Court of Appeals for the Armed Forces

United States v. Patterson

This case is a bit of an oddity because "The AFCCA found that the Government had not proved beyond a reasonable doubt that the incident occurred “between on or about October 1, 2015, and on or about November 1, 2015,” as alleged in the specification." Thus, the conviction was set aside as factually insufficient. How many times have we read that using the "on or about" language usually cures a wide variation in what the charged dates are and what the actual evidence shows? Writing for a unanimous Court, Judge Maggs observes that, 

Disagreeing with [AFCCA decision], the Judge Advocate General of the Air Force certified the following issue to this Court: “Where time was not an essential element of the offense, did the Air Force Court of Criminal Appeals err by finding factual insufficiency based on a discrepancy between the dates pleaded and the dates proved, when it should have applied a variance analysis and found a non-fatal variance instead?” We answer the certified question in the negative and affirm the decision of the AFCCA.

It appears that the government found itself in this predicament early in the case, during the charging decision, and apparently, in failing to see the evidence may not align too well with the specification.

To prove the allegations the Government called the named victim who testified that her stepfather, penetrated her vulva with his fingers at their home in South Carolina. [S]he was uncertain of the exact date of the incident but believed that it occurred in “roughly [the] spring/summer of 2015” when the weather was warm. She also testified that her mother was “probably five [or] six months” pregnant at the time of the offense. In addition, she testified that the incident occurred before the end of September when her brother was born. The Government presented no evidence that the incident occurred between October 1, 2015, and November 30, 2015.

During closing arguments, the Government presented a PowerPoint time line to the panel that included the notation “Spring/Summer 2015: SSgt Patterson rapes [C.H.]. Later, the Government presented a different slide with bolded text stating that the offense occurred “on or about 1 October 2015, and on or about 30 November 2015.” The Government acknowledged this discrepancy between the evidence presented at trial and the dates on the charge sheet, but never sought to amend the specification and never asked the military judge to instruct the members of the court-martial about the possibility of making findings with exceptions and substitutions.

We are left wondering how the Government missed that likely discrepancy when doing the charge sheet or at the Article 32, preliminary hearing or in the SJA advice. The Court gives some helpful training suggestions on that.

​Although we do not grant relief in this appeal, we note that potential problems concerning dates alleged in a specification often can be addressed and avoided before a case reaches appellate review. As an initial matter, specifications of course should be carefully drafted so that they conform to the anticipated evidence. And if the government’s understanding of the evidence changes after a specification has been drafted, the government might seek to change the specification under R.C.M. 603 or withdraw the specification under R.C.M. 604 and then replace it. The government also could ask the military judge to instruct the panel members on findings by exceptions and substitutions as is permitted under R.C.M. 918. But here, the Government declined to take any of these corrective steps despite being aware of the discrepancy between the specification and evidence presented at trial.

The Court discusses the different legal approaches

Issues relating to the dates alleged in a specification have come before this Court in several contexts. For example, this Court has been asked to review whether an attempted amendment to the dates alleged in a specification after the Government rested was an improper “major change” under Rule for Courts-Martial (R.C.M.) 603(d)(2).

This Court also has been asked to review whether a court-martial properly found an accused guilty of a specification using “exceptions and substitutions” under R.C.M. 918(a)(1), when those exceptions and substitutions significantly altered the dates stated in a specification. Parker, 59 M.J. at 197-201.

[T]his Court has been asked to review whether, in the absence of either an amendment to the specification or findings by exceptions and substitutions, there was a “variance” between
the dates alleged in the specification and the evidence proved at trial that required reversal. United States v. Hunt, 37 M.J. 344, 347 (C.M.A. 1993).

The Court points out that the Government likens this case to variance cases such as Hunt. But, the problem is that Hunt was an Article 66, appeal where the "previously styled C.M.A.,"
found factual sufficiency.

This leads to the obvious question in Patterson as stated by Judge Maggs, "whether this Court, given its limited authority to review matters of factual sufficiency, can disturb that conclusion [of factual insufficiency]." Dismissing the Government's reliance on United States v. Thompson, 2 C.M.A. 460, 9 C.M.R. 90 (1953), and other cases . . . 

