CAAF will hear oral argument in the Army case of United States v. Davis, No. 16-0306/AR (CAAFlog case page), on Tuesday, January 10, 2017, at 9:30 a.m. The case presents a single issue questioning the standard of review for instructions not given:

Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

In 2013 Private Davis was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of forcible rape in violation of Article 120. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The conviction was based on an encounter between Davis and a female soldier in the other soldier’s barracks room, the military judge did not instruct the members on the defense of mistake of fact as to consent, and the defense did not object to the omission of such an instruction.

Actual consent and mistake of fact as to consent are distinct concepts. Actual consent is “a freely given agreement to the conduct at issue.” Article 120(g)(8)(A) (2012). Mistake of fact as to consent, however, is a belief in the mind of the accused that the other person consented to the act even though they actually didn’t. When mistake of fact applies, an accused is not guilty even if the other person did not consent. For the offense of forcible rape (where a sexual act must be committed by using unlawful force) actual consent is a defense because it disproves the element of force (a person who freely agrees to an act isn’t forced to do it). But mistake of fact is an affirmative defense because it doesn’t disprove an element but rather denies criminal responsibility for the acts. An in-depth analysis of these concepts is available in my 2014 article Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the UCMJ, 2014 Emerging Issues 7277 (discussed here).

While the term affirmative defense is common in civil jurisprudence – and is used in the granted issue in this case – military law employs a different term: Special defense. “[D]efenses includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.” R.C.M. 916(a) (MCM, 2016 ed.) (identical in 2012 ed.). A non-binding commentary note to the rule adds that “special defenses are also called affirmative defenses.” Nevertheless, it’s possible that there’s a difference between a special defense and an affirmative defense (this possibility is discussed in footnote 12 of my 2014 article).

Military law does treat special defenses in a way that is meaningfully different from the way affirmative defenses are treated in the civil courts: in a court-martial “the prosecution shall have the burden of proving beyond a reasonable doubt that the [special] defense did not exist.” R.C.M. 916(b)(1) (MCM, 2016 ed.) (identical in 2012 ed.). This is a unique military rule because common law and due process allows the burden of proof on an affirmative defense to be shifted to the accused. See Dixon v. United States, 548 U.S. 1, 8 (2006); Patterson v. New York, 432 U.S. 197, 206 (1977).

And there’s another wrinkle. R.C.M. 920(e)(3) (MCM, 2016 ed.) (identical in 2012 ed.) requires a military judge to provide the members with:

A description of any special defense under R.C.M. 916 in issue.

(emphasis added). However, in the 2012 edition of the MCM (in effect at the time of trial in this case), R.C.M. 916(j)(3) identified mistake of fact as to consent as an affirmative defense in a rape case. I think that label is erroneous considering the context (it’s clearly a special defense that the prosecution has the burden to disprove), but that designation could be significant in this case.

However, the Army CCA’s decision in Davis did not turn on whether mistake of fact was a special or affirmative defense.

In a published opinion (discussed here) the CCA concluded that:

for mandatory instructions under R.C.M. 920(e)(1)-(3), a military judge retains the sua sponte duty to instruct on defenses raised by some evidence. . . . Nevertheless, in the case of any unpreserved error, the failure to request or object to an instruction on a defense forfeits the matter, absent plain error.

75 M.J. at __, slip op. at 9. Such forfeiture of an error is a matter of routine: “No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” United States v. Olano, 507 U.S. 725, 731 (1993). Under the plain error test the accused has the burden to prove that (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused. But if an error isn’t forfeited then it is reviewed de novo and the prosecution (as the party that benefited from the error at trial) has the burden to prove that it was harmless.

The CCA’s conclusion that failure to object to the military judge’s omission of a mandatory instruction forfeited the error was contrary to CAAF’s precedent, though Judge Wolfe’s majority opinion for the CCA did a good job of highlighting how CAAF’s opinions have largely addressed this only tangentially. For example, none of the three cases cited in the granted issue – Taylor, Davis, and Stanley – actually answer the question presented. In Taylor CAAF found that “mistake of fact was not reasonably raised,” 26 M.J. at 131; in Davis it found that “an instruction on the defense of accident was not required in this case,” 53 M.J. at 205; and in Stanley it found that there was “no error,” 71 M.J. at 64.

The standard of review simply doesn’t matter if there was no error.

CAAF’s opinion in United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002), however, seems directly on point, even though it isn’t cited in the granted issue, it isn’t mentioned in Davis’ brief to CAAF, it gets only a passing mention in the Government’s brief (with a citation that gets the year of publication wrong), and it received very little attention in the CCA’s opinion.

In McDonald – a case about stolen merchandise – “trial defense counsel did not ask for an instruction, nor did the military judge sua sponte instruct, on the defense of ignorance or mistake of fact.” 57 M.J. at 20. CAAF reviewed the issue de novo and required the Government to prove that any error was harmless beyond a reasonable doubt (the strictest standard; reserved for constitutional errors):

Even though not requested, a military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence. RCM 920(e), Manual for Courts-Martial, United States (2000 ed.); United States v. Davis, 53 MJ 202, 205 (2000); United States v. Rodwell, 20 MJ 264, 265 (CMA 1985); United States v. Steinruck, 11 MJ 322, 324 (CMA 1981). Military judges have “substantial discretionary power in deciding on the instructions to give.” United States v. Damatta-Olivera, 37 MJ 474, 478 (CMA 1993), cert. denied, 512 U.S. 1244, 114 S.Ct. 2760, 129 L.Ed.2d 875 (1994). We review the judge’s decision to give or not give a specific instruction, as well as the substance of any instructions given, “to determine if they sufficiently cover the issues in the case and focus on the facts presented by the evidence. The question of whether a jury was properly instructed [is] a question of law, and thus, review is de novo.United States v. Maxwell, 45 MJ 406, 424 (1996), quoting United States v. Snow, 82 F.3d 935, 938-39 (10th Cir.1996).

When an affirmative defense is raised by the evidence, an instruction is required. An honest-mistake-of-fact instruction is appropriate where raised by the evidence and is a defense to buying or attempting to buy stolen property. Therefore, consistent with this Court’s opinion in United States v. Taylor, 26 MJ 127 (CMA 1988), waiver is not at issue in this case.

Once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

57 M.J. at 20 (marks in original).

CAAF found error in McDonald but concluded that it was harmless beyond a reasonable doubt because “it is clear beyond a reasonable doubt that the court members would have found appellant guilty even if properly (and, perhaps, redundantly) instructed on ignorance or mistake of fact.” 57 M.J. at 22.

The issue before CAAF in Davis is whether the standard of review applied in McDonald should be rejected just 15 years later. Assuming McDonald was decided correctly, there seems little reason to abandon that standard now.

Three portions of the Government’s brief are worth a closer look. The first is these two paragraphs:

Moreover, most recently, in United States v. Payne, this Court cited approvingly the Drafters’ Analysis and Fed. R. Crim. P. 30-the same analysis the Taylor court rejected in construing R.C.M. 920-and held that the instructional error claimed there, despite being about the elements of the offenses, was forfeited. 73 M.J. at 23 (citing Manual for Courts-Martial, United States (2012 ed.), app. 21 at A21-70). The Payne court’s reliance on federal civilian practice in construing R.C.M. 920(f) is supported by Congress’s mandate to the President to promulgate procedural rules for courts-martial that, “so far as he considers practicable, apply the principles of law … generally recognized in the trial of criminal cases in the United States district courts …. ” Article 36(a), UCMJ, 10 U.S.C. § 836(a). See also United States v. Tunstall, 72 M.J. 191, 194 (C.A.A.F. 2013) (holding that where instruction on lesser-included offenses was not objected to, review was for plain error); United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012) (Reviewing lesser-included offense instruction for plain error where there was no objection at trial).

