CAAF will hear oral argument in the certified Navy case of United States v. Clark, No. 16-0068/NA (CAAFlog case page), on Tuesday, March 15, 2016. The case presents a Government challenge to the reasoning of a three-judge panel of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.

The convictions were based on allegations that the appellee used force to engage in vaginal and oral intercourse with a woman who had very little memory of the acts due to her state of intoxication at the time of the encounter. The primary evidence against the appellee was the woman’s testimony based on her fragmented memory. The appellee was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge.

Significantly, the military judge made special findings at the request of the defense. The findings included that the military judge found the alleged victim’s testimony to be credible and that he found the appellee’s pretrial statements to criminal investigators demonstrated consciousness of guilt.

Nevertheless, considering the evidence presented at trial, and employing its unique factual sufficiency powers, the NMCCA found the evidence insufficient to sustain the convictions:

We are unconvinced by the record before us that the Government met their heavy burden of proving the required element of force for either offense. While SW’s description of appellant holding her by her arms provided some evidence of force, she could not link this action by the appellant to any further act, sexual or otherwise, and the disorganized, potentially non-sequential order of her memories prevents us from concluding that the charged forcible sexual acts necessarily followed.

United States v. Clark, No. 201400232, slip op. at 13 (N-M. Ct. Crim. App. Jul. 14, 2015). As a result, the CCA dismissed the charges with prejudice.

The Judge Advocate General of the Navy then certified two issues to CAAF:

Article 66(c), UCMJ, requires that courts of criminal appeals conduct a plenary review of the entire record and “recogniz[e] that the trial court saw and heard the witnesses.” in reversing appellee’s convictions for factual insufficiency without acknowledging the military judge’s non-guilt special findings did the lower court fail to conduct a complete Article 66(c) review?

In conducting its factual sufficiency review, the lower court used a different standard of review for the non-guilt special findings made by the military judge under Rule for Courts-Martial 918(b) than that adopted by the Army and Air Force Courts of Criminal Appeals. should the lower court have reviewed the military judge’s non-guilt special findings under the clear error standard adopted by the Army and Air Force Courts of Criminal Appeals?

Article 66(c) permits a courts of criminal appeals to approve only findings that are correct “in law and fact,” and it instructs that the court “may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” It is the last ten words of that statutory provision that are at issue in this case, as the Government asserts that the CCA “merely paid lip service to [them]” in its decision. Gov’t Br. at 46. The Government asks CAAF to require the CCA to give:

considerable weight to the findings of the Military Judge and, if it disagrees, to justify its departure from those findings by explaining why its inability to see and hear the witnesses is irrelevant to its conclusions.

Gov’t Br. at 47. Further, the Government asserts that factual issues addressed in special findings (the non-guilt findings) should be reviewed under the clearly erroneous standard.

The appellee’s response accuses the Government of seeking judicial amendment of Article 66(c) to make is “less protective of an accused.” App. Br. at 9. The appellee’s brief also highlights that the foundation for the Government’s argument is the concise nature of the CCA’s decision (what the Government terms “lip service”). Yet the CCA is not required to shows its analysis in meticulous detail, a point the appellee notes that the Government makes to support its victories:

It is well-settled that the NMCCA is not required to detail all of its analysis. The Government recently has taken this position in at least one other case:

Appellant’s mere disagreement with the Panel’s decision is neither grounds for en banc reconsideration nor support for the claim that he did not receive proper review pursuant to Article 66 of the Uniform Code of Military Justice. Contrary to his argument, Appellant is not owed any further explanation from this Court.

Assuming arguendo that the NMCCA was required to consider the military judge’s special findings, nothing in its opinion shows that it did not do so sufficient to overcome a presumption of regularity in the appellate process.

App. Br. at 16 (quoting a Gov’t answer to a petition for reconsideration in an unrelated case).

The Government’s response to this is functionally an assertion that it is entitled to more:

[Appellee] merely relies on a presumption of appellate regularity to support his claim that the lower court did, in fact, consider the Special Findings. Furthermore, these inconsistencies are completely unaddressed by the lower court. This lack of analysis, analytical reconciliation, or even mere mention belies Appellee’s reliance on “a presumption of appellate regularity” and amply demonstrates the lower court’s failure to consider the “entire record” as it was required to do pursuant to Article 66(c).

Reply Br. at 14.

