UNITED STATES ARMY COURT 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 Advocate (pretrial) 

Colonel Randy T. Kirkvold, Staff Judge Advocate (post-trial) 

For Appellant: Captain James S. Trieschman, Jr., JA (argued); Lieutenant Colonel 

Imogene M. Jamison, JA; Major 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 Michael E. Mulligan, 

JA; Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain 

Christopher B. Witwer, JA (on brief). 

8 January 2013 

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SUMMARY DISPOSITION ON REMAND 

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Per Curiam: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to mixed pleas, of conspiracy to commit extortion, conspiracy to commit 

bribery (two specifications), disobeying a superior commissioned officer, violating a 

lawful general order, larceny,1 extortion (four specifications), and bribery (two 

specifications), in violation 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 incorrectly reflects that appellant was convicted of two 

specifications of larceny: Specifications 1 and 2 (both as renumbered) of Additional 

Charge II (as redesignated). However, 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 reduction to the grade of E-1.2

 The convening authority approved 

only so much of the sentence as provided for a bad-conduct discharge, confinement 

for twenty-eight months, and reduction to the grade of E-1. Appellant was credited 

with six days of confinement credit against the sentence to confinement. 

On 21 November 2011, this court issued a decision in this case, summarily 

affirming the findings and sentence. United States v. Faust, ARMY 20090080 

(Army Ct. Crim. App. 21 Nov. 2011). On 11 July 2012, our superior court reversed 

the portion of our decision as to Specifications 1 and 2 of Charge V, and 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 Judge Advocate General of the Army for 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 again 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 good order and discipline or service-discrediting 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 these 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 notice. 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 prejudice, “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 ‘essentially uncontroverted’” (citing United States v. Cotton, 535 U.S. 

625, 633 (2002); Johnson v. United States, 520 U.S. 461, 470 (1997))). 

Accordingly, we must disapprove the findings of guilty as to the Article 134, UCMJ, 

bribery offenses previously affirmed. 

However, we are confident “that, absent any error, the sentence adjudged 

would have been of at least 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 order incorrectly states that the court also adjudged a forfeiture 

of all pay and allowances. The promulgating order is hereby corrected accordingly. 
FAUST—ARMY 20090080 

3

appellant would face a maximum sentence to confinement of twenty-six years for the 

remaining charges.3

 In addition, the facts concerning the bribery specifications 

herein set aside would nonetheless have been before the military judge, because 

appellant was also charged with and convicted of a conspiracy to commit those very 

same bribery offenses. Therefore, in light of the remaining charges and their serious 

nature, we are confident the court would have adjudged a sentence of at least a badconduct discharge, confinement for twenty-eight months, and reduction 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 Charge V, and Charge V, are set aside and 

those specifications are dismissed without prejudice. Reassessing the sentence on 

the basis of the error noted, the entire record, and in accordance 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 Baker in his concurring opinion in Moffeit, the approved 

sentence is AFFIRMED. 

 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

 

3

 The military judge merged three of the four extortion specifications for sentencing 

purposes, and he separately merged the two conspiracy to commit bribery offenses 

for sentencing purposes. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: