Courts of Criminal Appeals

Air Force
​(Updated 18 November 2024)

United States v. Moore--a case to watch

In his appeal, Appellant challenges the legal and factual sufficiency of his sexual assault conviction. Specifically, Appellant argues that his conviction was legally insufficient because the Government violated his due process rights by conflating two different theories of criminal liability under Article 120, UCMJ, during his court martial. For the reasons set forth infra we agree.

The Appellant was charged with sexual assault without consent.

Viewing this evidence in the light most favorable to the Prosecution and drawing every reasonable inference from the evidence of record in favor of the Prosecution, we find Appellant’s conviction legally insufficient because the Government in this case charged Appellant under one factual theory—sexual assault without consent (from a person capable of consenting)—and then proved the charged offense on a different factual theory—sexual assault when Appellant knew or should have known that the victim was asleep. After reviewing the totality of the record of trial, we cannot conclude any rational trier of fact could have found the essential elements of the crime as charged beyond a reasonable doubt. Here, the Government offered no evidence that AB was capable of consenting and did not consent. Instead, the Government’s evidence presented during Appellant’s court-martial was limited to the fact that AB was asleep, and therefore not capable of consenting when the sexual act occurred. This included testimony from multiple witnesses regarding AB’s sleep habits. Moreover, the Government’s closing argument was solely focused on the fact that AB was incapable of consenting because she was a “heavy sleeper” and was asleep while the sexual act occurred. For these reasons, we conclude Appellant’s conviction for sexual assault is not legally sufficient. Additionally, for the same reasons, after giving the appropriate deference to the factfinder, we are also clearly convinced the findings of guilty are against the weight of the evidence and therefore factually insufficient as well.

Compare with United States v. McTear, (ACCA) on reconsideration and United States v. Mendoza, __ M.J.___ , 2024 CAAF LEXIS 590 (C.A.A.F. 7 Oct. 2024).

Has the prosecution charged appellant under one Article 120 theory of criminal liability and proved a different theory of liability at trial; and if so, does it matter. See United States v. Mendoza, __ M.J.___ , 2024 CAAF LEXIS 590 (C.A.A.F. 7 Oct. 2024).
In Mendoza, the Court of Appeals for the Armed Forces (CAAF) set aside the decision of this court affirming appellant's conviction on the grounds that appellant had been convicted of sexual assault while the victim was incapable of consenting under Article 120(b)(3)(A), UCMJ, despite being charged with sexual assault without consent under Article 120(b)(2)(A), UCMJ. The conflation of "two different and inconsistent theories of criminal liability" "rob[bed] the defendant of his constitutional 'right to know what offense and under what legal theory he [would] be tried and convicted" and therefore, violated appellant's due process rights. Id. at *3, 18 (citing United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016)).
The CAAF held that a sexual assault under Article 120(b)(2)(A), UCMJ, "criminalizes the performance of a sexual act upon a victim who is capable of consenting but does not consent" whereas a sexual assault under Article 120(b)(3)(A), UCMJ, "criminalizes the performance of a sexual act upon a victim who is incapable of consenting to the sexual act." Despite the statutory distinction between the diverging theories of liability, however, the CAAF acknowledged that "offering evidence of an alleged victim's intoxication" could be used "to prove the absence of consent." Id. at *22.

In McTear, ACCA found 

[I]n this case, the evidence clearly proved the victim, through words and conduct, expressed her lack of consent to appellant before the sexual assault. While the victim may have been in and out of sleep at the time of the offense, the victim's clear manifestations of her lack of consent provide overwhelming evidence that she did not consent to the sexual act. Appellant was charged with a lack of consent offense, under Article 120(b)(2)(A), UCMJ, and the evidence at trial was legally and factually sufficient.

