UNITED STATES, Appellee

                                    v.

                     Michael L. TREAT, Sergeant
                        U.S. Army, Appellant

                              No. 14-0280

                       Crim. App. No. 20110402

       United States Court of Appeals for the Armed Forces

                          Argued May 13, 2014

                        Decided July 16, 2014

OHLSON, J., delivered the opinion of the Court, in which
ERDMANN, J., joined. BAKER, C.J., filed a separate opinion
concurring in the result. STUCKY and RYAN, JJ., each filed
separate dissenting opinions.

                                 Counsel

For Appellant: Major Jacob D. Bashore (argued); Colonel Kevin
Boyle and Lieutenant Colonel Peter Kageleiry Jr. (on brief);
Captain Aaron Inkenbrandt.

For Appellee: Captain Daniel H. Karna (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Major Robert A.
Rodrigues (on brief).

Military Judges:    Jeffery R. Nance and Wendy Daknis



       This opinion is subject to revision before final publication.
United States v. Treat, No. 14-0280/AR


     Judge Ohlson delivered the opinion of the Court.

     We granted review in this case to determine whether the

military judge created a fatal variance and violated Appellant’s

due process rights when she made exceptions and substitutions to

a charge and specification and found Appellant guilty of the

revised charge and specification contrary to his plea.   We hold

that the changes made to the charge and specification

constituted a material variance but did not prejudice Appellant.

We therefore affirm Appellant’s conviction.

     During the relevant time period, Appellant was a Sergeant

(E-5) assigned to the 54th Engineering Battalion in Bamberg,

Germany.   In September 2010, Appellant received orders notifying

him that he was being deployed with his unit to Afghanistan in

mid-November.   However, when the unit deployment occurred,

Appellant was not present.   He later reported he had been

kidnapped by Russian-speaking men during the time of the

deployment, preventing him from being present.   Appellant was

subsequently charged with desertion, missing movement, willfully

disobeying a superior commissioned officer, and making a false

official statement in violation of Articles 85, 87, 90, and 107,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 885, 887,

890, 907 (2006).   Appellant pleaded not guilty to the charges

and elected a judge-alone trial.



                                   2
United States v. Treat, No. 14-0280/AR


     The missing movement charge, in violation of Article 87,

UCMJ, initially stated as follows:

     In that Sergeant Michael L. Treat, U.S. Army, did, at
     or near Bamberg, Germany, on or about 17 November
     2010, through design, miss the movement of Flight
     TA4B702 with which he was required in the course of
     duty to move.

However, at trial the Government’s witnesses could not recall

the flight number of the aircraft on which Appellant’s unit

deployed.   After hearing all the evidence, the military judge

convicted Appellant of the missing movement charge, but only

after excepting the words “Flight TA4B702,” and substituting

therefor the words “the flight dedicated to transport Main Body

1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to

Manas Air Base, Kyrgyzstan.”

     The military judge also convicted Appellant of making a

false official statement in violation of Article 107, UCMJ,

acquitted him of the remaining charges, and sentenced him to a

bad-conduct discharge, confinement for three months, and

reduction to the grade of E-1.   The convening authority approved

the findings and sentence as adjudged.   Upon review the United

States Army Court of Criminal Appeals affirmed, finding that the

exceptions and substitutions were neither material nor

prejudicial.   United States v. Treat, 

, 849 (A. Ct.

Crim. App. 2013).   On Appellant’s petition we granted review of

the following issue:

                                 3
United States v. Treat, No. 14-0280/AR


     WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF
     APPELLANT’S DUE PROCESS RIGHT TO NOTICE WHEN THE
     GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT
     OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED
     THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.

United States v. Treat, 

(C.A.A.F. 2014) (order

granting review).    We affirm Appellant’s conviction for the

reasons stated below.


                             BACKGROUND

     Appellant was a combat engineer assigned to the 54th

Engineer Battalion, 370th Sapper Company, which was stationed in

Bamberg, Germany.    In September 2010, Appellant was ordered to

deploy to Afghanistan with his unit on or about November 19,

2010.    Appellant’s orders did not include instructions to move

on a particular flight.

