CAAF decided United States v. Tunstall, No. 12-0516/AF, 72 M.J. 191 (CAAFlog case page) (link to slip op.), on Thursday, May 23, 2013, finding that the trial judge erred in instructing the members on the offense of indecent acts as a lesser included offense of aggravated sexual assault, reversing the AFCCA on this issue, and remanding the case to the CCA for further proceedings. The court also finds that despite the Government’s failure to allege a terminal element in the Article 134 offense of adultery, the record or trial demonstrates that the Appellant was on actual notice of the terminal element, and CAAF affirms this finding of guilty.

Judge Erdmann writes for the court, joined by Judge Ryan and Senior Judge Effron. Judge Stucky writes separately concurring in part and in the result. Chief Judge Baker dissents.

The Appellant was convicted, contrary to his pleas by a general court-martial composed of members, of one specification of aggravated sexual assault, one specification of indecent acts (as a lesser included offense of a second specification of aggravated sexual assault), and one specification of adultery, in violation of Articles 120 (2007) and 134, UCMJ. He was sentenced to confinement for six months, a reprimand, reduction to E-1, and a bad-conduct discharge. The convening authority approved the adjudged sentence, and the AFCCA affirmed the findings and sentence.

CAAF granted review of two issues:

I. Whether appellant’s conviction for indecent acts must be set aside because the military judge erred in instructing the jury that indecent acts is a lesser included offense of aggravated sexual assault.
II. Whether the finding of guilty to adultery must be dismissed in accordance with Rule for Courts-Martial 907(b)(1) because it fails to state an offense.

The Appellant engaged in a number of sexual encounters with a very intoxicated Airman KAS. One involved the Appellant digitally penetrating KAS’ vagina while she was leaning over a sink, dry heaving after having vomited, while another airman stood nearby (the other airman eventually said to the Appellant, “[i]t’s not time for that. I mean she’s sick. We need to take care of her.” Slip op. at 4-5). For this specific encounter (there were others) the Appellant was charged with aggravated sexual assault of KAS while she was substantially incapable of declining participation. “During his instructions on findings, the military judge sua sponte instructed the members that the offense of indecent acts was a lesser included offense of the charged offense of aggravated sexual assault.” Slip op. at 5. The Defense did not object to this instruction, and the Appellant was acquitted of aggravated sexual assault and convicted of indecent acts. The CCA affirmed, reasoning “one cannot engage in a ‘sexual act’ with someone who was vomiting in a sink in the presence of a third party without also engaging in an indecent act.” Slip op. at 6 (quoting Tunstall, No. ACM 37592, slip op. at 10).

Beginning his analysis of this instructional issue, Judge Erdmann notes that CAAF reviews for plain error because the Defense did not object to the instruction. He then details the three-prong test for plain error that later becomes a significant theme in the opinion:

Under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.

Slip op. at 6. The Government’s argument was that “the aggravated sexual assault specification at issue could, without alteration, constitute a legally sufficient indecent acts specification. The crux of the Government’s argument is that the act alleged in [the specification] constituted indecent conduct under the above definition because KAS was substantially incapable of declining the participation in the sexual act.” Slip op. at 9. However, Judge Erdmann notes that:

It has long been recognized that a jury must be able to rationally acquit on the greater offense but still convict on the lesser offense. Sansone v. United States, 380 U.S. 343, 350 (1965) (“[T]he lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.”).

Slip op. at 9-10. Normally, when challenging a lesser included offense, the argument is that the lesser offense is too different from the charged offense. But in this case the argument is reversed, and the indecent acts offense fails as a lesser included offense because it is too similar to the charged offense of aggravated sexual assault. Judge Erdmann explains:

Under the facts of this case, where there is no additional fact that the members would need to find in order to establish the offense of aggravated sexual assault which would be unnecessary to establish the offense of indecent acts, the two offenses do not stand in a relationship of greater/lesser offense, because a rational trier of fact could not acquit on the greater offense and convict on the lesser offense.

