UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and LEVIN1

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant LEROY STRAKER, JR. 

United States Army, Appellant 

ARMY 20160476 

Headquarters, United States Army Alaska 

Sean F. Mangan, Military Judge (arraignment) 

Kenneth W. Shahan, Military Judge (trial) 

Lieutenant Colonel Rana D. Wiggins, Acting Staff Judge Advocate (pretrial) 

Colonel Roseanne M. Bennett, Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Captain Benjamin A. 

Accinelli, JA (on brief); Lieutenant Colonel Tiffany M. Chapman, JA; Captain 

Patrick G. Hoffman, JA; Captain Benjamin A. Accinelli, JA (on reply brief). 

For Appellee: Colonel Tania M. Martin, JA; Major Cormac M. Smith, JA; Captain 

Cassandra M. Reposo, JA (on brief). 

24 August 2018 

--------------------------------- 

MEMORANDUM OPINION 

--------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

LEVIN, Judge: 

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

contrary to his pleas, of one specification of conspiring to commit prostitution and 

one specification of a general disorder for assisting another in engaging in sexual 

intercourse with another for hire, in violation of Articles 81 and 134, Uniform Code 

of Military Justice [UCMJ], 10 U.S.C. §§ 881, 934 (2012). The military judge 

sentenced appellant to a bad-conduct discharge, eight months confinement, and 

reduction to the grade of E-1. The military judge granted appellant 261 days credit 

against confinement pursuant to Article 13, UCMJ, and United States v. Allen, 17 

 

1

 Judge Levin decided this case while on active duty. 
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2 

M.J. 126 (C.M.A. 1984). The convening authority approved seven months of 

confinement and otherwise approved the sentence as adjudged. 

This case comes before us for review under Article 66, UCMJ. First, 

appellant asserts that the military judge erred, creating a fatal variance by excepting 

and substituting words in the Article 134 offense. We disagree, but we grant relief 

on other grounds. Appellant’s second assignment of error, challenging the legal and 

factual sufficiency of the conspiracy offense, deserves discussion but not relief.2

BACKGROUND 

A. Sergeant Straker’s Misconduct 

Between about March 2014 and about July 2014, appellant conspired with LM 

to engage in prostitution. Among other things, appellant provided security and 

handled finances for LM while she worked as a prostitute. On one occasion in April 

2014, LM met a client in a Fairbanks hotel. The client was LM’s ex-boyfriend, CC, 

and he made unwanted sexual contact with LM before she called appellant for 

assistance. Appellant ran to the room and confronted CC with a gun in his 

waistband. Appellant and CC struggled, and the gun fired once in the hotel hallway 

before an off-duty police officer stopped the altercation and held both parties at 

gunpoint until Alaska State Troopers arrived at the scene.3

B. Sergeant Straker’s Court-Martial 

On 6 July 2016, appellant proceeded to trial on a charge of, among others, 

pandering by procuring an act of prostitution: 

[In that he] “did, at or near Fairbanks, Alaska, between on 

or about 20 March 2014 and 30 July 2014, wrongfully 

procure Ms. [LM] to engage in acts of sexual intercourse 

for hire and reward with persons to be directed to her by 

the accused, such conduct being to the prejudice of good 

order and discipline in the armed forces and of a nature to 

bring discredit upon the armed forces,” (emphasis added). 

 

2

 We have reviewed the matters personally raised by appellant pursuant to United 

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they merit no relief. 

3

 Appellant was charged with wrongful discharge of a firearm, negligent discharge of 

a firearm, and assault with a dangerous weapon. The military judge acquitted 

appellant of these charges. 
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3 

At trial, appellant maintained that he was LM’s boyfriend, not her panderer, 

and his financial support and protection were part of his duties as a suitor. At the 

conclusion of the government’s case, appellant moved for a finding of not guilty to 

several of the charges pursuant to Rule for Court-Martial (R.C.M.) 917. Relevant to 

this appeal, the military judge partially granted appellant’s R.C.M. 917 motion to the 

pandering charge, finding appellant not guilty of the language “with persons to be 

directed to her by the accused.” 

Later, the military judge announced findings, substituting the words “assist 

[LM] in engaging,” for the excepted words “procure Ms. [LM] to engage in,” as 

shown below: 

[In that he] “did, at or near Fairbanks, Alaska, between or on about 20 March 

2014 and 30 July 2014, wrongfully procure Ms. L.M. to engage in assist LM 

in engaging in acts of sexual intercourse for hire and reward with persons to

be directed to her by the accused, such conduct being to the prejudice of good 

order and discipline in the armed forces and of a nature to bring discredit 

upon the armed forces,” (emphasis added to show substitutions).

