United States v. DELUCIO

KORN, KISOR, and FLINTOFT Appellate Military Judges _________________________ UNITED STATES Appellant v. Carlos S. DELUCIO Private First Class (E-2), U.S. Marine Corps Appellee No. 202600167 _________________________ Decided: 30 October 2026 Appeal by the United States Pursuant to Article 62, Uniform Code of Military Justice Military Judge: David C. Segraves Before a general court-martial convened at Marine Corps Base Camp Pendleton, California. For Appellant: Lieutenant Commander Philip J. Corrigan, JAGC, USN Lieutenant K. Matthew Parker, JAGC, USN For Appellee: Lieutenant Thomas L. Siu, JAGC, USN Senior Judge KISOR delivered the opinion of the Court, in which Chief Judge KORN and Senior Judge FLINTOFT joined.  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ KISOR, Senior Judge: This case is before us on an interlocutory appeal pursuant to Article 62(a)(1)(A), Uniform Code of Military Justice (UCMJ).1 The Government asks us to decide whether the military judge erred in dis- missing a specification for failure to state an offense where the specification expressly alleged all of the elements and the Government provided the Defense with a bill of particulars. We find that the military judge erred in dismissing the specification as it does, in fact, state an offense. I. BACKGROUND On 8 December 2025, the Office of Special Trial Counsel charged Appellee with myriad offenses relating to domestic violence against an intimate partner, which allegedly occurred between 24 November 2024 and 31 December 2024.2 On 2 February 2026, the Office of the Special Trial Counsel preferred an addi- tional charge and specification of stalking in violation of Article 130, UCMJ. All of the charges were referred by the Lead Special Trial Counsel to a general court-martial on 14 April 2026. On 28 May 2026, the Defense filed a motion to dismiss the stalking charge and its sole specification for failure to state an offense and for vagueness.3 Then, on 2 June 2026, after the Defense had filed its motion, the Government provided 1 10 U.S.C. §862(a)(1)(A). 2 Charge Sheet. The myriad offenses included: four specifications of violating Article 128b (domestic violence); a specification of violating Article 117a, (wrongful broadcast- ing an intimate image); a specification of violating Article 120c (knowingly broadcasting an indecent recording); a specification of violating Article 107 (false official statement related to his intimate partner); and a specification of violating Article 90 (willfully dis- obeying a superior commissioned officer’s no contact order on divers occasions). 3 App. Ex. XXIX. 2  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court a bill of particulars for the stalking charge indicating, in part, that on 27 Janu- ary 2025 Appellee traveled to Lance Corporal (LCpl) E.V.’s location in violation of a no-contact order and that the traveling formed part of Appellee’s course of conduct in stalking the alleged victim.4 The bill of particulars also explained that the course of conduct charged in the specification included “constant com- munication,” threatening himself with a firearm, threatening to make Lance Corporal E.V. kill herself, and threatening to release a sexually explicit image of her.5 Also on 2 June 2026, the Government filed an opposition to the Defense motion, and, in the same document, a concurrent motion to make what it termed a “minor change” to the stalking specification. In so doing, the Government sought to include the 27 January 2025 incident where Appellee allegedly trav- eled to LCpl E.V.’s location.6 But the Government had only learned of Appellee traveling to E.V.’s location after referral of the charge and specification in April 2026.7 The Defense then filed a reply, opposing the Government’s motion as a “major change” to the specification.8 On 16 June 2026, the military judge issued a written ruling dismissing the stalking charge and its sole specification.9 This appeal followed. II. DISCUSSION A. The Military Judge Erred in Dismissing the Specification of Addi- tional Charge I for Failure to State an Offense. We begin by observing that, although the military judge dismissed the stalk- ing charge for failure to state an offense, he also held that the Government’s inclusion of recently discovered conduct, which allegedly occurred outside the original date range in the charge, constituted an impermissible major change to the specification.10 Further, he expressed his reservation about the Govern- ment’s attempt to insert conduct discovered post-referral into an existing charge 4 App. Ex. XXXIX. The Specification of Charge V alleges divers occasions of violating the no-contact order between 22 January and 27 January 2025. But apparently the Government was unaware that Appellee “traveled” until conducting a witness interview on 6 May 2026. App. Ex. XLVI at 3. 5 App. Ex. XXXIX. 6 App. Ex. XXXVI. 7 App. Ex. XLVI at 3. 8 App. Ex. XXXVIII. 9 App. Ex. XLVI. 10 App. Ex. XLVI. 3  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court at all. He stated, “[t]he Court is left wondering how an accused could know what he was defending against if even the Government didn’t know what it was charging.”11 Although we might agree with the military judge on this point, we reverse his ruling dismissing the stalking charge because the specification as referred does state an offense. 