CAAF’s second oral argument of the term is in United States v. Wilkins, No. 11-0486/NA, a case that prompted me to marvel about the amazing (new) Article 120 when it was decided by the NMCCA last year. The case involves a question of whether the Appellant was properly convicted of abusive sexual contact in violation of Article 120(h) (2007), as a lesser-included offense of aggravated sexual assault in violation of Article 120(c) (2007). The Appellant was also convicted (after a contested trial) of forcible sodomy in violation of Article 125.
The charged offense to be considered by CAAF that the Appellant:
engage[d] in a sexual act, to wit: placing his fingers or another object in the anus of Master-at-Arms Third Class [BDL], U.S. Navy, when Master-at-Arms Third Class [BDL], U.S. Navy was substantially incapable of declining participation in the sexual act or communicating unwillingness to engage in the sexual act because he was asleep.
However, under the 2007 statute, placing one’s fingers or another object in another person’s anus is not a sexual act; rather, it is sexual conduct. A sexual act under that statute required either contact between the penis and vulva, or penetration of a genital opening. While the 2012 revision of Article 120 expanded the definition of sexual act to include the penetration of the “vulva or anus or mouth,” this case involves the unusual situation of a specification that does not properly state the charged offense, but that the trial judge found stated a lesser offense and then – without objection from the trial defense counsel – he instructed the members on the elements of the lesser offense, resulting in a conviction. The CCA affirmed in early-2011, finding that
This specification incorporated a term of art from Article 120(c) – “sexual act” – yet described activity that met the definition of “sexual contact,” a term of art found in Article 120(h). The military judge brought this drafting error to the parties’ attention after the close of evidence.
Doubtless the specification could have been drafted better . . . but we cannot conclude that this specification was so defective as to mislead the appellant.
United States v. Wilkins, No. 201000289, slip op. at 6-7 (N-M.Ct.Crim.App. Mar 24, 2011) (Wilkins I) (emphasis added). CAAF summarily remanded on July 27, 2011, “for reconsideration in light of United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011), United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011), United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011), and United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010).” On remand, the CCA determined that:
By penetrating MA3 L’s anus, he must at least have touched MA3 L’s anus. The appellant therefore met the statutory definition of “sexual contact,” noted supra. We do not need to look any further into the legislature’s intent with respect to these two crimes. We conclude that the military judge properly instructed the members that abusive sexual contact is an LIO of aggravated sexual assault.
United States v. Wilkins, No. 201000289, slip op. at 6-7 (N-M.Ct.Crim.App. Nov 29, 2011) (Wilkins II). In April, CAAF again granted review to determine:
Whether Appellant’s right to due process of law was violated when he was convicted for abusive sexual contact as a lesser-included offense of aggravated sexual assault.
The briefs raise two big questions: (1) was abusive sexual contact under Article 120(h) (2007) a lesser-included offense of aggravated sexual assault under Article 120(c) (2007), and (2) if not, was there substantial prejudice to a material right of the Appellant when the military judge improperly instructed the members that it was an LIO? But there’s also a third issue not discussed in the briefs: does it matter?
The Appellant’s brief begins by analogizing this case to a situation where the Government charges “Larceny by unlawfully striking a victim. In such a case, even if one takes it as true that the defendant unlawfully struck his victim, the defendant is still not guilty of larceny.” Appellant’s Br. at 8. Despite the CCA’s earlier interpretation of “sexual act” and “sexual contact” as “term[s] of art,” the Appellant explains:
First, a “sexual act,” as defined by the statute, has nothing to do with the anus. Second, because of this, the digital penetration of the anus is not something that is “necessarily” included in the commission of a sexual act. These points are important because Article 79 of the UCMJ permits conviction of a crime as a lesser-included offense of another crime only where the alleged lesser offense is “necessarily included in the offense charged . . . .” Article 79, UCMJ.
That is not the case here. The act of penetrating a person’s genital opening includes touching the genitals, but the act of penetrating the anus——the act alleged here——does not. So although abusive sexual contact of the genitals is necessarily included in any aggravated sexual assault, abusive sexual contact of the anus is not. Abusive sexual contact of the anus is a separate crime with different elements.