The military judge announced that he considered the revised offense to be that 

of a general disorder and neglect offense under Article 134. 

LAW AND DISCUSSION 

A. Fatal Variance and Failure to State an Offense 

The Rules for Courts-Martial authorize findings by exceptions and 

substitutions. “Minor variances that do not change the nature of the offense are not 

necessarily fatal.” United States v. Lovett, 59 M.J. 230, 235 (C.A.A.F. 2004) 

(citing United States v. Hunt, 37 M.J. 344, 347-48 (C.M.A. 1993). However, a 

variance “may not be used to substantially change the nature of the offense.” 

R.C.M. 918(a)(1). If it does so, such a variance is material. United States v. Finch, 

64 M.J. 118, 121 (C.A.A.F. 2006). 

 When, as here, defense counsel does not object to the exceptions and 

substitutions at trial, appellant must show that the variance was material and that it 

substantially prejudiced him. Hunt, 37 M.J. at 347. We review whether there was a 

fatal variance de novo. United States v. Treat, 73 M.J. 331, 335 (C.A.A.F. 2014). 

 

 In Lovett, our superior court found a fatal variance when the court members, 

by exceptions and substitutions, found the appellant guilty of a “general 

disorder” offense, under Article 134, UCMJ. Lovett had been charged with 

wrongfully soliciting, under Article 134, UCMJ, the murder of his wife in violation 

of Article 118, UCMJ, to prevent her from testifying against him. Lovett, 59 M.J. at 
STRAKER—ARMY 20160476 

4 

236. Our superior court found the appellant’s defense team “channeled its efforts in 

the direction of solicitation of premeditated murder” and the appellant “could not 

have anticipated conviction for a lesser-included offense of soliciting a person to 

wrongfully prevent [his wife] from appearing in a judicial proceeding.” Id. 

Appellant argues the finding by exceptions and substitutions resulted in his 

being convicted of a different offense involving a different theory than that 

described in the specification upon which he was arraigned. Appellant was charged 

with pandering by procuring, which, as he points out, contemplates wrongful actions 

by a principal. He was convicted of assisting, which involves the actions of an 

accomplice. Accordingly, the defense channeled its efforts at trial to raise doubt 

about any business arrangement wherein appellant persuaded others to have sexual 

intercourse with LM. 

The excepted and substituted finding did not increase the seriousness of 

the offense and did not increase the maximum punishment.4

 Appellant’s conviction 

for assisting another in prostitution was, however, a conviction of a crime different 

from that against which he defended. The charged offense alleged that appellant 

persuaded others to pay for the services of a prostitute. The offense of which 

appellant was convicted, however, only alleged he otherwise assisted the prostitute. 

We conclude the findings by exceptions and substitutions constituted a material 

variance. 

 

“Even where there is a variance in fact, the critical question is one of 

prejudice.” United States v. Lee, 1 M.J. 15, 16 (C.M.A. 1975) (citing United States 

v. Craig, 8 U.S.C.M.A. 218, 24 C.M.R. 28 (1957); United States v. Hopf, 1 

U.S.C.M.A. 584, 5 C.M.R. 12 (1952)). Prejudice from a material variance can arise 

by “(1) putting ‘[the appellant] at risk of another prosecution for the same conduct,’ 

(2) misleading him ‘to the extent that he has been unable adequately to prepare for 

trial,’ or (3) denying him ‘the opportunity to defend against the charge.’” United 

States v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (quoting United States v. 

Teffeau, 58 M.J. 62, 67 (C.A.A.F. 2002)). Under the framework articulated in 

Marshall, the variance in this case did not prejudice appellant. 

First, there is no risk that appellant will be prosecuted again for the same 

offense. The double jeopardy protection has attached to the offense involving 

prostitution. See Article 44(c), UCMJ, 10 U.S.C. § 844(c); United States v. Easton, 

71 M.J. 168, 170 (C.A.A.F.2012). 

 

4

 Appellant’s maximum punishment for the general disorder offense included four 

months of confinement, whereas the maximum punishment for pandering by 

procuring an act of prosecution included confinement for five years and a 

dishonorable discharge. 
STRAKER—ARMY 20160476 

5 

Second, appellant was able to prepare adequately for trial on the general 

disorder offense of assisting LM in engaging in sexual acts for hire and reward. 

Appellant was also charged—and convicted—of conspiracy to engage in prostitution. 

This charge necessarily put appellant on notice prior to trial that he needed to 

prepare for allegations involving an agreement with LM to engage in prostitution. 

