United States v. Marshall
2009 CAAF LEXIS 643, 2009 WL 1753804, 67 M.J. 418 (2009)
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Rule of Law:
A variance between the offense charged in a specification and the offense of which the accused is convicted is a fatal variance if it is both material, by substantially changing the identity of the offense, and substantially prejudicial to the accused's due process rights, such as by denying the opportunity to prepare an adequate defense.
Facts:
- Captain (CPT) Kreitman directed Staff Sergeant (SSG) Fleming to retrieve Appellant Marshall from the local police department.
- SSG Fleming went to the police department and assumed custody of Marshall.
- SSG Fleming returned Marshall to the company offices.
- Marshall was told that pretrial confinement orders were being prepared and that he was not to leave his seat without an escort.
- Marshall was permitted to step outside the building for smoke breaks.
- During one of his smoke breaks, Marshall walked away from the area.
Procedural Posture:
- Appellant Marshall was tried by a military judge in a special court-martial.
- The government charged Marshall with escaping from the custody of CPT Kreitman.
- At the close of the government's case, defense counsel made a motion for a finding of not guilty, arguing the government failed to prove Marshall was ever in CPT Kreitman's custody.
- The military judge denied the motion.
- The military judge convicted Marshall, by exceptions and substitutions, of escaping from the custody of SSG Fleming.
- Marshall appealed to the U.S. Army Court of Criminal Appeals, an intermediate appellate court, which affirmed the conviction.
- The U.S. Court of Appeals for the Armed Forces, the highest military court, granted review of the case.
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Issue:
Does convicting an accused of escaping from the custody of a Staff Sergeant create a fatal variance when the specification charged the accused with escaping from the custody of a Captain?
Opinions:
Majority - Stucky, J.
Yes. Convicting Marshall of escaping from the custody of SSG Fleming, when he was charged with escaping from the custody of CPT Kreitman, created a fatal variance. To be fatal, a variance must be both material and prejudicial. The variance was material because substituting the custodian changed the identity of the offense against which Marshall had to defend, as the identity of the person from whom an escape is made is a core component of the charge. The variance was prejudicial because it denied Marshall the opportunity to defend against the charge of which he was ultimately convicted; his entire defense strategy and closing argument focused on the lack of evidence that CPT Kreitman ever had custody of him. Because Marshall could not have anticipated being forced to defend against the charge of escaping from SSG Fleming, his due process rights were violated.
Concurring - Ryan, J.
Yes. While agreeing that the variance was fatal, the conviction should be reversed on the basis of plain error, not because the issue was preserved. The defense's pre-verdict motion for a finding of not guilty concerned the sufficiency of the evidence for the charged offense, which is a separate legal issue from objecting to a variance in the convicted offense. By failing to object when the judge announced the finding by exception and substitution, Marshall forfeited the issue. However, the judge's action constituted a plain and obvious error that materially prejudiced Marshall's substantial rights, justifying reversal under the plain error doctrine.
Analysis:
This case reinforces the due process principle that an accused must have adequate notice of the specific charges against them to prepare a defense. The decision clarifies that altering a key factual element of an offense, such as the identity of the custodian in an escape charge, is not a minor change but a material variance that can alter the identity of the crime itself. The holding serves as a strong reminder to prosecutors to ensure their specifications are precise and to judges that findings by exception and substitution cannot cure a fundamental failure of proof by convicting the accused of an offense they were not prepared to defend against. The concurrence highlights a procedural nuance, suggesting that defense counsel should specifically object to a variance when findings are announced to avoid forfeiture issues on appeal, even if a related motion was made earlier.
