United States v. Norwood , 71 M.J. 204 ( 2012 )

UNITED STATES, Appellee
v.
Benny NORWOOD Jr., First Sergeant
U.S. Marine Corps, Appellant
No. 11-0515
Crim. App. No. 201000495
United States Court of Appeals for the Armed Forces
Argued May 16, 2012
Decided June 6, 2012
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and COX, S.J., joined.
Counsel
For Appellant: Major Jeffrey R. Liebenguth, USMC (argued).
For Appellee: Colonel Kurt J. Brubaker, USMC (argued);
Lieutenant Joseph M. Moyer, JAGC, USN, and Brian K. Keller, Esq.
(on brief); Colonel Louis J. Puleo, USMC.
Military Judge: David M. Jones
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Norwood, 11-0515/MC
Judge RYAN delivered the opinion of the Court.
Pursuant to his pleas, a military judge, sitting as a
general court-martial, convicted Appellant of attempted
adultery, conspiracy to obstruct justice, and making a false
official statement, violations of Articles 80, 81, and 107,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 881,
907 (2006). Contrary to his pleas, Appellant was also convicted
of conspiracy to commit an indecent act and indecent acts,
violations of Articles 81 and 120, UCMJ, 10 U.S.C. §§ 881, 920
(2006). The adjudged and approved sentence provided for a bad-
conduct discharge, confinement for fourteen months, and
reduction to E-5.
The United States Navy-Marine Corps Court of Criminal
Appeals (NMCCA) affirmed the findings and the sentence as
approved by the convening authority. United States v. Norwood,
No. NMCCA 201000495, 2011 CCA LEXIS 85, at *13, 2011 WL 1680782,
at *5 (N-M. Ct. Crim. App. May 5, 2011) (unpublished). We
granted Appellant’s petition under Article 67, UCMJ, 10 U.S.C.
§ 867 (2006).1
1
On February 29, 2012, we granted Appellant’s petition on the
following issue:
I. WHETHER, IN LIGHT OF UNITED STATES v. FOSLER, 70 M.J.
225 (C.A.A.F. 2011), THE SPECIFICATIONS ALLEGING ATTEMPTED
ADULTERY AND CONSPIRACY TO OBSTRUCT JUSTICE STATE OFFENSES.
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United States v. Norwood, 11-0515/MC
In accordance with the precedent of our own Court, United
States v. Bryant, 30 M.J. 72 (C.M.A. 1990), and the Supreme
Court, United States v. Resendiz-Ponce, 549 U.S. 102 (2007);
Wong Tai v. United States, 273 U.S. 77 (1927), we hold that in
order to state the elements of an inchoate offense under
Articles 80 and 81, UCMJ, a specification is not required to
expressly allege each element of the predicate offense.2
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The charges in this case relate to Appellant’s involvement
in a group sexual encounter on April 17, 2009, and a subsequent
cover-up of the incident.3 Specifically, at some point on the
night in question, Appellant (the company first sergeant), Staff
Sergeant (SSgt) K, and Corporal (Cpl) H encountered Cpl H’s
girlfriend -- the victim, a private first class -- naked, in a
cabana that she and Cpl H had rented. Norwood, 2011 CCA LEXIS
85, at *2-3, 2011 WL 1680782, at *1. During the ensuing events,
We also specified the following issue:
II. WHETHER, IN ORDER TO STATE AN OFFENSE OF ATTEMPT OR
CONSPIRACY UNDER ARTICLES 80 AND 81, THE SPECIFICATION IS
REQUIRED TO EXPRESSLY ALLEGE EACH ELEMENT OF THE PREDICATE
OFFENSE.
__ M.J. __ (C.A.A.F. 2012) (order granting review).
2
This holding renders the granted issue moot.
3
For a more complete factual history, see Norwood, 2011 CCA
LEXIS 85, at *1-*4, 2011 WL 1680782, at *1-*2.
3
United States v. Norwood, 11-0515/MC
all three men engaged in various sexual conduct with the victim.
Id. For his part, Appellant “touch[ed] [the victim’s] breasts
and vagina,” and then “attempted to have intercourse with
[her].” 2011 CCA LEXIS 85, at *3, 2011 WL 1680782, at *1.
