Here’s an unusually interesting entry from yesterday’s daily journal:
No. 11-0256/MC. U.S. v. Michael J. CHEESEMAN. CCA 200900567. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) and United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010), said petition is granted on the following specified issue:
WHETHER APPELLANT’S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c)(2), UCMJ, SHOULD BE SET ASIDE IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES v. NEAL, 68 M.J. 289 (C.A.A.F. 2010), AND UNITED STATES v. PRATHER, 69 M.J. 338 (C.A.A.F. 2011).
It is further ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge III and Specification 1 thereunder and as to the sentence, but affirmed in all other respects. The findings as to Charge III and Specification 1 thereunder and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority who may order a rehearing on the affected charge and sentence. Alternatively, a rehearing on sentence only may be ordered with regard to the affirmed findings.
Here’s the NMCCA opinion. Here’s how NMCCA dealt with the instructions:
The military judge’s instructions on the affirmative defenses of consent and mistake of fact as to consent omitted the statutorily prescribed burden on the Government “of proving beyond a reasonable doubt that the affirmative defense did not exist,” if the defense first proved “[consent or mistake of fact as to consent] by a preponderance of the evidence.” Fn.1 Art. 120(t) (16), UCMJ. Though not objected to at trial or raised on appeal as error, the military judge’s failure to properly instruct the members on these affirmative defenses is not subject to the manual’s waiver rules, and has potential constitutional implications. Medina, 68 M.J. at 590 (citations omitted); United States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003). However, we are convinced beyond a reasonable doubt that these instructions “did not contribute to the [appellant’s] conviction or sentence.” Medina, 68 M.J. at 590. As the appellant failed to prove the existence of either affirmative defense by the statutorily mandated “preponderance of the evidence,” the Government’s burden of proof under the statutory scheme was never triggered. Therefore the military judge’s failure to properly instruct on that statutorily prescribed burden had no impact on the findings or sentence.
Fn.1 The military judge instructed the members that if at the time of the alleged sexual intercourse it was more likely than not that: (1) “[the victim] consented,” or (2) “the [appellant] honestly and reasonably believed that [the victim] consented,” then this consent or mistake “is a complete defense” and “you should find the accused not guilty.” Record at 253-54 (emphasis added). Similar instructions were addressed in Mozee v. United States, 963 A.2d 151, 159 (D.C. 2009)(where if the appellant met the burden of proving theaffirmative defense of consent by a preponderance of the evidence; the jury was “required” to find him not guilty; see also D.C. Code § 22-3007 (2008)). We acknowledge the distinction between “required” and “should” with respect to findings of not guilty if the appellant sustains his burden, but find no prejudice where, as here, the appellant failed to sustain that initial burden of proof.