     Approximately six weeks before the scheduled departure,

Appellant was informed that he would deploy with Main Body 1 of

the 54th Engineer Battalion on or about November 17, 2010.      He

was also informed that the unit’s actual departure could be

moved forward or backward by forty-eight hours or more.

Ultimately, on November 19, 2010, Appellant’s unit boarded an

aircraft at Ramstein Air Base that was bound for Manas Air Base,

Kyrgyzstan.    Appellant was required to be on that flight, but he

was not present at company formation and did not get on the

plane.



                                  4
United States v. Treat, No. 14-0280/AR


     When Appellant returned to post the next day, he was

immediately stopped by the military police.   Appellant later

told investigators that he had been abducted at a German bar by

Russian-speaking men on November 15, 2010, held for five days in

an unknown location and for unknown reasons, and then suddenly

released on November 20, 2010, which was after his unit had

deployed.   Appellant was subsequently charged with desertion,

missing movement by design, willfully disobeying a superior

commissioned officer, and making a false official statement.

     At the military judge-alone trial, the Government’s theory

of the case was that several days prior to his unit’s departure,

Appellant intentionally left post, holed up at a local inn, and

waited until he was confident that his unit had left Germany.

The Government asserted that Appellant’s purported kidnapping

was an elaborate story that Appellant invented in order to avoid

the deployment and to avoid being disciplined for his absence.

     In support of its case, the Government put First Sergeant

Barker of the 370th Sapper Company on the stand.   Barker

testified that he first became aware Appellant was missing on

the morning of November 17, when Appellant did not show up for

accountability formation.   Barker stated that Appellant remained

missing and was not with the 370th on November 19.   Barker

testified that just before the company boarded the bus from

Bamberg to Ramstein Air Base, he used the flight manifest to

                                 5
United States v. Treat, No. 14-0280/AR


call the roll.    Barker noted that the flight number was printed

on the left-hand side of the manifest, which listed each soldier

assigned to the flight by rank, name, and Social Security

number.   Barker explained that he could not remember the

specific flight number, but after looking at the manifest shown

to him by the trial counsel, he testified that the 370th,

including Appellant, was assigned to fly on flight TA4B702.

     On cross-examination trial defense counsel questioned

Barker’s recollection of the flight number.     Defense counsel

asked Barker:    “[Y]ou don’t remember the flight number other

than . . . looking at the document, right?”     Barker answered:

“No, ma’am.”    On redirect, trial counsel tried to ask whether

Barker had any reason to believe that the actual flight number

was not the number printed on the manifest he had consulted, but

the defense objected.    The military judge then asked Barker:

“[D]o you have any way of knowing what the [flight] number was

compared to what you just looked at [on the flight manifest]?”

Barker responded:    “No, ma’am.”   The military judge sustained

the defense’s objection and Barker was excused.

     Next, the Government called Appellant’s company commander,

Captain Looney, to testify.    Trial counsel asked Looney whether

he had traveled to Afghanistan on the same flight with his

company, and Looney stated that he did.     Then there was the



                                    6
United States v. Treat, No. 14-0280/AR


following exchange between trial counsel, Looney, and the

military judge:

     [TC]:   Do you remember what the flight number of that
             plane was?

     [WIT]: I do not recall off the top of my head.

     [TC]:   Is there anything that might jog your memory?

     [WIT]: Like the manifest roster would be something that
            would have it.

     TC:     Ma’am, may I approach?

     MJ:     You may. Captain Looney, did you . . . at any
             point know the flight number without referring
             to a document?

     WIT:    No, Ma’am.

     MJ:     Okay. Then    it doesn’t appear as though
             approaching   this witness is going to help
             refresh his   memory because he doesn’t have any
             independent   knowledge of the flight number.

Trial counsel continued to question Looney in an attempt to show

that he knew the flight number at some point in the past but

could no longer remember it without help.     The defense objected

to trial counsel’s second attempt to refresh Looney’s

recollection with a copy of the flight manifest.     The military

judge sustained the objection, and trial counsel moved on to

other topics.

