Argument Preview: Another case of deciphering the factual basis of a conviction, in United States v. Rosario, No. 16-0424/MC
CAAF will hear oral argument in the Marine Corps case of United States v. Rosario, No. 16-0424/MC (CAAFlog case page), on Tuesday, December 6, 2016, at 9:30 a.m. The court granted review of one issue that – similar to an issue in United States v. Swift, No. 16-0407/AR (CAAFlog case page) – questions whether the CCA’s review of the conviction was predicated on conduct that was not the basis for the conviction:
Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.
Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment in violation of Article 92. Specifically, the charge alleged that he:
did, on divers occasions, at or near New River, North Carolina, between on or about 13 September 2013 and on or about 21 February 2014, violate a lawful general order, to wit: Marine Corps Order 1000.9a, dated 30 May 2006, by wrongfully sexually harassing Lance Corporal BA, U.S. Marine Corps.
Gov’t Br. at 2 (quoting record) (marks omitted). Rosario was also charged with three unlawful touchings of Lance Corporal (E-3) BA during this time period – “touching her cheek with his mouth” and “touching her ear with his tongue” and “touching her hand with his hand” – in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.
The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to LCpl BA (his subordinate) during the charged time period. On appeal Rosario “argued that the evidence was factually and legally insufficient to sustain his sexual harassment conviction.” Gov’t Br. at 9. The NMCCA rejected this challenge, concluding that the physical touchings of which Rosario was acquitted were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense – and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).
CAAF then granted review to determine whether the CCA’s review was predicated on the actual factual basis for the conviction.
Rosario’s brief asserts that the CCA violated the Double Jeopardy Clause by contradicting the findings of not guilty:
Here, the court heavily relied on the evidence that went to the offenses of which the court-martial acquitted Sgt Rosario. It relied on this evidence in its analysis of all three of Sgt Rosario’s assignments of error. These repeated errors denied Sgt Rosario a fair review under Article 66(c). . . . The lower court’s reliance on evidence offered in support of allegations of which Sgt Rosario was acquitted taints its entire analysis, as each of the theories articulated by the lower court were expressly contradicted by the members’ findings.
App. Br. at 8-10.
The Government responds with an argument that Rosario’s view – if adopted – would render acquittals dispositive of all facts underlying the acquitted charge:
If Appellant is correct—contrary to this Court’s longstanding precedent—in his claim that an acquittal on one charge can “have the effect of determining factual issues under another [charge],” Littlepage, 10 C.M.A. at 247, then this would cause a sea change in military justice practice far beyond the Walker-Rodriguez-Stewart-Gutierrez line of cases. Put simply: if this Court were to adopt Appellant’s conception of the law, then convicting an accused of a lesser included offense would become impossible. So too, the lower courts’ Article 66 powers would be conscribed, and they would be prevented from conducting any appellate review when the same facts applied to multiple offenses at trial.
Gov’t Br. at 21.
In a reply brief Rosario answers this concern by explaining that:
This is wrong. Without more, appellate review of lesser-included offenses does not present double jeopardy implications. This is because appellate courts are not required to rely on facts of which an appellant was acquitted to find a lesser-included-offense conviction factually sufficient.
Rep. Br. at 8.
Neither brief, however, seems to address a more fundamental question: Were the three touchings part of the sexual harassment charge or not?
In my argument preview in Swift I noted that one would expect the charge sheet and the findings to clearly identify the factual basis for the convictions, particularly considering that the military is a notice-pleading jurisdiction. Here, however, the charge sheet merely alleged wrongfully sexually harassing during a period of more than five months.
But an interesting twist is that two of the touchings were charged as sexual contacts under the 2012 version of Article 120. Such a sexual contact requires “an intent to arouse or gratify the sexual desire of any person.” Article 120(g)(2)(B). For the touching to be merely sexual harassment, however, “(1) it must be unwelcome, (2) it must be sexual in nature, and (3) it must occur in or impact on the work environment.” MCO 1000.9a (2006), Encl. 1, ¶ 2. So, it’s entirely possible that the prosecution intended to charge at least two of the touchings under both theories for contingencies of proof (expecting to prove the sexual intent, but also including the touching as unwelcome sexual attention affecting the workplace). But, it’s not so clear that this alternative theory was known to the defense.
Between this case and Swift it seems like CAAF is ready to issue another major decision enforcing the notice-pleading requirement at a court-martial. The court certainly hasn’t been shy about demanding such notice in the recent past. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).