When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

• Looking at the context of the word or term in the statute. This means considering the other words and phrases in the statute, as well as the overall purpose of the statute.
• Considering the legislative history of the statute. This includes looking at the bill drafts, committee reports, and other materials that were created during the legislative process.
• Considering relevant case law. This includes looking at how other courts have interpreted similar words and terms in other statutes.

The court will use these tools to interpret the ambiguous word or term in a way consistent with the statute’s overall purpose. Readers should also be aware of Scalia & Garner’s excellent book–Reading the Law, for deep dives into the rules and their complexities. As military defense counsel, we have a copy handy on our bookshelf.

It is important to note that the rules of statutory interpretation are complex and no single rule can be applied to all cases. Courts will often weigh different factors when interpreting a statute, including the plain meaning of the text, the context of the statute, the legislative history of the statute, and relevant case law.

A specific case-–United States v. Cabuhat

Over the last few years, Congress has made life difficult for military defense counsel, actually all lawyers practicting military justice, because of the numerous changes to the definition of what is or is not a crime.

Before a description of Cabuhat, what does (Google) Bard say The phrase “in the presence of” means in the same place as and close enough to be seen or heard. It can be used to describe a physical presence, such as when you are sitting in a room with someone.’

Cabuhat, assigned to the 86th Aircraft Maintenance Squadron, Ramstein, Germany, was sentenced to 30 years confinement in June 2021. He plead guilty to SA of a child, wrongfully photographing the child, and viewing and possessing CP.

Cabuhat was arrested in 2021 after an Air Force Office OSI investigation. Cabuhat SA a child on many times and had photographed the person during the abuse. He also had a large collection of CP.

Cabuhat pleaded guilty to all charges in June 2021. The military judge sentenced him to 30 years (to be served at the U.S. Disciplinary Barracks, Fort Leavenworth, KS), a dishonorable discharge, reduction to E-1, and mandatory SOR.

The central issue in the case is the meaning of “in the prescence of.” This can be important when the parties are separated and are communicating via Skype, WhatsApp, FaceTime or similar application.

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Likewise, given the victim’s subsequent testimony that the “price [she] had to pay” to attend the football game was submitting to sodomy [*13] by appellant, her statements were res gestae to the admissible Mil. R. Evid. 413 post-football game sexual assault evidence. See United States v. Metz, 34 M.J. 349, 351 (C.M.A 1992) (holding that res gestae evidence is admissible to place evidence in context); United States v. Gaddy, ARMY 21050227, 2017 CCA LEXIS 179, at *5 (Army Ct. Crim. App. 20 Mar. 2017) (summ. disp.) (“When conduct is inexorably intertwined with the alleged offense itself, it is not ‘other sexual behavior,’ but rather becomes part of the res gestae of the offense. That is, the testimony ‘was admissible as part of the same transaction as the assault.”) (citing United States v. Peel, 29 M.J. 235, 239 (C.A.A.F. 1989)).

United States v. Moore, No. ARMY 20140875, 2022 CCA LEXIS 140, at *12-13 (A. Ct. Crim. App. Mar. 7, 2022).

Res gestae evidence is vitally important in many trials. * Id. at 393. See also United States v. Peel, 29 M.J. 235, 239 (CMA 1989). It enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation: Indeed, a rule limiting the admissibility of testimony like that of [victim] would provide an inducement to prefer more charges in order to avoid lack of continuity in the evidence received. At a time when multiple charges for a single transaction are already common place as a means for meeting the exigencies of proof, we are not anxious to provide an added inducement for overcharging.

United States v. Metz, 34 M.J. 349, 351 (C.A.A.F. 1992).

He does, in his proposal, make the offense a specific intent one (to which an accused’s level of intoxication may be a defense), and he does acknowledge “there will likely be constitutional challenges to the proposed crime (e.g., void for vagueness, notice, or overbreadth).”

Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

So, here is some relevant activity regarding possible changes to the federal rules of evidence.

Invitation for Comment on Evidence Rule 801(d)(1)(A)

As part of its ongoing work, the Advisory Committee on Evidence Rules is considering a possible amendment to Rule 801(d)(1)(A) that would provide for substantive admissibility of more prior inconsistent statements than is currently permitted under the Rule. The Committee invites comment from members of the bench, bar, and public on their experience with the rule and potential rule amendment ideas that have been identified by the Committee. Please submit any comments by August 31, 2017 to Rules Comments@ao.uscourts.gov(link sends e-mail). For further information, please see Tab 3 of the meeting materials for the Committee’s spring 2017 meeting.

