UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                                KERN, BERG, and YOB
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                            Major BRET A. GLOWTH
                           United States Army, Appellant

                                   ARMY 20090925

                               Headquarters, V Corps
                          Jeffery R. Nance, Military Judge
                   Colonel Flora D. Darpino, Staff Judge Advocate


For Appellant: Billy B. Ruhling, II, Esquire (argued); Lieutenant Colonel Jonathan
F. Potter, JA; Billy B. Ruhling, II, Esquire (on brief); Captain E. Patrick Gilman, JA
(supplemental pleadings).

For Appellee: Captain John D. Risenberg, JA (argued); Major Amber J. Williams,
JA; Captain Chad Fisher, JA (on brief). Major Ellen S. Jennings, JA (supplemental
pleadings).


                                  15 December 2011
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------
KERN, Senior Judge:

       A panel sitting as a general court-martial convicted appellant, contrary to his
pleas, of one specification of adultery and one specification of wrongfully
committing an indecent act, both in violation of Article 134, 10 U.S.C. § 934
[hereinafter UCMJ]. See Manual for Courts-Martial, United States (2005 ed.)
[hereinafter MCM], Part IV, para. 62.b and 90.b. The panel sentenced appellant to
be dismissed from the service and the convening authority approved the adjudged
sentence.

                                          FACTS

      During an unaccompanied tour in Korea, appellant, a married man, met and
had sexual intercourse with Mrs. W, the wife of LTC W, a U.S. Army officer who
was stationed in Korea on an accompanied tour. LTC W prompted this engagement
between his wife and appellant and took pictures of his wife having sex with
GLOWTH—ARMY 20090925

appellant. During the course of an investigation unrelated to appellant, military
criminal investigators seized a thumb drive from LTC W’s house and uncovered a
folder containing pictures of Mrs. W having sex with appellant. Mrs. W then
identified the appellant, who at the time the pictures were uncovered, had moved
from Korea to Germany on a permanent change of station. Some of the pictures of
appellant having sexual intercourse with Mrs. W were admitted into evidence at
appellant’s trial.

      Appellant’s trial was held in Mannheim, Germany. The primary witness
against appellant was Mrs. W, who at the time of trial was in the United States. Her
testimony at trial was in the form of a videotaped deposition ordered by the military
judge. The military judge ordered the deposition after declaring Mrs. W unavailable
because she refused to travel to Germany and could not be compelled by a subpoena
to appear at the trial.

                             LAW AND DISCUSSION

      Appellant raises three assignments of error; the first and third merit
discussion, but not relief. The first assignment of error concerns the military judge
allowing Mrs. W to testify via videotaped deposition. The third assignment of error,
which appellant raised in a supplemental brief, alleges that the specifications of
which appellant was convicted were defective in light of our superior court’s ruling
in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), because the terminal
elements under Article 134, UCMJ were not alleged.

                                  Deposition Issue 1

      Appellant contends that the military judge erred by allowing deposition
testimony 2 of the only government witness with first-hand knowledge of the alleged
misconduct and that this error violated his Sixth Amendment confrontation rights.
Under a Sixth Amendment analysis, in order to substitute deposition testimony for

1
 The full assignment of error reads: I. WHETHER THE MILITARY JUDGE
VIOLATED APPELLANT’S CONFRONTATION RIGHTS, AS GUARANTEED IN
THE 6TH AMENDMENT TO THE CONSTITUTION, WHEN HE PERMITTED THE
GOVERNMENT TO PROSECUTE APPELLANT WITHOUT PRODUCING IN
PERSON A SINGLE WITNESS WITH FIRST-HAND KNOWLEDGE OF THE
CHARGED CONDUCT.
2
  The videotaped deposition was ordered by the military judge after referral of the
charge and determining the witness was unavailable to testify at trial. Appellant and
appellant’s counsel were present during the taking of the deposition and appellant’s
counsel cross-examined the witness. Appellant and appellant’s counsel also
reviewed the videotape before it was shown to the panel members.
                                          2
GLOWTH—ARMY 20090925

live testimony, the military judge must determine that the witness is “unavailable” in
spite of a good faith effort on the part of the government. United States v. Cabrera-
Frattini, 65 M.J. 241, 245 (C.A.A.F. 2007) (citing Barber v. Page, 390 U.S. 719,
724-25 (1968)). A witness is not unavailable until after the government has
exhausted every reasonable means to secure the live testimony of the witness.
United States v. Burns, 27 M.J. 92, 97 (C.M.A. 1989). In evaluating the
reasonableness of good faith efforts, the military judge must consider all the
circumstances, and, upon review by this court, we use an abuse of discretion
standard to evaluate the adequacy of the military judge’s determination. Cabrera-
Frattini, 65 M.J. at 245.

       In this case, the military judge found that government exhausted all
reasonable means to secure Mrs. W at trial. Specifically, the military judge found
that: the government offered, but the witness refused to accept, invitational travel
orders providing funding to travel and participate in the trial; the witness cannot be
compelled by subpoena to travel overseas; and her government supervisor declined
to compel her to appear at the trial as an incident of her employment. Appellant
argued at trial and again on appeal that, because the witness was a civilian employee
of the Department of Defense at the time of trial, her government supervisors needed
to direct her to travel overseas to testify or potentially face repercussions with
regard to her employment in order for the government to exhaust all reasonable
means. As Mrs. W’s employment with the Department of Defense had no relation to
matters at trial, we concur with the military judge’s determination. Absent any
showing of bad faith on the part of the government, the decision by Mrs. W’s
supervisors not to compel her to testify was fully within the discretion of those
supervisory authorities. Under the circumstances of this case, supervisory
compulsion directing the witness to travel was not a reasonable means that the
government was required to exhaust. We find that the military judge did not abuse
his discretion or err in allowing Mrs. W’s deposition at trial, and therefore, the
appellant’s assignment of error lacks merit.