     In addition to First Sergeant Barker and Captain Looney,

the Government also put Appellant’s battalion commander and

squad leader on the stand.     Neither of them testified about the



                                   7
United States v. Treat, No. 14-0280/AR


specific flight number of the aircraft on which Main Body 1 of

the 54th Engineer Battalion deployed.

     The Government also presented a soldier who testified that

Appellant said that he did not deploy with his unit because he

felt like his squad leader, his platoon sergeant, and First

Sergeant Barker “were out to get him.”   The Government’s final

witness was a soldier who testified that Appellant had told him

that the alleged kidnapping by Russians “didn’t happen,” and

that during the time of the deployment Appellant “just hid out

for a few days.”   At the close of the Government’s case, defense

counsel did not move pursuant to Rule for Courts-Martial

(R.C.M.) 917 for a finding of not guilty.

     The defense’s theme throughout the trial was “the truth is

stranger than fiction.”   On cross-examination of the

Government’s witnesses, trial defense counsel elicited testimony

that Appellant transferred into the 370th knowing that the

company was about to deploy, that Appellant did not attempt to

get out of the deployment during the pre-deployment training,

that Appellant had previously deployed to Iraq, and that

Appellant was packed and ready to leave for Afghanistan.

     During the defense case, trial defense counsel called three

witnesses.   The first, Appellant’s former platoon sergeant,

testified that Appellant knew he would be deploying when he

transferred into the 54th Engineering Battalion.   The second

                                 8
United States v. Treat, No. 14-0280/AR


witness, who also was a sergeant, testified to an incident in

which he was grabbed outside a Bamberg bar, put into the back of

a car, robbed, and left several miles away approximately five

hours later.   The third witness, a detective with the Bamberg

police department, testified that he investigated Appellant’s

alleged kidnapping and found a piece of rope and footprints that

were a possible match for Appellant’s shoes outside of an inn

nearby that matched Appellant’s description of the location

where he had been released.   Appellant did not testify.

     After brief deliberations the military judge announced her

findings.   She found Appellant guilty of making a false official

statement, and not guilty of the charges of desertion and

willfully disobeying a superior commissioned officer.   In regard

to the missing movement offense, Charge II and its Specification

initially read:

     In that Sergeant Michael L. Treat, U.S. Army, did, at
     or near Bamberg, Germany, on or about 17 November
     2010, through design, miss the movement of Flight
     TA4B702 with which he was required in the course of
     duty to move.

     The military judge announced her findings on this charge

and specification as follows:

     Guilty, except the words and figures, “Flight
     TA4B702,” substituting therefor, “the flight dedicated
     to . . . transport Main Body 1 of 54th Engineer
     Battalion from Ramstein Air Base, Germany, to Manas
     Air Base, Kyrgyzstan.” Of the excepted words and
     figures, Not Guilty. Of the substituted words and
     figures, Guilty.

                                 9
United States v. Treat, No. 14-0280/AR


                    APPELLANT’S ARGUMENT ON APPEAL

     Appellant argues that “[t]he military judge’s findings

caused a material variance because she convicted [him] of an

offense not charged after he successfully defended himself on

the charged offense.”    Brief for Appellant at 3, United States

v. Treat, No. 14-0280/AR (C.A.A.F. Mar. 25, 2014).     Appellant

further argues that he “thus suffered prejudice because the

military judge substantially changed the nature of the offense

and denied him the right to prepare and defend against the

specification as convicted.”    

concludes that the military judge’s findings by exceptions and

substitutions constituted a fatal variance, and that this Court

must therefore set aside and dismiss the missing movement charge

and specification, set aside the sentence, and order a sentence

rehearing.

                          STANDARD OF REVIEW

     Whether there was a fatal variance is a question of law

reviewed de novo.    United States v. Salazar, 

, 471

(C.A.A.F. 1996) (“Questions of law are reviewed de novo.”);

United States v. Ivory, 

, 522, 

, 302

(1958) (Quinn, C.J., concurring in the result) (“[W]hether there

was a fatal variance . . . . was a legal question to be decided

by the law officer.”); United States v. Useche, 

, 661

(N-M. Ct. Crim. App. 2012) (“Whether an amended specification

                                  10
United States v. Treat, No. 14-0280/AR


materially deviates from a charged specification is a question

of law we review de novo.”).

