Opinion Analysis: Asleep and unconscious are different from being otherwise unaware, in United States v. Sager, No. 16-0418/NA
CAAF decided the Navy case of United States v. Sager, 76 M.J. 158, No. 16-0418/NA (CAAFlog case page) (link to slip op.), on Tuesday, March 21, 2017. Reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concludes that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reverses the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remands the case for further consideration.
Chief Judge Erdmann writes for the court, joined by all but Judge Stucky who dissents.
Aviation Ordnanceman Airman (E-3) Sager was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) (2012). That statute criminalizes sexual contact in the same way that Article 120(b) criminalizes sexual acts. The Government charged Sager with two specifications, both related to a sexual encounter between Sager and his roommate. One specification alleged that the roommate was incapable of consenting due to intoxication, while the other alleged that the roommate was asleep, unconscious, or otherwise unaware. The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating unawareness:
On appeal, Sager asserted that the specification was unconstitutionally vague because it failed to identify how the roommate was otherwise unaware, and also that the finding is factually and legally insufficient because the evidence indicated that the roommate was either asleep or unconscious. Sager’s argument was essentially that the statute’s enumeration of asleep, unconscious, or otherwise unaware creates three separate and distinct theories of criminal liability. The NMCCA, however, rejected this argument, concluding that:
asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.
United States v. Sager, No. 201400356, slip op. at 7 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.). From this conclusion the NMCCA then found that evidence of the roommate’s degree of intoxication or unconsciousness was relevant, and it affirmed the conviction. CAAF then granted review of two issues questioning both the meaning of the statute and the adequacy of the CCA’s review of the evidence:
I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?
II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?
In today’s opinion Chief Judge Erdmann and the majority answer the second issue in the affirmative, finding that the CCA erred in its statutory interpretation, but decline to answer the first issue, remanding it to the CCA for further review. Judge Stucky, however, would affirm the conviction.
Sager’s conviction is of Article 120(d), 10 U.S.C. 920(d), which states:
(d)Abusive Sexual Contact.—
Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct.
The statutory language at issue, however, comes from Article 120(b)(2), 10 U.S.C. 920(b)(2), which states:
(b)Sexual Assault.—Any person subject to this chapter who—
. . .
(2) commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring; . . .
. . .
is guilty of sexual assault and shall be punished as a court-martial may direct.
Statutory interpretation begins with the plain meaning of the text of the statute, and Chief Judge Erdmann needs look no further than the plain language in this case:
In reviewing the language in question, we note that the words, “asleep, unconscious, or otherwise unaware,” are separated by the disjunctive, “or.” “In ordinary use the word ‘or’ … marks an alternative which generally corresponds to the word ‘either.’” Earl T. Crawford, The Construction of Statutes § 188 (1940); see also Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not.”). Under the “ordinary meaning” canon of construction, therefore, “asleep,” “unconscious,” or “otherwise unaware” as set forth in Article 120(b)(2) reflect separate theories of liability. Sager, 2015 CCA LEXIS 571, at *9, 2015 WL 9487926, at *3.
In addition, the phrase “otherwise unaware” is important to the context of the offense. Webster’s Third New International Dictionary Unabridged 1598 (2002), defines “[o]therwise” as, “in a different way or manner.” Under a plain reading of this language, therefore, the words “otherwise unaware” mean unaware in a manner different from asleep and different from unconsciousness.
Finally, to accept the view that the words “asleep, unconscious, or otherwise unaware,” create only one theory of criminality would be to find that the words “asleep,” “unconscious,” and “or” are mere surplusage. This we are unwilling to do. See Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”) (internal quotation marks omitted) (citation omitted). We therefore hold that the CCA erred in its interpretation of Article 120(d) when it “conclude[d] that asleep or unconscious are examples of how an individual may be ‘otherwise unaware’ and are not alternate theories of criminal liability.” Sager, 2015 CCA LEXIS 571, at *9, 2015 WL 9487926, at *3.
Slip op. at 6-7 (emphasis added).
Having found that the CCA erred in its statutory interpretation, the majority remands the case for a new legal and factual sufficiency review by the CCA. But Chief Judge Erdmann also advises the CCA to consider Green v. United States, 355 U.S. 184, 185 (1957), which involved alternative charges of first and second degree murder leading to a conviction of second degree murder but no clear verdict on the first degree charge. The Supreme Court found that to be an acquittal on the first degree charge for double jeopardy purposes. The Chief Judge does not explain exactly how Green might apply, but I suspect the majority is concerned about the two alternative theories – that the alleged victim was asleep or unconscious – that the members neither accepted nor explicitly rejected in their findings.