Appellant’s Br. at 11. The Government’s response to this argument is that “Abusive sexual contact is a lesser included offense of aggravated sexual assault because it is impossible to prove a sexual act without also proving sexual contact.” Gov’t Br. at 7. The brief expands this argument with the following reasoning:
[The statutory] definitions show that every sexual act is, at a minimum, a sexual contact. One who penetrates the genital opening of another must also commit sexual contact. The reverse is obviously not true: many types of sexual contact are not sexual acts, including the type of sexual contact at issue here.
Gov’t Br. at 11. I’m inclined to side with the Appellant on this question, not just because this case involves a type of sexual contact that does not amount to a sexual act (these not at all being “terms of art”), but also because the NMCCA previously found that Article 120(c) and Article 120(h) were separate offenses in a multiplicity context. See United States v. Fairley, No. 200900574, slip op. at 3 (N-M Ct. Crim. App, 30 June 2010) rev’d on other grounds 70 M.J. 357 (summary disposition in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011)).
CAAF could make quick work of the case by ruling that 120(h) was a LIO of 120(c). However, if CAAF agrees with the Appellant that this was not a proper LIO, then it must test the military judge’s erroneous instruction on the 120(h) offense for prejudice, due to the Appellant’s failure to object at trial. The Appellant’s argument on this question of prejudice is straightforward:
This is reversible prejudicial error because: (1) it infringed upon Appellant’s substantial right not to be convicted of a crime he was not charged with; and (2) it allowed Appellant to be punished for a crime he was not charged with.
Appellant’s Br. at 13. This is reminiscent of CAAF’s finding in Girouard: “under the facts of this case, the prejudice is clear — Appellant was convicted of an offense that was not an LIO of the charged offense.” United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011). But Girouard was a fact-specific holding in a case where the defense contested most-everything, and the Government’s brief highlights an important fact that distinguishes Wilkins from Girouard:
The element of sexual contact (penetration of the anus) was uncontroverted at trial. Appellant’s theory throughout was that the victim was not asleep and consented to the acts. Trial Defense Counsel conceded during closing argument that Appellant penetrated the victim’s anus. Appellant’s defense was that it was consensual and the victim was not asleep. Therefore, Appellant has not shown material prejudice, when the Record shows he had notice that he was defending against abusive sexual contact, and the sexual contact element was uncontroverted at trial.
Gov’t Br. at 18. In other words, the Appellant’s defense at trial was that this was a consensual encounter, and that defense likely would have been exactly the same if the Government had properly charged him with a violation of Article 120(h), instead of improperly charging him with a violation of Article 120(c). I expect that early in the oral argument the court will ask the Appellant’s counsel to explain what part of the Appellant’s case would have been different had the Government properly charged a violation of Article 120(h), and why the Government should be required to conduct a second trial – seemingly identical to the first in nearly all respects – in order to convict the Appellant of this offense. This question is a serious bar to relief for the Appellant in this case.
However, even if the Appellant could show prejudice, there’s a good reason to believe that it doesn’t matter and that CAAF will find a third-way to resolve this case (in the Government’s favor). The Government served its brief in this case on June 18, 2012. On that same day, CAAF issued its short opinion in United States v. Rauscher, 71 M.J. 225, No. 12-0172/NA (C.A.A.F. 2012), in which it found that the charged offense of assault with intent to commit murder under Article 134 also stated an offense of aggravated assault under Article 128 (the offense of conviction, based on a LIO instruction). In my analysis of Rauscher, I noted the following:
A footnote contains an important reminder for trial advocates:
“In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute.”
Slip op. at 4 N.1 (citing United States v. Hutcheson, 312 U.S. 219, 229 (1941)).
The specification in this case clearly alleged facts that meet the definition of sexual contact (“placing his fingers or another object in the anus of”), even though it designated these facts as amounting to a sexual act. In this way, it’s a lot like the specification in Rauscher (though the facts are markedly different, particularly the fact that Rauscher’s trial defense counsel actually argued for the 128 offense).
We’ll have to wait to see if CAAF will consider viewing this specification as liberally as it viewed the specification in Rauscher. But since the court’s oral argument calendar identifies the appellate defense counsel in Wilkins as the same appellate defense counsel who argued Rauscher, anyone making buzzword bingo cards for this oral argument should be sure to include “Rauscher” and “Hutcheson” among the choices.