Slip op. at 11 (emphasis added). But Judge Erdmann continues, also finding error in another instruction given by the trial judge that “engaging in a sexual act in the presence of others is considered ‘open and notorious’ behavior which could constitute an indecent act.” Id. Open and notorious is not a theory of aggravated sexual assault, and this instruction “essentially took the ‘substantially incapable of declining participation’ theory for the offense of indecent acts off the table and instead provided the members with detailed instructions as to the ‘open and notorious’ theory for the offense.” Slip op. at 12. Accordingly, “[a]s Tunstall was neither charged with nor on notice of the offense of indecent acts under the ‘open and notorious’ theory until the military judge’s instruction, he was not on fair notice to defend against that offense and his due process rights were violated.” Slip op. at 12-13.

On my first reading of this portion of Judge Erdmann’s opinion, I saw the discussion of the “open and notorious” instruction as superfluous and dicta. But then I remembered last term’s per curiam opinion in United States v. Rauscher, No. 12-0172/NA, in which CAAF explained that it doesn’t matter what offense the Government thinks its charging, so long as the specification itself sets forth all of the elements of the offense of conviction (this principle was again applied in this term’s decision in United States v. Wilkins, No. 11-0486/NA). So, if the charge of aggravated sexual assault in this case had encompassed the “open and notorious” theory, then the conviction for indecent acts could have been affirmed, not as a lesser included offense but simply as a charged offense. I think this is why Judge Erdmann writes that the Appellant was “neither charged with nor on notice. . .”

Unfortunately, Judge Erdmann doesn’t explain this point, or cite Rauscher at all, and he only cites Wilkins for the test for plain error. Moreover, while Judge Stucky’s concurring opinion cites both Wilkins and Rauscher in its first paragraph, he also doesn’t explain why they matter to the treatment of the LIO issue. These omissions make it easy to miss this important part of this opinion (assuming that this is really what the court is trying to say).

Judge Erdmann then turns to the second issue, which is whether the Government’s failure to allege the terminal element in the adultery specification means that the specification must be dismissed. Again applying plain error, Judge Erdmann finds that there was no material prejudice to a substantial right of the accused, and the conviction is affirmed. This is an increasingly common result when reviewing defective 134 specifications where there was no objection at trial, but the way Judge Erdmann gets there makes me feel pretty good about something I wrote almost a year ago:

While the terminal element of Article 134 was not discussed during voir dire, the opening statements, or the Government’s case-in-chief, it was raised by the defense during trial. At the start of the defense case, the senior defense counsel sought the admission of a petition for simplified dissolution of marriage. The dissolution of marriage is relevant to marital status, which is one factor to be considered as to whether the terminal element is met. MCM pt. IV, para. 62.c.(2)(a). When the senior trial counsel objected to its admission, the senior defense counsel explained that the document was relevant to the third element of the offense of adultery — that “under the circumstances that conduct, the adultery, was prejudicial to good order and discipline, or service discrediting.” The military judge admitted the document.

. . .

In closing argument on the adultery specification, the defense counsel focused on the third element. He asked the members to read the military judge’s instructions explaining conduct prejudicial to good order and discipline and conduct of a nature to bring discredit upon the armed forces. He asserted that, because the Government had not called any witnesses to prove the third element, it failed to prove that Tunstall was guilty of adultery. Here, where evidence in the trial record indicates that the defense introduced evidence for the specific purpose of negating both theories of the terminal element of Article 134, UCMJ, and further argued that the Government had not proven either terminal element during its closing argument, we conclude that Appellant has not met his burden to demonstrate material prejudice to a substantial right, as he did defend himself, despite the Government’s error.

Slip op. at 15-17 (emphases added). So, the Government neither charged nor tried to prove a terminal element, but CAAF affirms because the Defense put on evidence to rebut a terminal element. Presumably then, had the Defense done nothing, CAAF would have reversed, just like it did in United States v. Humphries (which was also a contested adultery specification). Doesn’t this sound familiar?

