In United States v. Miranda-Zapata, No. 200800865 (N-M. Ct. Crim. App. Jan. 19,2010) (unpublished) the accused pled guilty, inter alia, to conspiring to distribute morphine. Though not raised by the parties, the court noted the conspiracy charge failed to list an “overt act”, the second element of conspiracy. The military judge noted this issue during the providence inquiry, asking the civilian defense counsel if the defense was on notice of the overt act(s) for the conspiracy specification (which were part of the stipulation of fact). Civilian defense counsel said “the actual distribution of morphine” was the overt act. After the military judge completed the factual predicate for the inquiry, he returned to the issue of the missing element. Civilian defense counsel said he did not raise the issue because “if we brought it to the Government’s attention, they would merely correct it.” Then, exhibiting great candor, the civilian defense counsel said: “I was rather, kind of, hoping it would be an appellate issue. But if it’s necessary, we will waive it.” The military judge then asked if the defense was waiving the motion to dismiss for failure to state an offense and the civilian defense counsel agreed. The N-MCCA held the accused could not waive the failure to state offense but affirmed based on the facts of the case.
Per R.C.M. 907(b)(1)(B), failure to state an offense is one of two nonwaivable grounds for dismissal. Though no relevant for this case, the other nonwaivable ground is jurisdiction. The N-MCCA held the defense could not waive the failure to state an offense issue, so the civilian defense counsel’s attempted waiver had no effect. However, applying United States v. Watkins, 21 M.J. 208, 210 (C.M.A. 1986) the court reasoned that reversal was not warranted because (1) specification was not so defective that it could not “within reason” be read to charge an offense; (2) accused did not challenge the specification at trial; (3) the accused pled guilty with the benefit of a pretrial agreement and successfully completed the providence inquiry; and (4) the accused suffered no prejudice.
The court noted the military judge should have remedied this error by (1) identifying the error on the record, (2) asking the defense (and presumably the accused) if they still wanted to plead guilty, and, if so, (3) asking if the defense would object to a major change to the specification.