Air Force Court Criminal Appeals

United States v. Johnson

In Johnson, AFCAA addresses two common issues, (1) the alleged Government "bait and switch" when charging and then prosecuting Article 120 offenses, and (2) comments in a victim impact statement about the effects of conduct of which the accused was acquitted.

"Bait-and-Switch?"

The Specification at issue accused the Appellant of "on or about 18 September 2020, touch [GH’s] buttocks with his hand, with an intent to gratify his sexual desire, without her consent.” "Appellant did not request a bill of particulars to obtain more specific details about the conduct supporting this or any other specification." So it is initially reasonable for the defense to assume that was the event was to be litigated. What appears to have been a poor charging decision developed at trial. The evidence and prosecution case focused on a different set of circumstances to the charged language: the victim “woke up to pretty much having her bra unclasped and having her breasts touched and having a hand in her panties” and rubbing her vagina." If the prosecution had charged both events or two separate specifications some of this litigation could have been avoided and the members could have found guilty or guilty by exceptions.

On appeal, Appellant argues the Government violated his due process rights by switching the events that Specification 1 of the Charge was meant to address. Specifically, Appellant argues he, his trial defense counsel, and “everyone else involved in the court-martial believed that Specification 1 alleged a nonconsensual touching of GH’s buttocks while bending over in the kitchen to put cookies in the oven.” He further claims the inclusion of him touching GH’s buttocks on the air mattress was a “bait and switch” that deprived him of a fair trial. We find the record does not support Appellant’s claim.

1. Specification 1 of the Charge has never changed. It reads the same post-trial as it did when it was preferred by Appellant’s commander. Notably, Appellant did not request a bill of particulars to clarify the Government’s evidence supporting Specification 1.

2. Appellant makes no argument that he was not provided discovery in this case, therefore, he had pretrial access to GH’s statements that Appellant had his hand down the back of her underwear while she slept. Appellant also received discovery of his own statements to AFOSI during the investigation where he discussed at least a dozen times touching GH’s buttocks on the air mattress. We also note the Government’s opening statement made no mention of the incident in the kitchen, but focused heavily on Appellant’s conduct on the air mattress. Similarly, the Government’s closing argument clearly indicated that the abusive sexual contact on the air mattress was the Government’s “primary” focus of prosecution. We find no support for Appellant’s claim his due process right to notice was violated.
. . . 
 Appellant argues the military judge permitted the Government to argue the abusive sexual contact occurred while GH was asleep, as opposed to how it was charged—without her consent. Again, we find the record does not support this argument.
. . .
We see no reason why the Government may not use evidence that GH was asleep— ordinarily the focal point of a prosecution under the theory of while asleep—as circumstantial evidence of the lack of actual consent in a prosecution under a theory of without consent.
. . . 
[W]e find nothing in the record to suggest that trial counsel misled the members or asked them to convict Appellant of any offense other than the one for which he was charged. The Government submitted evidence of both Appellant’s conduct in the kitchen and on the air mattress. "It makes no difference how many members chose one act or the other, one theory of liability or the other. The only condition is that there be evidence sufficient to justify a finding of guilty on any theory of liability submitted to the members." United States v. Brown, 65 M.J. at 359 (quoting United States v. Vidal, 23 M.J. at 325). 

Congress created four ways to charge a nonconsensual sex offense, (1), (2),(3), and (4). In reading appellate cases over the last couple of years, it is possible to discern that prosecutors a leaning toward only charging under (3) or (4), regardless of the facts and circumstances demonstrating a lack of consent. Is that really a bait-and-switch approach? The answer is no. Rather, it is a reasonable prosecution decision even though it absolves them--superficially--from having to prove, for example, that the accused "knows or reasonably should know that the other person is asleep, . . . ," or a certain degree of intoxication. This practice makes it easier to get a conviction--methinks.

From a defense perspective the court is suggesting more frequent use of requests for a Bill of Particulars. Also, it would seem appropriate to defend as if against the sleeping or too drunk theories.

Sentencing for Acquitted Conduct

There has been much debate recently about sentences that are based partly on acquitted conduct in the media, organizations and committees, scholarly articles, and the occasional appellate opinion. See, e.g.,

• John Elwood, Aquitted-conduct sentencing returns. SCOTUSblog, 24 May 2023.
• Kathrina Szymborski Wolfkot, States and Feds Diverge on Fair Sentencing Practices. Brennan Center, 7 June 2023.
• Public Hearing, Proposed Amendment on Acquitted Conduct. U.S. Sentencing Commission, February 2023.
• Prohibit Acquitted Conduct Sentencing. Recommendation 4, Council on Criminal Justice, 2023, with additional sources.
• S.601 - Prohibiting Punishment of Acquitted Conduct Act of 2021, 117th Congress (2021-2022).