## Facts

- Civilian authorities held Private Bradley W. Marshall; CPT Kelvin Kreitman ordered SSG Fleming to retrieve Marshall and return him to the unit area at Fort Polk, Louisiana.
- SSG Fleming assumed physical custody of Marshall, transported him back, and brought him to the company offices.
- Marshall was told pretrial confinement paperwork was being prepared and that he must remain seated unless escorted.
- Marshall was permitted to take supervised smoking breaks outside; during one break, he walked away and did not return.
- The Government charged Marshall with escaping “from the custody of CPT Kelvin K. Kreitman, a person authorized to apprehend the accused.”
- At trial, the Government’s evidence showed custody was exercised by SSG Fleming, not CPT Kreitman; the Government argued Fleming acted as Kreitman’s agent.

## Issues

1. Whether changing the named custodian in the escape specification from CPT Kreitman (charged) to SSG Fleming (found) created a material and prejudicial variance requiring reversal and dismissal.
2. Whether the defense preserved the variance issue by moving for a finding of not guilty based on the Government’s failure to prove escape from CPT Kreitman’s custody.

## Decision

- CAAF set aside the finding of guilty to the escape-from-custody specification as modified by exceptions and substitutions.
- CAAF dismissed the escape charge and specification.
- CAAF affirmed the remaining convictions (duty-related offenses, drug use, and disobedience).
- CAAF remanded for sentence reassessment in light of dismissal of the escape conviction.
- A separate opinion concurred in the judgment but disagreed with the majority’s preservation analysis.

## Legal Principles

- A variance exists when the proof at trial establishes an offense but differs substantially from the specification’s allegations.
- A variance is fatal when it is both material (changing the nature or theory of the charged offense) and prejudicial to a substantial right (including notice to prepare a defense and protection against double jeopardy).
- In an escape-from-custody specification, substituting a different named custodian can be material because it changes the identity of the alleged custodian and the Government’s theory of custody.
- A defense motion for a finding of not guilty that directly targets the mismatch between the charged custodian and the proof can preserve a variance claim for appellate review.

## Conclusion

CAAF held that the military judge’s substitution of SSG Fleming for the charged custodian, CPT Kreitman, materially changed the escape specification and prejudiced the accused’s notice and related protections; the resulting fatal variance required setting aside and dismissing the escape conviction and remanding for sentence reassessment on the remaining offenses.


United States v. Marshall, 67 M.J. 418 (C.A.A.F. 2009)