or service discrediting, or both in your opinion?”

Appellant responded that they were “[s]ervice discrediting,” and

explained why he believed this to be true.

     The military judge repeated the same plea inquiry for each

of the eight Article 134, UCMJ, specifications in Charge III:

the military judge explained the elements, had Appellant

describe the underlying conduct, and then asked Appellant

whether -- and if so, how -- his actions were service

discrediting or prejudicial to good order and discipline.       For

each of the eight specifications, Appellant explained how his

conduct was service discrediting.

     II.   ISSUE II:    THE CHARGED ARTICLE 120, UCMJ, OFFENSE

     “We review jurisdictional questions de novo.”    United

States v. Alexander, 61 M.J. 266, 269 (C.A.A.F. 2005).     “A

jurisdictional defect goes to the underlying authority of a

court to hear a case . . . [h]owever, where an error is

procedural rather than jurisdictional in nature we test for

material prejudice to a substantial right to determine whether

relief is warranted.”    Id. (citing Article 59(a), UCMJ; United

States v. Morgan, 57 M.J. 119, 122 (C.A.A.F. 2002)).

     Appellant alleges that the court-martial lacked

jurisdiction over the Charge I, Article 134, UCMJ, indecent acts

with a child offense to which he pleaded guilty because this


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United States v. Ballan, No. 11-0413/NA


offense is not in fact an LIO of the Article 120, UCMJ, offense

that was referred to court-martial by the convening authority.

Under R.C.M. 201(b)(3), “[e]ach charge before the court-martial

must be referred to it by competent authority.”   R.C.M. 601(a)

defines referral as “the order of a convening authority that

charges against an accused will be tried by a specified court-

martial.”

     That indecent acts with a child is not an LIO of rape of a

child is easily determined by reference to settled case law,

given that the offenses at issue are the same ones discussed in

United States v. Jones -- albeit with a child victim rather than

an adult.   68 M.J. 465, 473 (C.A.A.F. 2010) (applying the

elements test and holding that “the elements of rape do not

include all (or indeed any) of the elements of indecent acts”).

We disagree, however, that the Article 134, UCMJ, indecent acts

with a child offense to which Appellant pleaded guilty was not

itself referred to the court-martial, in which case its status

as an LIO for purposes of referral has no bearing on

jurisdiction over that offense in this case.

     The law is well settled that “[a]lthough the [referral]

order is a jurisdictional prerequisite, the form of the order is

not jurisdictional.”   Wilkins, 29 M.J. at 424.   Here, as in

Wilkins, the convening authority referred one offense to court-

martial on the charge sheet, but entered into a pretrial


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United States v. Ballan, No. 11-0413/NA


agreement whereby he agreed to accept a plea of guilty from

Appellant to a different charge that was also not an LIO of the

original charge.   See id. at 422.     The holding in Wilkins as to

whether a court-martial has jurisdiction over the latter offense

is directly on point here:     “[i]mplicit” in the convening

authority’s entry into a pretrial agreement that provided for a

plea of guilty to the charge and specification of indecent acts

with another, in violation of Article 134, UCMJ, “was his

personal decision that the . . . charge be referred to the

general court-martial . . . .”    See id. at 424.   We held in

Wilkins, and reiterate today, that the convening authority’s

entry into the pretrial agreement was the “functional

equivalent” of a referral order and that it satisfied R.C.M.

201(b)(3).   See id.

     Changing the charge from a violation of Article 120, UCMJ,

to a violation of Article 134, UCMJ, was, admittedly, a major

change.   See R.C.M. 603(a).    And R.C.M. 603(d) provides that

major “[c]hanges or amendments to charges or

specifications . . . may not be made over the objection of the

accused unless the charge or specification affected is preferred

anew.”    Here, however, Appellant not only did not object to the

change, he proposed the change in his pretrial agreement,

explained to the military judge why he was guilty before the

plea was accepted, and benefited from the amendment.     Therefore,


                                   9
United States v. Ballan, No. 11-0413/NA

as in Wilkins, we consider Appellant’s actions as agreeing to an

amendment to the charge and specification, even though the

charge sheet itself was not physically amended.     See 29 M.J. at

424 (noting that an appellant can waive both the SJA opinion

required by Article 34, UCMJ, 10 U.S.C. § 834 (2006), and the

“swearing to the charges against him, as long as it was clear

what charges were to be considered by the court-martial” (citing

R.C.M. 603(d))); see also United States v. Morton, 69 M.J. 12,

16 (C.A.A.F. 2010); Jones, 68 M.J. at 473.

