CAAF decided the Army case of United States v. Feliciano, __ M.J. __, No. 17-0035/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 17, 2017. Concluding that the defenses of voluntary abandonment and mistake of fact as to consent were not raised by the evidence, CAAF finds no error in the omission of an instruction on the former, and no error in the specific wording of the instruction given on the latter. A footnote also distinguishes a special defense from an affirmative defense. CAAF affirms the decision of the Army CCA and the findings and sentence.

Judge Stucky writes for a unanimous court.

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, heard the female soldier repeatedly say no, and intervened by telling Feliciano: “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.” Slip op. at 2 (marks omitted). Upon hearing this Feliciano ceased contact with the alleged victim.

CAAF granted review of two 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.

In today’s opinion, Judge Stucky explains that neither voluntary abandonment nor mistake of fact as to consent were raised by the evidence, and so there was no error in the failure to give the first instruction or in the wording of the second. These conclusions are unsurprising considering the facts. But the opinion also includes a lengthy footnote that distinguishes the uniquely-military special defense from a more-common affirmative defense. Unfortunately, while the distinction in the footnote is clear, the opinion itself seems to blur the line.

Judge Stucky’s analysis begins with the court’s recent decision in United States v. Davis, __ M.J. __ (C.A.A.F. May 9, 2017) (CAAFlog case page), which held that the failure to request or object to an instruction on a defense means that any error is forfeited and will be tested for plain error. But the standard of review isn’t really dispositive in this case. Rather:

To get the benefit of the voluntary abandonment instruction, Appellant had to show some evidence that he decided not to complete the sexual assault solely because of his own sense that it was wrong. There is no evidence that Appellant’s actions were motivated solely by such a realization. Rather, it is conspicuous that Appellant “feared detection or apprehension” as a result of SPC RS’s statement and presence. In other words, Appellant only ceased acting against PV2 KF “‘because of unanticipated difficulties, unexpected resistance, or circumstances which increase[d] the probability of detention or apprehension.’” Under these circumstances, the absence of “some evidence” of voluntary abandonment is apparent. There is therefore no error to correct.

Slip op. at 6 (citations omitted). Judge Stucky concludes that Feliciano failed to establish the first prong of the plain error test (the existence of error) but since relief under any standard of review requires error, even a de novo standard reaches the same result.

CAAF reaches functionally the same conclusion on the second issue:

We do not reach the merits of Appellant’s argument. Rather, we find “that there was no evidence ‘whatsoever’ that [A]ppellant believed that [PV2 KF] was consenting to sexual [conduct] with him.”

Slip op. at 7 (citation omitted). As a result, “the military judge’s instruction on mistake of fact as to consent was superfluous,” and so even if it was erroneous any error was harmless. Id. These are rather mundane conclusions.

The opinion is more interesting for this lengthy footnote:

Defining and differentiating the terms “affirmative defense” and “special defense” under military law has proven troublesome over the years. Under Rule for Courts-Martial (R.C.M.) 916(a), the term “‘defenses’ includes any special defense,” and “[s]pecial defenses are also called ‘affirmative defenses.’” R.C.M. 916(a) Discussion. The modifiers “special” and “affirmative” appear to add nothing to the term “defense” as used in the rule. The varying burdens of proof ascribed to the listed defenses, however, add an aspect of difference between them: “Except as listed below in paragraphs (2), (3), and (4), the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.” R.C.M. 916(b)(1). By default, therefore, the prosecution bears the burden of having to disprove a defense raised at trial. But for the three defenses singled out, the defense bears the burden of initially proving the defense “by a preponderance of the evidence,” and only after that burden is met must the prosecution prove “beyond a reasonable doubt that the defense did not exist.” R.C.M. 916(b)(2); R.C.M. 916(b)(3); R.C.M. 916(b)(4). This aligns with the definition of an “affirmative defense” found in Black’s Law Dictionary 509 (10th ed. 2014): “The defendant bears the burden of proving an affirmative defense.” Thus, the three defenses under R.C.M. 916 for which the defense bears the initial burden of proof should be appropriately referred to as affirmative defenses, and every other defense under the rule is a special defense that, if raised at trial, the defense need not initially prove in order for the burden of proof to be placed on the prosecution. The defense at issue in this case is that of reasonable mistake of fact as to consent with regard to the sexual conduct that took place, and this is an affirmative defense. R.C.M. 916(b)(4).

