Under the Fifth Amendment right to due process and the Sixth Amendment right to fair notice, may a conviction be affirmed as legally sufficient based on the parties' interpretation of the charging document, even when that construction conflicts with the plain language of the allegation?

The Government charged Senior Airman (SrA) Dennis A. George, Jr., with attempted sexual assault. The plain language of the charging document alleged that SrA George committed a specific overt act — penetrating WMB’s mouth without her consent . But at SrA George’s trial, the Government offered no evidence that SrA George penetrated WMB ’s mouth with his penis without her consent. On appeal , SrA George asserted his conviction wa s legally insufficient because the Government failed to prove the charged overt act. Without any case law to justify its proposition , the United States Court of Appeals for the Armed Forces ( CAAF ) created a “new approach” to interpreting charg ing documents as part of its legal sufficiency review —one that relies on the reading seemingly adopted by the parties at trial , rather than relying solely on the text. In doing so , the court instituted a rule that undermines the protections afforded by the Fifth and Sixth Amendments to the Constitution. The question presented is: Under the Fifth Amendment right to due process and the Sixth Amendment right to fair notice, may a conviction be affirmed as legally sufficient based on the parties’ interpretation of the charging document, even when that construction conflicts with the plain language of the allegation ?