Case Links:
NMCCA opinion
Blog post: An appellant’s sex assault convictions are reversed, but he isn’t released from confinement (yet)
Blog post: The Navy JAG certifies Clark
Appellant’s (Government) brief
Appellee’s brief
Appellant’s reply brief
Blog post: Argument preview

20 Responses to “Argument Preview: United States v. Clark, No. 16-0068/NA”

  1. Contract Lawyer says:

    If the charges were dismissed with prejudice, why would the accused even respond to the Government’s appeal here?  Could the accused just go pro se and send in a letter telling everyone to go eat a @!(& meat sandwich? 

  2. Zachary D Spilman says:

    As discussed in my first post about this case, the UCMJ does not give a CCA the authority to enforce its own decisions. Rather, that authority is given to the JAGs who instruct convening authorities to take action in accordance with the decisions of CCAs:

    (e) The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals.

    Article 66(e). The caveat “unless there is to be further action. . .” in this statute provides that a JAG is not required to instruct a convening authority to implement a decision of a CCA unless there will be no further review. See United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). A CCA’s decision is said to be inchoate until a JAG gives it force, and a JAG is not required to give a decision force if there will be further review.

  3. Former DC says:

    Usually you give us some points you expect to be contentious at arguments. Do you have some this time?

  4. Michael Lowrey says:

    Filling in at CAAF for Clark (and Rodgers) is Chief District Court Judge Frank D. Whitney of the Western District of North Carolina. Whitney is also a colonel in the Army Reserve and a military judge.

  5. The Silver Fox says:

  6. k fischer says:

    Silver Fox,
    Interesting.  Didn’t really expect that twist at the end.

  7. Zeke says:

    This certification is unconstitutional because it violates the double jeopardy clause.  What the CCA actually did here was render an acquittal:

    “[W]e know the[] court acquitted[], not because it incanted the word ‘acquit’ (which it did not), but because it acted on its view that the prosecution had failed to prove its case.”

    Evans v. Michigan, 133 S. Ct. 1069, 1078 (2013); also:

    “[A] defendant is acquitted . . . when the ruling of the judge, whatever its label, actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged.”

    United States v. Scott, 437 U.S. 82, 97 (1978).
    The government cannot challenge an acquittal, even one which is rendered by a court of appeal rather than a jury:  

    “[T]he law attaches particular significance to an acquittal, so a merits-related ruling concludes proceedings absolutely.”

    The government’s assertion that this acquittal is subject to review because it was based upon an erroneous application of the law is nonsense: 

    “A mistaken acquittal is an acquittal nonetheless, and we have long held that a verdict of acquittal could not be reviewed, on error or otherwise, without putting a defendant twice in jeopardy, and thereby violating the Constitution.”

    Evans, 133 S. Ct. at 1074 (quoting United States v. Ball, 163 U.S. 662, 671 (1896); also:

    “[T]he fact that []the acquittal may result from . . . erroneous interpretations of governing legal principles[,] affects the accuracy of that determination, but it does not alter its essential character.”

    Scott, 437 U.S at 98.
    CAAF used to be able to review CCA factual sufficiency determinations if they were based upon an erroneous application of the law.  But, after Evans, that’s not true if the factual sufficiency determination is an acquittal.  Acquittals simply cannot be reviewed “on error, or otherwise.”  “Otherwise” means the CCA can’t even conduct reconsideration of a panel decision on factual sufficiency without violating the double jeopardy clause.  Much less can TJAG certify a judicial acquittal up to CAAF.  Clark ought to seek a writ of mandamus from an Art III court ordering CAAF to dismiss the certificate.  Even entertaining that certificate of review places Clark twice in jeopardy.

  8. Concerned Defender says:

    Law school, day 1, Criminal Law:  A study of the 5th Amendment, Bill of Rights, US Constitution:  “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  
    So when the Appellate Court said it was factually insufficient, that had the effect of an acquittal.  From the last paragraph of the case: “…We are not satisfied the government satisfied its burden of proving the appellant’s guilt to the charges of rape and forcible sodomy beyond a reasonable doubt.  We therefore find the appellant’s convictions factually insufficient.  The findings of guilty and the sentence is set aside.  The charges and specifications are dismissed with prejudice.”   That is an acquittal.  Plain and simple.  There is no government appeal.  Right?!
    When are we going to start firing Judge Advocates who cannot or simply refuse to follow fundamental day 1 legal training and holding their law licenses at bay for frivolously wasting taxpayer time and money?  Don’t JAGs have a fiduciary duty to protect tax dollars from fraud, waste, and abuse, such as these costly trials and appeals on nonsense cases???  This infuriates me as a lawyer and a taxpayer. 