     When defense counsel fails to object at trial, we review a

military judge’s findings by exceptions and substitutions for

plain error.   United States v. Finch, 

, 121 (C.A.A.F.

2006).

                            DISCUSSION


     Rule for Courts-Martial (R.C.M.) 918(a)(i) explicitly

authorizes a court-martial to make findings by exceptions and

substitutions.   However, at times this authority lies in tension

with an accused’s constitutional right “to receive fair notice

of what he is being charged with.”   United States v. Girouard,

, 10 (C.A.A.F. 2011); see also Schmuck v. United

States, 

, 717 (1989) (“It is ancient doctrine of

both the common law and of our Constitution that a defendant

cannot be held to answer a charge not contained in the

indictment brought against him.”).

     In the instant case, Appellant acknowledges that the court-

martial had the authority to make findings by exceptions and

substitutions, but also avers that the resulting differences

between the initial charge sheet and the military judge’s

findings constituted a fatal variance because he was not

provided fair notice of the crime he ultimately was convicted of


                                11
United States v. Treat, No. 14-0280/AR


committing. 1   However, it is well established that in order “to

prevail on a fatal variance claim, an appellant must show both

that the variance was material and that he was substantially

prejudiced thereby.”    United States v. Marshall, 

,

420 (C.A.A.F. 2009) (emphasis added).

     It is both clear and uncontested that a variance occurred

in the instant case.    Therefore, the first question this Court

must answer is whether the exceptions and substitutions made by

the military judge constituted a “material” variance.    The test

for whether a variance is material is whether it “substantially

changes the nature of the offense, increases the seriousness of

the offense, or increases the punishment of the offense.”

(citation and internal quotation marks

omitted).   Appellant does not argue, and there is no basis to

conclude, that the military judge’s exceptions and substitutions

increased the seriousness of the offense or increased the

punishment of the offense.    Rather, Appellant solely argues that

the military judge’s exceptions and substitutions substantially

changed the nature of the offense.



1
  We do not find that, pursuant to the provisions of R.C.M.
905(e), waiver applies here. First, during his closing argument
on the merits, Appellant challenged the Government’s theory of
the case regarding the flight number. Second, the Army Court of
Criminal Appeals held that Appellant did not waive this issue at
trial, and the Government did not appeal this adverse decision
to this Court.
                                 12
United States v. Treat, No. 14-0280/AR


     It is a close question as to whether the military judge’s

exceptions and substitutions did, indeed, substantially change

the nature of the offense.    The offense charged continued to be

a violation of Article 87, UCMJ, and Appellant knew from the

outset of the court-martial proceedings that regardless of how

the specific flight was characterized or described, the gravamen

of the offense with which he was charged was that he failed to

be present on the aircraft with his unit when it deployed from

Germany to Afghanistan.

     On the other hand, we note that “[i]f a person . . . is

ordered to move as a passenger aboard a particular ship or

aircraft, . . . then missing the particular sailing or flight is

essential to establishing the offense of missing movement.”    See

Manual for Courts-Martial, United States pt. IV, para.

11.c.(2)(b); cf. United States v. Kapple, 

, 473–74

(C.A.A.F. 1994) (requiring the government to prove that the

accused had been ordered to move aboard a specific aircraft).

In the original charging document in the instant case, the

Government chose to describe the specific aircraft as Flight

TA4B702, and thus that specific flight number became an integral

part of an element of the offense.    Under these circumstances,

we decline to hold that only a minor variance occurred.

     Although we find that a material variance occurred, that is

not the end of our inquiry.   Consistent with our long-standing

                                 13
United States v. Treat, No. 14-0280/AR


precedent, we must next turn our attention to the question of

whether the material variance in the instant case prejudiced

Appellant.   Indeed, as we stated in Finch, this Court has

“placed an increased emphasis on the prejudice prong” of the

fatal variance 

.