Army

United States v. Abdullah (en banc)

The issue was post-trial delay in forwarding the record to the court--163 days. A majority of the en banc court finds no excessive delay and setting aside the bad conduct discharge was not warranted. The en banc decision sets aside the panel's decision in favor of the Appellant. There is a strong dissent--from the panel. The majority reminds Army SJAs that,

In United States v. Winfield, issued one week after this case adjourned, we abandoned Brown's 150-day time limit, finding instead that some cases might justifiably take longer than 150 days to process for review and that others should take significantly less time. 83 M.J. 662, 665 (Army Ct. Crim. App. 2023). Instead of imposing a bright-line time limit, we reaffirmed the requirement for an explanation as set forth in Brown and held that in determining the reasonableness of the delay, "we will scrutinize even more closely the unit-level explanations for post-trial processing delays."

As further emphasis, the court cautions

We not only re-emphasize our interest in the Staff Judge Advocate (SJA) providing an explanation for periods of unexplainable post-trial delay, but we also take this opportunity to re-emphasize the importance of providing a detailed explanation and something more than a mere recitation of the timeline of post-trial events. A memorandum with nothing more than a mere timeline and scant information explaining periods of significant delay is unhelpful to this court and will not weigh in favor of the government in our analysis of post-trial delay. Further, the government should never presume on its own what constitutes excessive post-trial delay and fail to provide a post-trial processing memorandum. If there are periods of time in which it may appear there is a lack of reasonable diligence in the post-trial processing of a case, the government would be well-served to provide a memorandum explaining those periods. For example, in this case, it took the convening authority 69 days after the submission of appellant's post-trial matters to act on appellant's sentence and another 21 days to complete the ministerial task of transmitting a draft Entry of Judgment (EOJ) to a military judge after the convening authority's action. The post-trial processing memo provides no explanation for these periods of time. The SJA, responsible for advising the convening authority on referral of charges and post-trial action on the sentence, is ultimately responsible for ensuring efficient post-trial processing. A responsible party within the OSJA with supervisory oversight of the post-trial process, acting on behalf of the convening authority, should provide a detailed explanation for lengthy lapses of progress in post-trial processing. Without such an explanation, this court lacks potentially favorable information for the government when considering the totality of the circumstances that may justify periods of delay in post-trial processing.

The dissent not only takes on the decision but also interjects some insight into how the Army court grants reconsideration en banc. Some key points.

1. The SJA is ultimately the person responsible for timely forwarding of records to the court.

2. "There is an extensive history of precedent from both this court and the CAAF holding that administrative/manpower constraints are not a justifiable reason for post-trial delay. [Query, if there's a personpower issue, does not the ultimate responsibility lie at the headquarters level on personnel assignments sufficient for timely actions?] The dissent goes on, 

In United States v. Arriaga, the CAAF again held that "personnel and administrative issues, such as those raised by the Government in this case, are not legitimate reasons justifying otherwise unreasonable post-trial delay," and were critical of the fact that the record provided no legitimate reason for the delay. 70 M.J. 51, 57 (C.A.A.F. 2011) (citing Moreno, 63 M.J. at 137). See also United States v. Jackson, 74 M.J. 710, 719 (Army Ct. Crim. App. 2015) ("[T]he government's explanations for the delay involve court reporter shortages and high number of cases tried. Our superior court has held 'that personnel and administrative issues arenot legitimate reasons justifying otherwise unreasonable post-trial delay.")
. . .
Further highlighting the need for a detailed explanation, we explained in Winfield that "we are consistently interested to know about a case's transcript length, competing requirements (e.g., actual operational exigencies, in-court coverage), military judge availability, court reporter availability and utilization for transcription, and resource shortfalls (e.g., insufficient throughput capacity despite court reporter regionalization)." Id. at 666 (emphasis in original). A concurring opinion reiterated that "the chronology for each case should account for any lengthy processing period with a detailed, original account of all relevant circumstances," and cited Canchola for the principle that "staff judge advocates and convening authorities should ensure the reasons for delay are documented in the record of trial."

For those wishing to litigate an issue that TJAG resource managers are depriving an Appellant of the right to a speedy review, such information could be useful. (The same might be said in resourcing the appellate defense divisions, especially now that the statutory changes in who can appeal have, perhaps, doubled their case load.) Stated another way.

DO THE PERSONNEL ASSIGNMENT POLICIES OF THE (appropriate TJAG) DEPRIVE AN APPELLANT OF A RIGHT TO SPEEDY REVIEW, A RIGHT THAT HAS STATUTORY AND CONSTITUTIONAL DUE PROCESS IMPLICATIONS, AL LA BARKER V. WINGO.

