United States v. Stout ( 2019 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Norman R. STOUT, Staff Sergeant
United States Army, Appellant
No. 18-0273
Crim. App. No. 20120592
Argued December 4, 2018—Decided August 22, 2019
Military Judge: S. Charles Neill
For Appellant: Captain Timothy G. Burroughs (argued);
Lieutenant Colonel Tiffany D. Pond and Major Jack D.
Einhorn (on brief); Lieutenant Colonel Christopher D. Car-
rier and Major Julie L. Borchers.
For Appellee: Captain Sandra L. Ahinga (argued); Lieu-
tenant Colonel Eric K. Stafford, Major Wayne H. Williams,
and Captain Catherine M. Parnell (on brief); Major Austin
L. Fenwick.
Chief Judge STUCKY delivered the opinion of the
Court, in which Judge SPARKS joined. Judge RYAN
filed a separate concurring opinion. Judge MAGGS filed
a separate opinion concurring in the judgment. Judge
OHLSON filed a separate dissenting opinion.
_______________
Chief Judge STUCKY delivered the opinion of the Court.
As originally written, the specifications now subject to
appeal alleged that Appellant committed offenses during
three distinct periods, ranging from six days to five weeks in
duration. Prior to referral, the Government amended these
specifications to conform the time frame of the offenses to
the substance of his victim’s testimony during the prelimi-
nary hearing. As a result, each specification encompassed a
period of roughly nine months. The increases to the charged
time frames ranged from 264 to 300 days. We granted re-
view to determine whether these changes were “major,” re-
quiring preferral anew in accordance with Rule for Courts-
Martial (R.C.M.) 603. While the case was pending, we re-
United States v. Stout, No. 18-0273/AR
Opinion of the Court
quested supplemental briefing to address whether our previ-
ous decision in United States v. Brown, 4 C.M.A. 683, 16
C.M.R. 257 (1954) or whether Article 34(c), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 834, controlled the out-
come of this case. 1 We now conclude that Article 34(c),
UCMJ, does. 2 Prior to referral, Article 34, UCMJ, specifical-
ly permits changes to conform the charges and specifications
to the substance of the evidence in the report prepared by
the investigating officer under Article 32, UCMJ, 10 U.S.C.
§ 832 (2012). Because that is what happened here, we affirm
the judgment below.
I. Background
While stationed at Fort Drum and living in Watertown,
New York, Appellant repeatedly sexually abused his step-
daughter, NL. When Appellant deployed to Iraq, the rest of
his family moved to Michigan, where NL disclosed the
abuse. During the Article 32, UCMJ, investigation that fol-
lowed, NL testified that she could not recall the order in
which or the dates on which the charged acts occurred; she
only knew that the abuse occurred while she was in Water-
town. However, she stated that her mother would be able to
provide the correct dates for that period of time. Her mother
subsequently testified that the family lived in Watertown
from August 2008 until June 2009.
For reasons unknown, the three specifications pertinent
here were originally charged as occurring “between on or
about”: August 1, 2008, and August 6, 2008; 3 January 14,
2009, to January 28, 2009; 4 and February 14, 2009, to
1 United States v. Stout, No. 18-0273, 2019 CAAF LEXIS 358,
2019 WL 2093326 (C.A.A.F. Apr. 22, 2019) (order requesting sup-
plemental briefing).
2 For this reason, we need not resolve the question of whether
the changes in Appellant’s case were “major.” We note that the
current R.C.M. 603 in Manual for Courts-Martial, United States
(2019 ed.), permits changes to charges and specifications prior to
referral regardless of whether they are major or minor.
3 Specification 1 of Charge I: Appellant placing NL’s hand on
his penis.
4 Specification 6 of Charge I: Appellant entering the bathroom
and observing NL naked in the shower.