     We conclude that Appellant pleaded guilty to a charge and

specification of indecent acts with a child, which, by virtue of

his pretrial agreement, was referred to court-martial and which

he agreed to have considered by the court-martial.     And yet,

even as referred in the pretrial agreement, the specification

did not allege the terminal element of the Article 134, UCMJ,

offense.   Since it shares this deficiency with the other Article

134, UCMJ, offenses in this case, that issue will be treated in

the next section.

           III.   ISSUE I:   THE ARTICLE 134, UCMJ, OFFENSES

     Whether a specification is defective and the remedy for

such error are questions of law, which we review de novo.      See

United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006); see

also United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011)




                                   10
United States v. Ballan, No. 11-0413/NA

(determining the appropriate remedial standard by means of a de

novo review of the rights at stake).

           A.   Defective Article 134, UCMJ, Specifications

     In United States v. Fosler, we provided a synopsis of this

Court’s jurisprudence on sufficiency of indictments and the

doctrine of LIOs.    70 M.J. 225, 229-34 (C.A.A.F. 2011).     We held

that, in a contested case, the terminal element of Article 134,

UCMJ, could not be implied from language in a specification

alleging that the appellant had “wrongfully” committed adultery

in violation of Article 134, UCMJ.     Id. at 234.   In coming to

this conclusion, we rejected the argument that the Supreme

Court’s decision in Parker v. Levy, 417 U.S. 733 (1974)

(upholding the constitutionality of Article 134, UCMJ, in part

on the basis of its unique history in the military), allowed the

Court to imply the terminal element where it had not been

alleged.   Fosler, 70 M.J. at 232.     Reviewing “the charge and

specification more narrowly than we might at later stages,” we

determined that the phrase “Article 134” did not allege the

terminal element expressly or by necessary implication.       Id.

This decision is consonant with United States v. Miller, 67 M.J.

385 (C.A.A.F. 2009), which rejected both the doctrine of

“implied elements,” and the corollary notion that the terminal

element of “prejudicial to good order and discipline” or service




                                  11
United States v. Ballan, No. 11-0413/NA

discrediting was “inherent” in every enumerated offense.    See

id. at 388-89.

     Thus, whether specifications for charged violations of

Article 134, UCMJ, may be upheld in the guilty plea context

where the terminal element is not alleged cannot be answered by

determining that the act that an accused “did or failed to do,”

MCM pt. IV, para. 60.b.(1), is inherently, impliedly, or as a

matter of common sense, prejudicial to good order and discipline

or service discrediting.   See Jones, 68 M.J. at 471 (overruling

prior precedent, which allowed the terminal element of Article

134, UCMJ, to be implied from the offense charged); Miller, 67

M.J. at 389 (overruling prior precedent, which held “that

clauses 1 and 2 of Article 134, UCMJ, are per se included in

every enumerated offense”).

     While in the case of a guilty plea where the appellant

raises the validity of a specification for the first time on

appeal, the Court “view[s] [the] specification[] with maximum

liberality,” United States v. Bryant, 30 M.J. 72, 73 (C.M.A.

1990); see also United States v. Watkins, 21 M.J. 208, 209

(C.M.A. 1986), such construction still does not permit us to

“necessarily imply” a separate and distinct element from nothing

beyond allegations of the act or failure to act itself.    We

emphasize yet again that the terminal element, which may be

charged in three different ways, is an actual and distinct


                                12
United States v. Ballan, No. 11-0413/NA

element of an Article 134, UCMJ, offense.   See, e.g., Fosler, 70

M.J. at 228-30; United States v. Medina, 66 M.J. 21, 24-26

(C.A.A.F. 2008).   As such, the terminal element of Article 134,

UCMJ, like any element of any criminal offense, must be

separately charged and proven.   See, e.g., Jones v. United

States, 526 U.S. 227, 232 (1999) (noting that any fact that is

an element of an offense “must be charged in the indictment,

submitted to a jury, and proven by the Government beyond a

reasonable doubt”); Schmuck v. United States, 489 U.S. 705, 718

(1989); see also United States v. Denmon, 483 F.2d 1093, 1096

(8th Cir. 1973) (“heartily applaud[ing] the salutory trend in

recent years to simplify the indictment,” but noting that it

“cannot go so far in economy of words as to approve the omission

in an indictment of essential elements of an offense”).

Consequently, a violation of any of the three clauses of Article

134, UCMJ, “does not necessarily lead to a violation of the

other clauses,” Fosler, 70 M.J. at 230, and the principle of

fair notice requires that an accused know to which clause he is

pleading guilty, Medina, 66 M.J. at 26, and against which clause

or clauses he must defend, Fosler, 70 M.J. at 230.   We therefore

hold that regardless of context, it is error to fail to allege

the terminal element of Article 134, UCMJ, expressly or by

necessary implication.