     “A variance can prejudice an appellant by (1) putting ‘him

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.’”   

(quoting

United States v. Teffeau, 

, 67 (C.A.A.F. 2003)).

Appellant argues that the last minute changes made by the

military judge denied him the opportunity to adequately prepare

his defense and defend against the missing movement charge.

     This Court looks closely at the specifics of the defense’s

trial strategy when determining whether a material variance

denied an accused the opportunity to defend against a charge.

In so doing, we consider how the defense channeled its efforts

and what defense counsel focused on or highlighted.    

; 

; United States v. Lovett,

, 236 (C.A.A.F. 2004).

     In the instant case, Appellant’s defense was squarely

focused on the assertion that he was prevented from moving with

the 370th Sapper Company because he was kidnapped.    Trial

                                14
United States v. Treat, No. 14-0280/AR


defense counsel did not claim in any manner that Appellant was

not present on the date of his unit’s movement because he was

unaware of the specific aircraft he was supposed to be on or the

unit he was supposed to move with.   Rather, right from the

beginning of the case, Appellant channeled his efforts into

convincing first the investigators and then the court-martial

that, as stated by defense counsel in her opening statement,

Appellant “did not intend to miss the movement, but he was

prevented from going with his unit . . . because of what had

happened to him.”

     While trial defense counsel did mention the lack of

evidence of the flight number in her closing argument, she did

not channel her efforts into disproving the Flight TA4B702

element.   Furthermore, despite citing the lack of proof that it

was specifically Flight TA4B702 that Appellant missed, trial

defense counsel did not move pursuant to R.C.M. 917 for a

finding of not guilty on that particular charge.

     Importantly, the defense has not identified for this Court

any different trial strategy it might have employed if Appellant

originally had been charged with “missing the flight dedicated

to transport Main Body 1 of 54th Engineer Battalion from

Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.”    All

indications are that Appellant’s defense of impossibility due to

kidnapping would have remained precisely the same whether or not

                                15
United States v. Treat, No. 14-0280/AR


he was charged per the original specification or per the

exceptions and substitutions, and we see no reasonable

possibility that the verdict in this case would have been any

different.   Accordingly, we find Appellant was not denied the

opportunity to defend against the charge on which he was

convicted.   We therefore hold that the variance created by the

military judge, although material, did not prejudice Appellant

and thus was not fatal. 2

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




2
  When counsel fails to object at trial, we review a military
judge’s findings by exceptions and substitutions for plain
error. 

. Under plain error review,
Appellant has the burden of demonstrating that: (1) there was
error, (2) the error was plain or obvious, and (3) the error
materially prejudiced a substantial right of the accused. 

whether the error in the instant case was “plain
or obvious,” Appellant cannot prevail because he has not
successfully established the third prong –– material prejudice
to a substantial right.

                                16
United States v. Treat, No. 14-0280/AR


      BAKER, Chief Judge (concurring in the result):

      I concur in the result for the following reasons.   A

variance between pleadings and proof exists when evidence at

court-martial “establishes the commission of a criminal offense

by the accused, but the proof does not conform strictly with the

offense alleged in the charge.”   United States v. Teffeau, 

, 66 (C.A.A.F. 2003) (citation and internal quotation

marks omitted).   A variance is material if it “substantially

change[s] the nature of the offense or . . . increase[s] the

seriousness of the offense or the maximum punishment for it.”

is prejudicial if it places an appellant “at

risk of another prosecution for the same conduct” or if it

prevented him from “adequately . . . prepar[ing] for” court-

martial or “denied [him] the opportunity to defend against the

charge.”   

(citations omitted).   Thus, a variance that

is both material and prejudicial is deemed to be “fatal,” a

rather grim and dramatic way to describe reversible error.

United States v. Marshall, 

, 420 (C.A.A.F. 2009)

(citations omitted).   In short, the purpose of variance analysis

is to distinguish between those exceptions and substitutions

that merely clarify and correct and those that change the nature

of the offense, or the terms of exposure, and thus conflict with

due process principles.
United States v. Treat, No. 14-0280/AR


     A variance occurred in this case when the military judge

excepted “Flight TA4B702” and substituted “the flight dedicated

to transport Main Body 1 of 54th Engineer Battalion from

Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan.”

