The U.S. Court of Appeals for the Armed Forces dismissed two charges in United States v. Reese, a Coast Guard case. The first was dismissed because it resulted from an improper major change to the charge during trial. The second was dismissed because the government had charged, as a novel Article 134 offense, conduct that already fell within a listed Article 134 offense, which the Manual does not permit. The Coast Guard Court of Criminal Appeals was reversed and the case returned for sentence reassessment.
Details of the Case
Aviation Maintenance Technician First Class Reese faced multiple charges. He elected trial by military judge alone rather than by a panel. He pleaded guilty to several charges and not guilty to alleged sex offenses involving a young child. The military judge convicted him on the contested charges as well as on those to which he had pleaded guilty.
The case is notable for how the allegations were permitted to change during trial.
Reese was charged with mouth to genital contact. He admitted only to hand to genital contact, and the child did not describe mouth to genital contact. When this became apparent, the prosecution altered the specification to match, and the military judge permitted the change over defense objection. The judge treated it as a minor change. Minor changes may be made over objection.
Major Change or Minor Change
The distinction is procedural, and procedural issues are the ones most often left on the table at trial. A change to a specification either prejudices the accused’s ability to defend the charge as pleaded or it does not, and the objection has to be made when the change is offered rather than afterward. Joseph L. Jordan, Attorney at Law has taken more than 250 cases to verdict, and objections of this kind are the reason a trial record will support an appeal or fail to.
Under the version of R.C.M. 603 in effect at the time, a major change could not be made over the objection of the accused unless the specification was preferred anew. The rule was rewritten in 2019: changes made before referral are now permitted whether major or minor, and the major change protection applies after referral. Reese was tried under the earlier rule, and its lesson about objecting still holds under the current one.
The defense argued that although the amendment involved substituting one body part for another, the consequences for the defense were substantial. The elements to be met, the evidence that mattered, and the theory of the case all shifted.
CAAF agreed. The change was major, not minor. Because the defense had objected, permitting the amendment was error. For a major change to be permitted, the accused must consent or the specification must be preferred and referred anew. Neither occurred.
The Second Charge: Why a Novel Specification Was Not Available
This is a motion, and it is made before pleas. Where the government charges conduct as a novel Article 134 offense and that conduct already falls within a listed offense, the specification is vulnerable, and the attack is available at the start of the case rather than on appeal. A novel Article 134 specification that duplicates a listed offense will not survive that motion. Mr. Jordan encountered charging and specification issues from the prosecution side before handling them in defense practice, and a challenge of this kind is among the few that can end a charge outright rather than merely narrow it.
The second charge arose from an allegation that Reese told a young child not to tell anyone about the contact, saying that he and his wife could go to jail. The government charged this as a “novel” Article 134 specification, meaning one drafted for the circumstances of the case rather than drawn from the offenses listed in the Manual.
The court’s holding on this charge is narrower and more specific than a pleading defect.
CAAF held that because the novel Article 134 offense alleged the crime of obstructing justice, which is itself a listed Article 134 offense, the novel specification was not permitted. The Manual provides that a specification not listed may be used where conduct does not fall under any of the listed offenses. Where the conduct does fall within a listed offense, the government may not substitute a novel specification for it.
The court identified a further consequence of how the specification had been drafted. As the Coast Guard Court of Criminal Appeals had noted below, by using a novel specification the government relieved itself of having to prove the second and third elements of obstructing justice. CAAF treated this as an additional problem illustrating the purpose of the rule, not as the basis for the holding.
That ordering matters. The defect was not that the government pleaded obstruction badly. It was that the government was not permitted to plead this conduct as a novel offense at all.
What Practitioners Take From the Case
For a service member the takeaway is narrower than it is for a practitioner. If a specification changes during your trial, counsel has to identify immediately whether the change is a major one and preserve the objection. Waiting until appeal can materially change both the argument available and the standard under which it is reviewed. Mr. Jordan served as an Army prosecutor before opening his own practice, and changes of this kind are offered in the ordinary course of a trial, quickly, at a moment when they can easily look like housekeeping.
Two points carry beyond this record.
Objecting matters, and so does the record of the objection. The distinction between major and minor change was preserved for appeal because the defense objected at the time. An unpreserved objection is reviewed under a far more forgiving standard.
A novel Article 134 specification is unavailable where the conduct falls within a listed offense. The threshold question is not whether the novel specification was well drafted. It is whether the government was permitted to use one at all. Where the alleged conduct is already covered by a listed Article 134 offense, it is not.
Speak With a Military Defense Attorney
If the charges against you have been amended after preferral, or if you are facing a novel Article 134 specification, those are issues to raise before trial rather than after.
Joseph L. Jordan, Attorney at Law is a former Army JAG officer representing service members in all branches. Call (888) 643-6254 or contact the firm online.