Slip op. at 4 n.1.

Unfortunately, this footnote contains two significant errors.

The first error is in the language: “for the three defenses singled out, the defense bears the burden of initially proving the defense ‘by a preponderance of the evidence. . .'” One of those three is lack of mental responsibility and the preponderance standard didn’t (and doesn’t now) apply to lack of mental responsibility. Rather, “the accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.” R.C.M. 916(b)(2) (2012 ed.) (emphasis added) (unchanged in 2016 ed.).

The second error is in the language: “only after that burden is met must the prosecution prove ‘beyond a reasonable doubt that the defense did not exist.'” CAAF has clearly held this to be impossible. “If the trier of fact has found that the defense has proven an affirmative defense by a preponderance of the evidence, it is legally impossible for the prosecution to then disprove the affirmative defense beyond a reasonable doubt and there must be a finding of not guilty.” United States v. Prather, 69 M.J. 338, 345 (C.A.A.F. 2011) (discussed here).

Outside of that, however, the footnote is an overdue differentiation of an affirmative defense and a special defense.

A few years ago, in my article Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the Uniform Code of Military Justice, 2014 Emerging Issues 7277 (2014) (discussed here), I included a footnote considering the difference between an affirmative defense and a special defense:

Two recent opinions of the Court of Appeals for the Armed Forces suggest that the terms “affirmative defense” and “special defense” may not be synonymous, but instead that an affirmative defense is one that an accused has the burden to prove while a special defense is one that the prosecution has the burden to disprove. Compare United States v. Davis, 73 M.J. 268, 271 n.3 (C.A.A.F. 2014) (prosecution has burden to disprove special defense), with United States v. MacDonald, 73 M.J. 426, 434 n.3 (C.A.A.F. 2014) (accused has burden to prove affirmative defense). Contra MCM, supra note 2, R.C.M. 916(b)(1) (assigning the burden to an accused for certain defenses, to the prosecution for all others).

Footnote 1 in Feliciano makes this difference clear: an affirmative defense is a defense where the accused bears the initial burden of proof, while a special defense is a defense with no initial burden on the accused. The opinion identifies three affirmative defenses, but Rule for Courts-Martial 916(b) was amended last year (noted here and here) to delete subparagraph 4, leaving only two: lack of mental responsibility and mistake of fact as to age.

This is all perfectly straightforward. Except for one other problem: Judge Stucky’s opinion twice refers to voluntary abandonment as an affirmative defense. See slip op. at 1 and 4. That is perhaps because voluntary abandonment is not listed in R.C.M. 916, however MCM pt. IV, ¶ 4.c.(4), describes it as “a defense” and assigns no burden to the accused. Furthermore, there is nothing in R.C.M. 916 that suggests that it is an exclusive list (and the enumeration of other defenses – like voluntary abandonment – in other parts of the Manual strongly suggests that it is not an exclusive list).

defense and an affirmative defense aren’t the same thing. As I explained in my 2014 article:

A defense denies commission of an act that constitutes an element of the charged offense. An affirmative defense does not deny that the accused committed the objective acts constituting the offense charged but instead denies, wholly or partially, criminal responsibility for those acts. Put differently, a defense disproves an element while an affirmative defense addresses something that isn’t an element but nevertheless avoids criminal responsibility. For example, it is a defense that an accused did not kill a victim, while it is an affirmative defense that even though an accused did kill a victim, the killing was done in self-defense.

(marks and citation omitted). Voluntary abandonment is, therefore, a special defense (because it doesn’t disprove any element of attempt).

Ultimately, there are three terms that matter: defense, special defense, and affirmative defense.

A defense disproves an element.

A special defense doesn’t disprove an element but nevertheless avoids criminal responsibility, and the accused has no burden of proof. The prosecution must disprove special defenses beyond a reasonable doubt. R.C.M. 916(b)(1). Special defenses are established in R.C.M. 916, elsewhere in the M.C.M., and in caselaw.

An affirmative defense doesn’t disprove an element but nevertheless avoids criminal responsibility, and the accused has a burden of proof. There are only two affirmative defenses in effect today: lack of mental responsibility (accused must prove by clear and convincing evidence; R.C.M. 916(b)(2)) and mistake of fact as to age (accused must prove by a preponderance; R.C.M. 916(b)(2)).

In all cases, however, a defense (regular, special, or affirmative) is raised when “there is some evidence in the record, without regard to credibility, that the members could rely upon if they choose.” Slip op. at 5 (quoting United States v. Behenna, 71 M.J. 228, 234 (C.A.A.F. 2012)).

Such evidence doesn’t exist in Feliciano.

Case Links:
ACCA opinion
Blog post: CCA opinion analysis
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
• CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion Analysis: The defenses were not raised (and it’s time to distinguish a special defense from an affirmative defense) in United States v. Feliciano, No. 17-0035/AR”

  1. k fischer says:

    Don’t know how I feel about this conviction.  I mean, technically, I guess it might be correct under the law and hit all the elements.  If the voluntary abandonment defense requires a realization on the part of the accused that what he is doing is wrong and he abandons his actions based on that, then I guess any kind of bystander intervention case would be an attempted aggravated sexual assault?  It’s like the drunk driver who realizes he is drunk, then pulls over and passes out in his backseat who gets arrested by the cops for DUI.  That case is an acquittal in the civilian world.
    My problem is that it appears that Feliciano, while not the most stellar of Soldiers, did the correct thing, which in the exercise of prosecutorial discretion, should not have resulted in a prosecution the conviction of which requires sex offender registration.  Plus, its rather speculative that Feliciano’s response of “You know?  You’re right” was to Schwartz’s advice that he could go to jail for 25 years, rather than the statement “what you are doing is rape” to Feliciano who might not have know what he was doing was wrong in his drunken state.
    Anybody know if Feliciano’s misconduct for which he pleaded guilty occurred before or after the attempted sexual assault?  And, was this reported by Schwartz who had been investigated for weed?  Because it feels like this attempted rape was an add on to shore up some weaker charges of marijuana use, disrespect, disobeying a lawful order, and disorderly conduct.  Kind of like adding a bs rape charge to an Article 15 turn down offense, getting through the 32, then dropping the rape charge on the day of trial.  Or, maybe it was just to test the waters to see how far they could go with an attempt conviction. 
    And the ACCA opinion states that the alleged vic was not called by the government to testify, but rather was called by the defense.  Was she not cooperative, or did she just not remember anything that happened? This just seems like such an odd case.  But, the good news is that Feliciano is going to have to register as a sex offender for the rest of his life, so maybe its just better safe than sorry, right?  Well….as long as it’s not me or my son, anyways. Lol. [sarcasm]

  2. Caafsplaining says:

    Thanks for this write up Zach.  Great point you make about Prather.  Sadly there will be current and future TCs and DCs out there in the JAG world who will read this case and use it in trial practice without also being mindful of the 120 burden shifting line of cases, including Prather.  Funny how CAAF specified the 2 issues in this case then sort of makes a hash of it.  CAAF could have done a deeper dive on defenses than just one (inaccurate) footnote as a way reaffirm the 120 burden shifting case law in the wake of all the recent changes to the UCMJ and 120.

  3. Zachary D Spilman says:

    Fortunately, Caafsplaining, the 2016 MCM cleans things up a bit. R.C.M. 916(b) now reads (in its entirety):

    (b) Burden of proof.

    (1) General rule. Except as listed below in paragraphs (2) and (3), the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.

    (2) Lack of mental responsibility. the accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. 

    (3) Mistake of fact as to age. In the defense of mistake of fact as to age as described in Article 120b(d)(2) in a prosecution of a child sexual offense, the accused has the burden of proving mistake of fact as to age by a preponderance of the evidence.

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