2
United States v. Stout, No. 18-0273/AR
Opinion of the Court
March 22, 2009. 5 These specifications were conditionally
dismissed pursuant to a pretrial agreement when Appellant
pled guilty to abusive sexual contact, indecent liberties, and
possession of child pornography. After the United States
Army Court of Criminal Appeals (CCA) found his pleas im-
provident and set aside the findings, 6 the Government made
pen and ink changes to all three specifications, changing the
date range of all three specifications to encompass the period
in which the abuse occurred according to the pretrial inves-
tigation testimony: August 2008 to June 2009. The staff
judge advocate then prepared the pretrial advice and deliv-
ered it to the convening authority, who referred the case to a
general court-martial.
Appellant’s trial began over ten months later. At trial,
the defense filed a motion to dismiss on the grounds that the
changes to the charge sheet were major changes barred by
R.C.M. 603. The military judge ruled that the changes were
minor. The military judge also noted that, because the
changes were made before referral, “[t]he accused has been
on notice of these changes and his counsel have been able to
prepare accordingly.” 7
Analysis
Article 34,UCMJ, specifically allows the Government to
make changes to the charges and specifications to bring
them into alignment with the evidence adduced by the pre-
trial investigation:
If the charges or specifications are not formally cor-
rect or do not conform to the substance of the evi-
dence contained in the report of the investigating
officer, formal corrections, and such changes in the
5 The Specification of Charge II: sodomy of NL.
6 United States v. Stout, No. ARMY 20120592, 2014 CCA
LEXIS 469, at *10, *19–20, 2014 WL 7227360, at *4, *7 (A. Ct.
Crim. App. July 25, 2014).
7 As a factual matter, notice to the Appellant was indeed am-
ple. The substance of the changed time frame was developed at
the Article 32, UCMJ, hearing in 2012 and many months passed
between the pen-and-ink changes referred to Appellant’s second
trial in November 2014 and the trial itself in September of 2015.
3
United States v. Stout, No. 18-0273/AR
Opinion of the Court
charges and specifications as are needed to make
them conform to the evidence, may be made. 8
We begin statutory analysis by examining the plain lan-
guage. “The plain language will control, unless use of the
plain language would lead to an absurd result.” United
States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007). The words of
Article 34 are clear and unambiguous: before referral,
changes may be made to conform the specifications to the
evidence contained in the report of the Article 32 investigat-
ing officer. In this case, that report showed that the offenses
occurred sometime between August 2008 and June 2009,
and the specifications were amended to reflect that. That is
sufficient to resolve this case and affirm the judgment below.
Judgment
The judgment of the United States Army Court of
Criminal Appeals is affirmed.
8 10 U.S.C. § 834(c) (2012). In the Military Justice Act of 2016,
Article 34, UCMJ, was amended and restyled:
(c) GENERAL AND SPECIAL COURTS-MARTIAL;
CORRECTION OF CHARGES AND SPECIFICATIONS BEFORE
REFERRAL. Before referral for trial by general court-
martial or special court-martial, changes may be made
to charges and specifications–
(1) to correct errors in form; and
(2) when applicable, to conform to the substance
of the evidence contained in a report under section
832(c) of this title (article 32(c)).
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, § 5205, 130 Stat. 2000, 2908 (2016).
4
United States v. Stout, No. 18-0273/AR
Judge RYAN, concurring.
As the majority opinion explains, there is no question
that the changes to the charge sheet at issue here comply
with Article 34, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 834 (2012), which authorizes changes to charges
and specifications made prior to referral to conform them to
evidence adduced at an Article 32, UCMJ, 10 U.S.C. § 832
(2012), investigation. See United States v. Stout, __ M.J. __
(4) (C.A.A.F. 2019). I therefore concur in full with the major-
ity’s opinion. I write separately to express my view that Rule
for Courts-Martial (R.C.M.) 603, Manual for Courts-Martial,
United States (2012 ed.) (MCM), applies only to post-referral
changes to charges and specifications and is thus inapplica-
ble to this case.
The procedural posture of the instant case is unusual,
and perhaps for that reason we are focused on the wrong
question. The issue we granted concerns whether changes of
300 days, 286 days, and 264 days to the time frame alleged
in three specifications constitutes a “major change” under
R.C.M. 603. But the inquiry into whether a change is major
or minor under R.C.M. 603 is reserved for changes to charg-
es that have already been referred, which is not what hap-
pened in this case. 1 Rather, this case concerns amendments
made before referral of the charges, and the most reasonable
construction of R.C.M. 603 is that it does not apply to pre-
referral changes to charges and specifications.