1. Standard of Review and Applicable Law Whether a specification states an offense is a legal question that we review de novo.12 The military is a notice pleading jurisdiction.13 “A specification is suf- ficient if it alleges each element of the charged offense expressly or by necessary implication.”14 No set form is required.15 The Court of Military Appeals estab- lished a three-pronged test for determining whether a specification states an offense: the specification must provide “(1) the essential elements of the offense, (2) notice of the charge, and (3) protection against double jeopardy.”16 2. The Charge and Specification in this case. The Specification of Additional Charge I charged: That Private First Class Carlos S. Delucio did, between on or about 1 December 2024 and on or about 31 December 2024, en- gage in a course of conduct directed at Lance Corporal E.V., that would cause a reasonable person to fear bodily harm to herself, that the accused knew or should have known that the course of conduct would place Lance Corporal E.V. in reasonable fear of bodily harm to herself, and that the accused’s conduct placed Lance Corporal E.V. in reasonable fear of bodily harm to her- self.17 11 App. Ex. XLVI at 6. 12 United States v. Raucher, 71 M.J. 225, 226 (C.A.A.F. 2012). 13 See United States v. Calamita, 48 M.J. 917, 920 n.1 (A.F. Ct. Crim. App. 1998), pet. denied, 51 M.J. 372 (1999) (citing United States v. Sell, 3 U.S.C.M.A. 202, 11 C.M.R. 202, 206 (C.M.A. 1953)). 14 Rule for Courts-Martial (R.C.M.) 307(c)(3). 15 Id. 16 United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994). 17 Charge Sheet. Additional Charge I was originally referred as Additional Charge II but Additional Charge I was withdrawn and dismissed prior to arraignment, convert- ing Additional Charge II into Additional Charge I on the operative charge sheet. 4  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court 3. Analysis The Government contends that the military judge erred in dismissing the charge for failing to state an offense because, in its view, “the Specification ex- pressly states all the elements of the Charge.”18 The Government further con- tends that the bill of particulars cured any notice issues.19 For his part, Appellee contends that the military judge did not err because the specification did not allege a specific course of conduct.20 Appellee argues that the specification is fatally defective because both the model specification contained in the Manual for Courts-Martial and the Military Judges’ Benchbook instruction on stalking contain the phrase “to wit.”21 Therefore, according to Appellee, the Government was required to plead the specific acts that it contends comprise the course of conduct constituting the stalking offense.22 To decide whether a specification states an offense, a reviewing court need only to compare the statute with the referred charge. The offense of stalking in violation of Article 130 has three elements, all of which are properly alleged in the specification at issue in this case. They are: (1) That the accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable per- son to fear death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner or to his or her dating partner; (2) That the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasona- ble fear of death or bodily harm, including sexual assault, to himself or herself, to a member of his or her immediate family, or to his or her intimate partner or to his or her dating partner; and (3) That the accused’s conduct induced reasonable fear in the specific person of death or bodily harm, including sexual assault, 18 Appellant’s Brief at 7. 19 Appellant’s Brief at 13. 20 Appellee’s Brief at 9. 21 Appellee’s Brief at 15. 22 Appellee’s Brief at 16, 22. 5  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court to himself or herself, to a member of his or her immediate family, or to his or her intimate partner, or to his or her dating partner.23 The sample specification cited by Appellee is provided in the printed 2024 edition of Manual for Courts-Martial, and reads: In that __________ (personal jurisdiction data), did (at/on board—location) (subject-matter jurisdiction, if required), (on or about _____ 20 __) (from about _____ to about _____ 20 __), en- gage in a course of conduct directed at ________, that would cause a reasonable person to fear (death) (bodily harm, to wit:_______), to (himself) (herself) (a member of (his) (her) im- mediate family) ((his) (her) intimate partner); that the accused knew or should have known that the course of conduct would place ______ in reasonable fear of (death) (bodily harm, to wit _____) to (himself) (herself) (a member of (his) (her) immediate family) ((his) (her) intimate partner); and that the accused’s con- duct placed ______ in reasonable fear of (death) (bodily harm, to wit:_____) to (himself) (herself) (a member of (his) (her) im- mediate family) ((his) (her) intimate partner).24 Appellee misreads the sample specification in his contention that the term “to wit” in the sample specification (bolded above) requires the Government to plead specific acts that comprise the course of conduct (also bolded above).25 The term “to wit” is contained within the parentheses to modify “bodily harm” and is intended to allow the Government to allege a specific type of bodily harm, if applicable. Placed where it is in the sample specification, it cannot fairly be read to require the Government to plead specific acts that form the course of conduct. Nor is the “to wit” language statutory. In the “Analysis and Conclusions of Law” portion of his ruling, the military judge refers to the Military Judges’ Benchbook as “instruct[ing] practitioners to 23 Article 130, UCMJ. 24 Manual for Courts-Martial (MCM), part IV, para. 80(e) at IV-131 (emphasis added). The explanation and the model specification were amended by the President on 20 December 2024 by Executive Order 14130. See Exec. Order No. 14130, 89 Fed. Reg. 105343, 105375 (Dec. 20, 2024). The executive order added the words “((his)(her) dating partner)” after “((his) (her) intimate partner)” to track the amendment to the statute in 2023 (Public Law 118-31 (Dec 22, 2023, 137 Stat. 259)) in the model specification. This change is not relevant to the referred specification or to Appellee’s argument. 