Lesser Included Offenses. UCMJ ART. 79. Pleading Issues

Lesser Included Offenses. UCMJ ART. 79. Pleading Issues

Lesser Included Offenses. UCMJ ART. 79. Pleading Issues

  1. test1 012 (Side 12)Lesser included offenses to the charged offense need not be separately pled. See R.C.M. 307(c)(4) discussion. However, where it is unclear whether an offense is a lesser included offense, it is prudent to allege both the greater and the purported lesser offenses.
  2. If the MCM suggests that an enumerated article (Articles 82 through 132) has a lesser included offense in Art. 134, counsel should consider pleading both the enumerated offense and the Article 134 offense. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009); United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008); United States v. Foster, 40 M.J. 140 (C.M.A. 1994).Library of Congress: Military Law
  3. If a lesser included offense is separately pled in addition to the greater offense, an accused may not be convicted of both the lesser and greater offense. See United States v. Hudson, 59 M.J. 357 (C.A.A.F. 2004).
  4. The Three Clauses of Article 134. Clauses 1 and 2 are not considered LIOs of Clause 3 of Article 134. In order to provide the requisite notice that the Government intends to pursue Clauses 1 and 2 in addition to Clause 3, the charge sheet should allege a violation of all three clauses. This is usually done by adding Clause 1 and/or Clause 2 language (i.e., the terminal element) to a Clause 3 specificication. See United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).
  5. Jones has necessitated a wholesale reexamination of what offenses are LIOs. Recent cases have provided some insight.
    1. What are LIOs:
      1. Aggravated sexual assault is an LIO of rape by force. United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010).
      2. Assault consummated by a battery is an LIO of wrongful sexual contact. United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011).
      3. Housebreaking is an LIO of burglary. United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2011).
      4. Aggravated assault is an LIO of maiming. United States v. McLean, M.J.(A.F. Ct. Crim. App. 2011).
    2. What are not LIOs:
      1. Negligent homicide is not an LIO of premeditated murder. United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011).
      2. Negligent homicide is not an LIO of involuntary manslaughter. United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011).
      3. Incapacitation for duty is not an LIO of drunk on station. United States v. Martinez, 69 M.J. 683 (A. Ct. Crim. App. 2010).
      4. Indecent act is not an LIO of aggravated sexual assault. United States v. Clifton, M.J. (C.G. Ct. Crim. App. 2011).