In this post last September, I analyzed the unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014), that reversed a conviction for forcible rape in violation of Article 120(a) (2006) on the basis that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse. I concluded that post with the following analysis:
The Government could take this case to CAAF, where that court can review a CCA’s action on factual sufficiency to determine if “the CCA clearly acted without regard to a legal standard or otherwise abused its discretion.” United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010). And the Judge Advocate General of the Air Force hasn’t been shy about certifying cases to CAAF over the past year (see Part V of the 2013 End o’ Term Stats). But Judge Weber’s opinion is focused on the facts of the case and doesn’t involve the sort of “purely equitable factors” or “simpl[e] disagree[ment] that certain conduct— clearly proscribed by an unambiguous statute— should be criminal” that CAAF has found constitutes an abuse of discretion.Nerad, 60 M.J. at 147. So I think any such appeal faces very long odds.
But the following entry from CAAF’s daily journal for yesterday is totally unsurprising:
Appeals – Summary Dispositions
No. 15-0247/AF. U.S. v. Eddy C. Soto. CCA 338422. On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Dec. 19, 2014)), and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding Appellee’s rape conviction, and any lesser offense, factually insufficient. Accordingly, it is ordered that the certified questions are answered in the negative and the decision of the United States Air Force Court of Criminal Appeals is affirmed.