United States v. Burch

As a counteroffer, defense counsel proposed a Resignation for the Good of the Service (RFGOS). After discussing the matter with the alleged victim, the SVP told defense counsel that the victim and the government would support a RFGOS.

Although he initially approved the RFGOS counteroffer, appellant changed his mind because he was also attempting to obtain a medical separation for injuries suffered in a recent motorcycle accident. Appellant asked his counsel if there was a way to continue with the medical separation process by pleading guilty to a non-domestic violence/non-Lautenberg qualifying offense.

Coast Guard

The Government offers three affidavits and a detailed chronology and explanation of the reasons for the delay. It concedes that some of the delay is attributable to mistakes made while obtaining a verbatim transcript and compiling the record. This led to the military judge not receiving the record for review and verification until 164 days from trial, already 14 days beyond the Tucker standard. This included unnecessary delay, most notably 62 days from sentencing to getting a contract approved and transmitted so that work on a transcript could finally begin.

As the Government also points out, however, when the military judge received the record, both she and the court reporter responsible for compiling the record were in the midst of a complex, 29-day contested court-martial. The military judge nevertheless worked diligently with the court reporter to identify and correct errors, eventually verifying a complete record 198 days after trial.

Given all the circumstances, we do not view the delay as onerous. The record includes a 1,684-page transcript, with sealed portions, and a total of 184 exhibits, some of which are sealed. Post-trial processing must balance quality and attention to detail with speediness. Although there were, undoubtedly, missteps that slowed the process, we acknowledge the efforts of the military judge, court reporter, and other Government personnel to identify and address errors to ensure delivery of a complete, quality record to this Court.

Navy-Marine Corps

To illustrate this point, we note that “in late 1860, the short-lived but nationally famous Pony Express hit full stride.” Using relays of horses stationed twenty-five miles apart, a package could travel from Saint Joseph, Missouri to San Francisco, California in just eight days. While we will not require posttrial processing to move at the speed of the precursor to the telegraph, the Government must do better than it did here.

United States v. Mendoza

Under the theory that JW did not consent to the act, the Government charged Appellant with sexual assault in violation of Article 120(b)(2)(A), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(b)(2)(A) (2018).1 Notably, the Government did not charge Appellant with a sexual assault under Article 120(b)(3)(A), UCMJ, which would have required the Government to prove both that Appellant committed a sexual act on JW when JW was incapable of consenting to the sexual act due to impairment by any drug, intoxicant, or other similar substance and that Appellant knew or should have known that JW was incapable of consenting. At trial, the Government presented evidence of JW’s extreme intoxication and argued to the military judge sitting alone both that JW would not have consented to sexual intercourse with Appellant and that she was incapable of consenting to sexual intercourse due to her high level of intoxication.

Appellant challenges the legal sufficiency of his conviction on the grounds that the Government failed to introduce affirmative evidence of the lack of  consent beyond a reasonable doubt. We disagree with Appellant that direct evidence of JW’s lack of consent was necessary for his conviction to be legally sufficient, but we do agree with his secondary argument that Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A), UCMJ, create separate theories of criminal liability. Article 120(b)(2)(A), UCMJ, criminalizes engaging in a sexual act with a person capable of consenting who did not consent, and Article 120(b)(3)(A), UCMJ, criminalizes engaging in a sexual act with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance when the accused knows or should have known that the person was incapable of consenting.

 The Government’s approach—which conflated two different and inconsistent theories of criminal liability—raises significant due process concerns. Because the ACCA’s decision upholding Appellant’s conviction does not explain how or why the evidence of JW’s intoxication factored into its analysis, we reverse the decision of the ACCA and remand the case for the court to reconsider its legal and factual sufficiency analysis in light of this opinion

Sparks, J., concurring and dissenting

I join part II(B)(1) of the majority opinion because I agree with the majority that Article 120(b)(2)(A), UCMJ, and Article 120(b)(3)(A), UCMJ, create separate theories of criminal liability. 10 U.S.C. § 920 (2018). The majority acknowledges, correctly in my opinion, that “[t]he Government’s approach—which conflated two different and inconsistent theories of criminal liability—raises significant due process concerns.” United States v. Mendoza, __ M.J. __, __ (3) (C.A.A.F. 2024). And I am in complete agreement with the majority that: what the Government cannot do is charge one offense under one factual theory and then argue a different offense and a different factual theory at trial. Doing so robs the defendant of his constitutional “right to know what offense and under what legal theory he will be tried and convicted.” Id. at __ (13) (quoting United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016)). The majority even goes so far as to explain that in this case “[t]he military judge may have convicted Appellant of sexual assault on the theory that JW was incapable of consenting without the Government proving that Appellant knew or should have known that she was incapable.” Id. at __ (12-13). Again, I agree. It is in deciding where we go from this point that the majority and I disagree. Instead of finding that the evidence is legally insufficient or that Government violated Appellant’s due process right to fair notice by arguing an uncharged factual and legal theory of liability at trial and testing the error for prejudice, the majority instead concludes that the appropriate remedy in this case is to remand the case to the United States Army Court of Criminal Appeals (ACCA) for a new legal and factual sufficiency review in which the ACCA can explain “how or why the evidence of JW’s intoxication factored into its analysis.” Id. at __ (3). With this I cannot agree.

Maggs, J., concurring and dissenting in part

I concur with the Court’s interpretation of Article 120(b)(2)(A), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(b)(2)(A) (2018). I disagree, however, with one aspect of the Court’s disposition of this appeal. Specifically, while the Court remands the case for both a new legal and factual sufficiency review, I would hold that the evidence is legally sufficient and remand solely for a new factual sufficiency review. I therefore respectfully concur in part and dissent in part.

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