## UNITED STATES ARMY COURT OF CRIMINALAPPEALS
Before KERN, ALDYKIEWICZ and HAIGHT Appellate Military Judges UNITED STATES, Appellee 

### v. Captain ROBERT A. WARREN United States Army, Appellant ARMY 20100914 Special Operations Command Central Michael J. Hargis, Military Judge Commander Todd C. Huntley, USN, StaffJudge Advocate

ForAppellant: Captain Brandon H. Iriye, JA; Mr. Donald G. Rehkopf, Jr., Esquire (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley, JA; CaptainEdwardJ. Whitford, JA (on brief).

29 August 2013

SUMMARY DISPOSITION
KERN, SeniorJudge: A general court-martial composed ofofficermembers convicted appellant, contrary to his pleas, ofviolating a general order, wrongfully possessing a controlled substance, rape, conduct unbecoming an officer, adultery, and obstruction ofjustice, in violation ofArticles 92, l 12a, 120, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 912a, 920, 933, 934 (2006) [hereinafterUCMJ]. The panel sentenced appellant to a dismissal, confinement for eight years, and to forfeit all pay and allowances. The convening authority approved only so much of the sentence as provided for a dismissal and confinement for seven years and eight months.WARREN-ARMY 20100914 The case is now before this court for reviewunder Article 66, UCMJ. Appellant alleges eight assignments oferror', only one ofwhich merits discussion and relief. In consideration ofour superior court's decision in 

### UnitedStates v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are compelled to set aside the findings ofguilty to specifications I and 2 ofCharge V, the adultery and obstruction of justice specifications charged under Article 134, UCMJ. The specifications do not allege the Article 134, UCMJ, terminal element of conductthat is prejudicial to good order and discipline (Clause 1) or ofa nature to bring discredit upon the armed forces (Clause 2). "Where, as here, a specification neither expressly alleges nor necessarily implies the terminal element, the specification is defective." 

### UnitedStates v. Gaskins, 72 M.J. 225, 232 (C.A.A.F. 2013) (citing 

### UnitedStates v. Fosler, 70 M.J. 225, 229-30 (C.A.A.F. 2011)). However, appellant did not object to the form ofthe specification at trial, and "where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there isplain errorwhich, in most cases will turn on the question ofprejudice." 

### UnitedStates v. Humphries, 71 M.J. 209, 213-14 (C.A.A.F. 2012) (citing 

### UnitedStates v. Cotton, 535 U.S. 625, 631-32 (2002)). Therefore, appellant must demonstrate "the Government's error in failing to plead the terminal element ofArticle 134, UCMJ, resulted in materialprejudice to [appellant's] substantial, constitutional rightto notice." 

### Humphries, 71 M.J. at 215; UCMJ art. 59(a). To assess prejudice, "we look to the record to determine whether notice ofthe missing element is somewhere extant in the trial record, orwhether the element is 'essentiallyuncontroverted.'" 

### Id. at 215-16 (citing 

### Cotton, 535 U.S. at 633;

### Johnson v. UnitedStates, 520 U.S. 461, 470 (1997)). After thoroughly reviewingthe record, we do not find any indication that appellant was on notice ofthe missing terminal element for either specification. The government never proffered its theory ofcriminality with respect to the terminal element, and did not "put on any direct evidence ofthe terminal element." 

### Gaskins, 72 M.J. at 233-34. 

### See also UnitedStates v. Goings, 72 M.J. 202 (C.A.A.F. 2013) (finding the appellant was not prejudiced by the government's failure to pleadthe terminal element because itproffered its theory ofcriminality, presented direct evidence onthe terminal element, and appellantput on a vigorous defense). Based on a totality ofthe circumstances in this case, we are not convinced appellant was placed on sufficient notice ofthe government's theory as to which clause(s) of Article 134, UCMJ, he violated. As a result, appellant's substantial right to notice was materiallyprejudiced by the government's failure to allege the terminal

By separate order, we direct the briefs ofboth appellant and appellee be sealed as both discuss evidence whichwas sealed by the militaryjudge.

2.WARREN-ARMY 20100914 element. 

### See UCMJ art. 59(a). Accordingly, on consideration ofthe entire record and in light of

### Humphries, the findings ofguilty to Specifications 1 and 2 ofCharge V and Charge V are set aside. 

### Reassessmentof the Sentence We must now consider and determine whether we can appropriately reassess the sentence with the dismissal ofSpecifications 1 and 2 ofChargeV and Charge V. Ifthis court "can determine that, absent the error, the sentence would have been at least ofa certain magnitude, then [we] may cure the errorby reassessing the sentence instead ofordering a sentencing rehearing." 

### UnitedStates v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) (citing 

### UnitedStates v. Sales, 22 M.J. 305, 308 (C.M.A. 1986)). A "dramatic change in the 'penalty landscape"' lessens our ability to reassess a sentence. 

### UnitedStates v. Riley, 58 M.J. 305, 312 (C.A.A.F. 2003). Ultimately, a sentence canbe reassessed only ifwe "confidently can discern the extent ofthe error's effect on the sentencing authority's decision." 

### UnitedStates v. Reed, 33 M.J. 98, 99 (C.M.A. 1991). Because the error in this case is ofa constitutional magnitude, we "mustbe satisfied beyond a reasonable doubt that

... reassessment [can cure] the error." 

### Doss, 57 M.J. at 185 (citing

### Sales, 22 M.J. at 307). Additionally, we must determine that a sentence we propose to affirm is "appropriate," as required byArticle 66(c), UCMJ. In short, a reassessed sentence must bepurged ofprejudicial error and also mustbe appropriate for the offense and the offender involved. 

### Sales, 22 M.J. at 307-08. In this case, the sentencing landscape does not change with the dismissal of Specifications 1 and 2 ofCharge V and Charge V. The maximumpunishment remains the same, including confinement for life without parole. Viewing the remaining convictions in light ofthis context, we are convincedthat we can reassess the sentence from appellant's trial. We have considered the entire record and the principles of

### Sales and 

### UnitedStates v. Mojfeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion in 

### Moffeit. Among othermatters, we took into account appellant's length ofservice, his family, and his service.record. We also considered the serious nature ofappellant's remaining convictions, to include the gravamen offense ofrape. In addition, we also considered appellant's record ofprior misconduct. In light ofthe foregoing, we are confident beyond a reasonable doubt that appellant would have received a sentence on the remaining convictions ofno less than a dismissal and confinement for seven years and eight months. We find such a sentence is correct in law and fact and, based on the entire record, should be approved. 

### CONCLUSION Specifications 1 and 2 ofCharge V and Charge V are set aside. The remaining findings ofguilty are AFFIRMED. Afterreassessing the sentence onthe

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### WARREN-ARMY 20100914 basis ofthe errornoted above, the submissions ofthe parties, and the entire record, the approved sentence is AFFIRMED. All rights, privileges, and property, ofwhich appellant has been deprived byvirtue ofthatportion ofthe findings set aside bythis decision, are ordered restored. 

### See UCMJ art. 75(a). JudgeALDYKIEWICZ and Judge HAIGHT concur.

FORTHE COURT:

H. SQUIRES JR. Cler ofCourt

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