On Monday CAAF granted review of two issues involving instructions in an Army case:
No. 17-0035/AR. U.S. v. Jeffry A. Feliciano, Jr. CCA 20140766. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE MILITARY JUDGE ERRED WHEN HE FAILED TO INSTRUCT THE PANEL ON THE DEFENSE OF VOLUNTARY ABANDONMENT, AND IF SO, WHETHER THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE PANEL THAT APPELLANT’S MISTAKE OF FACT AS TO CONSENT MUST BE BOTH HONEST AND REASONABLE, AND IF SO, WHETHER THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
Briefs will be filed under Rule 25.
I discussed the Army CCA’s decision in this case in this post, but not because of the issues now before CAAF. Rather, I thought the case interesting because the CCA suggested that an accused should be prohibited from mentioning sex offender registration during an unsworn statement in sentencing.
The appellant was convicted of two specifications of attempted sexual assault, both arising out of the same alcohol-fueled incident during which the appellant took steps to engage in sexual activity with a seemingly incapacitated soldier, but then stopped after another soldier cautioned him that “what he was doing was rape” and “that if he continued along they would definitely get him for rape. . . .” United States v. Feliciano, No. 20140766, slip op. at 2 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).