Third, the record reveals appellant’s defense theory included an innocent 

explanation for appellant’s actions, which were those of a boyfriend rather than 

someone involved in sexual acts for hire. Appellant’s defense necessarily included 

defending against the allegations that he had an agreement with LM to engage in 

sexual acts for hire and reward and further defending against an overt act in 

furtherance of that agreement. 

Our discussion, however, does not end with our finding no prejudice from the 

variance. Though not raised by either party, the Government may not charge a 

“novel” offense if the offense is otherwise listed as an Article 134, UCMJ, offense. 

United States v. Reese, 76 M.J. 297, 302 (C.A.A.F. 2017). In other words, if an 

offense is “already listed inside [Article 134’s] framework,” it may not be charged 

as a “novel” general disorder that reduces the government’s burden of proof. Id. See 

also United States v. Guardado, 77 M.J. 90, 95 (C.A.A.F. 2017). Here, the 

specification of which appellant was convicted required a lower burden of proof than 

that with which he was originally charged. 

The elements of pandering by procuring an act of prostitution are as follows: 

(a) That the accused . . . procured a certain person to 

engage in an act of sexual intercourse for hire and reward 

with a person to be directed to said person by the accused; 

(b) That this . . . procuring was wrongful; and 

(c) That, under the circumstances, the conduct of the 

accused was to the prejudice of good order and discipline 

in the armed forces or was of a nature to bring discredit 

upon the armed forces. 

Manual for Courts-Martial, United States (2012 ed.) [MCM], pt. IV, ¶ 97.b.(3). 

As discussed above, the charged offense alleged that appellant wrongfully 

persuaded someone to engage in a sexual act. The general disorder offense of which 

appellant was convicted involved only an allegation that he assisted someone who 

was engaging in such conduct. The novel offense lessened the government’s burden 

and involved conduct that is already listed inside the article’s framework. 

Consequently, the offense is barred from prosecution. See Guardado, 77 M.J. at 95. 
STRAKER—ARMY 20160476 

6 

We therefore conclude that Specification 1 of Charge III fails to state an 

offense under the UCMJ and must be dismissed. 

B. Factual and Legal Sufficiency 

Next, appellant contends that the evidence was factually and legally 

insufficient to prove that his conduct was prejudicial to good order and discipline.5 

As a remedy, appellant requests that we strike the offending language from the 

specification and reassess his sentence. Notwithstanding the Government’s 

concession to the first request, we decline to do either. 

The military judge found appellant guilty of conspiracy to commit prostitution 

in violation of Article 81, UCMJ. Specifically, the court found that appellant: 

 

Did, at or near Fairbanks, Alaska, between on or about 20 

March 2014 and 30 July 2014, conspire with Ms. L.M. to 

commit an offense under the Uniform Code of Military 

Justice, to wit: prostitution, and in order to effect the 

object of the conspiracy[,] Ms. [LM] did procure persons 

to engage in sexual intercourse with Ms. [LM] for money, 

such conduct being to the prejudice of good order and 

discipline in the armed forces and of a nature to bring 

discredit upon the armed forces. 

The test for factual sufficiency is “whether, after weighing the evidence in the 

record of trial and making allowances for not having personally observed the 

witnesses” we are “convinced of the accused’s guilt beyond a reasonable doubt.” 

United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). 

The test for legal sufficiency is “whether considering the evidence in the light 

most favorable to the prosecution, a reasonable fact finder could have found all the 

essential elements beyond a reasonable doubt.” United States v. Humphreys, 57 M.J. 

83, 94 (C.A.A.F. 2002) (citations and internal quotation marks omitted). Weighing 

questions of legal sufficiency, this court is “bound to draw every reasonable 

inference from the evidence of record in favor of the prosecution.” United States v. 

Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted). 

Here, the government charged appellant with conspiracy. A criminal 

conspiracy pled under Article 81, UCMJ, requires: “[t]hat, while the agreement 

continued to exist, and while the accused remained a party to the agreement, the 

 

5

 In light of the relief granted to appellant in his first assignment of error, we 

address this issue only with respect to the Article 81 offense.
STRAKER—ARMY 20160476 

7 

accused or at least one of the conspirators performed an overt act for the purpose of 

bringing about the object of the conspiracy.” MCM, pt. IV, ¶ 5.b.(2). 

 Although the Government need not have charged the terminal element, it did 

so here. See United States v. Norwood, 71 M.J. 204, 205 (C.A.A.F.2012) (“in order 

to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a 

specification is not required to expressly allege each element of the predicate 

offense.”). Consequently, appellant frames this issue as a challenge to the factual 

and legal sufficiency of his conviction, arguing that the evidence failed to prove that 

his conduct was to the prejudice of good order and discipline. 