Further, this Court applied forfeiture in the recent decision of United States v. Caldwell, reviewing the defense counsel’s failure to object to the “negligence mens rea” instruction given at trial for plain error. Caldwell, _M.J._, 2016 CAAF LEXIS 371, at *15-16 (C.A.A.F. 16 May 2016). (Finding that the appellant did not meet the burden imposed by the first prong of the plain error analysis) (Citing Payne, 73 M.J. at 19).

Gov’t Br. at 15-16. There are multiple problems here.

First, Payne (CAAFlog case page) involved a uniquely-obstructionist defense objection to the instructions that caused CAAF to conclude that “it appears that defense counsel was trying to preserve any instructional error for appeal while simultaneously refusing to assist the military judge in correcting any alleged instructional error at the trial level.” 73 M.J. at 23. That obstructionism mattered as CAAF concluded that: “Under these circumstances we believe that the issue is most appropriately treated as waived in absence of plain error.” Id.

Next, in Caldwell (CAAFlog case page) CAAF found no error so – as discussed above for Taylor, Davis, and Stanley – the standard of review didn’t matter.

Finally, any consideration of civil law must acknowledge the unique military rule that the prosecution must disprove the existence of mistake of fact. R.C.M. 916(a). This is (in my opinion) precisely why R.C.M. 920(e)(3) makes the instruction mandatory.

The second portion of the Government’s brief worth a closer look is this section:

Application of Taylor has also proved unworkable, as demonstrated by the varying outcomes in this Court’s decisions. There is no principled distinction between an instruction for entrapment and one for self-defense, yet this Court has applied forfeiture to the former but not the latter under Taylor. Compare Eckhoff, 27 M.J. at 144 with Stanley, 71 M.J. at 62-63.

Gov’t Br. at 18. While entrapment is a special defense listed in R.C.M. 916(g), the court in Eckhoff found plain error and reversed. Since it’s harder for an appellant to win under the plain error standard, and the appellant won in Eckhoff, the case doesn’t support the idea that an appellant should not win without application of that strict standard.

The third portion of the Government’s brief worth a closer look is this assertion:

Most importantly, Taylor encourages defense counsel to decline to assist military judges in correcting known instructional errors in the hope that the accused may find appellate relief for the error in the event of a conviction. Moreover, as courts have pointed out, defense counsel may have a strategic reason for not requesting an instruction.Defense should not receive a benefit on appeal for not requesting an instruction and not being given an instruction that was, at the time, aligned with their strategy. Judicial efficiency and timely justice are not aided by this incentive.

Gov’t Br. at 18-19 (citations omitted).

“[T]he contemporaneous-objection rule prevents a litigant from ‘sandbagging’ the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Puckett v. United States, 556 U.S. 129, 134-135 (2009). I’ve written about sandbagging before – most significantly in The Hazard of Humphries – and in the typical case it’s a significant concern. The issue in Davis, however, involves an affirmative obligation on the military judge, not on the accused. The Army Appellate Government Division may consider it expedient to shift that burden to the accused, but that’s no reason for CAAF to change the law.

Case Links:
ACCA opinion (75 M.J. 537)
Blog post: The ACCA tackles the standard of review for instructions not given
• Appellant’s brief 
Appellee’s (Government) brief
Blog post: Argument preview

2 Responses to “Argument Preview: Deciding whether the failure to give an instruction on an affirmative defense is reviewed for plain error or de novo in United States v. Davis, No. 16-0306/AR”

  1. Vulture says:

    Zach.  I don’t know if it is a networking problem but I can’t get a download of the documents.  I went back to download some from other posts but they worked.  It’s not your server, I know, but FYI.

  2. Zachary D Spilman says:

    CAAF’s website has been very slow for the past few weeks. Briefs mirrored here:

    • Appellant’s brief 

    • Appellee’s (Government) brief