UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              LIND, COOK, and KRAUSS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                    Private First Class STEPHEN J. FOWLER
                          United States Army, Appellant

                                  ARMY 20121079

                        Headquarters, 1st Cavalry Division
                          Jeffrey W. Hart, Military Judge
               Colonel R. Tideman Penland, Jr., Staff Judge Advocate


For Appellant: Captain Amanda R. McNeil, JA (argued); Colonel Kevin Boyle, JA;
Lieutenant Colonel Peter Kageleiry, Jr. , JA; Major Jacob D. Bashore, JA (on brief).

For Appellee: Captain Christopher A. Clausen, JA (argued); Colonel John P.
Carrell, JA; Major Daniel D. Derner, JA; Captain Michael J. Frank, JA (on brief).


                                     30 April 2015

                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

KRAUSS, Judge:

       A military judge sitting as a special court-martial convicted appellant,
contrary to his pleas, of desertion in violation of Article 85, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. § 885 (2006). The convening
authority approved the adjudged sentence of a bad -conduct discharge, three months
confinement, and reduction to the grade of E-1. Appellant was credited with three
days against the sentence to confinement.

      This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors and raises one matter pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). Appellant’s complaint that he suffered double jeopardy
warrants discussion but no relief.
FOWLER—ARMY 20121079

                                       FACTS

       Charged with desertion, appellant pled guilty to the lesser -included offense of
absence without leave (AWOL) in violation of Article 86, UCMJ. The judge advised
appellant that his “plea of guilty to a lesser included offense may also be used to
establish certain elements of the charged offense if the government decides to
proceed on the charged offense.” The judge did not ask and the trial counsel did not
declare whether the government intended to proceed on the greater charge.

       Upon acceptance of that plea, the judge announced findings: “To the
Specification of The Charge: Guilty, except the words, ‘and with the intent to remain
away therefrom permanently’ and ‘in desertion.’ Of the Charge: Not Guilty, but
guilty of a violation of . . . Article 86.”

       Immediately after this announcement, the assistant trial counsel stated: “Your
Honor, we’re still contesting the Article 85 charge. I just wanted to make sure that
this proceeding doesn’t result in him being found guilty of both an Article 86 and an
Article 85. I know you just--.” After which the following exchange ensued:

             MJ: Okay. What we’ll do is I’ll merge those at the end.
             We’ll see what happens with the government’s evidence.

             ATC: Yes, sir.

             MJ: I appreciate that, Government.       Defense, does the
             defense have any objection to that?

             DC: To?

             MJ: [T]he government is still moving forward on the
             Article 85 charge. It hasn’t dismissed the Article 85
             charge. And so, at this point, my intention then is that if
             the accused is guilty of the Article 85 desertion charge,
             then that would merge with this Article 86.

             DC:    I guess, sir, my objection is mostly my own
             confusion. He’s only--because the original DFR charge
             sheet was dismissed, he’s only pending Article 85 and he’s
             plead guilty to Article 86. [If] [t]he government had
             wanted to move forward with the greater offense of
             Article 85 then that should have been done prior to
             findings. I don’t think that merger for sentencing would
             be appropriate where he’s only been charged with one
             offense and he’s pled guilty to a lesser included of that



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FOWLER—ARMY 20121079

             offense. But that’s just my legal confusion and I just
             don’t know the process for it.

             MJ: Okay.

             ATC: Your Honor, at this point, I don’t think there is any
             issue with you undoing your finding and reserving finding
             until after we’ve put on our evidence.

             MJ: Okay. I’m going [to] proceed in that regard. I’m
             going to withdraw the findings and then have the
             government go forward with its case-in-chief. Does the
             defense have any objection?

             DC: Not to that, Your Honor.

      The government then proceeded to introduce evidence to prove that appellant
had the intent to remain away permanently. After the government rested, the
defense presented no evidence, the parties argued , and the judge announced
appellant guilty as charged.

                               LAW & DISCUSSION

       Appellant now complains that once the judge announced a finding of not
guilty to the charged desertion, he was acquitted of that charge, and his right to be
free of double jeopardy was therefore violated when he was subsequently subjected
to conviction on the same charge.

       There is certainly no dispute over the fact that the judge announced appellant
“not guilty” of the desertion charge upon acceptance of his plea of guilty to AWOL.
The question is whether that announced finding of “not guilty” amounts to an
acquittal as a matter of law. If it does, then appellant’s subsequent conviction on the
same charge violates his constitutional and Article 44, UCMJ, guarantee of
protection against double jeopardy. If it does not, then appellant’s conviction for
desertion stands. See generally United States v. Hitchcock, 6 M.J. 188, 189-90
(C.M.A. 1979).

       An announced finding of “not guilty” amounts to an acquittal if it effects a
“ruling that the prosecution’s proof is insufficient to establish criminal liability for
an offense.” Evans v. Michigan, 133 S. Ct. 1069, 1074-75 (2013). An acquittal is “a
finding that the [government]’s evidence cannot support a conviction.” Martinez v.
Illinois, 134 S. Ct. 2070, 2076 (2014).




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FOWLER—ARMY 20121079

       Of course, the objective of a court-martial is a fair trial. Our adversarial
system, by its very nature, requires that each party enjoy an opportunity to present
its respective case to the factfinder. A military judge possesses no authority to
prevent the United States from attempting to prove the charge it has otherwise
properly referred to trial by court-martial by peremptorily announcing a finding of
not guilty. See United States v. Greening, 54 M.J. 831, 832 (C.G. Ct. Crim. App.
2001) (acknowledging United States v. Varnell, 4 M.J. 111 (C.M.A. 1977) (summ.
disp.) and United States v. Bryant, 22 U.S.C.M.A. 36, 46 C.M.R. 36 (1972)); 1 see
also United States v. Boone, 24 M.J. 680 (A.C.M.R. 1987); Rule for Courts-Martial
[hereinafter R.C.M.] 910(g)(2) (judges should not announce findings of guilty to a
lesser offense upon acceptance of plea of guilty if the government intends to proceed
on the greater offense). 2

      Any such declaration of not guilty is ineffective. This is true whether the
judge makes such announcement on purpose or by mistake. See United States v.
Downs, 4 U.S.C.M.A. 8, 11-12, 15 C.M.R. 8, 11-12 (1954); Greening, 54 M.J. at
832; see also United States v. Boswell, 8 U.S.C.M.A. 145, 149, 23 C.M.R. 369, 373
(1957) (when announcement of not guilty is a “slip of the tongue” it c an be
corrected); R.C.M. 922(d); R.C.M. 1102(c)(2).

       Here the military judge erroneously announced a finding of not guilty to the
charged desertion before the government was given an opportunity to prove that
charge. It appears that the judge, in the moment, did indeed intend to make that
announcement; however, it is also quite plain from the record that the judge did not
intend to prevent the government from proceeding. In any event, under
circumstances such as these, it matters not whether the judge intended to announce a
finding of not guilty. A finding of not guilty announced before the government
enjoys a proper opportunity to prove its case does not constitute an acquittal. See
Martinez, 134 S. Ct. at 2076-77.



1
  United States v. Varnell, 4 M.J. 111, relied on United States v. Bohl, 3 M.J. 385
(C.M.A. 1977) (summ. disp.). In Bohl, the Court of Appeals for the Armed Forces
stated: “Although a trial judge may entertain pleas to a lesser included offense from
an accused, he cannot enter findings to those lesser included offenses, thereby
precluding prosecution of the greater charged offense by the government and
findings of guilty to these offenses as charged by the court members, without the
specific acquiescence of the government.” 3 M.J. at 385.
2
  The Military Judges’ Benchbook also notes that where an accused pleads guilty to a
lesser included offense, military judges are advised to ascertain whether the
government is going forward on the offenses to which the accused pleads not guilty,
and, if so, to refrain from entering find ings. See Dep’t of Army, Pam. 27-9, Legal
Services: Military Judges’ Benchbook, para. 2 -2-8 note (1 Jan. 2010).


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FOWLER—ARMY 20121079

    Therefore, appellant’s double jeopardy concerns are unfounded. See id.

                               CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.

    Senior Judge LIND and Senior Judge COOK concur.

                                   FOR THE COURT:




                                   MALCOLM H.
                                   MALCOLM     H. SQUIRES,
                                                  SQUIRES, JR.
                                                           JR.
                                   Clerk of Court
                                   Clerk of Court




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