Tomorrow CAAF will hear oral argument in United States v. Stewart, No. 11-0440/MC. The case is a Prather trailer that presents the following issues:
I. Under United States v. Prather, is it legally possible for the prosecution to disprove an affirmative defense beyond a reasonable doubt once the military judge has determined that the defense has been proved by a preponderance of the evidence and, if not, is the military judge required to enter a finding of not guilty in such a case under RCM 917?
II. Whether the Navy-Marine Corps Court of Criminal Appeals erred in finding the evidence factually sufficient beyond a reasonable doubt to sustain appellant’s conviction under specification 2 because in doing so it (1) violated the Prather legal-impossibility principle and (2) impermissibly found as facts allegations that he was found not guilty of in specification 1.
III. Whether the military judge committed prejudicial error by requiring the defense to present evidence on the defense of consent at an Article 39(a) session prior to trial.
The appellant, a Marine Corps Captain, was convicted in 2009, contrary to his plea, of one specification of aggravated sexual assault in violation of Article 120, UCMJ.
Prior to trial, the trial military judge “ruled that because he was ‘in the best position’ to determine if the consent defense is raised by the evidence, Capt Stewart was required – then and there – ‘to show by a preponderance of the evidence’ the existence of consent in the case.” Appellant’s Brief at 5. The defense presented evidence, and the military judge ruled that it had met the preponderance burden and permitted the defense.
After the prosecution rested, the defense moved for findings of not guilty under Rule for Courts-Martial 917. The trial military judge denied the motion without considering his finding that the evidence presented by the defense before trial proved the defense by a preponderance.
Noting that the trial military judge opted for the “preponderance” standard, vice the “some evidence” standard, the appellant argues at CAAF that under Prather, once the trial military judge found that the evidence presented by the defense proved consent by a preponderance, he was required to enter findings of not-guilty.
And yet, the issues before CAAF are much stranger. Issue III addresses the pre-trial hearing during which the appellant presented evidence of consent, specifically two documents: (1) a sworn statement submitted by the appellant to NCIS, and (2) a transcript of the victim’s testimony at the Article 32. However, this evidence, specifically the statement to NCIS, was not provided to the members, though the record indicates that the appellant’s civilian trial defense counsel believed (until he drew a prosecution objection during closing arguments) that it had been admitted and would be published.
Additionally, Issue II addresses the unique circumstances of the specification, which was actually half of a duplicitous specification that was severed before trial. The specification originally stated “was substantially incapacitated or substantially incapable” (emphasis added). The appellant was convicted of the “substantially incapable” specification, and acquitted of the “substantially incapacitated” specification. However, the trial military judge’s instructions for the two specifications were largely identical. Accordingly, the appellant argues, the findings are ambiguous, and when the N-MCCA found the finding of guilty factually sufficient, it relied on facts of which the appellant was acquitted.
If this is not already paradoxical enough, the appellant’s brief states (at page 4-5) that the trial military initially ruled that, if the members convicted the appellant of both specifications, the specifications would be merged for sentencing. However, the brief also states (at page 7) that the members were instructed that they could return a finding of guilty to only one specification.
In its brief, the government argues that the military judge’s determination permitting the defense of consent was merely an interlocutory decision. Noting initially that there is no procedure for a trial military judge to set-aside a members verdict solely because it goes against the weight of the evidence, the government argues that the record makes it abundantly clear that the trial military judge was merely making a pre-trial determination of whether the consent instruction was to be given, and not finding facts during the pre-trial hearing. The government also notes that the military judge does not have the power to enter a judgment of acquittal prior to the presentation of evidence (which is essentially what the appellant seeks). Additionally, the government phrases the trial military judge’s preponderance test as a test of whether the defense of consent was in issue, not whether the defense of consent was proven.
The issue involving the severed specification is seen by the government as invited error, because the accused requested severance, but then argued that the conviction is impossible to uphold on appeal. Moreover, seizing on the difference between”substantially incapable” and “substantially incapacitated” (especially in light of Congressional differentiation), the government argues that the finding is not ambiguous or inconsistent.
Finally, addressing the pre-trial hearing, the government argues that it did not prejudice the appellant, and that the statement to NCIS was not provided to the members because it was both inadmissible and not offered by the appellant. In this context, the government distinguishes a pre-trial hearing by a military judge alone, where the Rules of Evidence do not apply and materials are considered but not necessarily admitted into evidence, to trial proceedings before members.
In a reply brief, the appellant restates his reliance on Prather to support the argument that the trial military judge was required to grant the defense motion for findings of not guilty. He also argues that either the government must have elected a single theory of criminality in a single specification, or the military judge must have instructed the members that they must convict of both or neither specifications, in order to avoid ambiguity and error. The appellant’s counsel concludes his reply brief with a summation of his arguments:
All Capt Stewart wanted, and was entitled to, was a fair trial. He objected to the original specification, requesting that the prosecution elect its theory of criminality, as the MCM requires. The request was denied. He objected to being required to produce consent evidence with members absent and before the prosecution’s case,39 but the judge demanded it. So Capt Stewart provided his NCIS statement, which the military judge accepted and used to rule that he would issue the consent-defense instruction. Then, when Capt Stewart attempted to direct the members to that statement – the evidence he relied upon to craft his trial strategy – the military judge refused to allow the members to see it, leading to the ruinous argument highlighted in Capt Stewart’s original brief.
CAAF will review the issues in this case de novo, and there’s plenty of fodder and complexity. I suspect that the oral argument will focus on the meaning and significance of the trial military judge’s employment of the “preponderance” standard, with the severed specification and instructions thereon getting a good deal of consideration. I also anticipate consideration of a hypothetical case that omits the pre-trial “preponderance” hearing conducted in this case.