CAAF today issued its opinion in United States v. Alston, No. 10-0172/AR, affirming ACCA.  Chief Judge Effron wrote for a unanimous court.

The MCM doesn’t list the Article 120 offense of aggravated sexual assault as an LIO of the Article 120 offense of rape.  But CAAF held that the Manual’s discussion of LIOs isn’t all-inclusive.  Under the elements approach that it adopted in Jones, CAAF held that aggravated sexual assault could be an LIO of rape and was an LIO under the facts of this case.

CAAF also held that to be an LIO under the elements test, it isn’t necessary that the the two offenses at issue use identical statutory language.  Here, the statutory language for the greater offense — rape — includes the word “force.”  The statutory language for the LIO — aggravated sexual assault — includes the phrase “causing bodily harm.”  CAAF reasoned:  “The bodily harm element of aggravated sexual assault under Article 120(c) — defined in Article 120(t)(8) to include an offensive touching, however slight — is a subset of the force element in the offense of rape under Article 120(a), as defined in Article 120(t)(5)(c).”  CAAF continued:  “Each circumstance set forth in Article 120(t)(5)(C) describes an act of force applied by one person against another person involving sufficient power to compel submission or overcome or prevent resistance.  Applying the common and ordinary understanding of the words in the statute, each act of force described in Article 120(t)(5)(C), at a minimum, includes an offensive touching that satisfies the bodily harm element of Article 120(t)(8).”

14 Responses to “CAAF issues second opinion of the term; holds aggravated sexual assault was LIO of rape”

  1. noodle says:

    Short and to the point. I foretell the coming of the year of short, unanimous opinions.

  2. Anonymous says:

    Good to see that Jones was not as sweeping as some thought or hoped.

  3. Brien Le Chien says:

    Well I am glad that Jones was not as far reaching as feared, I also suspect that this further undermines Jones’s claim that the issue was “notice” to the accused.

    Jones adopted the elements test, which (it was argued), put the accused on notice of what the LIOs are. Same words = LIO. The whole point of Jones was the simplicity of its test. Putting the accused on notice of what he is defending against. This threw long-standing practice on its head, but at least we had simplicity.

    Now, of course, even if the language doesn’t match to figure out LIOs we will have to look at whether the statutory language is similar enough. Is it? Well, only a case-by-case CAAF review can say for sure. We now have neither the predictability of the old system, or the simplicity of the system envisioned by Jones.

    (I love how the court says that “The MCM … expressly notes that the listing of lesser included offenses in the MCM is not all-inclusive.” Sure, its not all-inclusive, post Jones its pretty irrelevant what the MCM lists as an LIO).

    The reality of Jones is that an accused had a far better idea of possible LIOs pre Jones – when almost all of them could be found in the MCM. Now, only a post hoc CAAF analysis can say for sure.

    Jones still forces prosecutors to charge every LIO (ok, one less as of today – if your willing to bet your facts match this case). Can’t say an accused is better off, but I guess he will get more notice – just not the kind he wanted.

    To me, the difficulty of applying Jones is that the UCMJ was never written with this test in mind. Offenses that are clearly meant to be LIOs, used (sometimes for historical reasons sometimes arbitrarilly), different language. To figure out where Jones is taking us will take a lot more case law, a rewrite of the UCMJ to conform to Jones, or a legistative reversal of Jones.

    Its slim, but I’m hoping for the latter.

  4. John O'Connor says:

    The beauty of Jones is its simplicity . . . except when you don’t apply it.

    I think an important part of the court-martial system, grounded as it is as a tool of good order and discipline, is its flexibility. A strict elements test doesn’t allow for that degree of flexibility.

  5. Snuffy says:

    Under the facts of this case- so how useful is the analysis to any other case?? Great notice.

  6. Brice says:

    JOC,
    Flexibility at what price? Your point only seems valid if one accepts conviction as the primary purpose of a court-martial. That is utter non-sense. The primary purpose of a court-martial should be justice…no?

  7. Dr Horrible says:

    Don’t worry! The NEW new 120 will fix all of this.

  8. John O'Connor says:

    It’s not black and white like that. It’s simply not true that every nod to flexibility renders a system of justice unjust, or even less just. Good order and discipline must be balanced in the military justice system, and it’s really just a question of where on the continuum rules are placed.

    In my view, a strict elements test does not place the accused on any fairer notice of a potential LIO than does a list in the MCM (and, in fact, an elements test probably provides less notice than just pubishing a list somewhere because it requires some analysis of the relevant evidence instead of just looking at a chart). Heck, you could say CAAF agrees with me, as the lesson of Alston might be that there’s a strict elements test except when there isn’t, which hardly seems to qualify as giving an accused certainty before trial as to what the potential LIOs are.

    I also don’t think “justice” calls for pleading three different alternative specs for the same conduct because an inflexible rule prohibits treating the offenses as LIOs. Requiring that multiplication of charges (which now can’t really be called an “unreasonable” multiplication of charges) doesn’t seem like it promotes justice for the accused.

