Fair Notice: A Fundamental Principle

    1. The Constitution requires that an accused be on notice as to the offense that must be defended against. Jackson v. Virginia, 443 U.S. 307 (1979); Schmuck v. United States, 489 U.S. 705 (1989).
    2. When one offense is an LIO of another, the accused is on notice that he may be convicted of either offense; thus satisfying the Due Process notice requirement. Courts apply a strict elements test for determining whether one offense is an LIO of another. Specifically, the test is derived from Article 79, UCMJ, as well as United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) and Schmuck v. United States, 489 U.S. 705 (1989). Article 79 states that “[a]n accused may be found guilty of an offense necessarily included in the offense charged.”
    3. In order to determine if one offense is “necessarily included” in another, the court compares the elements of the two offenses and determines if the elements of the lesser offense are a subset of the greater offense. “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). The offenses do not have to use “identical statutory language;” rather, the court uses “normal principles of statutory construction” to determine the meaning of each element. See also United States v. Teters, 37 M.J. 270 (C.M.A. 1993) (adopting the elements test for military LIOs); United States v. Foster, 40 M.J. 140 (C.M.A. 1994); United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008); United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009).
  1. Language describing the elements need not match verbatim. For example, Aggraved Sexual Assault by bodily harm is a proper LIO of Rape by force. United States v. Alson 69 M.J. 214 (C.A.A.F. 2010). CAAF will normally apply the common and ordinary understanding of the words in the statute. Similarly, Assault Consumated by Battery is a proper LIO of Wrongful Sexual Contact. United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011). An offense is included in another only if the greater offense “could not possibly be committed without committing the lesser offense.” United States v. Oatney, 45 M.J. 185, 188 (C.A.A.F. 1996) (holding that communicating a threat was not a lesser included offense of obstruction of justice for purposes of multiplicity).
  2. Listings of LIOs in the MCM are not binding on the courts. Until Congress says otherwise, LIOs are determined based on the elements defined by Congress for the greater offense. The President does not have the power to make one offense an LIO of another by simply listing it as such in the MCM. United States v. Jones¸ 68 M.J. 465, 471–72 (C.A.A.F. 2010). Practitioners should not rely on the LIOs listed under each punitive article in Part IV of the MCM, but should use the list as a guide and then apply the elements test to be sure that the lesser offense is necessarily included.
  3. The previously-employed “closely related offense” doctrine fails to provide the requisite fair notice, and is “no longer viable.” United States v. Morton, 69 M.J. 12 (C.A.A.F. 2010) (invalidating CCA’s affirmance of two specifications of false official statements as a remedy for an improvident guilty plea to two specifications of forgery.)
  4. Application to Article 134.
    1. In comparing elements of offenses to determine whether an Article 134 offense stands as a lesser included offense to an offense under Articles 82 through 132, the CAAF has held that the terminal element of Article 134—contained in clauses 1 and 2—causes it to fail the elements test. United States v. Jones¸ 68 M.J. 465, 470 (C.A.A.F. 2010). See also United States v. McMurrin,69 M.J. 591 (N.M.Ct.Crim.App. 2010) (applying Jones to hold that Negligent Homicide is not a lesser-included offense of Involuntary Manslaughter).
    2. Articles 82 through 132 are not per se prejudicial to good order and discipline or service discreding. Accordingly, clauses 1 and 2 of Article 134 are not per se included in every enumerated offense. United States v. Miller, 67 M.J. 325 (C.A.A.F. 2009), overruling in part, United States v. Foster, 40 M.J. 140
      (C.M.A. 1994).
    3. Offenses charged under clauses 1 and 2 of Article 134 are not per se lesser included offenses of offenses charged under Clause 3 of Article 134. United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).