We apply ordinary principles of statutory construction to
the Rules for Courts-Martial. United States v. Lewis, 65 M.J.
85, 88 (C.A.A.F. 2007). While R.C.M. 603 does not specifical-
ly state that its limitation on major changes over an ac-
cused’s objection applies only to referred charges, its place-
ment within the overall structure of the MCM indicates the
point in the court-martial proceeding during which it ap-
plies. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988) (“In ascertaining the plain meaning of the statute, the
1 Of course, the revised version of R.C.M. 603(c) in the MCM
(2019 ed.) specifically recognizes that major or minor changes may
be made prior to referral, but this does nothing more than reflect
the statutory guidance provided by Article 34, UCMJ.
United States v. Stout, No. 18-0273/AR
Judge RYAN, concurring.
court must look to the particular statutory language at is-
sue, as well as the language and design of the statute as a
whole.”). R.C.M. 603 is contained within ch. VI of the
R.C.M., “Referral, Service, Amendment, and Withdrawal of
Charges,” which details the referral process and other appli-
cable rules following referral (e.g., service of charges and
withdrawal of charges). See generally MCM pt. II, ch. VI; see
also Almendarez-Torres v. United States, 523 U.S. 224, 234
(1998) (“ ‘[T]he title of a statute and the heading of a section’
are ‘tools available for the resolution of a doubt’ about the
meaning of a statute.” (quoting Bhd. of R.R. Trainmen v.
Baltimore & Ohio R.R., 331 U.S. 519, 529 (1947))). Given
this structural context, the most natural understanding is
that the 2012 version of R.C.M. 603 governs the amendment
of charges after the convening authority’s decision as to the
disposition of charges, R.C.M. 407, after the convening of a
court-martial pursuant to ch. V of the R.C.M., and after the
charges have been referred to a court-martial by the conven-
ing authority in accordance with R.C.M. 601. 2
Further, I am fully unpersuaded that United States v.
Brown, 4 C.M.A. 683, 16 C.M.R. 257 (1954), stands for the
proposition that R.C.M. 603 controls the disposition of this
case. First, the holding in Brown primarily dealt with the
question whether a change in dates that had been fully ex-
plored at an Article 32, UCMJ, investigation the appellant
2 I recognize that R.C.M. 603(b) provides that “[a]ny person
forwarding, acting upon, or prosecuting charges on behalf of the
United States except an investigating officer appointed under
R.C.M. 405” is permitted to make minor changes before arraign-
ment. But while “forwarding” and “acting upon” charges are
events that occur prior to referral, the context of these words in
the rule makes it clear that they modify the person that is permit-
ted to make the authorized minor changes, not the point in time to
which it applies. See R.C.M. 603(b). The fact that so-called minor
(as well as “major”) changes that conform with the statute would
already be permissible under Article 34, UCMJ, counsels in favor
of construing R.C.M. 603(b), and by extension all of R.C.M. 603, as
applying only to post-referral changes. See Hibbs v. Winn, 542
U.S. 88, 101 (2004) (providing that a statute “should be construed
so that effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant”).
2
United States v. Stout, No. 18-0273/AR
Judge RYAN, concurring.
insisted upon was permissible under Article 34, UCMJ. 4
C.M.A. at 684–85, 688, 16 C.M.R. at 258–59, 262. As in this
case, the changes were permissible under Article 34, UCMJ.
4 C.M.A. at 688, 16 C.M.R. at 262. Second, while Brown cer-
tainly mentioned—in passing only—that its analysis of Arti-
cle 34, UCMJ, conformed with the text of para. 33d of the
MCM (1951 ed.), 4 C.M.A. at 686, 16 C.M.R. at 260, that
paragraph occupied a different place in the overall structure
of the earlier editions of the MCM than R.C.M. 603 occupies
after the 1984 amendments to the MCM (1984 ed.). Para.
33d was situated in ch. VII of the MCM (1951 ed.), which
covered “Submission of and Action Upon Charges”—any ac-
tions taken on the charges by the officer exercising court-
martial jurisdiction. It could thus be construed as applying
both to pre- and post-referral changes. By comparison, the
structure of ch. VI of the current version of the R.C.M., as
detailed above, strongly suggests that R.C.M. 603 deals sole-
ly with the referral process and post-referral procedures. Fi-
nally, even assuming arguendo that changes in dates of 300,
286, and 264 days constitute “minor” changes for purposes of
R.C.M. 603, see United States v. Stout, __ M.J. __ (3–4)
(C.A.A.F. 2019) (Maggs, J., concurring in the judgment),
such changes would only be permissible under Article 34,
UCMJ, if made to conform the charges and specifications to
the evidence adduced at an Article 32, UCMJ, investigation.
See Article 34(c), UCMJ. In short, calling date changes “mi-
nor” does not permit them to diverge from the substance of
the evidence adduced at the Article 32, UCMJ, investigation.
But see Stout, __ M.J. __ (3–4) (Maggs, J., concurring in the
judgment).
In this case the substance of the evidence upon which the
changes were based was elicited in the Article 32, UCMJ,
investigation (indeed it was the charges referred to Appel-
lant’s first court-martial that were inconsistent with that
evidence), and the charges and specifications were the sub-
ject of an Article 34, UCMJ, staff judge advocate recommen-
dation. Specifically, the report from the Article 32, UCMJ,
investigating officer indicated that the offenses occurred
during the period between August 2008 and June 2009—
which corresponded to the time Appellant and his family
lived in Watertown, New York—and the changes conform
3
United States v. Stout, No. 18-0273/AR
Judge RYAN, concurring.
the specifications to this evidence. Because Article 34,
UCMJ, governs changes to charges and specifications made
prior to referral and R.C.M. 603 governs changes made after
referral, this is simply not an R.C.M. 603 case.
4
United States v. Stout, No. 18-0273/AR
Judge MAGGS, concurring in the judgment.
Before referral and arraignment, the Government
amended the dates stated in three specifications of the
charge sheet. The amendments expanded the time frames in
which the alleged offenses occurred by 300 days, 286 days,
and 264 days respectively. The applicable version of Rule for
Courts-Martial (R.C.M.) 603(b) provided that “[a]ny person
. . . prosecuting charges on behalf of the United States . . .
may make minor changes to charges or specifications before
arraignment,” while R.C.M. 603(d) provided that “[c]hanges
or amendments to charges or specifications other than minor
changes may not be made over the objection of the accused
unless the charge or specification affected is preferred
anew.”1 R.C.M. 603(a) defined “[m]inor changes” as “any
[changes] except those which add a party, offenses, or sub-
stantial matter not fairly included in those previously pre-
ferred, or which are likely to mislead the accused as to the
offenses charged.” The military judge and the United States
Army Court of Criminal Appeals (ACCA) concluded that the
changes in the dates were permissible under R.C.M. 603(b)
because they were all minor changes as defined in R.C.M.
603(a). United States v. Stout, No. ARMY 20120592, 2018
CCA LEXIS 174, at *13–14, 2018 WL 1756631, at *6 (A. Ct.
Crim. App. Apr. 9, 2018).
Appellant argues that the changes to the dates were not
minor changes, and thus they were not permitted under
R.C.M. 603(b) and were prohibited under R.C.M. 603(d). I
disagree with Appellant’s argument. I share the ACCA’s
view that the changes were minor, and I would affirm the
judgment of the ACCA on that ground. Unlike the Court to-
day, I express no opinion on the issue of whether Article
34(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
1 The Government made the changes to the charge sheet on
November 3, 2014. The applicable version of R.C.M. 603 is there-
fore found in the Manual for Courts-Martial, United States (2012
ed.) (MCM). The President subsequently substantially amended
R.C.M. 603 in the MCM (2019 ed.).