The issue, and the hazard, are that the way for an accused to get relief under Humphries is to not raise the issue at the time of trial – to sandbag the trial court and then claim lack of notice on appeal.

Consider: Had the trial defense counsel in Humphries presented evidence that the adulterous intercourse was not prejudicial or discrediting, or sought a bill of particulars, or made the terminal elements a central theme in argument, or discussed them in pretrial motions, or objected to the specification, or to the instructions, or to the trial counsel’s inaccurate statement of the law in closing, or perhaps even had the defense raised the issue at any time before the JAG’s second certification of the case to CAAF, the court might have determined that the defense had some notice that the government had to prove either or both terminal elements. Only because the defense did none of these things, and seemingly ignored the terminal element until the very end, was the court able to find that “there is not a single mention of the missing element, or of which theory of guilt the Government was pursuing, anywhere in the trial record.” Slip op. at 21.

The Hazard of Humphries. I love it when I’m right.

But Judge Erdmann also makes me very wrong as he flatly rejects my key prediction for this case, which was that this case (and United States v. Clifton, No. 12-0486/AR, which was argued on the same day) were going to herald CAAF’s move to the full, four-prong test for plain error. I was wrong about this in Clifton, and I was really wrong about it in this case:

The Government urges us to apply the four-prong plain error test from United States v. Olano, 507 U.S. 725 (1993). Olano, however, interprets Federal Rule of Criminal Procedure 52(b) — a rule which does not govern the scope of this court’s appellate review. 507 U.S. at 731. Plain error review in this court is governed by Article 59(a), UCMJ, 10 U.S.C. § 859(a). The key difference between these two sources of law is that Fed. R. Crim. P. 52(b) is an enabling rule conferring discretion upon the reviewing court (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” (emphasis added)), whereas Article 59(a) is a restricting rule (“A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” (emphasis added)). See also Unites States v. Powell, 49 M.J. 460, 464 (C.A.A.F. 1998) (“[T]he Olano definition has limited applicability . . . because . . . [among other factors] it interprets the federal rules, which are somewhat different from the military rules.”).

We have consistently rejected application of the fourth prong of Olano when addressing questions under Article 59(a), UCMJ, and do not intend to revisit that practice here. Instead, we adhere to our own longstanding precedent on Article 59(a) questions. See, e.g., Humphries, 71 M.J. at 214; United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011); United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008); United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).

Slip op. at 14-15 N.7 (emphasis added). That’s a plain statement of the court’s feelings about plain error, but I’m going to come back to this topic in the next few weeks because I think there’s a lot more that can be said.

However, Judge Stucky’s concurring opinion shows that I was just a little bit (say, 20%) right in this prediction, as he “would adhere to the Supreme Court’s four-prong plain error test as set out in [Olano]” Con. op. at 2. Judge Stucky also emphasizes that when testing for plain error, the Appellant has the burden of showing material prejudice to a substantial right, and this means that the error (the missing terminal element) must have affected the outcome of the trial (i.e., “but for the error claimed, the result of the proceeding would have been different” – another point I emphasized in The Hazard of Humphries).

Finally, Chief Judge Baker dissents. He finds that indecent acts is plainly a lesser included offense of aggravated sexual assault “under any lesser included offense doctrine adopted by this Court during the last sixty years.” Diss. op. at 1. Chief Judge Baker analyzes the offense under the facts of this case, and dissects the trial judge’s instructions on both offenses. Chief Judge Baker sees two possibilities: Either the digital penetration was non-consensual, and therefore indecent (“Digitally penetrating someone who is intoxicated and does not consent is grossly vulgar conduct.” Diss. op. at 5), or it was consensual but open and notorious, and therefore still indecent (“committing the alleged sexual act in the bathroom with a third party present and his act would have thus been wrongful.” Diss. op. at 5). He concludes that “given the relationship between the definitions given the members on wrongfulness and consent and the relationship between the definitions of a sexual act and indecent conduct in this case, I conclude quite easily that indecent acts as instructed upon in this case was included within the first element of the greater charged offense of aggravated sexual assault.” Diss. op. at 7. The Chief Judge also disagrees with the majority’s greater/lesser offense analysis.