Thus, the specification for which Appellant was ultimately

convicted read:

     In that Sergeant Michael L. Treat, U.S. Army, did, at or
     near Bamberg, Germany, on or about 17 November 2010,
     through design, miss the movement of the flight dedicated
     to transport Main Body 1 of 54th Engineer Battalion from
     Ramstein Air Base, Germany, to Manas Air Base,
     Kyrgyzstan[,] with which he was required in the course of
     duty to move.

However, this variance was not material because the offense

remained the same before and after the military judge’s

exception and substitution.   Appellant was charged with missing

movement by missing the flight deploying his unit.   The

government can charge this offense in a general way, by mode of

transport, or in a more specific way, by reference to the

movement of a particular unit.   How the government charges the

offense may depend on whether a unit moved en masse or an

individual was ordered to join a unit already deployed.    Yet

while the government has flexibility in how it charges an

Article 87, UCMJ, 10 U.S.C. § 887, offense, it must live with

the result; it cannot charge the missing of a flight and then

convict an accused for the missing of a unit movement (as



                                 2
United States v. Treat, No. 14-0280/AR


opposed to the flight carrying the unit) or the missing of a

ship.

     Contrary to Appellant’s argument, the exception and

substitution in this case did not change the offense from the

missing of a flight to the missing of a unit.     Appellant was

originally charged with missing his flight to Manas Air Base,

which was carrying his unit, and he was convicted of missing his

flight to Manas Air Base, which was carrying his unit.     The

military judge’s exception and substitution did no more than

accurately describe the flight that Appellant was always charged

with missing.   The change was akin to correcting the name of the

victim on a larceny charge or, by further illustration, to

saying, “I missed my flight to Dallas,” rather than “I missed

Mohawk Airways Flight 12345, which was en route to Dallas.”       The

specification also used the language “on or about,” thus making

it clear from the outset that it was the missing of a flight and

not the particular aircraft used for that flight that formed the

gravamen of the offense.    As a result, Appellant was on notice

regarding the nature of the offense before and after the

military judge’s exception and substitution.

     In addition, none of the purposes behind material variance

doctrine were offended.    Appellant is not at risk of another

prosecution for the same conduct.     He was not misled as to the

nature of the offense or unable to prepare adequately for court-

                                  3
United States v. Treat, No. 14-0280/AR


martial.   Nor was he denied the opportunity to defend against

the charge.   

.   In short, the military

judge’s substitution did not change the nature of the offense,

substantially or at all.




                                 4
United States v. Treat, No. 14-0280/AR


     STUCKY, Judge (dissenting):

     The military judge convicted Appellant by exceptions and

substitutions to the specification alleged in the charge sheet.

Appellant did not object to that finding until after the court-

martial was adjourned, when he submitted matters to the

convening authority under Rule for Court-Martial (R.C.M.) 1105.

Appellant’s failure to raise the issue before the court

adjourned constitutes waiver.     R.C.M. 905(e).   If Appellant did

not waive his ability to raise the issue on appeal, then the

finding by exceptions and substitutions was a fatal variance

(both material and prejudicial).     Therefore, I respectfully

dissent.

                             I.   Waiver

     Citing United States v. Finch, 

, 121 (C.A.A.F.

2006), the majority asserts that:     “[W]e review a military

judge’s findings by exceptions and substitutions for plain

error.”    United States v. Treat, __ M.J. __ (11) (C.A.A.F.

2014).    I disagree.

     Finch cites R.C.M. 905(e) as the basis for this plain error

standard but does not examine the language of the rule.     R.C.M.

905(e) provides:

     Failure by a party to raise defenses or objections or
     to make motions or requests which must be made before
     pleas are entered under subsection (b) of this rule
     shall constitute waiver. The military judge for good
     cause shown may grant relief from the waiver. Other
United States v. Treat, No. 14-0280/AR


     motions, requests, defenses, or objections, except
     lack of jurisdiction or failure of a charge to allege
     an offense, must be raised before the court-martial is
     adjourned for that case and, unless otherwise provided
     in this Manual, failure to do so shall constitute
     waiver.

