Given government appellate counsel’s acknowledgment that it was impossible to determine which allegation the military judge found occurred beyond a reasonable doubt, it’s no surprise that ACCA reversed the conviction for that specification. Faced with the next question, which was whether to send the case back for a sentencing rehearing or to reassess the sentence itself, the panel determined it could reassess the sentence itself, reducing the confinement time from 6 years to 4 years. Having been involved in military justice as long as I have, I don’t think I will ever fully understand the confidence required for a service court to do the reassessment itself: “if the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error.”
I’m not sure why we’re still litigating the issues raised in Daniels, as it’s been several years since CAAF held that, when deleting “on divers occasions” from a specification, the finder of fact must make clear on which fact pattern they convicted. See US v. Walters, 58 M.J. 391 (C.A.A.F. 2003); United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004). That no one (military judge, trial counsel, defense counsel) recognized this at trial is troubling.