 “The crux of the issue is whether a fact constitutes an element of the crime 

charged, or a method of committing it.” United States v. Brown, 65 M.J. 356, 358-

59 (C.A.A.F. 2007). If a fact is a theory of liability and not an element, then general 

verdicts are allowed when multiple theories of liability are alleged: 

With minor exceptions for capital cases, a ‘court-martial 

panel, like a civilian jury, returns a general verdict and 

does not specify how the law applies to the facts, nor does 

the panel otherwise explain the reasons for its decision to 

convict or acquit.’ In returning such a general verdict, a 

court-martial panel resolves the issue presented to it: did 

the accused commit the offense charged, or a valid lesser 

included offense, beyond a reasonable doubt? A factfinder 

may enter a general verdict of guilt even when the charge 

could have been committed by two or more means, as long 

as the evidence supports at least one of the means beyond 

a reasonable doubt. 

Brown, 65 M.J. at 359 (quoting United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 

1997) (other internal citation omitted). 

To determine whether a general verdict on a specification alleging multiple 

theories of liability is proper, we must first determine if the relevant statute creates 

separate elements, or merely different theories of liability. In United States v. 

Medina, our superior court held that the three clauses of Article 134, UCMJ’s 

terminal element are alternative theories of criminality. 66 M.J. 21, 26-28 (C.A.A.F. 

2008). 

In this case, therefore, a general finding of guilty under Article 81 was not 

dependent on the military judge finding the appellant guilty under both theories, but 

rather at least one theory. See, e.g. United States v. Williams, __ M.J. __ (Army Ct. 

Crim. App. 21 Aug. 2018). It was not necessary for the military judge to return a 

verdict as to only those theories of liability proven beyond a reasonable doubt, as 
STRAKER—ARMY 20160476 

8 

long as the Government proved all of the elements of the offense. See United States 

v. Vidal, 23 M.J. 319, 325 (C.M.A. 1987). 

This court, of course, is bound to review the facts of this case not just for 

legal sufficiency, but also for factual sufficiency under Article 66(c), UCMJ. In this 

case, while there was overwhelming evidence that appellant’s conduct was service 

discrediting, we agree that there is insufficient evidence that appellant’s conduct 

was prejudicial to good order and discipline. 

This does not change the form of the verdict, however. “A factfinder may 

enter a general verdict of guilt even when the charge could have been committed by 

two or more means, as long as the evidence supports at least one of the means 

beyond a reasonable doubt.” Brown, 65 M.J. at 359. Accordingly, we affirm the 

trial court’s general verdict as it stands.6

CONCLUSION 

Appellant’s conviction of Specification 1 of Charge III and Charge III are 

SET ASIDE. Specification 1 of Charge III and Charge III are DISMISSED. The 

finding of guilty as to Charge IV and its specification is AFFIRMED. 

We are able to reassess the sentence on the basis of the errors noted and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated by our superior 

court in United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. 

Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). 

 Appellant faced a maximum sentence of sixteen months confinement, total 

forfeiture of all pay and allowances, reduction to the grade of E-1, and a 

dishonorable discharge. In evaluating the Winckelmann factors, we first find no 

significant change in the penalty landscape that might cause us pause in reassessing 

appellant’s sentence, as the potential maximum sentence includes one year 

confinement and a dishonorable discharge, a sentence greater than that which the 

military judge imposed, and greater still than that which the convening authority 

approved. Second, we note appellant elected to be tried by a military judge sitting 

alone, so we are confident the sentence would not have changed had appellant been 

found not guilty of Specification 1 of Charge III and Charge III. Third, we find the 

remaining offense captures the gravamen of appellant’s criminal conduct. Finally, 

based on our experience as judges on this court, we are familiar with the remaining 

 

6

 The general verdict neither exaggerates nor misrepresents appellant’s criminality. 

Appellant is guilty of conspiracy to commit prostitution. The theory under which 

appellant was found guilty is irrelevant to the general verdict, so long as at least one 

valid theory was charged and at least one valid theory charged was proven. 
STRAKER—ARMY 20160476 

9 

offense so that we may reliably determine what sentence would have been imposed 

at trial. 

Having conducted this reassessment, we AFFIRM the sentence as approved. 

All rights, privileges, and property, of which appellant has been deprived by virtue 

of that portion of the findings set aside by this decision are ordered restored. See

UCMJ arts. 58a(b), 58b(c), and 75(a). 

Senior Judge MULLIGAN and Judge FEBBO concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: