On Friday, the Judge Advocate General of the Navy certified the following issues to CAAF:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN REVIEWING THE IMPLIED BIAS ISSUE DE NOVO, RATHER THAN REVIEWING THE IMPLIED BIAS ISSUE UNDER THE STANDARD OF “LESS DEFERENCE THAN ABUSE OF DISCRETION, BUT MORE DEFERENCE THAN DE NOVO” AS SET FORTH IN U.S. v. BAGSTAD, 68 M.J. 460 (C.A.A.F. 2010)?

WHETHER THE LOWER COURT FAILED TO APPLY THE IMPLIED BIAS TEST THAT ASKS WHETHER, CONSIDERED OBJECTIVELY, “MOST PEOPLE IN THE SAME POSITION WOULD BE PREJUDICED,” REITERATED IN 2010 IN BAGSTAD, AND INSTEAD ERRONEOUSLY APPLIED A TEST ASKING WHETHER THE MEMBER’S CIRCUMSTANCES “DO INJURY TO THE PERCEPTION OR APPEARANCE OF FAIRNESS IN THE MILITARY JUSTICE SYSTEM”?

WHETHER THE LOWER COURT ERRED IN REVERSING THE MILITARY JUDGE AND SETTING ASIDE THE FINDINGS AND SENTENCE FOR IMPLIED BIAS WHERE THE MEMBER SUBMITTED A WRITTEN REQUEST, WHICH WAS DENIED, THAT THE MILITARY JUDGE ASK A WITNESS “DO YOU THINK THAT PEDOPHILES CAN BE REHABILITATED?

United States v. Nash, __ M.J. __, No. 11-5005/MC (C.A.A.F. Sept. 16, 2011).  NMCCA’s unpublished decision in the case is available here.  United States v. Nash, No. NMCCA 201000220 (N-M. Ct. Crim. App. June 28, 2011).

Today, for the second day in a row, the Judge Advocate General of the Air Force has recertified a case to CAAF.  The recertified issue in United States v. Humphries, No. 10-5004/AF, is:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER HTE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPRVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

AFCCA’s latest opinion in the case is available here.

Also today, Code 46 filed notice with CAAF that the Judge Advocate General of the Navy chose not to certify the case of United States v. Lee to CAAF.  Code 46 had previously sought and received an extension of time for the Judge Advocate General to decide whether to certify the case.  NMCCA’s published decision in the case is available here.

Today the Judge Advocate General of the Air Force certified the case of United States v. Rose to CAAF for the third time.  The certified issue is:  “Whether the Air Force Court of Criminal Appeals erred in finding ineffective assistance of counsel in this case.”

The Air Force Court’s latest decision in the case is available here.  The Air Force Court’s decision that led to the second certification — and the one that is really at issue in this certification — is available here.  The Air Force Court’s original decision in the case is published at 67 M.J. 630 (A.F. Ct. Crim. App. 2009).

[Disclosure:  I'm one of AB Rose's appellate defense counsel.]

CAAF’s website now includes links to the briefs in cases set for oral argument.  See, for example, here.  Mr. DeCicco mentioned at last year’s CAAF orientation that this was in the works.  I think this will be a popular feature with we military justice wonks.

h/t BK (hereinafter “The Burger King”)

I’m under the gun tonight, so I don’t have time to explain this as fully as warranted.  But Code 45 has been litigating a series of extraordinary relief cases arguing that the military’s long-term confinement facilities have been using an incorrect good-time credit calculation rule for a large number of confined servicemembers.  NMCCA previously rejected petitions for extraordinary relief on the issue.  Today’s daily journal update included CAAF’s denial of 9 writ appeals seeking review of NMCCA’s denials.  Alonso v. Commandant, United States Disciplinary Barracks, __ M.J. __, Misc. No. 11-8028/NA (C.A.A.F July 26, 2011) (summary disposition).