                                     Fosler Issue 3

       Appellant alleges that both the adultery and indecent act specifications fail to
state an offense because neither alleges the terminal elements of prejudice to good
order and discipline or service discrediting conduct. Whether a charge and
specification states an offense is a question of law that is reviewed de novo. United
States v. Roberts, __M.J.___, slip op. at 4 (Army Ct. Crim. App. 14 Oct. 2011).

3
 The full assignment of error reads: III. THE CHARGE AND ITS
SPECIFICATIONS FAIL TO STATE AN OFFENSE AS THE SPECIFICATIONS
FAIL TO STATE AN OFFENSE AS THE SPECIFICATIONS DO NOT ALLEGE,
EXRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT”
AS REQUIRED BY UNITED STATES V. FOSLER, 70 M.J. 225, (C.A.A.F. 2011).
                                           3
GLOWTH—ARMY 20090925

Together, the charge and specification must “allege every element of the offense
either expressly or by necessary implication, so as to give the accused notice and
protect him against double jeopardy.” Id. (quoting United States v. Dear, 40 M.J.
196, 197 (C.M.A. 1994)); Rule for Courts-Martial 307(c)(3). In Fosler, our superior
court held that where appellant “objected to the specification at trial, and thereafter
contested the case, an adultery charge failed to state an offense because it did not
expressly or impliedly allege the terminal elements.” Roberts, __M.J.__, slip op. at
5. However, Fosler does not compel our decision in this case.

       Although there is an adultery charge in this case, as in Fosler, the procedural
posture of this case and facts are very different. In this case, appellant did not
object to either the adultery or the indecent act specifications at trial or in his post-
trial matters to the convening authority. This is an important distinction and informs
our decision in this matter. See United States v. Hoskins, 17 M.J. 134, 136 (C.M.A.
1984) (listing factors that directly impact the ultimate decision of whether a charge
and specification necessarily imply an element). Where a charge and specification
are not challenged at trial, their language is to be liberally construed. Roberts,
__M.J. at ___, slip op. at 4 (citing United States v. Watkins, 21 M.J. 208, 209-10
(C.M.A. 1986)); cf. Fosler, 70 M.J. at 230. This liberal rule of interpretation is
applicable even where an appellant does not plead guilty. United States v. Fox, 34
M.J. 99, 102 (C.M.A. 1992); Roberts, __M.J. at ___, slip op. at 5; United States v.
Berner, 32 M.J. 570, 572 (A.C.M.R. 1991).

       Absent an objection at trial, we will not set aside a specification unless it is
“so obviously defective that it could not be reasonably construed to embrace [the]
terminal element.” Roberts, __M.J. at ___, slip op. at 5; United States v. Watkins,
21 M.J. 208, 209-10 (C.M.A. 1986). Here the adultery specification states that
appellant, a married man, wrongfully had sexual intercourse with JW, a married
woman not his wife, in violation of Article 134, UCMJ. The indecent act
specification states that appellant wrongfully performed sexual acts upon JW with
her husband, LTC W, present and observing the sexual acts. These actions can
reasonably be construed to imply that appellant’s conduct was to the prejudice of
good order and discipline and service discrediting, especially because the named
partner in both specifications was the spouse of a senior officer, as can be derived
from the text of the second specification. Therefore, both specifications in this case
necessarily imply appellant’s conduct was prejudicial to good order and discipline or
service discrediting and provided the appellant fair notice.

       In addition, there is ample evidence in the record to indicate appellant was on
notice of the elements in the specifications against him. In his opening statement,
the civilian defense counsel pronounced:

             Now, it is the prosecution’s job to prove each and every
             element of their offense beyond all reasonable doubt. If

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GLOWTH—ARMY 20090925

             one of those elements is not met, then you must find him
             not guilty. So, for an Article 134 offense, there is always
             a conduct prejudicial to good order and discipline or
             service discrediting element. If you do not find those
             elements are met, then you must acquit him. (Emphasis
             added).

Moreover, the panel was also instructed, without comment from the defense, that the
offenses contained the terminal elements and that the government was required to
prove those elements beyond a reasonable doubt. Considering the presumption of
competence by the defense counsel, it is apparent that appellant was not misled
about the nature of the charge and specifications leveled against him. See MCM,
part IV, para. 60.c.(6)(a), 62.b and 90.b. Finally, the factual allegations in the
specification, including dates and locations, combined with the record of trial,
sufficiently protect the appellant against double jeopardy. Thus, appellant’s
assignment of error regarding failure to state an offense lacks merit.

                                  CONCLUSION

       We have considered appellant's other assignment of errors, including matters
raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and find
them to be without merit. On consideration of the entire record, we hold the
findings of guilty and sentence as approved by the convening authority correct in
law and fact. Accordingly, those findings of guilty and the sentence are
AFFIRMED.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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