25 See Appellee’s Brief at 15. 6  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court allege the actual acts.”26 The Benchbook does provide that a military judge should “state the conduct alleged” when providing findings instructions to the members on the first element of stalking. The guidance in the Benchbook in- struction thus becomes applicable at trial after the close of evidence. The in- struction is a way of summarizing the admitted evidence for the members. And the Court of Appeals for the Armed Forces has stated, and the military judge acknowledged in his ruling, that “the benchbook is not binding as it is not a primary source of law.”27 We hold that the military judge erred in dismissing the stalking charge for failing to state an offense. The specification in this case lists each element, pro- vides notice of the charge, and, in the event of a finding of either guilty or not guilty on the merits, protects against double jeopardy. It tracks the statute, and it does state an offense. B. The Military Judge’s Ruling That the Government’s Proposed Amendment to the Date Range in the Specification Constituted a Major Change Was Mooted by His Concomitant Ruling Dismissing the Speci- fication. 1. Standard of Review and Law The question whether an issue is moot is a question of law that we review de novo.28 “An issue is moot if resolving it ‘would not result in a material alter- ation of the situation for the accused or for the Government.’”29 Rule for Courts-Martial 603(a) provides that a prosecutor may make “minor” changes to a specification. However, a prosecutor may not make “major” changes to a specification after referral without the consent of the accused.30 And after arraignment, the military judge may permit minor changes, upon a motion, if no substantial right of the accused is prejudiced.31 Importantly, the rule defines a “major change” (in relevant part) as “one that adds a party, an offense, or a substantial matter not fairly included in the preferred charge or 26 App. Ex. XLVI at 5. 27 App. Ex. XLVI at 5 (citing United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013)). 28 See United States v. Napoleon, 46 M.J. 279, 281 (C.A.A.F. 1997) (citing United States v. Shover, 45 M.J. 119, 122 (1996)). 29 Id. (citing United States v. Clay, 10 M.J. 269 (C.M.A. 1981)) (quotations omitted). 30 See R.C.M. 603(d)(1). 31 See R.C.M. 603(e). 7  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court specification, or one that is likely to mislead the accused as to the offense charged.”32 2. Analysis The military judge stated in his ruling that “[t]he Government’s request for a variance is a major change.”33 Nonetheless, the Government now contends that “the military judge did not rule on the motion” and the military judge’s contemporaneous ruling dismissing the charge “thus mooted the United States’ Motion to make a minor change, as the United States had not yet amended the [stalking charge] before dismissal.”34 Appellee agrees that this issue is, in fact, moot.35 Appellee explains his position as: “the issue is not ripe and the trial counsel below sought an advisory opinion” and urges us not to address that is- sue in the first instance here.36 We agree with the parties that the military judge’s ruling dismissing the charge and specification moots the Government’s motion to make a change to the specification post-arraignment. As discussed supra, the military judge’s rul- ing dismissing the charge conflates trial counsel’s attempt to make a change to the specification with whether the specification as referred provided the requi- site notice to Appellee. In so doing, the military judge explained the central pil- lar of his reasoning was that the Government could not have put Appellee on notice that the specification included conduct that the Government did not know about when it referred the charge, particularly when that unknown con- duct fell well outside the charged time frame. Under these facts, expanding the time frame in the specification to encompass newly discovered conduct (travel- ling to LCpl E.V.’s location in violation of a no-contact order) could well be a substantial matter not fairly included in the preferred charge. But that is not a reason for a military judge to dismiss the referred charge and specification for failing to state an offense. It is possibly a reason to deny the Government’s mo- tion to make that change to the specification after arraignment. But the issue is moot because resolving it now in the context of appellate review of a dismissed specification would not result in a material alteration of the situation for Ap- pellee or for the Government. Moreover, our reversal of the military judge’s dis- missal of the specification does not ripen this issue for appellate resolution at 32 See R.C.M. 603(b)(1); United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017). 33 App. Ex. XLVI at 5. 34 Appellant’s Brief at 16-17. 35 Appellee’s Brief at 24. 36 Appellee’s Brief at 24. 8  United States v. Delucio, NMCCA No. 202600167 Opinion of the Court this juncture. On remand, the military judge is free to disallow major changes (or minor changes that prejudice a substantial right of the accused) to the re- ferred Charge and Specification, to make appropriate evidentiary rulings re- lated to the evidence presented at trial, and to rule on any R.C.M. 917 motion at the appropriate time. III. CONCLUSION After careful consideration of the record and briefs of appellate counsel, the Government’s appeal is GRANTED. The military judge’s ruling dismissing the stalking charge is REVERSED. The case is returned to the Judge Advocate General for remand to the military judge for further proceedings consistent with this opinion. FOR THE COURT: MARK K. JAMISON Clerk of Court 9