Argument Preview: Reviewing defenses available in a prosecution for an attempt in United States v. Feliciano, No. 17-0035/AR
CAAF will hear oral argument in the Army case of United States v. Feliciano, No. 17-0035/AR (CAAFlog case page), on Tuesday, February 28, 2017, after the oral argument in Hukill. The case presents two issues related to the appellant’s convictions of attempted sexual assault:
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.
Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter and told Feliciano to stop, warning him that “if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” App. Br. at 4 (quoting record). Upon hearing this Feliciano ceased sexual contact with the alleged victim (who later returned to her own barracks room where she spent the night with the other soldier).
The members were not instructed on the defense of voluntary abandonment, which “is raised when the accused abandons his effort to commit a crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” App. Br. at 10 (citations omitted). The members were instructed on the defense of mistake of fact as to consent, however they were instructed that any mistake needed to be reasonable. That is the standard for a general intent crime, but an attempt requires specific intent.
The Army CCA affirmed without considering either of the issues before CAAF. I noted the CCA’s opinion in this post for its suggestion that it might be proper to prohibit an accused from referencing sex offender registration in an unsworn statement.
While Feliciano’s brief argues that the instructions were erroneous and the prosecution’s case was weak, the Army Appellate Government Division’s answer suggests a paradoxical standard of review:
Where there is no objection to an instruction at trial, [this Court] reviews for plain error.” United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014).”Under a plain error analysis, the [Appellant] ‘has the burden of demonstrating that: (1) there was error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right of the [Appellant].”‘ Id. at 32 (quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011 )). Appellant bears the burden of demonstrating he meets all three prongs of the plain error test. United States v. Maynard, 66 M.J. 242,244 (C.A.A.F. 2008).
If Appellant meets his burden, then the government must demonstrate that the instructional error as to the elements of the offense was harmless beyond a reasonable doubt. United States v. Upham, 66 M.J. 83, 86 (C.A.A.F. 2008).
Gov’t Div. Br. at 6-7. If, under this formulation, Feliciano carries his burden to demonstrate a plain error that is prejudicial, it’s hard to see how the Appellate Government Division could ever show that prejudicial error to be harmless beyond a reasonable doubt.
For the instructions, the Division’s brief argues that the defense of voluntary abandonment was not raised by the evidence. Gov’t Div. Br. at 9-10. It also argues that for an attempted sex offense any mistake of fact must be reasonable (as it must be for the completed offense) because:
Rather, the “specific intent” in an attempt under Article 80, UCMJ, “is the intent to commit the proscribed act.” United States v. Foster, 14 M.J. 246, 249 (C.M.A. 1982) (holding that in prosecuting an attempt to violate a lawful general regulation, the government need not prove that the accused knew that his actions “violated any particular clause of any particular regulation”). In other words, for an accused to be guilty of an attempted crime, he must specifically intend to commit at least the actus reus elements of the underlying crime, but with regard to elements involving the “circumstances under which the crime is committed,” he generally need hold only the culpability that is required for the commission of the crime.
Gov’t Div. Br. at 15-16 (emphasis in original). But the Appellate Government Division also asserts that the defense of mistake of fact as to consent was not raised because “there was no evidence whatsoever that appellant actually believed that the victim was consenting to sexual intercourse with him.” Gov’t Div. Br. at 21 (marks and citations omitted).
A reply brief from Feliciano responds with the argument that because the underlying sexual offense required that the prosecution disprove the existence of consent (by proving either incapacitation or bodily harm), a conviction of an attempt required that it also prove specific intent regarding the lack of consent:
As an element of the proscribed act, in order to prove an attempt under both versions of the alleged aggravated sexual assault, the government was required to prove not only that appellant had the specific intent to commit the actus reus, or sexual act, but that he also had the specific intent to commit the intended act without consent.
Reply Br. at 8-9 (citations omitted).