There is a lot more fodder for analysis in this opinion, and I hope to revisit it this summer when things slow down for a few months (assuming that things do slow down this year). But at its core I think that this case is another significant milestone in CAAF’s treatment of LIOs, joining the list of United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (ruling that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (ruling that a simple neglect under Article 134 is not a LIO of every enumerated article), United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (“returning to” the elements test for determining LIOs), and United States v. Rauscher, (C.A.A.F. 2012) (holding designation of a specific statute immaterial when the proper elements are explicitly alleged).

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
CAAF argument audio
CAAF opinion
Blog post: Opinion analysis

8 Responses to “Opinion Analysis: United States v. Tunstall, No. 12-0516/AF”

  1. TK11 says:

    CAAF again rejects Olano’s plain error test and leaves the question open for another day. That day will come in U.S. v. Carter where the Court has been asked to revisit its flawed logic in Powell. It’s striking that the Court continues to adopt the application of federal law when it supports the desired result, but rejects it when it’s contrary to the majority’s position.  There is no reason to perpetuate a separate test. 

  2. Dwight Sullivan says:

    The 23 May Gaskins/Goings/Tunstall trilogy refutes the “Humphries Hazard” by making clear that the analysis applies only to cases tried before Fosler.  Since Humphries was a post-Fosler opinion, it couldn’t have created an incentive to sandbag, since a post-Fosler sandbag won’t be analyzed under the same law that governed the outcome of Humphries itself or the Gaskins/Goings/Tunstall trilogy.

  3. Zachary Spilman says:

    As will become clear in my analysis of Goings (to be published tomorrow) and Gaskins (later this week), I don’t agree that it matters if a case was tried pre- or post-Fosler. The Government’s failure to explicitly allege a terminal element in an Article 134 specification is constitutional error implicating the accused’s due process right to notice (“allegation of the terminal element is constitutionally required.” United States v. Fosler, 70 M.J. 225, 233 (C.A.A.F. 2011)). Such an error is not waived unless the record clearly establishes the accused’s intentional relinquishment of a known right. That will never be the case when the defense merely fails to object in the ordinary course of a trial (leaving a record that is merely silent).

    Neither Fosler nor Humphries marks some sort of plain error event horizon, beyond which such a constitutional error can be implicitly waived. The Hazard of Humphries is real, and it’s just a matter of time before it materializes.

  4. Dwight Sullivan says:

    A majority of the CAAF judges clearly believes that it does matter whether a failure to raise a challenge to the sufficiency of an Article 134 spec was pre- or post-Fosler.  From Goings, slip op. at 13:  “Because Appellant’s trial occurred before this Court’s decision in Fosler, we deem his failure to object as forfeiting, rather than waving, the underlying right and apply plain error analysis.”  Note that four CAAF judges joined in this opinion: Judge Ryan (author judge), Chief Judge Baker, Judge Erdmann, and Senior Judge Effron.  Even without the vote from the floating senior judge seat, that’s a CAAF majority.  Now look at Gaskins, slip op. at 16:  “Because Appellant’s trial occurred before our decision in Fosler, we deem Appellant’s failure to object at trial to forfeit rather than waive the error.  Humphries, 71 M.J. at 211, 213-15.”  But wait; there’s more.  Now look at footnote 10 in Gaskins:  “We continue to find the standard of prejudice set out in United States v. Dominguez Benitez, 542 U.S. 74 (2004), illsuited for defective Article 134, UCMJ specifications TRIED PRIOR TO FOSLER.  See, e.g., Humprhies, 71 M.J. at 215 n.7 (noting that ‘Dominguez Benitez is inapposite’ because, among other reasons, ‘ANY OBJECTION BY APPELLEE AT TRIAL WOULD HAVE BEEN FUTILE BASED ON THE LAW AT THE TIME — which also alleviates the ‘sandbagging’ concerns noted in [Puckett v. United States, 556 U.S. 129, 134 (2009)]’).  DIFFERENT CONSIDERATIONS WOULD APPLY, HOWEVER, WITH RESPECT TO CASES TRIED AFTER FOSLER WAS DECIDED because that case clarified for the field that the terminal element of Article 134, UCMJ, is a discrete criminal element that — like any other criminal element — must be independently pleaded and proven.”  Gaskins, slip op. at 21 n.10 (emphasis added).  It’s hard to get much clearer than that.
    The “Humphries Hazard” is like the military justice system’s Great Pumpkin:  foretold often but never actually seen.

  5. Zachary Spilman says:

    A majority of the CAAF judges clearly believes that it does matter whether a failure to raise a challenge to the sufficiency of an Article 134 spec was pre- or post-Fosler. From Goings, slip op. at 13:  “Because Appellant’s trial occurred before this Court’s decision in Fosler, we deem his failure to object as forfeiting, rather than waving, the underlying right and apply plain error analysis.”  Note that four CAAF judges joined in this opinion: Judge Ryan (author judge), Chief Judge Baker, Judge Erdmann, and Senior Judge Effron.  Even without the vote from the floating senior judge seat, that’s a CAAF majority.

    That’s one thing that worries me. Is the court going to later decide that a silent record in a post-Fosler case serves to waive the constitutional error in failing to charge all of the elements of an offense? Will this apply to non-134 offenses? Talk about turning RCM 907(b)(1) (“a charge or specification shall be dismissed at any stage of the proceedings if … the specification fails to state an offense.”) on its head! Or is this all dicta, and will the court eventually realize that one failure to object to a constitutional error is the same as any other?

    But that’s about whether the issue was forfeited or waived. The Hazard is in the way the court finds prejudice. Certainly, where the record reveals a zealous prosecution and defense of the terminal element, and it’s clear that everyone realized that a terminal element had to be proven, an appellate court could find that the error in failing to charge a terminal element was harmless (though that term doesn’t appear anywhere in either Tunstall or Goings, both of which involved such facts). At the other end of the spectrum are cases where there is no discussion of a terminal element or where, like in Humphries, the terminal element is addressed only in closing argument and instructions. In the middle are all the cases where the uncharged element receives some varying degree of attention. CAAF’s treatment of the non-harmless end of this spectrum – scrutinizing the record for actions by the defense that indicate notice – is a role-reversal of the plain error test.

    The Hazard is that such a reversal encourages a conscientious defense counsel in a close case to deliberately avoid creating a record of actions that might later be read to indicate notice, even when he fully realizes that the government is failing but that the accused might be convicted anyway. Maybe we’ll never see a record like that, or maybe it will take a different form (like a claim of ineffective assistance of counsel), but the Hazard does exist. It will appear. Right here in this pumpkin patch!

    The defense has the burden of showing material prejudice when an error is forfeited, and the failure to charge an element is the error, not the prejudice. Scrutinizing the record for evidence of notice (harmlessness) is the opposite of scrutinizing the record for evidence of prejudice. Relieving the defense of the burden to show prejudice turns the plain error review into a de novo review. There are always errors in a trial, and always failures to object, because no lawyer is perfect. But reversing a conviction requires more than just error and silence as to its effect on the proceedings.