CAAF has now posted a schedule for the first 10 arguments in the September 2011 term’s oral argument season.  Oral argument season begins with a Navy case, United States v. Schumacher, No. 11-0257/MC, on 11 October.  Other October argument dates are 12, 24, and 25 October.  CAAF then hits the road for a Project Outreach argument at Washington University School of Law on 2 November and Scott Air Force Base (where it will hear a Navy case) on 3 November.

Five of the first ten cases heard are Army cases.  Three are Navy-Marine Corps cases.  The other two are Air Force cases.

CAAF has begun sending out notices for the September 2011 Term’s oral argument season.  I’ve only seen one and, interestingly, it orders an argument on 25 October — roughly a month later than opening day of the three oral argument seasons since CAAF changed the date on which its term began to 1 September.  Given Chief Judge Effron’s short time left on the bench, I’ve been wondering about when arguments for next term would start.  His term ends 30 September, so I wondered whether he would preside over oral arguments in September before turning the gavel over to Judge Baker for the October oral arguments. 

Regardless of when oral argument season opening day occurs, it looks like there will be a substantial gap between the expiration of Chief Judge Effron’s term and the seating of his replacement.  Chief Judge Baker will have the discretion to ask a senior CAAF judge to sit with the court or ask the Chief Justice of the United States to designate an Article III judge to sit with the court.

CAAF has repeatedly split over the signficance of an appellant (or appellate defense counsel, as the case may be) blowing a filing deadline.  A majority consisting of Judges Erdmann, Stucky, and Ryan have consistently barred the appellant from pursuing an appeal or petition for extraordinary relief in such cases.  Chief Judge Effron and Judge Baker have been more willing to  cons9ider untimely appeals and petitions.  That pattern repeated itself on Thursday.

In United States v. Rittenhouse, 68 M.J. 156 (C.A.A.F. 2009), CAAF dismissed the petition for grant of review due to its untimeliness, citing United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).  Chief Judge Effron concurred in the result, noting that the Judge Advocate General of the Army could still certify the case to CAAF.  Judge Baker dissented.  CAAF denied a reconsideration petition in August 2009.  United States v. Rittenhouse, 68 M.J. 193 (C.A.A.F. 2009).

In December 2009, Rittenhouse filed a petition for writ of error coram nobis, arguing that his appellate defense counsel’s ineffectiveness was to blame for his late filing.  Rittenhouse v. United States, 68 M.J. 411 (C.A.A.F. 2009).  In May 2010, CAAF held that because coram nobis jurisdiction springs from a previous exercise of jurisdiction, it couldn’t grant coram nobis relief, since it had never had jurisdiction over the case.  Rittenhouse v. United States, 69 M.J. 173 (C.A.A.F. 2010) (summary disposition).

On 1 March 2011, the Supreme Court decided Henderson v. Shinseki, 131 S. Ct. 1197 (2011), which held that the 120-day deadline for filing an appeal with the United States Court of Appeals for Veterans Claims isn’t jurisdictional.  On 16 March 2011, Rittenhouse filed a second petition for writ of error coram nobis with CAAF, presumably arguing that under Henderson,  Article 67′s 60-day deadline isn’t jurisdictional either.  Rittenhouse v. United States, 70 M.J. 29 (C.A.A.F. 2011).  CAAF ordered the government to show cause why the petition shouldn’t be granted.  Rittenhouse v. United States, 70 M.J. 35 (C.A.A.F. 2011).  On Thursday, CAAF denied the second coram nobis petition by a 3-2 vote.

The three-judge majority announced the petition’s denial without explanation.  Chief Judge Effron, joined by Judge Baker, dissented.  Chief Judge Effron reasoned that Henderson indicated that CAAF need not have concluded that pursuant to Bowles v. Russell, 551 U.S. 205 (2007), a failure to satisfy the 60-day petition deadline deprives CAAF of jurisdiction.  Chief Judge Effron explained:

Rodriguez interpreted Bowles as establishing a “statutory/rule-based distinction,” requiring treatment of the filing period under Article 67 as a mandatory and jurisdictional limitation that could not be waived, irrespective of whether the petition could demonstrate good cause for a belated filing. [67 M.J.] at 113, 116. Subsequently, however, the Supreme Court emphasized that Bowles did not establish a rigid statutory/rule-based distinction for purposes of determining whether a time period must be treated as jurisdictional and nonwaiveable. See Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011).

Henderson , which underscores the need for a more nuanced approach to the issue of whether a statutory time period should be treated as jurisdictional, demonstrates that our Court was not compelled to overrule our longstanding interpretation of Article 67. Henderson considered whether a military veteran was jurisdictionally barred, under Bowles, from raising a claim before the United States Court of Appeals for Veterans Claims because the 120-day filing requirement was established by statute. The Supreme Court in Henderson explained that the consequences of a jurisdictional interpretation are so drastic that a rule should not be labeled jurisdictional “unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”Id. at 1202. The Court noted that filing deadlines “are quintessential claims-processing rules” and they “should not be described as jurisdictional” unless Congress has decided to establish jurisdictional consequences to such a rule. Id. at 1203. The test, under Henderson , is whether “there is any ‘clear’ indication that Congress wanted the rule to be ‘jurisdictional.’”Id. (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006)).

In Henderson the Supreme Court considered the text and the context of the applicable statute, and concluded that Congress had not intended the legislation to carry jurisdictional consequences. Id. at 1203-06. In reaching this conclusion, the Court noted that the statute at issue addressed review of an administrative decision rather than review of a court-based decision, that it concerned special congressional solicitude for veterans’ benefits, and other unique aspects of the statutory framework. Id.

The question before us is not whether the similarities or differences between Article 67 and the statute at issue in Henderson compel a particular interpretation of Article 67. The question posed by the present appeal is whether our Court in Rodriguez correctly interpreted Bowles as establishing a statutory/rule-based distinction that required us to abandon our longstanding, consistent interpretation of Article 67. In that regard, Henderson underscores that the Supreme Court has not adopted such a distinction, and that the Supreme Court has instead emphasized that filing timelines should not be interpreted as jurisdictional absent a “clear indication” that Congress intended such a drastic result.

Congress, in the UCMJ, has required the government to provide appellate counsel for an accused servicemember under Article 70, UCMJ, 10 U.S.C. § 870 (2006). Rodriguez, which treats the filing period as jurisdictional, precludes waiver under any circumstance. Under Rodriguez, even if a servicemember can demonstrate that a belated filing resulted from deficient performance by a government-furnished attorney, the appeal must be dismissed. Rodriguez closes the courthouse door to members of the armed forces, such as the petitioner in this case, regardless of whether the servicemember can demonstrate good cause for a belated filing. Our longstanding interpretation of Article 67 reflects that there is no “clear indication” that Congress intended such a drastic result. Accordingly, I respectfully dissent.

As we’s discussed before, the Supremes don’t have statutory cert jurisdiction to review this decision because the statute governing SCOTUS review of CAAF cases provides such jurisdiction in petition for extraordinary relief cases only where CAAF has granted relief.

As we noted here, on Wednesday CAAF granted review of an issue in an Army Article 62 appeal case and ordered proceedings stayed.  United States v. Baker, No. 11-6007/AR.  CAAF has now set the case for oral argument on 6 July, thus reopening this term’s oral argument season.

On 23 May, CAAF granted review of one issue and specified another in the Army’s Pierce case, No. 11-0239/AR:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE COMMERCE” WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

Yesterday, the Judge Advocate General of the Army cross-certified a third issue in the case:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. § 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE OR FOREIGN COMMERCE,” WAS ERRONEOUS.

The cross-certification seems like a wise move on the Government’s part to avoid the kind of law of the case doctrine issue that the Government confronted in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

By my count, 10 cases that have been argued at CAAF this term remain undecided.  But the oldest undecided case we’re following was argued not at CAAF but at ACCA more than six months ago.

