Lesser Included Offenses. UCMJ ART. 79

Lesser Included Offenses. UCMJ ART. 79

UCMJ (2015)
militarydefenselawyers427“An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.” Article 79.

Lesser Included Offenses. UCMJ ART. 79

In order to determine if one offense is “necessarily included” in another, apply the elements test. “Under the elements test, one compares the elements of each offense. If all of the elements of offense X are also elements of offense Y, then X is an LIO of Y. Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements.” United States v. Jones¸ 68 M.J. 465, 470 (C.A.A.F. 2010).

Background: Evolution of LIO Doctrine

    The Court of Military Appeals formerly construed Article 79 and its “necessarily included” language to mean offenses that are “fairly embraced” in the pleadings and proof of the greater offense. United States v. Baker, 14 M.J. 361 (C.M.A. 1983).
  1. In 1989, the Supreme Court held that Fed.R.Crim.P. 31(c) should be construed to include only lesser included offenses as established by the statutory elements. Schmuck v. United States, 489 U.S. 705 (1989).
  2. In United States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993), the Court of Military Appeals stated, “In view of the identity of language of Article 79 and Fed.R.Crim.P. 31(c), we will apply the Supreme Court’s more recent holding and abandon the ‘fairly embraced’ test for determining lesser included offenses as a matter of law.”
  3. United States v. Foster, 40 M.J. 140 (C.M.A. 1994). Citing Schmuck, the court held: “One offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense” (emphasis omitted). This formulation of the test for multiplicity and lesser included offenses created a significant issue for offenses charged under Art. 134, which requires proof of an element not required for proof of offenses under Arts. 80–132: that the conduct was prejudicial to good order and discipline or servicediscrediting. The court held that the phrase “necessarily included” in Art. 79 “encompasses derivative offenses under Article 134.” An offense under Art. 134 may, “depending on the facts of the case, stand either as a greater or lesser offense of an offense arising under an enumerated article.” This is because “the enumerated articles are rooted in the principle that such conduct per se is either prejudicial to good order and discipline or brings discredit to the armed forces; these elements are implicit in the enumerated articles.”
  4. United States v. Weymouth, 43 M.J. 329 (C.A.A.F. 1995). The CAAF refined its holdings in Teters and Foster, adopting the “pleadings-elements” approach: “In the military, the specification, in combination with the statute, provides notice of the essential elements of the offense” (emphasis omitted). The court cautions that it did not retreat to the “fairly embraced” test rejected in Teters: “Either the elements alleging the greater offense (by the statute and pleadings) fairly include all of the elements of the lesser offense or they do not. As alleged, proof of the greater offense must invariably prove the lesser offense; otherwise the lesser offense is not included.”
  5. United States v. Jones¸ 68 M.J. 465 (C.A.A.F. 2010). The CAAF definitely abandoned principles announced in Foster and Weymouth and returned to the “elements test” announced in Teters.

Acts Sufficient for Accessory After the Fact
Liability as a Principal Distinguished
Liability for Misprision of a Serious Offense Distinguished