    Given the military’s need for good order and discipline, I’m generally against any rule that leads to a result along the lines of “yes, I committed a crime, but not THAT crime, just one that’s pretty close to the crime I was charged with but not a perfect subset of the elements, so please send me back to duty.”

  9. Brien Le Chien says:

    And in case I needed more proof, I should have scrolled down further to see that CAAF actually had to GRANT review to see if housebreaking is a lesser included of burglary. Seriously? Wow.

    And while I have to bet they will affirm, what does it say about the PREDICTABILITY of our system (which is at least part of giving notice), that this issue is CAAF worthy.

    (To put it differently, until CAAF decides the case, every prosecutor apparently should have been charging burglary and house-breaking for the same offense, because it is UNCLEAR whether the latter is an LIO).

    Did CAAF see that the 120 line of cases was coming to a close and needed a new crop of cases to come their way? (Ok, I don’t mean that…but what did they think was going to happen).

    Who is going to keep the chart that keeps track of all the Jones case decisions, and telling the world what is an LIO of what. I see one of the services publishing a Jones newsletter. Sign me up.

    Whatever Jones is, it is not ACTUAL good notice and it is NO way to run a justice system.

  10. RY says:

    The sky is falling, the sky is falling! Hardly.

    First of all, Alston is completely consistent with Jones. There was nothing in Jones that did away with subsets provided they are necessarily included in the greater offense. The concept of subsets is why wrongful approp is still an LIO of larceny and why assault would be an LIO of rape if congress had not messed with Art 120. Simply put, if you must always prove the lesser offense in convicting on the greater, then it’s an LIO. It’s still simple and precise, as law is supposed to be. The elements test works well in federal courts and there is no justifiable reason for the military having gone away from the elements test in the first place.

    Further, it really is not a complicated fix to update the MCM to make it clear when an offense is and is not an LIO. Most of the confusion is really a factor of sloppy drafting rather than what the test is. Under the old “close enough” standard, we simply had no reason to be precise. Art 120 is a slightly different story – sloppy drafting to fix something that’s not a problem. In any event, as with any change, there will be a bit of a transition but this is not chaos.

    It takes work to charge what’s really at issue and it takes moral courage to hold the government to its charging decision when they miss the mark. Jones enforces these points and Kudos to that.

  11. John O'Connor says:

    “It takes work to charge what’s really at issue and it takes moral courage to hold the government to its charging decision when they miss the mark.”

    ——————–

    I’m not sure I see why this is so. When the accused has reasonable notice of the conduct alleged as criminal, I don’t think it’s courageous (or even particularly praiseworthy) to allow the guilty to go free based on the conclusion that they committed not the offense specifically charged but some closely related offense. “Justice,” in my mind is not a one-way ratchet.

    When a supposed LIO comes out of left field, such that an accused couldn’t reasonably expect to be defending against the conduct in the alleged LIO, that’s a different story.

    Is the play here to now charge every possible offense and make the accused start moving to dismiss specs on the ground that they are LIOs? It would seem to be hard to claim unfair surprise on appeal if the accused successfully dismissed a spec as being an LIO of another charged offense.

  12. Brien Le Chien says:

    Here here.

  13. RY says:

    “When the accused has reasonable notice of the conduct alleged as criminal…”
    __________________________________________________

    It’s not about charging conduct, but rather offenses. The system we have, both in federal court and in the military, is not “you tried to have sex with A1C Snuffy, which may be an attempted rape, or agg sex assault, or something like that.” The cops can’t pull you over for speeding and then substitute a citation that you weren’t wearing your seatbelt. Notice of the offense includes exactly what you must defend against. Close enough is an escape hatch for lazy work.

    Incidentally, do you really think that a thorough prosecutor will have a problem with LIOs? The Government has lots of discretion in charging and sometimes wants an all or nothing case. We don’t need courts to be paternalistic. We need to leave them to choose the charges and live with their choices. It makes prosecutors better; it makes the justice system better. The accused is stuck living with his choices; why shouldn’t the gov’t be?

    If there are truly two possible theories of guilt, I have no problem whatsoever with alternative pleading; it puts everything out on the table. But if the Gov’t believes Amn Doe committed rape, and that’s why they’re taking him to trial, why should they get to fall back on simple assault, which would not likely have resulted in trial in the first place?

  14. Anonymous Air Force Appellate Defense Lawyer says:

    I concur with RY. The problem with the old system was in how/who determined what was “closely related”. The Jones case was charged as a nonconsensual sex assault case, and the lower courts all decided that consensual sex within hearing distance of other people in base housing was “some closely related offense.” The “closely related offense” standard would be fine if we could trust our system to apply the standard fairly. What the prosecution did in Jones was not fair. In response, CAAF’s ruling in Jones attempts to take some discretion away from prosecutors and the lower courts. Personally, I don’t believe the lower courts deserve this discretion.