It does not say “forfeit,” “forfeit absent plain error,” or

“waive absent plain error.”   It says “shall constitute waiver.”

Therefore, as Appellant failed to object before the court-

martial was adjourned, we should consider the variance issue

waived.

     The majority cites two grounds for concluding that the

issue should not be considered waived:   (1) Appellant challenged

the Government’s theory of the case concerning the flight number

during his closing argument; and (2) the Government did not

appeal the United States Army Court of Criminal Appeals’ adverse

ruling on this issue to this Court.   Treat, __ M.J. at __ n.1

(12 n.1).   But Appellant made no R.C.M. 917 motion for a finding

of not guilty, 1 and his findings argument alone, in which he

challenged the sufficiency of the Government’s evidence that he

missed flight TA4B702, is not an objection to the military

judge’s finding by exceptions and substitutions.   And whether

1
  Nor did the military judge raise the issue of her own accord.
I recognize that the defense counsel may have intentionally not
made an R.C.M. 917 motion, fearing that the military judge would
have permitted the trial counsel to reopen the case. R.C.M.
917(b) Discussion. Nevertheless, choices have consequences.
See United States v. Marshall, 

, 420 (C.A.A.F. 2009)
(concluding an R.C.M. 917 motion was sufficient to preserve the
issue of a fatal variance for appeal).

                                 2
United States v. Treat, No. 14-0280/AR


the Government failed to raise the issue of waiver on this

particular issue is irrelevant.    R.C.M. 905(e) clearly states

that an accused’s failure to raise the issue before the court-

martial is adjourned constitutes waiver, unless the objection is

covered by some other rule.   In this case, Appellant failed to

object, and the objection is not covered by another rule.

Appellant’s failure constitutes waiver, and we should not

consider this assignment of error.

                        II.   Plain Error

     If, as the majority holds, we must review the finding by

exceptions and substitutions for plain error, Appellant has

established that the material variance was obvious error that

prejudiced his substantial rights:      (1) he may have been

convicted of missing the very flight the military judge

acquitted him of missing; and (2) he was denied adequate notice

and the opportunity to defend.

     Appellant was charged with missing the movement of a

specific flight, flight TA4B702.       The defense counsel initiated

a three-pronged attack against the Government’s case.        First,

she established that all elements of Appellant’s unit did not

deploy together, suggesting that Appellant may not have been

required to deploy with Main Body 1.      Second, with the

assistance of the trial counsel and the military judge, the

defense counsel successfully frustrated the Government’s


                                   3
United States v. Treat, No. 14-0280/AR


attempts to prove the number of the flight that Appellant was

charged with missing and to enter the flight manifest into

evidence.   And third, she highlighted the Government’s failure

to disprove the inability defense Appellant had raised in the

sworn statement he provided to a military policeman and which

the Government introduced into evidence:   that he missed the

movement because he had been kidnapped.

     The defense counsel made the failure of the Government to

prove the flight number one of the foci of her closing argument:

     Well, the government has charged that Sergeant Treat
     missed a flight on that date. A flight that,
     according to all sources, never existed. It did not
     take off. There was no movement to miss on the 17th
     of November, ma’am, because that flight didn’t go
     anywhere. And what happened on the 17th according to
     Sergeant Mathis? He called Sergeant Treat and said,
     “We’re not leaving today. Stand down.”

          There is simply no evidence with which to convict
     Sergeant Treat of missing a movement under Article 87
     since that movement didn’t exist. We don’t even know
     the flight number for sure. There has been no
     credible evidence before this court as to what the
     actual the [sic] flight number was on the 17th of
     November. None of the witnesses knew the flight
     number. We don’t even know if the flight number would
     have stayed the same or changed when they actually
     flew on 19 November.

The military judge thereafter convicted Appellant by exceptions

and substitutions of missing “the movement of the flight

dedicated to transport Main Body 1 of the 54th Engineer

Battalion.”