The remedy the original panel applied was to set aside the punitive discharge, which the en banc panel rejected. Could CAAF be inclined, or encouraged to revisit  Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 138, 48 C.M.R. 751 (1974), or rather Moreno, 63 M.J. 129 (C.A.A.F. 2006) and similar cases.

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Compare Abdullah (decided 5 November 2024) with Gordon (decided 7 November 2024) where there were 830 days of delay and no relief granted.

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United States v. Burch

Appellant raises four assignments of error, two of which merit discussion, and one of which merits relief in the form of setting aside his guilty plea, nullifying the original plea agreement, and returning the parties to the status quo ante.

Oops. An appellate advocate always briefs a client about the potential of what happened here when challenging the guilty plea (or in this case the PTA). There is a do-over.

The Appellant was originally charged with four Article 120 specifications, one Article 128b, and one Article 90. The government subsequently dismissed the Article 128b and Article 90 specifications. After which began plea negotiations. The Appellant refused to plead guilty to any offense implicating Lautenberg. Ultimately, a plea for a straight Article 128 was negotiated, the defense counsel thinking and telling the Appellant that it was not Lautenberg qualifying. Problem is, that although trial counsel understood that (and didn't tell the defense--which the court had something to say about), the way the case proceeded it was still a Lautenberg qualifying guilty plea. The point of law for all is that,

We start our analysis by confirming that the specification to which appellant pled guilty is a qualifying conviction under the Lautenberg Amendment. As noted above, 18 U.S.C. § 922(g)(9) criminalizes the possession of firearms by those previously convicted of a misdemeanor crime of domestic violence, which is in turn defined as an offense that: (1) is a misdemeanor under federal, State, Tribal or local law; (2) has an element, the use or attempted use of force; (3) is committed by a spouse or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, or by a person who has a current or recent former dating relationship with the victim. 18 U.S.C. § 821(a)(33)(A).
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As applied here, all three of the Lautenberg Amendment qualifying requirements are present[.]

Here is what the court said about the SVP.

Having considered the entire record, to include the R.C.M. 810 findings of fact, we answer the question posed by the R.C.M. 810(f) judge in the affirmative. In short, the SVP was not only aware of defense counsel's misunderstanding of the Lautenberg Amendment, but unfairly took advantage of that misunderstanding to secure a guilty plea. We can fathom no reason why, after defense counsel repeatedly told the government that the whole point of the negotiations was to avoid such a consequence, a prosecutor negotiating in good faith would fail to disclose that he "absolutely" knew the Lautenberg Amendment applied. As such, appellant's misunderstanding of the applicability of the Lautenberg Amendment was: (1) in large measure induced by the conduct of the SVP; and (2) made clear to the SVP, who nonetheless failed to correct that misunderstanding.

In addition, it might be useful for MJs to modify their PTA colloquy when there's the slightest possibility Lautenberg might be an issue.

In addition to the SVP's actions, the trial judge's comments at trial inadvertently (emphasis in the original) contributed to the misunderstanding of appellant and the defense team. Although the trial judge was not aware of the prior negotiations and/or significance of the Lautenberg Amendment to the defense, her comments at trial helped solidify the misunderstanding that the SVP fostered and failed to correct. For example, when viewed through the lens of defense counsel and appellant entering into the plea agreement, it is easy to see how the military judge's comments about appellant not pleading to a "domestic violence" offense, and the parties reaching a "meeting of the minds," could reinforce their incorrect belief that the Lautenberg Amendment did not apply. Likewise, although under no obligation to do so either way, the fact that in prior cases the military judge advised the accused of Lautenberg consequences when applicable, but did not do so in the case, once again gave the impression to appellant and his counsel that the Lautenberg Amendment did not apply. To reiterate, we are not finding that the military judge was aware of and failed to correct appellant's misunderstanding of a material collateral consequence during the trial, but rather only that her comments inadvertently served to reinforce appellant's mistaken belief that his guilty plea would not impact his ability to possess firearms.