## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, ALDYKIEWICZ, and MARTIN Appellate Military Judges

UNITED STATES, Appellee

v. Master Sergeant PATRICK A. FAUST United States Army, Appellant

ARMY 20090080

Headquarters, 4th Infantry Division (Mechanized) and Fort Carson Jeffery R. Nance and Gregg A. Marchessault , Military Judges
Lieutenant Colonel Tania M. Martin , Staff Judge Advo cate (pretrial) Colonel Randy T. Kirkvold, Staf f Judge Advocate (post-trial)

For Appellant: Captain James S. Trieschman, Jr., JA (a rgued); Lieutenant Colonel Imogene M. Jamison, JA; Majo r Laura R. Kesler, JA; Lieutenant Colonel Scott R. Lawson, JA (on brief); Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA.

For Appellee: Captain Steve T. Nam, JA (argued); Colonel Mi chael E. Mulligan, JA; Major Amber J. Willia ms, JA; Major LaJohnne A. White, JA; Captain Christopher B. Witwer, JA (on brief).

8 January 2013

--------------------------------------------------- SUMMARY DISPOSITION ON REMAND

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to mixed plea s, of conspiracy to commit extortion, co nspiracy to commit bribery (two specifications), disobeying a superior commi ssioned officer, violating a lawful general order, larceny, 1 extortion (four specificat ions), and bribery (two specifications), in violati on of Articles 81, 90 , 92, 121, 127, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 890, 892, 921, 927, 934 (2006) [hereinafter

1 The promulgating order in correctly reflects that appe llant was conv icted of two specifications of larceny: Sp ecifications 1 and 2 (both as renumbered) of Additional Charge II (as rede signated). Howeve r, appellant was found not guilty of Specification 1 (as renumbered) of Additional Charge II (as redesignated). The promulgating order is hereby corrected accordingly.FAUST—ARMY 20090080

2 UCMJ]. The court sentenced appellant to a bad- conduct discharge, confinement for thirty months, and reduct ion to the grade of E-1. 2 The convening au thority approved only so much of the sentence as provided for a bad-condu ct discharge, confinement for twenty-eight months, and reduction to the grade of E- 1. Appellant was credited with six days of confinem ent credit against the sentence to confinement.

On 21 November 201 1, this court issued a decisi on in this ca se, summarily affirming the findi ngs and sentence. United States v. Faust , ARMY 20090080 (Army Ct. Crim. App. 21 Nov. 2011). On 11 July 2012, our supe rior court reversed the portion of our decision as to Specifications 1 and 2 of Charge V, an d as to the sentence, and affirmed our decision as to the remaining charges and specifications.
United States v. Faust , 71 M.J. 360 (C.A.A.F. 2012). The court returned the record of trial to The Judg e Advocate General of the Army fo r remand to this court upon
consideration of United States v. Humphries , 71 M.J. 209 (C.A.A.F. 2012). Id

. Consequently, appellant’s case is once ag ain before this court for review under Article 66, UCMJ.

In Specifications 1 and 2 of Charge V, appellant was charged with bribery in violation of Article 134, UCMJ. See Manual for Courts-Martial

, United States (2008 ed.), pt. IV, ¶ 66.b. The bribery specifications fail to allege the terminal elements of prejudice to go od order and discipline or serv ice-discrediti ng conduct.

Pursuant to United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011), United States v.
Ballan , 71 M.J. 28 (C.A.A.F. 2012), and Humphries , it was error to omit the
terminal elements from th ese specifications.

Under the totality of the circumstances in this case, we conclude that the
omission of the terminal elements from the bribery specifications materially prejudiced appellant’s substantial right to no tice. UCMJ art. 59(a); Humphries

, 71 M.J. at 215. There is nothing in the record to satisfactorily establish notice of the need to defend against a terminal element, and the evidence was controverted as to
at least one clause of Article 134, UCMJ. See Humphries , 71 M.J. at 215–16 (holding that to assess prej udice, “we look to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the
element is ‘essen tially uncontrove rted’” (citing United States v. Cotton , 535 U.S. 625, 633 (2002); Johnson v. United States , 520 U.S. 461, 470 (1997))). Accordingly, we must disappr ove the findings of guilty as to the Article 134, UCMJ, bribery offenses pr eviously affirmed.

However, we are confident “that, absent a ny error, the sent ence adjudged
would have been of at l east a certain severity.” United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986). In this case, the penalty landscape is minimally changed, as

2 The promulgating orde r incorrectly states that the co urt also adjudged a forfeiture of all pay and allowances. The promulgati ng order is hereby co rrected accordingly.FAUST—ARMY 20090080

3 appellant would face a maximu m sentence to confinement of twenty-six years for the remaining charges. 3 In addition, the facts concer ning the bribery specifications
herein set aside woul d nonetheless have b een before the military judge, because appellant was also charged w ith and convicted of a conspiracy to commit those very same bribery offenses. Therefore, in light of the remaining char ges and their serious

nature, we are c onfident the court would have adjudged a sent ence of at least a badconduct discharge, confinement for twenty-e ight months, and redu ction to the grade
of E-1.

CONCLUSION

On consideration of the entire record, and in light of Humphries , the findings of guilty of Specifications 1 and 2 of Ch arge V, and Charge V, are set aside and those specifications are dismissed without prejudice. Reassess ing the sentence on the basis of the error noted, th e entire record, and in acco rdance with the principles
of Sales and United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Bake r in his concurri ng opinion in Moffeit , the approved
sentence is AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

3 The military judge merged th ree of the four extortion sp ecifications for sentencing purposes, and he sepa rately merged the tw o conspiracy to commit bribery offenses for sentencing purposes. MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: