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Motion to Dismiss for Failure to State an Offense

The question of whether a specification states an offense is a question of law, which this Court reviews de novo. United States v. Crafter, 64 M.J. 209, 212 (C.A.A.F. 2006); United States v. Mayo, 12 M.J. 286 (C.M.A. 1982).  Mr. Conway has successfully argued these issues before the Court of Appeals for the Armed Forces.

To adequately allege an offense, a specification must (1) notify the accused of the offense charged, (2) contain the elements of the offense either expressly or by fair implication, and (3) together with the record of trial, bar any subsequent prosecution in the event of acquittal or conviction. United States v. Bryant, 30 M.J. 72 (C.M.A. 1990). A specification that does not contain an allegation of fact essential to proof of the offense charged is not “restored to legal life by the government’s production at trial of evidence of the fact.” Mayo, 12 M.J. at 288. Merely completing the blanks in a form specification does not guarantee a legally unassailable charge. United States v. Fleig, 37 C.M.R. 64, 65 (C.M.A. 1966).  A specification that is challenged before trial and to which an accused ultimately pleads not guilty has not been and shall not be viewed liberally. Bryant, 30 M.J. at 73.​

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  • Court-Martial Lawyers
    • Military Sexual Assault Lawyer - Article 120, UCMJ
    • Military Failed Drug Test
    • Article 80 Attempts
    • Article 81 Conspiracy
    • Article 118 Murder
    • Article 128 Assault - Military Assault Charges >
      • Maltreatment
      • Theft and Larceny Cases >
        • Article 132 Frauds Against the United States
      • Parental Discipline Cases
    • AWOL and Desertion >
      • Article 85 Desertion
    • Article 133 Conduct Unbecoming
    • Disrespect Offenses >
      • Article 92, UCMJ Failure to Obey an Order
    • Article 107 False Official Statements >
      • Obstruction of Justice
    • Pornography Cases
  • Court-Martial Appeals
    • Petitions for a New Trial
    • Legal and Factual Insufficiency of the Evidence
    • Summary Court-Martial
    • Multiplicity in the Military
    • Sentencing Severity
  • Discharge Review Board Lawyer
  • Administrative Separation Board Lawyer
  • Records Corrections
    • Reprimand Appeals
    • Evaluation Report Appeals
    • Qualitative Management Program Cases
    • Titling Actions
    • Cadet and Midshipmen Misconduct
  • Notable Cases
    • My Lai
    • Abu Ghraib
    • Haditha
    • Maywand District Murders
    • US v Scott
    • MARSOC
  • Our Team
    • Gary Myers
    • Daniel Conway
    • Brian Pristera
    • Lauren Johnson-Naumann
    • Joseph Galli
    • Matthew Flynn
  • Videos