Opinion Analysis: CAAF will not meddle in the CCA’s factual determinations in United States v. Clark, No. 16-0068/NA
CAAF decided the certified Navy case of United States v. Clark, 75 M.J. 298, No. 16-0068/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 17, 2016. In a short opinion the court rejects the certified issues, declining the invitation of the Judge Advocate General of the Navy to impose a standard for a CCA’s treatment of special findings by a military judge and affirming the decision of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.
Judge Stucky writes for a unanimous court.
A general court-martial composed of a military judge alone convicted Airman (AN) Clark, contrary to his pleas of not guilty, of rape and forcible sodomy in violation of Articles 120 and 125. The convictions were based on allegations that Clark 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, and the primary evidence against Clark was the woman’s testimony based on her fragmented memory. The military judge made special findings at the request of the defense, including that he found the alleged victim’s testimony to be credible and that Clark’s pretrial statements to criminal investigators demonstrated consciousness of guilt. Clark was sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge.
On review, and considering the evidence presented at trial, the Navy-Marine Corps CCA employed its unique factual sufficiency powers to reverse the convictions. In a per curiam opinion a three-judge panel of the CCA held:
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:
I. 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?
II. 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?
In yesterday’s decision CAAF explicitly recognizes the CCA’s statutory “prerogative to weigh the evidence and judge the credibility of witnesses” and finds that this factual issue is “beyond [CAAF’s] statutory jurisdiction.” Slip op. at 5. In particular, Judge Stucky explains that:
The tonic chord running through our cases is a clear recognition of the unique powers lodged by Congress in the Courts of Criminal Appeals, coupled with a strong disinclination to involve ourselves in the review of the exercise of that power.
Slip op. at 3-4. This disinclination prevails in CAAF’s treatment of the second issue as well, as Judge Stucky explains that “keeping in mind the very narrow nature of our authority in this area, we decline to impose any particular rule on the factual powers of the CCAs.” Slip op. at 5.
This decision is the fourth in a recent sequence of certified cases in which CAAF re-affirms the discretionary powers of the courts of criminal appeals. The others are: United States v. Atchak, 75 M.J. 193 (C.A.A.F. Apr. 12, 2016) (CAAFlog case page) (Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty); United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page) (Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact); and United States v. Gay, 75 M.J. 264 (C.A.A.F. May 11, 2016) (CAAFlog case page) (CCA may grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment).
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis