Opinion Analysis: A mess so big that the charge is dismissed with prejudice, in United States v. Honea
CAAF decided the Air Force case of United States v. Honea III, 77 M.J. 181, No.17-0347/AF (CAAFlog case page) (link to slip op.), on Thursday, February 1, 2018. Finding the record “a tangled morass,” that “does not establish with certainty what the findings were,” CAAF concludes that appellate review is impossible and reverses the findings, sentence, and decision of the Air Force CCA. Yet because the record is “so irredeemably muddled,” CAAF does not authorize a rehearing and instead dismisses the charge with prejudice.
Judge Ohlson writes for a unanimous court.
CAAF granted review of two issues:
I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?
II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the Government to roceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?
At the conclusion of the oral argument in this case, Chief Judge Stucky said:
Counsel for both sides having manfully striven to make something of this mess, the case is now submitted.
The mess, however, prevails.
Captain (O-3) Honea was charged with a number of offenses. One alleged a sexual touching of the vulva of the alleged victim as an abusive sexual contact in violation of the version of Article 120(h) in effect from 2007-2012. But the evidence elicited at an Article 32 pretrial investigation supported only a touching of the broader pelvic region. As a result, the charge was modified and the term pelvic region replaced the word vulva, but only in one of two instances. The charge as referred for trial stated:
In that CAPTAIN ROBERT L. HONEA III, United States Air Force, 1st Air Force, Tyndall Air Force Base, Florida, did, at or near Dover Air Force Base, Delaware, between on or about 1 February 2011 and on or about 30 April 2011, engage in sexual contact, to wit: touching [RSV’s] pelvic region with his penis, by causing bodily harm upon her, to wit: touching [RSV’s] vulva with his penis.
Slip op. at 2 (emphases and modifications in original). A military judge concluded that this specification failed to state a sexual offense, but found that it stated the lesser included offense of assault consummated by a battery by touching of the vulva, and Honea pleaded not guilty to that offense.
A different military judge took over for trial, however, and employed an odd procedure. Seizing on the discussion accompanying R.C.M. 910(a) – that Judge Ohlson explains “applies [only] to an accused’s entry of a guilty plea to a lesser included offense,” slip op. at 4 (emphasis in original) – the military judge asked the defense to provide a draft specification of assault consummated by a battery for insertion into the record. That specification stated:
In that CAPTAIN ROBERT L. HONEA III, United States Air Force, 1st Air Force, Tyndall Air Force Base, Florida, did, at or near Dover Air Force Base, Delaware, between on or about 1 February 2011 and on or about 30 April 2011, unlawfully touch [RSV] on the pelvic region with his penis.
Slip op. at 4-5 (emphasis and modification in original). The military judge then found Honea guilty “of the lesser included offense of . . . assault consummated by a battery.” Slip op. at 5 (marks omitted). The military judge did not, however, make special findings explaining the factual basis for the conviction. The military judge then sentenced Honea to confinement for one month and a dismissal.
At that point there were three versions of the charged offense: the specification as preferred (with two references to vulva), the specification as referred for trial (with one reference to vulva and one reference to pelvic region), and the specification provided by the defense at trial (referencing only pelvic region).
The convening authority’s action introduced a fourth version:
the promulgating order signed by the convening authority listed the specification as follows:
Did, at or near Dove [sic] Air Force Base, Delaware, on or about 1 February 2011 and on about 30 April 2011, engage in sexual contact, to wit: touching [RSV’s] pelvic region with his penis, by causing bodily harm upon her, to wit: touching [RSV’s] vulva with his penis. Plea: NG to the LIO of assault consummated by a battery. Finding: G of the remaining LIO of assault consummated by battery in violation of Art 128, UCMJ (greater Art 120 offense dismissed by Military Judge after defense motion for failure to state an offense.)
Slip op. at 5 (emphases and modifications in original).
On appeal, Honea challenged the conviction, asserting that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, and also asserting that the evidence is insufficient to prove the charged offense of touching of the vulva. The Air Force Appellate Government Division took an alternating approach:
Upon appeal to the CCA, Government appellate counsel initially argued in their briefs that Appellant had been found guilty of touching RSV’s vulva. However, mere days before oral argument, Government appellate counsel changed course and argued that the draft specification “only required the United States to prove contact between the Appellant’s penis and the victim’s ‘pelvic region’” and that “was what the military judge used to determine Appellant’s guilt.”
Slip op. at 5-6 (emphases in original). This vacillating position was perhaps caused by the fact that “the Government appeared to concede at trial that the facts were not sufficient to demonstrate that Appellant touched RSV’s vulva.” Slip op. at 6 n.4. So, had the Government Division stuck with the argument that Honea was convicted of touching the vulva, the conviction likely would have been reversed for insufficiency.
CAAF then granted review.
Judge Ohlson’s decision for the unanimous court doesn’t answer either of the granted issues. Rather, he begins his analysis with the bottom line up front:
The mere recitation of these convoluted procedural facts is sufficient to demonstrate the fundamental—and ultimately fatal—flaw with this case. Namely, the record fails to definitively identify what offense Appellant was convicted of. . . .
Indeed, the record before us is such a tangled morass that we are precluded from conducting an appropriate Article 67, UCMJ, review of this case.
Slip op. at 6.
This leads to reversal. But Judge Ohlson then outlines two points that require dismissal of the charge with prejudice:
First, it is impossible to discern from the record before us whether a material variance occurred between the pleadings and proof in this case. This Court cannot authorize a rehearing on a charge or specification where a “material variance deprives an accused of the fundamental right to due process.”
Slip op. at 7 (citations omitted).
Second, the inability to discern what offense Appellant was convicted of prevents this Court from determining which variation of the specification should be analyzed in determining whether Appellant’s conviction was an LIO of Article 120, UCMJ. When an appellant’s conviction is not an LIO of the greater charged offense, this Court has repeatedly declined to authorize a rehearing.
Slip op. at 7 (citations omitted).
the record before us is so irredeemably muddled that it is impossible to ensure that these constitutional rights of Appellant were observed at trial. Accordingly, based on the particular and peculiar circumstances of this case, we not only reverse Appellant’s conviction, we also decline to authorize a rehearing.
Slip op. at 7-8.
Litigators and jurists often speak of protecting the record. With multiple versions of the charged offense, inconsistency from the Government division on appeal, and doubts about the sufficiency of the evidence, however, the record in this case was anything but protected.
As a result, for the second time in as many weeks a CAAF decision ends in dismissal with prejudice (the other was in Riesbeck).
• AFCCA opinion
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis