UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                               COOK, CARLTON, and HAIGHT
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                          Private E1 DANIEL I. ENRIQUEZ
                            United States Army, Appellant

                                     ARMY 20110921

               Headquarters, National Training Center and Fort Irwin
                         Kwasi L. Hawks, Military Judge
          Major Scott A. DiRocco, Acting Staff Judge Advocate (pretrial)
        Lieutenant Colonel Gail A. Curley, Staff Judge Advocate (post trial)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain James S. Trieschmann, Jr., JA
(on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief).

                                        28 June 2013
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of attempted use of methamphetamine, disobeying a lawful
order from a superior commissioned officer, aggravated sexual assault consummated
by a battery, assault consummated by a battery, and two specifications of disorderly
conduct, in violation of Articles 80, 90, 120, 128, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 880, 890, 920, 928, 934 (2012) [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge and confinement
for twenty-one months. The convening authority approved the adjudged sentence
and credited appellant with 225 days of confinement credit.

       This case is before us for review under Article 66, UCMJ. Appellate counsel
raised one issue to this court and appellant personally raised matters pursuant to
ENRIQUEZ—ARMY ARMY 20110921

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the issue raised by
appellate counsel merits discussion and relief. Those matters personally raised by
appellant are without merit. Further, we find an additional matter concerning the
sufficiency of the Article 134, UCMJ, specifications, not raised before this court,
merits relief.

       In his only assignment of error, appellant alleges the staff judge advocate
(SJA) committed prejudicial error when she failed to comment on allegations of
legal error raised by appellant in his post-trial clemency matters. Specifically,
following appellant’s court-martial, his defense counsel submitted matters on
appellant’s behalf pursuant to Rules for Court-Martial [hereinafter R.C.M.]
1105/1106 to the convening authority (CA). In his memorandum, counsel alleged
the evidence raised the defense of mistake of fact as to consent and the government
failed to disprove the defense beyond a reasonable doubt. Thus, appellant should
have been acquitted of aggravated sexual assault. Appellant’s trial defense counsel
alleged:

             (3) Rule for Courts-Martial (R.C.M.) 916(j) provides a
             defense that abdicates criminal responsibility when there
             is a mistake of fact involved; here, a mistake of fact as to
             consent when he started to have sex with [TK]. In this
             case, [appellant] honestly believed [TK] consented and the
             mistake was reasonable under all the circumstances . . . .
             Based on the above, [appellant] respectfully asks that you
             dismiss the guilty finding of aggravated sexual assault due
             to his mistake of fact as to [TK’s] consent.

       In his personal letter to the convening authority, appellant stated he “was still
not sure . . . why I was [convicted of] aggravated sexual assault toward[s] my wife
when she even said that our sex life during our marriage was rough” and “I never
one time thought I was doing anything wrong.” Appellant also noted his wife never
outwardly indicated her unwillingness to participate in the sexual encounters and he
should not be labeled a sex offender.

      In the addendum to her post-trial recommendation, the SJA acknowledged
appellant and his trial defense counsel submitted matters pursuant to R.C.M.
1105/1106 and the convening authority must consider those matters. To us, a
complaint regarding the misapplication of a mistake of fact defense sounds in law
more than in pure clemency. Accordingly, assuming without deciding that the
submission raised a legal issue, the SJA erred by not commenting on it and stating
whether or not corrective action was required. See R.C.M. 1106(d)(4).

       Pursuant to United States v. Hill, 27 M.J. 293, 297 (C.M.A. 1988), we are
“free to affirm when a defense allegation of legal error would not foreseeably have

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ENRIQUEZ—ARMY ARMY 20110921

led to a favorable recommendation by the [SJA] or to corrective action by the [CA].”
However, based on the record before us, we are unable to definitively find that a
properly prepared addendum to the staff judge advocate’s post-trial recommendation
(SJAR) would have had no effect on the convening authority’s exercise of his
discretion. See Hill, 27 M.J. at 297. This is particularly true in this case where the
addendum reflected that appellant’s request for disapproval of his aggravated sexual
assault conviction was based only upon his desire to not be required to register as a
sex offender. This painted an incomplete picture of appellant’s request. As such,
we will take appropriate action in our decretal paragraph.