Nothing in Thompson, or any other decision that the Government has cited, authorizes this Court to remand a case when a CCA has held that the evidence is factually insufficient to prove the factual allegations of a specification. Here, the AFCCA did not hold that the evidence was factually insufficient “based on purely equitable factors or because it simply disagrees that certain conduct . . . should be criminal.” Rather, the AFCCA simply found that the Government had not proved the facts alleged. This finding was within the AFCCA’s discretion.

In reaching this conclusion, we must emphasize two important points. First, we do not disturb our long-standing precedent that “[a] finding of guilt is legally sufficient if any rational factfinder, when viewing the evidence in the light most favorable to the government, could have found all essential elements of the offense beyond a reasonable doubt.”

The issue of whether the evidence was legally sufficient to prove Specification 1 of Charge II is not before us.

Second, we express no opinion about whether the AFCCA might have affirmed the finding of guilty notwithstanding the discrepancy between the facts alleged and the facts proved using the type of variance analysis applied in Hunt. That issue is also not before us. We hold only that we lack authority to review the AFCCA’s determination that the evidence was factually insufficient to prove the facts alleged in the specification at issue.

United States v. Thomas

Thomas, a White Male, was charged with several offenses, including cruelty, maltreatment, and sexual abuse of a child. Included on the initial charges were "three specifications of wrongfully making derogatory statements regarding race (hereinafter the “race specifications”) in violation of Article 134, UCMJ. Appellant had entered pleas of not guilty to the race specifications and elected an "enlisted" panel.

(Note: after the impanelment, the military judge then granted a defense motion to dismiss the "race specifications," for failure to state an offense.)

The granted issue was whether the military judge erred in denying Thomas’s Batson challenge to the Government’s peremptory strike of a Black panel member, Major (MAJ) SK, who had shared past experiences of racial discrimination. During voir dire, the major disclosed that he had personally experienced racial slurs and had generally responded by ignoring them.

Neither side challenged the major for cause or raised an inference of bias. Instead, the Government exercised a peremptory challenge against him, citing his perceived minimization of racism as a concern for his ability to evaluate the seriousness of the charges.

The defense then made a Batson challenge. The military judge had these "facts" on which to rule.

​During individual voir dire, MAJ SK described two experiences of “racial discrimination.” The first was during his youth growing up in Germany. MAJ SK explained that the “town next over was the hub for the largest neo-Nazi organization in Germany . . . [s]o there was frequent encounters in regards to racial discrimination in certain stores.” The second occurred at Fort Polk, Louisiana, where he was “working with civilians as role players[] [a]nd they would ask [his] co-workers how it is to work with then***er (sic).” In response to trial counsel’s query how those experiences made him feel, MAJ SK said, “I see the individu-
als where they’re coming from and unless it has a . . . potential professional long term impact, or it impacts me professionally I ignore it and move on.” Defense counsel questioned whether MAJ SK believed “that just saying that word [n***er], in and of itself, is criminal.” MAJ SK demurred, explaining, “[t]he context in which it’s said, and the context where it comes from absolutely matters.” And to the question whether “a white man [can] ever say the word n***er,” he affirmed that his response would be “[w]e can talk about this,” rather than “how dare you.”

Batson v. Kentucky, 476 U.S. 79 (1986), considers three points for a Batson challenge to be overcome (1) a prima facie showing of racial discrimination, (2) has there been a race-neutral explanation, and (3) the judge must decides the explanation is note pretextual. However, military courts consider a modified Batson analysis:

• A per se rule satisfies the prima facie showing upon timely objection. See United States v. Tulloch, 47 M.J. 283, 286 (C.A.A.F. 1997); United States v. Hurn, 55 M.J. 446 (C.A.A.F. 2001).
• The Government must provide a reasonable, race-neutral explanation—not merely facially neutral, but one that is not “unreasonable, implausible, or nonsensical.”
• The burden then shifts back to the accused to prove pretext or purposeful discrimination