                                 13
United States v. Ballan, No. 11-0413/NA

               B.   Plain Error Review and Remedies

     As charged in this case, none of the specifications

alleging violations of Article 134, UCMJ, to which Appellant

pleaded guilty, alleged clause 1 or 2 of the terminal element of

Article 134, UCMJ, which is error.4   See R.C.M. 307(c)(3).   Error

alone does not, however, warrant dismissal.    While the rules

state that a charge or specification that fails to state an

offense should be dismissed, R.C.M. 907(b)(1), a charge that is

defective because it fails to allege an element of an offense,

if not raised at trial, is tested for plain error.5    See, e.g.,


                                                        
4
     The Article 134, UCMJ, specifications in this case were legally
sufficient at the time of trial and are problematic today only
because of intervening changes in the law. See, e.g., United
States v. Mayo, 12 M.J. 286, 293-94 (C.M.A. 1982) (holding that
the clause 1 terminal element of Article 134, UCMJ, need not be
alleged in the specification), overruled by Fosler, 70 M.J. at
232.
5
  The Committee on Rules of Practice and Procedure is currently
seeking comments on the Preliminary Draft of Proposed Amendments
to the Federal Rules of Criminal Procedure, which seeks to
clarify “which motions must be raised before trial,” and
addresses the “consequences of an untimely motion.” The
proposed rule, in relevant part, states:

     If a party does not meet the deadline . . . for making
     a Rule 12(b)(3) motion, the motion is untimely. In
     such a case, Rule 52 does not apply, but a court may
     consider the defense, objection, or request if:
     (A) the party shows cause and prejudice; or
     (B) the defense or objection is failure to state an
     offense or double jeopardy, and the party shows
     prejudice only.

Memorandum from the Advisory Comm. on Fed. Rules of Crim.
Procedure to the Standing Comm. on Rules of Practice and

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United States v. Ballan, No. 11-0413/NA

United States v. Cotton, 535 U.S. 625, 631-32 (2002) (rejecting

precedent that defects in the indictment are jurisdictional and

applying plain error review); United States v. Sinks, 473 F.3d

1315, 1320-21 (10th Cir. 2007) (affirming that failure to allege

an element of a crime does not affect a court’s subject matter

jurisdiction, but stating that plain not harmless error review

applies).                     In Fosler -- a contested case where the appellant

objected -- we dismissed the charge.                                                                    70 M.J. at 226.                               In

Girouard -- a contested case with no objection where the

specification of which the appellant was convicted was not an

LIO of the charged offense and did not allege all of the

elements -- we applied plain error review and tested for

prejudice.6                       70 M.J. at 11-12.                                   However, neither of those cases

involved a guilty plea, and thus they did not address prejudice

or the ramifications of a guilty plea in the unique context of

the military justice system.

                                          C.         Prejudice and the Plea Inquiry

             In our view, in the context of a specification that was

legally sufficient at the time of trial and to which a plea of


                                                                                                                                                                                   
Procedure (May 12, 2011), http://www.uscourts.gov/
uscourts/RulesAndPolicies/rules/Publication%20Aug%202011/CR
_May_2011.pdf.
6
  “In the context of a plain error analysis, Appellant has the
burden of demonstrating: (1) there was error; (2) the error was
plain or obvious; and (3) the error materially prejudiced a
substantial right of the accused.” Girouard, 70 M.J. at 11.

                                                                                      15
United States v. Ballan, No. 11-0413/NA

guilty was entered and accepted, the real question is whether we

will find prejudice and disturb the providence of a plea where

the providence inquiry clearly delineates each element of the

offense and shows that the appellant understood “to what offense

and under what legal theory [he was] pleading guilty,” Medina,

66 M.J. at 26.7   We answer this question in the negative.

     “[A] counseled plea of guilty is an admission of factual

guilt so reliable that, where voluntary and intelligent, it

quite validly removes the issue of factual guilt from the case.”

Menna v. New York, 423 U.S. 61, 62 n.2 (1975).   Nonetheless, a

military judge may not accept a plea of guilty until “the

elements of each offense charged [have] been explained to the

accused” and unless the military judge has questioned the

accused to ensure that he understands and agrees that “the acts

or the omissions . . . constitute the offense or offenses to

which he is pleading guilty.”   United States v. Care, 18 C.M.A.

535, 541, 40 C.M.R. 247, 253 (1969); see also R.C.M. 910(d)-(h).