       While not raised by appellant, under the totality of unique circumstances
found in this case, including a previously imposed Article 15, UCMJ, for behavior
which arguably overlaps the charged disorderly conduct, a simultaneously charged
Article 80, UCMJ, offense which also arguably overlaps that same disorderly
conduct, and an extensive discussion after announcement of findings in a failed
attempt to clarify the exact disorderly conduct of which the appellant then stood
convicted, we find the general disorder specifications under Article 134, UCMJ,
failed to provide sufficient notice to appellant of the criminal conduct to be
defended against at trial. It became obvious at trial that the parties and the military
judge were not in agreement regarding what specific behavior constituted the basis
for the disorderly conduct offenses.

      The specifications at issue allege:

             Specification 2 of Charge VII: In that [appellant], U.S.
             Army, was, at or near Fort Irwin, California, on or about 1
             February 2011, disorderly, which conduct was prejudicial
             to good order and discipline or was of a nature to bring
             discredit upon the armed forces.

             Specification 3 of Charge VII: In that [appellant], U.S.
             Army, was, at or near Fort Irwin, California, on or about
             15 February 2011, disorderly, which conduct was
             prejudicial to good order and discipline or was of a nature
             to bring discredit upon the armed forces.

       The military is a notice pleading jurisdiction. United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011) (citing United States v. Sell, 3 U.S.C.M.A. 202, 206, 11 C.M.R.
202, 206 (1953). “The true test of the sufficiency of a specification is not whether it
could have been made more definite and certain, but whether it contains the elements
of the offense intended to be charged, and sufficiently apprises the defendant of
what he must be prepared to meet; and, in case any other proceedings are taken
against him for a similar offense, whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction.” Sell, 3 U.S.C.M.A. at 206, 11

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C.M.R. at 206. Those facts that make the accused’s conduct criminal ordinarily
should be alleged in the specification. R.C.M. 307(c)(3) discussion.

       While we do not hold that a specification similar to the sample specification
found in the Manual for Courts-Martial, United States (2012) [hereinafter MCM], pt.
IV, ¶ 73, which simply alleges an accused was disorderly without detailing the
underlying behavior is always deficient, we do find here that the record indicates
appellant was not provided with sufficient notice of the disorderly conduct which the
government sought to criminalize.

       The confusion surrounding the disorderly conduct charges first became
apparent when the military judge voiced concern over those specifications by
stating:

             So, it would appear that in both cases, the essential
             conduct that the government seeks to punish is the
             wrongful solicitation of a married woman by a married
             man. And then in common with that is the solicitation of
             any person to engage in prostitution. The gravamen of the
             disorderly conduct in both Specifications 2 and 3 could be
             captured by that description.

This dialogue occurred against a backdrop of the Specification of Charge I, which
similarly alleged the appellant attempted to wrongfully entice a person not his
spouse to engage in sexual intercourse with him in exchange for money, an offense
of which the appellant was ultimately acquitted. Then, when discussing what
behavior the Article 134 specifications were intended to address, the government
conceded the targeted misconduct could have been charged in a number of ways, but
that they were only pursuing a conviction for an offense with a maximum
punishment of one month’s confinement without further clarification of what
constituted the “disorderly conduct.”

       Significantly, after announcement of findings of guilty to the disorderly
conduct specifications, the military judge acknowledged that both parties had
requested “clarification regarding the specific conduct that was subject to the court’s
findings with regards to Specifications 2 and 3 of Charge VII.” It is a strong
indicator of trouble when both parties voice confusion as to what conduct a
particular charge covers at such a late stage of the proceedings. All the same, clarity
was sought so that appropriate credit pursuant to United States v. Pierce, 27 M.J.
367 (C.M.A. 1989) could be calculated for a prior Article 15, UCMJ.