  6. Dwight Sullivan says:

    1.  If there’s waiver, it doesn’t matter whether there’s prejudice.
    2.  Note that footnote 10 from Gaskins is about prejudice:  “We continue to find the standard of PREJUDICE set out in United States v. Dominguez Benitez, 542 U.S. 74 (2004), illsuited for defective Article 134, UCMJ specifications TRIED PRIOR TO FOSLER.”  Gaskins, slip op. at 21 n.10 (emphasis added).  That certainly suggests that in a post-Fosler context, the prejudice analysis will be different.
    3.  A trial defense counsel would be foolish to sandbag for the purpose of setting some appellate trap for a number of reasons.  First, the trial acquittal rate is 10 times the appellate reversal rate; the wise trial defense counsel attempts to secure an immediate victory.  Second, even if a victory is obtained on appeal, the accused may have already served months (or, in the case of the Air Force, years) of confinement before winning.  Think of United States v. Carter, where the military appellate courts refused to order the appellant’s release even after he prevailed before AFCCA on Fosler/Humphries grounds and he served his entire three-year sentence based on two convictions that the Air Force Court reversed.  (The case was subsequently certified to CAAF to advance three challenges to the Humphries analysis that the Gaskins/Goings/Tunstall trilogy appears to have definitively rejected.)  Third,t he sandbagging isn’t likely to work.  CAAF has already sent a clear signal to trial defense counsel not to expect to prevail if they attempt to sandbag this issue post-Fosler.  I don’t think CAAF is bluffing.
    4.  An IAC claim isn’t an effective alternative if the trial defense counsel was attempting to sandbag, since that would be a tactical decision, which is kryptonite to IAC claims.
    5.  Ergo, sitting in a pumpkin patch overnight isn’t an effective trial defense strategy.  A corollary is that there isn’t a serious risk that military appellate courts will confer some sort of undeserved benefit on military accused whose defense counsel attempt to sandbag in that manner.  A “Humphries Hazard” would exist only if an issue that arose today would be treated on appeal the same as an issue that arose before 8 August 2011.  It won’t.   

  7. nw says:

    @ZS — I don’t understand this Hazard of Humphries logic.  Is there any prosecutor out there who hasn’t gotten the memo on charging the terminal element in every 134 specification?  What’s the hazard if prosecutors are now doing their job and charging every element of every 134 specification?  Please correct me if I’m wrong, but I don’t recall any case that has received Fosler/Humphries relief that wasn’t tried before Fosler came out.  What is there to sandbag at this point? 
    It seems to me that Fosler was the case that finally came along to give CAAF the opportunity to get 134 charging in line with long-established Supreme Court jurisprudence to allege every element of every offense in the indictment.  And, yes, a few accused will get relief from this case law correction, but it’s a good thing as I’ve written in many of my briefs.  134 is a necessary sword for the military, but a sword that the courts should look warily at and with an eye towards restraining its use.  Because there are no void for vagueness and over breadth concerns that would cause 134 to be struck down if it were part of any civilian criminal code, 134 gives any junior prosecutor the power to creatively criminalize all sorts of conduct.  It’s bad enough Congress hasn’t done its job in decades by actually taking the dozens and dozens of listed 134 offenses and actually enumerating them within the UCMJ.  The least we can do is make sure prosecutors charge every element of a statute that could be used to criminalize just about anything. 

  8. Zachary Spilman says:

    Great point nw.

    Still, when it comes to sandbagging, to find no possibility means to put CAAF’s opinion in Humphries into a corner and forbid it from ever influencing the court’s treatment of a forfeited error in any other context. Precedent normally doesn’t work that way, and a significant portion of my Hazard post was a criticism of CAAF’s unusual treatment of plain/forfeited error going back to before Powell.

    The Hazard post would have made for a good law review article, for which it would have been more thoroughly developed, but I instead spent the past year getting acquittals and dismissals for a slew of young Marines accused of all manner of things-young-Marines-do. So, I beg some forgiveness for the rough edges. This is a blog after all.

    But, truthfully, I think OFL’s point – that CAAF’s treatment in Humphries is limited to pre-Fosler trials – is righteous. I just really don’t like it. Because the Court of Appeals for the Armed Forces shouldn’t redefine plain error just to fix a mess that appeared because the Court of Appeals for the Armed Forces redefined how to charge offenses under Article 134.