(1)  Discovery/LIO Instructions

On 9 December 2010, ACCA heard oral argument in United States v. Behenna, No. ARMY 20090234, a high-profile case that presents an important question about the government’s obligation to disclose a potentially exculpatory expert opinion to the defense.  The case also presents an issue of whether the military judge erred by failing to provide a sua sponte instruction on voluntary manslaughter — an issue that seemed particularly interesting to the judges at oral argument.  NIMJ’s recap of the argument is available here.

 (2)  Admissibility of drug testing reports

Two argued CAAF cases may provide further guidance concerning the admissibility of drug testing reports in light of the Supreme Court’s Melendez-Diaz decision.  United States v. Lusk, No. 11-0166/AF, was argued on 7 April and United States v. Sweeney, No. 10-0461/NA, was argued on 17 May.  Meanwhile, the Supreme Court’s pending decision in Bullcoming v. New Mexico, No. 09-10876, which was orally argued on 2 March, could affect drug testing reports’ admissibility.  While I’d bet that the outcome in Bullcoming will be consistent with CAAF’s Blazier I and Blazier II opinions, SCOTUS may provide additional guidance beyond what CAAF resolved in those two opinions.

(3)  Pleading and proving Article 134′s terminal element

United States v. Fosler, No. 11-0149/MC, has inspired an entire mobile home park of trailers — the Fosler Trailer Park (thanks again for that metaphor, Snuffy!).  The case deals with the implication of failing to allege the terminal element (prejudice to good order and discipline or service discrediting) in an Article 134 specification.  It’s one of the most closely watched cases in military justice appellate land this term for the simple reason that just about every military appellate defense counsel has a Fosler issue in some case currently pending before CAAF or a CCA.  In United States v. Phillips, No. 11-0148/MC, the issue concerns what evidence the prosecution must present to prove the service discrediting element. 

(4)  Article 10/Speedy trial

The case of United States v. Schuber, No. 11-6002/AF, will help to answer the question:  “Is Article 10 dead?”  Consider that two of CAAF’s last three Article 10 decisions were cases in which the military judge kicked the charges on Article 10 grounds, the CCA reversed, and CAAF upheld the CCA. United States v. Thompson, 68 M.J. 308 (C.A.A.F. 2010); United States v. Cossio (yes, longtime CAAFlog readers, that Cossio), 64 M.J. 254 (C.A.A.F. 2007).  (The third was United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007), in which CAAF held that the Article 10 issue was waived and the trial defense counsel weren’t ineffective for waiving it.)  In Schuber, the military judge granted relief under Article 10 and AFCCA reversed.  A CAAF affirmance of AFCCA will probably reinforce the message to military judges that finding an Article 10 violation without a corresponding R.C.M. 707 violation is a very good way to get reversed on an Article 62 appeal.  Schuber also presents the interesting legal issue of the effect of a break in confinement on an Article 10 analysis.

(5)  Rape shield rule

CAAF has yet to decide two cases presenting the same Military Rule of Evidence 412 issue.  In both United States v. Ellerbrock, No. 10-0483/AR, and United States v. Gaddis, No. 10-0512/AR — both heard on 25 January — the issue is whether the MRE 412 balancing test that CAAF adopted in United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004), is constitutional.  These decisions will come on the heels of CAAF’s MRE 412 decision in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

(6) Sentencing evidence

CAAF’s oldest unresolved case is United States v. Eslinger, Nos. 10-0537/AR & 11-5002/AR, which was argued on 24 January.  The case concerns the Ohrt/Horner requirements for giving an opinion on rehabilitative potential and rules for rebuttal sentencing evidence.

(7)  Illegal confinement credit

The case of United States v. Zarbatany,  No. 11-0165/AF, which was argued on 21 April 2011, involves the question of what parts of a court-martial sentence other than confinement may be offset as a remedy for illegal pretrial confinement.