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       The government argued the charges appellant faced at his previous Article 15,
UCMJ, proceeding did not address the exact same disorderly conduct for which
appellant had just been prosecuted. 1 While admitting the Article 15 and the charged
specifications involved the same time period, same location, and same people, the
government maintained the sexually related misconduct addressed by the Article 15
was distinct from the sexually related disorderly conduct appellant faced at court-
martial. Contrary to the government’s proposal to parse and dice the misconduct,
defense counsel maintained the specifications covered the same conduct as the
previous Article 15 and appellant should accordingly receive Pierce credit. These
positions presented a stark contrast between the views of the government and the
appellant as to the conduct on which appellant had received notice to defend against.

       The military judge did little to resolve the increasing disconnect. He stated,
“There’s some overlap between Specifications 2 and 3 of Charge VII and some of
the punishment of the Article 15. While it doesn’t encompass all of it, there’s some
overlap. Therefore, there’s some call for the court’s now consideration of [the] prior
Article 15’s mitigation.” Although the military judge declared he would consider
the Article 15 “with regard to the application of Pierce credit if any,” he never
definitively ruled and stated for the record the extent of the “overlapping
misconduct,” whether he gave Pierce credit, and, if so, the amount of that credit. 2

     In this case, the government may have prosecuted certain behavior, appellant
may have defended against different but related behavior, and the military judge may

1
    The charges set forth in the Article 15, UCMJ proceeding included:

              In that [appellant] did, at or near Fort Irwin, California, on
              or about 1 February 2011, unlawfully enter a dwelling, the
              property of PV2 [AB] with intent to commit a criminal
              offense, to wit: sodomy therein.

              In that [appellant] did, at or near Fort Irwin, California, on
              or about 14 February 2011, wrongfully arrange for [MH]
              to engage in an act of sodomy with you.

              In that[appellant] did, at or near Fort Irwin, California, on
              or about 1 February 2011, wrongfully arrange for [BB] to
              engage in an act of sodomy with you.
2
 While appellant very well may be entitled to Pierce credit, this issue is rendered
moot by our decision to set aside the findings of guilty to the “overlapping”
disorderly conduct specifications.



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have convicted on yet other behavior. We cannot countenance such confusion.
Based on the specifications at issue and the record before us, we conclude appellant
was not provided sufficient notice of the criminal conduct for which he was being
prosecuted. The specifications merely alleged appellant committed disorderly
conduct but failed to notify him of the exact conduct deemed to be disorderly. Such
a vague pleading, combined with the other circumstances, did not enable the accused
to prepare an adequate defense and does not protect him from double jeopardy. This
is especially true where the government alleged that some misconduct occurring on a
specific date was included in the specification while other misconduct was not. An
allegation under these circumstances “totally deprives the accused, appellate
reviewing agencies, and those who may in the future examine the charge, of any
information concerning the nature of the [offense]” and is legally insufficient.
United States v. Curtiss, U.S.C.M.A. 402, 403, 42 C.M.R. 4 (1970) (citing United
States v Autrey, 12 U.S.C.M.A. 252, 254, 30 C.M.R. 252 (1961)).

                                  CONCLUSION

       The findings of guilty to Specifications 2 and 3 of Charge VII and Charge VII
are set aside. The sentence is set aside. The same or different convening authority
may order a rehearing on the set-aside specifications and charge and the sentence. If
the convening authority determines that a rehearing on those specifications and
charge is impracticable, he may dismiss the specifications and charge and order a
rehearing on the sentence only. If the convening authority determines that a
rehearing on the sentence likewise is impracticable, he may reassess the sentence in
accordance with United States v. Reed, 33 M.J. 98 (C.M.A. 1990). Regardless, a
new SJAR and new initial action by the same or different convening authority in
accordance with Article 60(c)-(e), UCMJ is required.

                                       FOR THE COURT:




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




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