                                 4
United States v. Treat, No. 14-0280/AR


       The majority holds that the military judge’s finding was a

material variance.    I agree.   The military judge’s finding

substantially changed the nature of the offense.     See 

–21 (changing the name of the individual from whose

custody the appellant allegedly escaped was a material variance)

(citing 

).     But I cannot agree with the

majority’s conclusion that Appellant was not prejudiced.      Treat,

__ M.J. at __ (16).

       In United States v. Nedeau, the appellant was charged in

one specification with larceny of various specific food items --

seven pounds of ground beef, ten pounds of canned ham, five

pounds of cheese, etc.    

, 719, 

, 183

(1957).    The court members convicted him by exceptions and

substitutions of larceny of “foodstuffs.”     

at

183.   The Court of Military Appeals held that the finding of the

court-martial changed the nature and identity of the offense

charged.   

23 C.M.R. at 184.    As a finding by

exception “constitutes a finding that the accused is not guilty

of what is alleged in the excepted language,” it appears that

Staff Sergeant Nedeau must have been convicted of larceny of

food items other than those alleged in the specification.       

at 184.    This was a fatal variance.   

.




                                   5
United States v. Treat, No. 14-0280/AR


     Sergeant Treat is in a somewhat similar situation.     By

excepting the flight number, the military judge acquitted him of

missing the movement of flight TA4B702 but convicted him of more

general language -- “missing the movement of the flight

dedicated to transport Main Body 1 of the 54th Engineer

Battalion from Ramstein Air Base, Germany, to Manas Air Base,

Kyrgyzstan.”   I see two related problems resulting from this

finding:

     (1) Flight TA4B702 is necessarily a subset of the universe

of flights that could have transported Main Body 1.   By

substituting for the excepted language the more general

language, Appellant may have been convicted of missing the

movement of TA4B702, the same flight he was acquitted of

missing.   That would amount to a Double Jeopardy Clause

violation.   See United States v. Stewart, 

, 43

(C.A.A.F. 2012) (finding accused guilty of aggravated sexual

assault for engaging in a sexual act with a person who was

substantially incapable of declining participation in the sexual

act, after acquitting him of aggravated sexual assault for

engaging in a sexual act with a person who was substantially

incapacitated violated the Double Jeopardy Clause).

     (2) If Appellant was convicted of missing the movement of

some flight other than TA4B702, then he was not given notice and

an opportunity to defend against it.   By broadening the offense


                                 6
United States v. Treat, No. 14-0280/AR


from missing flight TA4B702 to missing whatever flight was

scheduled to transport Main Body 1, the military judge made

Appellant’s defense -- that the Government failed to establish

that he missed flight TA4B702 -- irrelevant.

     Therefore, if Appellant did not waive the issue, I would

hold that the material variance in this case was fatal, and

would reverse.




                                7
United States v. Treat, No. 14-0280/AR


     RYAN, Judge (dissenting):

     I join Judge Stucky’s dissent, with a single caveat.    While

I agree with Judge Stucky’s analysis as to why the majority is

wrong that there is no waiver, United States v. Treat, 73 M.J.

__, __ (1-3) (C.A.A.F. 2014) (Stucky, J., dissenting), I am

nonetheless skeptical that we should find waiver where, as here,

the military judge clearly determined that the Government did

not prove one of the elements -- which is why she excepted the

language that pled it.   See Rule for Courts-Martial (R.C.M.)

917(a) (“The military judge . . . sua sponte, shall enter a

finding of not guilty of one or more offenses charged after the

evidence on either side is closed and before findings on the

general issue of guilt are announced if the evidence is

insufficient to sustain a conviction of the offense affected.”).

Thus, irrespective of Appellant’s duty to object at trial, see

United States v. Finch, 

, 121 (C.A.A.F. 2006), in my

view the military judge had an independent duty to dismiss the

charge, including giving the parties an opportunity to be heard,

and the military judge failed to fulfill that duty.   See R.C.M.

917(a), (c).   Absent waiver, I fully agree that there was

prejudice to a substantial right of the accused, see Article

59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a)

(2012), and would reverse the decision of the United States Army

Court of Criminal Appeals.