     The guilty plea process within the military justice system

thus ensures that an appellant has notice of the offense of


                                                        
7
     The notice problem highlighted in Fosler, where the appellant
could not know which theory of criminality he needed to defend
against, and in Medina, where the appellant’s providence inquiry
failed to inform him that nothing in the charged specification,
which alleged a violation of a federal statute, required him to
admit guilt to clause 2 or Article 134, UCMJ, which was not
alleged, are not present in this case. See Fosler, 70 M.J. at
230; Medina, 66 M.J at 26.

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United States v. Ballan, No. 11-0413/NA

which he may be convicted and all elements thereof before his

plea is accepted and, moreover, protects him against double

jeopardy.8    See Russell v. United States, 369 U.S. 749, 763

(1962); see also United States v. Resendiz-Ponce, 549 U.S. 102,

108 (2007) (citing Hamling v. United States, 418 U.S. 87, 117

(1974)).     This is illustrated by the providence inquiry in the

present case.

     During the plea colloquy, the military judge described

clauses 1 and 2 of the terminal element of Article 134, UCMJ,

for each specification.    And the record “conspicuously

reflect[s] that the accused ‘clearly understood the nature of

the prohibited conduct’ as being in violation of clause 1 [or]

clause 2, Article 134 . . . .”    Medina, 66 M.J. at 28 (quoting

United States v. Martinelli, 62 M.J. 52, 67 (C.A.A.F. 2005)),

and comparing it to United States v. Mason, 60 M.J. 15, 19

(C.A.A.F. 2004)); see also R.C.M. 910(c)(1) Discussion.     We have

no doubt that Appellant understood both what he was being

charged with and why his conduct was prohibited.


                                                        
8
     And it is both notice as to the offense and an affirmative
agreement to be convicted of the charge, which distinguishes a
defective specification in the guilty plea context from a
defective specification or conviction of an uncharged offense in
a contested case. See Girouard, 70 M.J. at 10 (discussing the
Fifth Amendment right to “due process of law” and the Sixth
Amendment right to “be informed of the nature and cause of the
accusation”) (quotation marks omitted). Nonetheless, absent
objection, in either context the error is tested for prejudice.
See Cotton, 535 U.S. at 631-32; Girouard, 70 M.J. at 11-12.

                                  17
United States v. Ballan, No. 11-0413/NA

     After this, in order to have the military judge accept his

pleas of guilty to the Article 134, UCMJ, specifications,

Appellant was required to admit that his actions violated either

clause 1 or 2 of the terminal element of that offense, and he

did in fact admit that his actions were service discrediting.

While this same service discrediting admission in Medina was

superfluous, 66 M.J. at 28, Appellant’s admissions that his acts

were service discrediting were necessary in order for the

military judge to accept Appellant’s guilty pleas.     See Care, 18

C.M.A. at 541, 40 C.M.R. at 253.      As such, Appellant, unlike the

appellant in Medina, “kn[ew] under what clause he [was] pleading

guilty” and “clearly understood the nature of the prohibited

conduct as being in violation of . . . clause 2, Article

134 . . . .”   See 66 M.J. at 28 (quoting Martinelli, 62 M.J. at

67) (quotation marks omitted).

     There was no prejudice to the substantial rights of

Appellant; this case, involving a defective specification and a

proper plea inquiry, is distinguishable from a contested case

involving a defective specification.     In cases like this one,

any notice issues or potential for prejudice are cured while

there is still ample opportunity either for a change in tactics

or for the accused to withdraw from the plea completely -- not

to mention that the military judge must, sua sponte, enter a not

guilty plea to the affected charge and specification where he


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United States v. Ballan, No. 11-0413/NA

has found a plea improvident.   See R.C.M. 910(h)(1) (allowing an

accused to withdraw a plea of guilty); R.C.M. 910(h)(2)

(requiring the military judge to enter a plea of not guilty when

the accused makes statements inconsistent with a guilty plea).

In a contested case, on the other hand, there is no equivalent,

timely cure that would necessarily be present in every properly

conducted court-martial.9

     In sum, while it was error in a retroactive sense to accept

a plea of guilty to an Article 134, UCMJ, charge and

specification, which did not explicitly or by necessary

implication contain the terminal element, under the facts of

this case, the showing of error alone is insufficient to show

prejudice to a substantial right.     See United States v. Puckett,

556 U.S. 129, 142 (2009) (finding that the mere showing of error

cannot be “recast[]” as the effect on substantial rights).




                                                        
9
     Which does not, of course, account for the Government’s ability
to timely make a major change to the charge sheet under R.C.M.
603(a), absent defense objection, or to withdraw and re-refer a
defective specification. See United States v. Parker, 59 M.J.
195, 201 (C.A.A.F. 2003) (noting that the government can address
a “disconnect between pleading and proof through withdrawal of
the[] charges and preferral of new charges”); R.C.M. 603(d)
(allowing for re-referral of charges after a major change to
which the appellant has objected); see also R.C.M. 604(b)
(allowing for charges withdrawn before the introduction of
evidence to be referred to another court-martial).


                                 19
United States v. Ballan, No. 11-0413/NA

                          IV.   DECISION

      The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                                20
United States v. Ballan, No. 11-0413/NA


     BAKER, Chief Judge (concurring in the result):

     I agree with the Court’s resolution of the jurisdictional

issue in this case in light of the convening authority’s

agreement to the express statement in the pretrial agreement

that Appellant would plead “NOT GUILTY [to the Article 120,

UCMJ, violation], but GUILTY to the LIO [Lesser Included

Offense] of indecent acts with a child.”   United States v.

Ballan, __ M.J. __ (5) (C.A.A.F. 2012) (brackets in original).

I also agree with the Court’s reliance on United States v.

Medina, 66 M.J. 21 (C.A.A.F. 2008), for the proposition that an

accused has a right to know to what offense, and in the Article

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

(2006), context, to what clause, to which he is pleading guilty.

However, I adhere to my position regarding United States v.

Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J.,

dissenting), and therefore concur in the result only.

     With respect to the Court’s position regarding pending so-

called Fosler trailers, in my view, the distinction made between

a guilty plea case and a contested case is unpersuasive.    It is

not clear why, for example, given the same specification,

proceeding on a common understanding during a guilty plea should

be treated differently than proceeding on the basis of the same

common understanding or judicial determination at the outset of

a contested case.   Yet, under this Court’s precedent, the former
United States v. Ballan, No. 11-0413/NA


is not prejudicial error, while the latter is reversible error

on the basis of insufficient notice -- whether objection is made

or not.   Compare Fosler 70 M.J. at 233 (reversible error in

contested trial where accused moved to dismiss defective

specification that did not plead terminal element of Article

134, UCMJ), with United States v. McMurrin, 70 M.J. 15, 20

(C.A.A.F. 2011) (reversible error under United States v. Jones,

68 M.J. 465 (C.A.A.F. 2010), in contested case where accused was

improperly convicted of negligent homicide as a lesser included

offense of involuntary manslaughter where no defense objection

was raised to military judge’s conclusion that negligent

homicide was a lesser offense of involuntary manslaughter), and

United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (reversible

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

in contested case where accused was convicted of negligent

homicide as lesser included offense of premeditated murder where

there was no objection by defense who requested instruction on

negligent homicide).

     A defective specification is necessarily addressed

differently in the guilty plea context than in the contested

trial context.   In the guilty plea context, uncertainty,

confusion or doubt regarding the terminal elements of Article

134, UCMJ, can be addressed during the plea inquiry, which the

Court now concludes provides an accused fair notice.   If the


                                 2
United States v. Ballan, No. 11-0413/NA


accused deems the notice in this context insufficient, he is

entitled to plead not guilty at the risk, of course, of

potentially losing any plea agreement. In a contested case, a

defective specification can be addressed at the outset through a

bill of particulars, or before the close of evidence by motion,

as in Fosler.1    The key is that the accused must have the

opportunity to prepare his defense and argue his case in a

manner responsive to the government’s case-in-chief.    If, in

fact, the accused feels the notice provided in the specification

is insufficient to prepare to meet the charges, he is free to

ask the military judge for a continuance in order to fully

prepare.    By contrast, an instruction to the members at the

close of the evidence clearly does not satisfy the fair notice

requirement.

        Either the issue is one of notice or it is one purely of

form.    However, this Court’s case law now takes the position

that in a guilty plea context, the Fosler issue is one of actual

notice, in which case there is no prejudice when an Article 134,

UCMJ, specification omits the terminal elements, so long as the

military judge explains the terminal elements.    Whereas, in a

contested case, the issue is one of form rather than actual

notice; the same specification presents reversible error, even

1
  This is a trailer issue. In the future, such Fosler issues can
surely be addressed in the manner outlined in footnote 8 of the
majority opinion.

                                   3
United States v. Ballan, No. 11-0413/NA


if the parties proceed with actual notice that the offense is

based on either clause (1) or (2), of Article 134, UCMJ, or

both.

        In my view, the issue is the same in either context. Fair

notice under the due process clause, which is surely

demonstrated by actual notice, is satisfied whether that notice

comes in the form of the plea colloquy, mutual agreement between

the parties, or by judicial determination before or during the

trial.




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