  9. stewie says:

    You should have stuck around for day 2.  Juries/panels can decide to acquit for whatever reason and it sticks, even if they do it because it’s a day that ends in Y.  Appellate court decisions to overturn a conviction do not receive quite the same universal protection, particularly if they are based on either a clearly erroneous finding of fact, or an error in the law/misapplication of a law.
    That doesn’t mean I think NMCCA got it wrong, but I see no issue with the CAAF’s authority to review or the Navy to certify it.  Well, no legal barrier to the Navy certifying it.

  10. Zeke says:

    The law school answer doesn’t apply here because a CCA is a strange duck.  In Art. 66(c), Congress has vested CCAs with a responsibility and a power that normal appellate courts don’t have.  Specifically:

    That awesome, plenary, de novo power of review grants unto the Court of [Criminal Appeals] authority to, indeed, ‘substitute its judgment’ for that of the military judge.  It also allows a ‘substitution of judgment’ for that of the court members.  In point of fact, Article 66 requires the Court of Military Review to use its judgment to ‘determine[], on the basis of the whole record’ which findings and sentence should be approved.

    United States v. Cole, 31 MJ 270, 272 (C.M.A. 1990).  
    That matters.  Specifically, the uniqueness of the CCA means that its determinations on factual sufficiency are “akin to a district court entering its judgement of acquittal[.]”  United States v. Leak, 61 MJ 234, 244 (C.A.A.F. 2004).  
    Accordingly, factual sufficiency determinations plainly implicate the double jeopardy clause under the standard put forth in Evans v. Michigan, 133 S. Ct. 1069 (2013).  
    Certifications like this leave one to wonder whether the Supreme Court might have been right all those years ago in saying that the court-martial system is, “as an institution[,] singularly inept in dealing with the nice subtleties of constitutional law.”  O’Callahan v. Parker, 395 U.S. 258, 265 (1969).

  11. Concerned Defender says:

    Being overturned on factual insufficiency, such as in cases like Clark, raise the obvious questions for which I’d like to see some SJAs and TCs and SVPs lose their jobs over and be sanctioned by their state bar associations.   Wrongful, vindictive, and inept prosecution.  
    These individuals take a case to trial and ruin a man’s life over what amounts to an absurdity.   In my experience I see TCs charging decisions on these types of cases much too casually.   Little scrutiny on their own “evidence” or “reliability” of their complaining witnesses.  
    How many years, and probably hundreds of thousands of dollars were wasted on the prosecution, confinement, and appeals of Clark, for instance?  I’d like someone held accountable.  And those someones should be anyone signing the charge sheet and his legal advisers, the Trial Counsel, and SVP, etc.  
    Charging decisions should be made by responsible adults capable of evaluating evidence.  To have an Appellate Court overturn a conviction of lack of factual sufficiency says LOUDLY that the Trial Counsel, SVP, etc. completely failed to vet their case at the level of professional malpractice.  This resulted in an innocent man going to prison for rape.  For at least a year and a half.  
    I’d like to see exonerated individuals start collecting the law licenses of these grossly negligent prosecutors and financial judgments (Ferres aside) against these prosecutors and the complaining witnesses.  

  12. President Comacho says:

    Concerned Defender,
    The law is just a minor detail in the war on sexual assault. As long as these TCs and SVPs are doing the Lord’s work – the Lord for all of these crusading heroes fighting to save defenseless women from the hordes of knuckle dragging servicemen is Congress – then accountability isn’t important. If an SVP said this is a shit case and I am not going to prosecute it b/c it violates the rules of professional responsibility, then they would be held accountable by being moved to a different assignment and they will find a cool-aid drinker to eagerly fill the space.

  13. stewie says:

    Zeke, there are two issues before CAAF.
    1. The lower court did not conduct a complete review as required under Article 66
    2. The lower court used the wrong LEGAL standard of review in it’s factual sufficiency determination
    Now, no one cares if a panel does 1 because it doesn’t apply, and no one cares if a panel does 2 because they don’t actually have to follow any legal standard if they choose to acquit.
    Courts on the other hand, have to follow 1, and they have to follow 2, and if they don’t then CAAF can step in, and at a minimum, order the lower court to review completely and/or with the proper application of law to the factual sufficiency review.
    Now, in THIS particular case is the government’s position untenable? I think so, and I think the CAAF will hold that way.  That does not mean that the CAAF can never ever find differently nor does it mean that the CAAF has no jurisdiction here to hear the case.  Nor is it some great miscarriage of justice that they do hear the case.