• Invitation for Comment from Advisory Committee on Rules of Evidence (July 6, 2017) (pdf).

PRELIMINARY DRAFT OF . . . Evidence Rule 807, at 67.

See here for the Notice of the opportunity to comment, no later than February 2018. Important changes or additions seem to be:

• the court determines that it is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and any evidence corroborating the statement; and
• it is offered as evidence of a material fact;
• it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;
• the party offering the hearsay has given reasonable prior written notice.

D. Whenever the Commonwealth intends to introduce expert opinion testimony at trial, the attorney for the Commonwealth shall notify in writing the accused of the Commonwealth’s intent to present such testimony not later than 14 days before trial, or as otherwise ordered by the court. The notice shall include the witness’s name and contact information, a summary of the witness’s qualifications, the substance of the facts and opinions to which the witness is expected to testify, a summary of the grounds for each opinion, and copies of written reports, if any, prepared by the witness.

There is a reciprocal requirement for the defense. The new VA rule is consistent with federal practice under Fed. R. Crim. Pro 16(a)(G), and with then Judge D. Vowell (Army) in her court-martial scheduling orders.

J. Each party shall provide to the opposing party a written list of names and addresses, if available, of all witnesses expected to testify at trial. Disclosure of rebuttal and surrebuttal witnesses is not required under this subsection. The Commonwealth shall provide a list no later than seven days before trial; the accused shall provide a list no later than three days before trial. Upon motion of either party, the court may modify the requirements of this subsection for good cause shown.

In military cases, this can be an issue where the list is not required until three days before trial. Anyone received a government witness list on Friday, before the Monday trial, and had to deal with a lengthy list of people not necessarily identified through discovery or investigative reports–huuuum? And then have to figure out if you need additional witnesses or investigation of your own? And then tried to get a delay to deal with it—huuum?

K. Upon indictment, waiver of indictment, or return of information, or prior to entry of a guilty plea or plea of nolo contendere, whichever first occurs, the attorney for the Commonwealth shall disclose to the accused all information in its possession, custody, or control that tends to negate the guilt of the accused, mitigate the offense charged, or reduce punishment, subject to modification or limitation by the court. Information that tends to impeach the Commonwealth’s witnesses shall be produced no later than seven days prior to the date scheduled for trial. The duty to disclose under this subsection shall not require any request, demand, or notice by the accused and shall be continuing in nature, as otherwise required by law.

The obligation to provide Brady material is an ongoing issue and has been addressed by some federal courts regarding IAC claims; it allows an accused to make an informed decision. I’m not sure it’s a big issue in the military because of how PTA’s are timed or negotiated, but it would be a welcome reform.

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

A unanimous court found that the military judge erred.

The accused was charged under Art. 130, UCMJ, with housebreaking by entering the 3rd Brigade Special Troops Battalion motor pool at Fort Benning, Georgia, intending to steal batteries. The motor pool “is a concrete lot completely surrounded by a fence. . . used for the storage and maintenance of the military property, including vehicles.” Slip op. at 3. The CAAF finds that:

Both the commonsense meaning of “structure” within a housebreaking offense and the limiting language of the [Manual for Courts-Martial] leave us with no doubt that an open-air fenced area like the 3rd BTSB motor pool does not fall within the scope of Article 130, UCMJ, because it is not a structure in the nature of a building or dwelling.

Slip op. at 4. According to the court, you can’t take a piece of land, put a fence around it, and then call it a structure similar to a house, building, or home.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

https://www.justice.gov/usam/title-9-criminal

The probable cause standard is the same standard as that required for the issuance of an arrest warrant or a summons upon a complaint (See Fed. R. Crim. P. 4(a)), for a magistrate’ s decision to hold a defendant to answer in the district court (See Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provis ions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a Federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well.

And the Criminal Resource Manual.

There seems much in them that could be copied almost word for word.

And perhaps now it is time to adopt Rule 5.1, Fed. R. Crim. Pro., either by statute or executive order? IMHO, the President can amend R.C.M. 405, through the UCMJ art. 36 power, and adopt a rule similar to that found in federal district court.

https://www.law.cornell.edu/rules/frcrmp/rule_5.1

(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

Under federal practice, a USA can still prosecute by restarting with new evidence should it arrive later and the prosecution not being barred by the statute of limitations.

Mr. Becker takes on the amount of damage done to military justice and the truth-seeking process because of the changes to Article 32 proceedings.

The notice of the meeting and the proposals can be found at 74 Fed. Reg. 47785.

For those not attending the meeting comments can be submitted in writing

/NIMJ.