UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, ALDYKIEWICZ, and MARTIN
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                      Master Sergeant PATRICK A. FAUST
                         United States Army, Appellant

                                    ARMY 20090080

         Headquarters, 4th Infantry Division (Mechanized) and Fort Carson
           Jeffery R. Nance and Gregg A. Marchessault, Military Judges
        Lieutenant Colonel Tania M. Martin, Staff Judge Advocate (pretrial)
           Colonel Randy T. Kirkvold, Staff Judge Advocate (post-trial)


For Appellant: Captain James S. Trieschman, Jr., JA (argued); Lieutenant Colonel
Imogene M. Jamison, JA; Major Laura R. Kesler, JA; Lieutenant Colonel Scott R.
Lawson, JA (on brief); Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA.

For Appellee: Captain Steve T. Nam, JA (argued); Colonel Michael E. Mulligan,
JA; Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain
Christopher B. Witwer, JA (on brief).


                                      8 January 2013

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                        SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to mixed pleas, of conspiracy to commit extortion, conspiracy to commit
bribery (two specifications), disobeying a superior commissioned officer, violating a
lawful general order, larceny, 1 extortion (four specifications), and bribery (two
specifications), in violation of Articles 81, 90, 92, 121, 127, and 134, Uniform Code
of Military Justice, 10 U.S.C. §§ 881, 890, 892, 921, 927, 934 (2006) [hereinafter
1
 The promulgating order incorrectly reflects that appellant was convicted of two
specifications of larceny: Specifications 1 and 2 (both as renumbered) of Additional
Charge II (as redesignated). However, appellant was found not guilty of
Specification 1 (as renumbered) of Additional Charge II (as redesignated). The
promulgating order is hereby corrected accordingly.
FAUST—ARMY 20090080

UCMJ]. The court sentenced appellant to a bad-conduct discharge, confinement for
thirty months, and reduction to the grade of E-1. 2 The convening authority approved
only so much of the sentence as provided for a bad-conduct discharge, confinement
for twenty-eight months, and reduction to the grade of E-1. Appellant was credited
with six days of confinement credit against the sentence to confinement.

        On 21 November 2011, this court issued a decision in this case, summarily
affirming the findings and sentence. United States v. Faust, ARMY 20090080
(Army Ct. Crim. App. 21 Nov. 2011). On 11 July 2012, our superior court reversed
the portion of our decision as to Specifications 1 and 2 of Charge V, and as to the
sentence, and affirmed our decision as to the remaining charges and specifications.
United States v. Faust, 71 M.J. 360 (C.A.A.F. 2012). The court returned the record
of trial to The Judge Advocate General of the Army for remand to this court upon
consideration of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). Id.
Consequently, appellant’s case is once again before this court for review under
Article 66, UCMJ.

       In Specifications 1 and 2 of Charge V, appellant was charged with bribery in
violation of Article 134, UCMJ. See Manual for Courts-Martial, United States
(2008 ed.), pt. IV, ¶ 66.b. The bribery specifications fail to allege the terminal
elements of prejudice to good order and discipline or service-discrediting conduct.
Pursuant to United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), United States v.
Ballan, 71 M.J. 28 (C.A.A.F. 2012), and Humphries, it was error to omit the
terminal elements from these specifications.

       Under the totality of the circumstances in this case, we conclude that the
omission of the terminal elements from the bribery specifications materially
prejudiced appellant’s substantial right to notice. UCMJ art. 59(a); Humphries,
71 M.J. at 215. There is nothing in the record to satisfactorily establish notice of the
need to defend against a terminal element, and the evidence was controverted as to
at least one clause of Article 134, UCMJ. See Humphries, 71 M.J. at 215–16
(holding that to assess prejudice, “we look to the record to determine whether notice
of the missing element is somewhere extant in the trial record, or whether the
element is ‘essentially uncontroverted’” (citing United States v. Cotton, 535 U.S.
625, 633 (2002); Johnson v. United States, 520 U.S. 461, 470 (1997))).
Accordingly, we must disapprove the findings of guilty as to the Article 134, UCMJ,
bribery offenses previously affirmed.

      However, we are confident “that, absent any error, the sentence adjudged
would have been of at least a certain severity.” United States v. Sales, 22 M.J. 305,
308 (C.M.A. 1986). In this case, the penalty landscape is minimally changed, as

2
 The promulgating order incorrectly states that the court also adjudged a forfeiture
of all pay and allowances. The promulgating order is hereby corrected accordingly.



                                           2
FAUST—ARMY 20090080

appellant would face a maximum sentence to confinement of twenty-six years for the
remaining charges. 3 In addition, the facts concerning the bribery specifications
herein set aside would nonetheless have been before the military judge, because
appellant was also charged with and convicted of a conspiracy to commit those very
same bribery offenses. Therefore, in light of the remaining charges and their serious
nature, we are confident the court would have adjudged a sentence of at least a bad-
conduct discharge, confinement for twenty-eight months, and reduction to the grade
of E-1.

                                   CONCLUSION

       On consideration of the entire record, and in light of Humphries, the findings
of guilty of Specifications 1 and 2 of Charge V, and Charge V, are set aside and
those specifications are dismissed without prejudice. Reassessing the sentence on
the basis of the error noted, the entire record, and in accordance with the principles
of Sales and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the
factors identified by Judge Baker in his concurring opinion in Moffeit, the approved
sentence is AFFIRMED.


                                        FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:




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




3
 The military judge merged three of the four extortion specifications for sentencing
purposes, and he separately merged the two conspiracy to commit bribery offenses
for sentencing purposes.



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