  14. TC says:

    Concerned Defender,
    So if a finding of a lack of factual sufficiency=an acquittal, and you want to see TCs and SJAs fired and disbarred when their convictions are overturned on factual sufficiency grounds, then you’re saying that TCs and SJAs should be disbarred whenever a panel announces a finding of not guilty.  

  15. Zeke says:

    Stewie,I think your analysis works perfectly outside of the military justice system.  But, the CCAs are not traditional appellate courts.  Unlike any other federal court of appeal, a CCA has factual sufficiency review power, and its determination on factual sufficiency is the equivalent of trial court’s verdict.  See Leak, 61 MJ at 244.  It is irrelevant to the double jeopardy clause whether those CCA judges did a full review of all the evidence when they chose to acquit on factual sufficiency grounds.  It also doesn’t matter whether they used the correct legal standard when they acquitted.  ““[T]he fact that []the acquittal may result from . . . erroneous interpretations of governing legal principles[,] affects the accuracy of that determination, but it does not alter its essential character.”  Scott, 437 U.S at 98.  Even if the CCA uses a completely wrong legal standard to reach its factual sufficiency determination to acquit, that determination still invokes the protections of the double jeopardy clause.  The fact that a civilian appellate court’s decisions do not invoke the double jeopardy clause are irrelevant because those courts lack factual sufficiency review power and operate with trial courts who have juries and true judges.  The military justice system is simply different.
    This is not novel or controversial.  Congress explicitly had no intention of letting CAAF review a CCA’s factual sufficiency determination – it wanted the CCA’s determinations on factual sufficiency to be final and unreviewable:

    Under article 66(c) [the CCA] is given absolute discretion to approve any such findings or sentences or parts of sentences only what it determines should be approved. If it acts on the facts, or on policy or anything other than law, its determination is final and conclusive.

    96 Cong. Rec. 1304 (1950) (Statement of Senator Charles W. Tobey).  
    Congress created a unique set of military appellate courts and gave them power to act like trial courts on issues of factual sufficiency.  
    The CCAs have this extraordinary power to acquit on the same basis as a trial court can acquit – and with the same double jeopardy implication – all because Congress created a system without jury trials and without judges who enjoy the legitimacy that comes with life tenure and Senate advice and consent.  Court-martial verdicts are therefore inherently less independent and less reliable than their civilian counterparts.  Their verdicts are not final, and are not worthy of deference by the CCAs except to account for the fact that they saw the witnesses.  In the military justice system, the trial essentially continues to the first level of appeal – no verdict is final until the CCA says so.  There is no counterpart in the civilian system.  Put plainly: “It is not until that appeal of right [under Art 66] is complete that we can rest assured the interests of justice have been served.”  Ribaudo, 62 M.J. at 288 (citing United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998)).
    All that’s a long way of saying: a CCA’s factual sufficiency acquittal is unlike normal appellate court decisions – it is the equivalent of an acquittal at the trial level, and, because of that equivalence, it is Constitutionally unreviewable.

  16. stewie says:

    Well CAAF appears to disagree otherwise they would have said they don’t have jurisdiction to even hear the case.

  17. Zeke says:

    Or… a motion to dismiss for lack of jurisdiction was never filed, so CAAF hasn’t been asked to decide whether it has jurisdiction.  The closest the servicemember got to arguing double jeopardy is on page 11 of their brief, where they invoke the holding of Crider, 22 CMA 11:

    “We believe such a court’s exercise of its fact-finding powers in determining the degree of guilt to be found on the record is more apposite to the action of a trial court than to that of an appellate body.”

  18. stewie says:

    So you think:
    a. the Defense would miss a clear jurisdictional issue?
    b. CAAF would require the defense to tell it, it does not have jurisdiction?

  19. Zeke says:

    It’s a shame the servicemember did not quote or apply the very next paragraph of Crider, 22 CMA 11:

    Thus, when the Court of Military Review has “acquitted” the accused of premeditated murder by affirming as correct in law and fact findings of guilty of unpremeditated murder, the doctrine laid down in Green v United States, supra, is applicable and the accused is entitled to plead former jeopardy against any attempt to affirm the greater offense following our reversal after granting his petition for review.  The second panel of the Court of Military Review could not affirm findings of guilty of premeditated murder after the first panel had found the facts to sustain no more than unpremeditated murder.

    That makes clear, a CCA’s determination on factual sufficiency is binding on not just CAAF, but on the rest of the CCA as well.  It’s an acquittal, and is completely unreviewable.

  20. Zeke says:

    a.  Apparently
    b.  Apparently