Immediately prior to vaginally penetrating her, however,
Appellant was interrupted by a knock at the door, and left the
premises. Id.“[A]ppellant later learned that [the victim] was at the
hospital and, believing that an investigation into the incident
would follow, called a meeting with [SSgt K and Cpl H] in order
to get their ‘stories straight.’” Id. At that meeting, the
three men “agreed that they would tell investigators that [the
victim] was never in the room [that night].” Id.Subsequently, as part of the Naval Criminal Investigative
Service (NCIS) investigation of the event, an NCIS agent
interviewed Appellant. Id. Appellant initially adhered to the
agreed-upon story, but, after being presented with evidence to
the contrary, admitted to his involvement in the event and in
concocting the falsified version of events. 2011 CCA LEXIS 85,
at *3-*4, 2011 WL 1680782, at *1.
Relative to these events, the Government preferred charges
against Appellant, including the following two specifications.
A charged violation of Article 80, UCMJ, which read:
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United States v. Norwood, 11-0515/MC
In that [Appellant], U.S. Marine Corps, a married man,
on active duty, did, at Okinawa, Japan, on or about 17
April 2009, attempt to commit adultery with [the
victim], U.S. Marine Corps, a woman not his wife, by
trying to place his penis inside of her vagina and
have sexual intercourse with her.
And a charged violation of Article 81, UCMJ, which read:
In that [Appellant], U.S. Marine Corps, on active
duty, did at Okinawa, Japan, on or about 20 April
2009, conspire with [SSgt K and Cpl H] to commit an
offense under the Uniform Code of Criminal Justice, to
wit: obstruction of justice in the investigation into
the alleged sexual assault of [the victim], and in
order to effect the object of the conspiracy,
[Appellant] did make false statements to [an NCIS
special agent], concerning his involvement and
knowledge of the sexual assault of [the victim].
While Appellant was convicted under mixed pleas, he pleaded
guilty to both of these specifications. During the plea
colloquy for these offenses, the military judge listed and
explained the elements of the Article 80 and 81, UCMJ, offenses
(attempt and conspiracy), as well as the elements of the Article
134, UCMJ, 10 U.S.C. § 934 (2006), predicate offenses (adultery
and obstruction of justice), see Manual for Courts-Martial,
United States pt. IV, paras. 4.b., 5.b., 62.b., 96.b. (2008 ed.)
(MCM).
On appeal to the NMCCA, Appellant asserted, among other
things, that “the attempted adultery and conspiracy to obstruct
justice specifications each failed to state an offense.” 2011
CCA LEXIS 85, at *1, 2011 WL 1680782 at *1. The NMCCA held that
both of the contested specifications “properly state[d]
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United States v. Norwood, 11-0515/MC
offenses.” 2011 CCA LEXIS 85, at *5-*9, 2011 WL 1680782, at *2-
*3.
II. DISCUSSION
“Whether a specification is defective and the remedy for
such error are questions of law, which we review de novo.”
United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012). A
charge and specification “[are] sufficient if [they], first,
contain[] the elements of the offense charged and fairly
inform[] a defendant of the charge against which he must defend,
and, second, enable[] him to plead an acquittal or conviction in
bar of future prosecutions for the same offense.” Hamling v.
United States, 418 U.S. 87, 117 (1974). “A specification is
sufficient if it alleges every element of the charged offense
expressly or by necessary implication.” Rule for Courts-Martial
(R.C.M.) 307(c)(3).
Appellant argues that the inchoate attempt and conspiracy
specifications, to which he pleaded guilty, are insufficient
because they do not allege all elements of the “target” or
predicate offenses. We disagree.
Precedent of this Court and the Supreme Court makes clear
that the government need only allege the elements of the
inchoate offense:
It is well settled that in an indictment for conspiring
to commit an offense -- in which the conspiracy is the
gist of the crime -- it is not necessary to allege with
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United States v. Norwood, 11-0515/MC
technical precision all the elements essential to the
commission of the offense which is the object of the
conspiracy, or to state such object with the detail
which would be required in an indictment for committing
the substantive offense.
Wong Tai, 273 U.S. at 81 (citing, inter alia, Williamson v.
United States, 207 U.S. 425, 447 (1908) (“[C]onspiracy is the
gist of the crime, and certainty, to a common intent, sufficient
to identify the offense which the defendants conspired to
commit, is all that is requisite in stating the object of the
conspiracy.”), and Thornton v. United States, 271 U.S. 414, 423
(1926) (“The rules of criminal pleading do not require the same
degree of detail in an indictment for conspiracy, in stating the
object of the conspiracy, as if it were one charging the
substantive offense.”)); see also Bryant, 30 M.J. at 73-74.
While these cases concerned conspiracy, their logic applies
equally to attempt, especially given the Supreme Court’s
decision in Resendiz-Ponce that “an indictment alleging
attempted illegal reentry under [the criminal code] need not
specifically allege a particular overt act or any other
‘component par[t]’ of the offense.” 549 U.S. at 107 (quoting
Hamling, 418 U.S. at 119) (second set of brackets in original).
As we noted in Bryant, “‘it is not essential to the validity of
the [inchoate] charge that the offense that is the object of the
agreement be described with technical precision.’” 30 M.J. at
73-74 (quoting United States v. Irwin, 22 C.M.A. 168, 169, 46
7
United States v. Norwood, 11-0515/MC
C.M.R. 168, 169 (1973)).4 However, sufficient specificity is
required so that an accused is aware of the nature of the
underlying target or predicate offense -- particularly in the
context of an underlying Article 134, UCMJ, offense.
Undertaking its analysis in light of this precedent, the
NMCCA correctly analyzed the specifications at issue:
Articles 80 and 81, UCMJ, respectively, make it
an offense to attempt or conspire to commit offenses
“under this chapter”. This court is firmly convinced
that the offenses delineated under the General Article
are, in fact, offenses under Chapter 47 of title 10,
and are satisfied that the specification of Charge I
and Specification 1 of Charge II state offenses. See
United States v. Jones, 68 M.J. 465, 471–72
(C.A.A.F.2010) (noting that paragraphs 61 through 113
of Part IV of the [MCM] are “various circumstances”
under which the elements of Article 134 could be met).
Further, we see no legal requirement to plead the
elements of a “target” offense for either attempt or
conspiracy and we are not persuaded by the appellant’s
argument that General Article “target” offenses should
be treated differently, in pleadings under Article 80
or 81, from the enumerated offenses in Articles 83
through 132.
4
See also United States v. Bedford, 536 F.3d 1148, 1156-57 (10th
Cir. 2008); United States v. Eirby, 262 F.3d 31, 37-38 (1st Cir.
2001); United States v. Wydermyer, 51 F.3d 319, 324-26 (2d Cir.
1995); United States v. Roman, 728 F.2d 846, 852-53 (7th Cir.
1984); United States v. Graves, 669 F.2d 964, 968 (5th Cir.
1982); United States v. Ramos, 666 F.2d 469, 475 (11th Cir.
1982); United States v. Wander, 601 F.2d 1251, 1259-60 (3d Cir.
1979); United States v. Starr, 584 F.2d 235, 236-37 (8th Cir.
1978); United States v. Fruehauf Corp., 577 F.2d 1038, 1071 (6th
Cir. 1978); Stein v. United States, 313 F.2d 518, 520-21 (9th
Cir. 1962); United States v. Offutt, 127 F.2d 336, 339 (D.C.
Cir. 1942). But see Kingrea v. United States, 573 F.3d 186,
192-93 (4th Cir. 2009) (requiring that an indictment set forth
the essential elements of the predicate offense).
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United States v. Norwood, 11-0515/MC
The elements of attempted adultery are: (1) the
appellant did an overt act; (2) the act was done with
the specific intent to commit an offense under the
code; (3) the act was more than mere preparation; and
(4) the act apparently tended to effect the commission
of the intended offense. MCM, Part IV, ¶ 4b. The
specification expressly alleges that the appellant, a
married man, attempted to commit adultery by having
intercourse with a private first class who was not his
wife and he did so by trying to place his penis inside
her. We are satisfied that the specification
expressly alleges the elements of attempted adultery.
The elements of conspiracy to obstruct justice
are: (1) the appellant entered into an agreement with
another person to commit an offense under the code;
and (2) while the agreement continued to exist, and
while the appellant remained a party to the agreement,
the appellant or another conspirator performed an
overt act for the purpose of bringing about the object
of the conspiracy. MCM, Part IV, ¶ 5b. Specification
1 under Charge II alleges that the appellant entered
into an agreement with SSgt [K] and Cpl [H] to commit
an offense under the UCMJ, specifically, obstruction
of justice, by lying to investigators as to the
presence of [the victim] and that in furtherance of
that agreement, the appellant lied to [the NCIS
special agent]. We are satisfied that the
specification expressly alleges the elements of
conspiracy to obstruct justice.
Norwood, 2011 CCA LEXIS 85, at *6-*8, 2011 WL 1680782, at *2-*3.
We agree.
III. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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