United States v. Stout, No. 18-0273/AR
Judge MAGGS, concurring in the judgment
§ 834(c), permits changes to charges prior to referral, regard-
less of whether they are major or minor changes. 2
The Court addressed the issue of whether the govern-
ment may amend the dates expressed in a specification in
United States v. Brown, 4 C.M.A. 683, 16 C.M.R. 257 (1954).
In Brown, a specification in the charge sheet originally al-
leged that the accused had engaged in lewd and lascivious
conduct in violation of Article 134, UCMJ, 10 U.S.C. § 934,
on June 13, 1951. Id. at 684, 16 C.M.R. at 258. Prior to re-
ferral and arraignment, based on new information received
in a related case involving another accused, the convening
authority ordered the specification to be amended to allege
that the conduct in question had occurred “ ‘on or about 1
March 1951.’ ” Id. at 684, 16 C.M.R. at 258. The key issue in
the case was “whether the convening authority could proper-
ly order a change in the date of the commission of the of-
fense” without preferring the charge anew. Id. at 685, 16
C.M.R. at 259.
Paragraph 33d of the MCM (1951 ed.) stated the appli-
cable rule. This paragraph provided in relevant part: “Obvi-
ous errors [in charges] may be corrected and the charges
may be redrafted over the accuser’s signature, provided the
redraft does not include any person, offense, or matter not
fairly included in the charges as preferred.” The Court in
Brown held that the change in dates was permissible under
para. 33d because “the elements of the crime, both before
and after amendment, were identical” and because the
amendment could not have “misled the accused as to the na-
ture or identity of the offense against which he was required
to defend.” Brown, 4 C.M.A. at 688, 16 C.M.R. at 261. The
Court reasoned more generally:
[W]here time is not of the essence, it is the general
rule that an erroneous statement of the date of the
2 I prefer to resolve this case by addressing the issue of wheth-
er the changes were major or minor under R.C.M. 603 because the
ACCA decided this issue, we granted review of this issue, and the
parties have contested this issue in their original and supple-
mental briefs. Although they may be correct, neither party has
advanced the positions taken by the Court’s opinion or Judge
Ryan’s concurrence in this case.
2
United States v. Stout, No. 18-0273/AR
Judge MAGGS, concurring in the judgment
offense constitutes a matter of mere form, and
amendments are freely permitted where they do
not operate to change the nature of the crime
charged, and there is no showing that the defend-
ant had been misled or prejudiced in his defense on
the merits.
Id. at 688, 16 C.M.R. at 262 (citations omitted).
The Government argues that this Court should follow
this precedent and conclude that the changes to the specifi-
cations at issue here are permissible as “minor changes.” As
in Brown, the Government contends, the changes merely al-
tered the alleged dates of offenses, and did not affect the na-
ture or identity of the offenses against which Appellant had
to defend himself. I agree.
The present case is indistinguishable from Brown. True,
the changes to the dates in the three specifications at issue
in this case added up to 300, 286, and 264 days respectively,
while the change in dates in Brown was for only 104 days.
But under the reasoning of Brown, the length of time in-
volved in a change of dates is not pertinent unless time is of
the essence. And our decisions, following Brown, have al-
lowed even greater changes in dates. See, e.g., United States
v. Spann, 10 C.M.A. 410, 411–12, 27 C.M.R. 484, 485–86
(1959) (following Brown and upholding an amendment to a
specification that extended the final day of an alleged period
of desertion from June 9, 1945, to May 14, 1958, where the
period of desertion was not an element of the offense).
Changes to the MCM since Brown was decided also have
not rendered Brown obsolete. The applicable version of
R.C.M. 603 differs from para. 33d of the 1951 MCM in only
two key respects, neither of which has relevance to Brown or
this case. One difference makes R.C.M. 603 more permissive
of changes than para. 33d. Paragraph 33d did not allow re-
drafting charges if the redraft included any “matter not fair-
ly included in the charges as preferred.” In contrast, R.C.M.
603 does not allow redrafting if the redraft includes a “sub-
stantial matter not fairly included in [the charges] previous-
ly preferred.” R.C.M. 603(a) (emphasis added). This differ-
ence between para. 33d and R.C.M. 603 is irrelevant because
neither Brown nor this case involves the addition of a new
matter, substantial or otherwise. The second difference be-
3
United States v. Stout, No. 18-0273/AR
Judge MAGGS, concurring in the judgment
tween the applicable version of R.C.M. 603(a) and para. 33d
is that R.C.M. 603(a) excludes from the definition of minor
change any changes that “are likely to mislead the accused
as to the offenses charged.” (emphasis added). This addition-
al restriction does not affect the application of Brown to this
case because Appellant does not contend that the changes in
dates were likely to mislead him.
Finally, the central holding in Brown—that changes in
dates are ordinarily minor changes—has not been overruled.
Appellant argues that Brown is invalid because of our deci-
sion in United States v. Reese, 76 M.J. 297, 302 (C.A.A.F.
2017). But Reese only eliminated the requirement, suggested
by Brown and other cases, 3 that an appellant must show
that a major change resulted in prejudice to be afforded re-
lief. Reese merely holds that if a major change has been
made, no prejudice need be shown. Id. Reese does not affect
the prior question of what is or is not a major change.
Accordingly, I would affirm the United States Army
Court of Criminal Appeals. I therefore concur in the
judgment.
3 See, e.g., United States v. Smith, 49 M.J. 269, 270 (C.A.A.F.
1998); United States v. Brown, 34 M.J. 105, 109 (C.M.A. 1992);
United States v. Johnson, 12 C.M.A. 710, 711, 31 C.M.R. 296, 297
(1962).
4
United States v. Stout, No. 18-0273/AR
Judge OHLSON, dissenting.
As noted by the majority, Article 34, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 834 (2012), authorizes
the government to make changes to a charge sheet in order
to have it properly reflect the evidence adduced at the
Article 32, UCMJ, 10 U.S.C. § 832 (2012), hearing. They
view this provision as being “sufficient to resolve this case
and affirm the judgment below.” United States v. Stout,
__ M.J. __ (4) (C.A.A.F. 2019). In my view, however, Rule for
Courts-Martial (R.C.M.) 603—which prescribes how changes
may be made to a charge sheet—also must be complied with
in cases such as the one before us. I reach this conclusion for
two reasons: (a) this Court should seek to harmonize
relevant provisions of the UCMJ and the R.C.M.—such as
Article 34, UCMJ, and R.C.M. 603; 1 and (b) the President
has the authority—such as in R.C.M. 603—to provide
servicemembers with rights greater than those afforded by
Congress as long as such an enhancement of rights does not
run counter to a specific congressional mandate or
prohibition. 2 In the course of harmonizing Article 34, UCMJ,
with R.C.M. 603, and then applying the increased
procedural protections afforded servicemembers under the
latter provision, I conclude that the Government failed to
follow the procedures required under R.C.M. 603.
Accordingly, I believe that the convictions for Specifications
1 and 6 of Charge I and the Specification of Charge II must
be reversed. Therefore, I respectfully dissent.
As noted above, in Article 34, UCMJ, Congress author-
ized the government to make changes to a charge sheet after
1 “This Court typically seeks to harmonize independent provi-
sions of a statute.” United States v. Christian, 63 M.J. 205, 208
(C.A.A.F. 2006); see also United States v. LaGrange, 1 C.M.A. 342,
344, 3 C.M.R. 76, 78 (1952) (expressing that it is this Court’s “duty
to reconcile any conflicting provisions [in the UCMJ and the Man-
ual for Courts-Martial] dealing with the same subject matter and
to construe them, in so far as reasonably possible, so as to be in
harmony with each other”).
2 “[W]here the President unambiguously gives an accused
greater rights than those conveyed by higher sources, this Court
should abide by that decision unless it clearly contradicts the ex-
press language of the Code.” United States v. Davis, 47 M.J. 484,
486 (C.A.A.F. 1998).
United States v. Stout, No. 18-0273/AR
Judge OHLSON, dissenting
preferral in order to have the charge sheet properly reflect
the evidence adduced at the Article 32, UCMJ, hearing. In
R.C.M. 603, the President then spelled out how those chang-
es contemplated by Article 34, UCMJ, may be made. Specifi-
cally, R.C.M. 603(b) authorizes the government to unilater-
ally make changes that are minor in nature without taking
any formal procedural steps. On the other hand, when the
government wishes to make changes to a charge sheet that
are not minor, R.C.M. 603(d) makes it clear that the amend-
ed charges must be “preferred anew.” 3
Whether a change to a charge or specification is major or
minor is a question of statutory interpretation that this
Court reviews de novo. United States v. Reese, 76 M.J. 297,
300 (C.A.A.F. 2017). The Discussion section accompanying
R.C.M. 603 provides clear and helpful guidance in regard to
making this distinction. It explains that examples of minor
changes include, inter alia, “those necessary to correct
inartfully drafted or redundant specifications; to correct a
misnaming of the accused; to allege the proper article; or to
correct other slight errors.” R.C.M. 603(a) Discussion (em-
phasis added).
Major changes, on the other hand, are simply defined as
any changes “other than minor changes.” R.C.M. 603(d).
These major changes “may not be made over the objection of
the accused unless the charge or specification affected is pre-
ferred anew.” Id.
In the instant case, the Government wished to change
the dates when it alleged that Appellant committed the
charged offenses. But the change in dates was not a day or
two, or a week or two, or even a month or two in length. Ra-
ther, long after the Article 32, UCMJ, hearing was conclud-
3 In simplest terms, a charge sheet provides an accused with
proper formal notice of what he needs to defend against at trial.
Such notice is grounded in principles of fundamental fairness. And
it is important to underscore that the government alone controls
the charge sheet from the inception of the charges through the
court-martial itself. Thus, the requirement that when the govern-
ment makes major changes to a charge sheet it then must prefer
those charges anew—which typically is a relatively simple step—
is a small procedural price to pay to ensure that notice require-
ments are strictly adhered to and that principles of fundamental
fairness are scrupulously observed.
2
United States v. Stout, No. 18-0273/AR
Judge OHLSON, dissenting
ed, the Government decided that it wanted to change the
dates of the charged offenses by approximately 300 days.
Common sense compels the conclusion that a change of that
magnitude is not “minor.” 4
Prior to trial, Appellant timely objected to the Govern-
ment’s changes on R.C.M. 603 grounds.) The Government
easily could have resolved this matter by preferring the
charges anew. However, the Government declined to do so
and the military judge overruled the accused’s objection. The
accused then was tried and convicted of the charges now at
issue. I conclude that Appellant’s convictions were obtained
in direct contravention of the procedures required by the
provisions of R.C.M. 603 and thus must be reversed. Accord-
ingly, I disagree with the majority that Article 34, UCMJ,
applies exclusively to the instant case, 5 and I therefore re-
spectfully dissent.
4 Indeed, although the motivation of the government is not
relevant to a determination of whether a change is minor or ma-
jor, it can be surmised that trial counsel in the instant case made
these changes because he recognized the significant risk that the
trier of fact would either (a) acquit the accused of the charges be-
cause the original dates on the charge sheet did not come close to
matching the dates that would be elicited at trial, or (b) make a
change to the dates through exceptions and substitutions that
would on appeal be deemed a fatal variance under our case law.
See United States v. Hunt, 37 M.J. 344, 347 (C.M.A. 1993). There-
fore, it appears that even the Government likely recognized that
the alterations to the charged time frame were not “minor” chang-
es of little import to the successful prosecution of the case.
5 This Court has addressed R.C.M. 603 in a number of cases and
not once has it been suggested that Article 34, UCMJ, applies ex-
clusively to instances where the government has made changes to
specifications. See United States v. Armstrong, 77 M.J. 465
(C.A.A.F. 2018); United States v. Honea, 77 M.J. 181 (C.A.A.F.
2018); Reese, 76 M.J. at 299–302; United States v. Moreno, 46 M.J.
216 (C.A.A.F. 1997).
3