Judge Stucky’s dissent begins with a statement that he “agree[s] with the majority’s conclusion that ‘otherwise’ means ‘in a different way or manner,’ and thus that the United States Navy-Marine Corps Court of Criminal Appeals misstated the law in saying that ‘asleep or unconscious are examples of how an individual may be otherwise unaware.'” Diss. op. at 1. But his dissent also seems to suggest that the three theories are all really part of one bigger theory of criminal liability under the statute. Specifically a footnote explains that:
Faced with broad testimony and three reasons [asleep, unconscious, and otherwise unaware -zds], an astute panel might have selected “otherwise unaware” not as a rejection of the theory that the victim was “asleep” or “unconscious,” but rather because “otherwise unaware” is the language that establishes the boundaries of the element as a whole: “unaware” for any reason whatsoever.
Diss. op. at 2 n.1 (emphasis added). Furthermore, analyzing the disjunctive language of the specification in this case, Judge Stucky presents the three theories as mere questions of fact:
Contrary to the military judge’s instructions and the worksheet, we have long held that “military criminal practice requires neither unanimous panel members, nor panel agreement on one theory of liability, as long as two-thirds of the panel members agree that the government has proven all the elements of the offense.” United States v. Brown, 65 M.J. 356, 359 (C.A.A.F. 2007) (citing United States v. Vidal, 23 M.J. 319, 325 (C.M.A. 1987)). In my opinion, the court members did not have to decide between the two theoriesries set out above. Two-thirds of the members just had to agree that he knew or reasonably should have known.
Similarly, in my opinion, the court members did not have to select one of the three statutory reasons a victim could be unaware of the sexual contact. As amply shown by the facts in this case, the evidence of which reason caused the victim to be unaware will often overlap.
The victim testified that he drank excessively, “passed out,” and awoke to Appellant manually stimulating him, before Appellant then performed fellatio as the victim was too intoxicated to respond. For the specification alleging manual stimulation that we remand today, the panel was thus presented with evidence of sleep and unconsciousness, both due to intoxication. Was he just intoxicated, asleep, unconscious, or a combination thereof? The important thing is that the members did not have to agree on the reason. The required two-thirds just had to agree that the victim was unaware of the sexual contact. So even under a correct view of the statute, the CCA could consider any evidence bearing on whether the victim was “unaware,” and need not artificially excise from its review the evidence tending to show that the victim was asleep or unconscious.
Diss. op. at 1-2 (emphases added).
Brown involved a conviction of indecent assault (as a lesser included offense of rape) by penetration, the penetration having been accomplished by either fingers, a sex organ, or both. The element in Brown was penetration, and CAAF held that it was not error to instruct the members disjunctively (and without objection by the defense) on different means by which that penetration could be proven. The court reached a similar conclusion in United States v. Vidal, 23 M.J. 319 (C.M.A. 1987), where it held that the findings need not differentiate between whether the accused was either the perpetrator or an aider and abettor:
If one-third of the members are satisfied that the accused personally fired the shot and another third find that he aided someone else in doing so, he can properly be convicted of murder, because two-thirds of the court members are convinced beyond a reasonable doubt that the accused, on one theory or another, committed murder at the particular time and place. Likewise, if several persons are acting to overcome a woman’s resistance to sexual intercourse, but only one of them actually has such intercourse, the Government can still convict an accused, even though it cannot prove beyond a reasonable doubt whether he personally had intercourse or only helped someone else have intercourse with the unwilling victim.
23 M.J. at 324.
I think the circumstances of Sager are very different from those of Brown and Vidal because Sager involves three distinct, statutorily-enumerated conditions. It strikes me as particularly significant that the conditions of being asleep, unconscious, or otherwise unaware are part of the offense, and not merely part of the definition of general unawareness or of non-consent.
Moreover, because those conditions were presented to the members disjunctively, and because the members returned a conviction based on only one of those conditions, I believe that the appellant was acquitted of the other two conditions (implicating Green, as discussed above). Judge Stucky, however, sees the reference to Green as involving the other specification (involving intoxication) of which Sager was acquitted outright, and he concludes that:
[A]cquittal of one charge carries no logical implications for the other. To the extent that evidence of the victim’s intoxication is relevant to both charges, a panel and a reviewing court could permissibly consider that evidence in reviewing Appellant’s conviction. That is the import of this Court’s reasoning in United States v. Gutierrez, 73 M.J. 172, 176 (C.A.A.F. 2014) [CAAFlog case page], as well as in United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017) [(CAAFlog case page)]. Those cases, rather than Green, ought to inform the CCA’s review on remand.
Diss op. at 3.
• NMCCA opinion
• Blog post: CAAF to review the alternative ways to sexually assault someone who is unaware
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis