In my argument preview of United States v. Wilkins, No. 11-0486/NA, I predicted that the court would ask about last term’s opinion in United States v. Rauscher, 71 M.J. 225, No. 12-0172/NA (C.A.A.F. 2012). It took less than four minutes from the beginning of the recording for the court to get to that question, as it tried to pin down the Appellate Defense Counsel who seemed to have an answer for every question.

On brief, the Appellate Defense Counsel argued that the improper charge in this case was like charging “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.” During oral argument, the court seemed very sympathetic to this reasoning, with repeated references to a “legal impossibility” in the charge at issue (that alleged as a sexual act something that wasn’t – under the law at the time – a sexual act). Rauscher had radically different facts, and outside of the early mention seemed to get little attention.

As the argument progressed, the court turned its attention to prejudice, and the Appellate Defense Counsel advanced a surprisingly sensible argument: At trial, the Defense may have tailored its case to the bad (and I’m being charitable here) charging decision of the Government. This included making certain admissions at trial because they believed the Appellant couldn’t be convicted of the charge at issue. And not convicted he was, as the trial judge entered a finding of not guilty, but then permitted instruction on the “lesser-included offense.” This essentially, according to the Appellate Defense Counsel, allowed the Government to change the charged offense after the presentation of evidence, and while the trial judge could have relabeled the charge or amended the specification, he didn’t. Rather, he entered a finding of not guilty. That matters, says the Appellate Defense Counsel.

After only slightly more than half the allotted time, the argument shifted to the Government, and Government Counsel made the sort of ends-justify-the-means case that rarely flies these days:

Appellant walked into court accused of penetrating the anus of an incapacitated victim. He left court convicted of penetrating the anus of an incapacitated victim. There’s no due process violation in that scenario.

Argument audio at 12:30. He then argued that the offense of conviction (abusive sexual contact) is a LIO of the charged offense (aggravated sexual assault) except, he conceded, not under the facts of this case. My notes from the argument have many references to the “he walked into court charged with” theory, and I got the feeling that the Government believes that once the charge sheet alleged that the Appellant “plac[ed] his fingers or another object in the anus of” the victim, then the Appellant could properly be convicted of any offense arising from that act, be it a sexual act, sexual contact, an assault, maltreatment, fraternization, sodomy, or a general disorder. Of course, the Medina, Miller, and Jones line of cases makes clear that this isn’t how the law works.

On prejudice, Government Counsel argued that the element of sexual contact was essentially uncontroverted. However, as argued by Appellate Defense Counsel, this is because the Defense advanced a theory of consent that may have been predicated on the Government’s theory of the case as embodied in the charging decision. But the Government Counsel didn’t (though could have) argue that the Trial Defense Counsel sandbagged this issue. Perhaps (presumably, I’d say) the Defense saw the problem with the language of the charge. However, rather than raise it at the trial level, with a motion to dismiss for failure to state an offense, the Defense went marching on. I’ve previously lamented (with some significant dissent) CAAF’s willingness to overlook such things. I hope this isn’t a similar case.

Still, there was one part of this argument that troubled me. Repeatedly, Judge Ryan questioned the Appellate Defense Counsel about the matter of waiver of the issue of a defective specification, but-for the fact that this is a pre-Jones case. Counsel agreed that the issue would have been waived. However, I’m pretty convinced that McMurrin, Girouard, and Humphries make it clear that where there is no objection at trial to a defective specification, the error is forfeited but not waived. So I’m not sure what Judge Ryan was trying to say.

On balance, after reading the briefs I saw this case as involving a question of CAAF’s willingness to view a particular specification liberally. But after argument, I see it as involving a question of CAAF’s willingness to view the word specification liberally. In this case, the Government charged a specified offense but the Appellant was convicted of a substantially different offense. Presumably, the requirement of Rule for Courts-Martial 307(c)(3) that “a specification is a plain, concise, and definite statement of the essential facts constituting the offense charged” means something.

Well, we’ll see.

Case Links:
NMCCA opinion (Wilkins I)
NMCCA opinion (Wilkins II)
Blog post: The amazing (new) Article 120
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap

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