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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