(8)  Judicial conduct

The last argument of CAAF’s term — which was delayed for the greatest reason ever (childbirth) — was in the case of United States v. Martinez, No. 11-0167/AR.  Martinez involves a weird fact pattern raising a judicial conduct issue.  Here’s the synopsis of the case on CAAF’s hearing schedule page:

Granted issue questions whether a reasonable person would question the trial judge’s impartiality when a senior military judge, who appeared to have assisted the government during trial, entered the trial judge’s chambers during recesses and deliberations, in violation of Appellant”s right to due process.

(9)  Constitutionality of court-martialing civilians

The case we’re tracking that was argued most recently is United States v. Ali, No. ARMY  20080559, which was heard by ACCA on 1 June.  Ali involves the constitutionality of Article 2(a)(10) of the UCMJ, which allows civilians accompanying U.S. forces in contingency operations to be court-martialed.  If I had to put money on a case to be the next Golden CAAF winner (our award for a miltiary justice case in which the Supremes grant cert), I’d bet on Ali.

CAAF’s case law establishes that a waiver of appellate counsel isn’t effective unless it’s filed after the CA acts.  United States v. Smith, 34 M.J. 247, 249 (C.M.A.1992).  In United States v. Xu (pronounced “Shoe”), a waiver of appellate counsel, but not appellate review, was filed long before the CA acted.  The Air Force Court nevertheless gave it legal effect and proceeded to affirm the findings and sentence in the absence of any legal representation for Xu.  United States v. Xu, No. ACM 37722 (A.F. Ct. Crim. App. Dec. 7, 2010) (per curiam). 

After AFCCA affirmed his conviction and sentence, Xu obtained an appellate defense counsel, who filed a CAAF petition and supplement on his behalf.  CAAF granted Xu’s petition today and summarily reversed.  United States v. Xu, __ M.J. __, No. 11-0320/AF (C.A.A.F. May 25, 2011).  CAAF held that “Appellant’s waiver of appellate counsel prior to the convening authority’s action was premature.” 

Demonstrating the value of having counsel, CAAF also agreed with Xu’s counsel that “the convening authority failed to appropriately credit Appellant for prior punishment under Article 15, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 815 (2006), for an offense also charged as part of Additional Charge II.”  AFCCA didn’t notice that error when it reviewed the case without the benefit of counsel.  CAAF set aside the CA’s action and remanded the case for a new post-trial review and action, followed by a new Article 66 appeal to AFCCA.

This outcome confirms CAAF’s wisdom in holding that Article 66 review is no substitute for repreentation by an appellate defense counsel.  As CAAF observed in United States v. May:

Although Courts of Criminal Appeals have a broad mandate to review the record unconstrained by an appellant’s assignments of error, that broad mandate does not reduce the importance of adequate representation.  As we said in United States v. Ortiz, 24 MJ 323, 325 (CMA 1987), independent review is not the same as competent appellate representation.  An appellant who is denied counsel is forced to proceed “without a champion on appeal.”  Douglas v. California, 372 U.S. 353, 356 (1963). Denial of appellate counsel is presumptively prejudicial.  Penson v. Ohio, 488 U.S. 75, 88 (1988).

47 M.J. 478, 481 (C.A.A.F. 1998).

As noted yesterday, CAAF’s oral argument in United States v. Martinez, No. 11-0167/AR, was postponed due to the arrived of a newborn for one of the counsel in the case.  The argument has been rescheduled for 1100 on Tuesday, 24 May.  I hope that the counsel will have recovered from his sleep-deprived state by then; I felt like a zombie for at least the first couple of months after my daughter was born.

So today’s End of Term reception at CAAF didn’t mark the end of CAAF’s term, but did mark the end of a pregnancy term. 

I believe that the End of Term reception traces its roots to BGen Kevin H. Winters, USMC (Ret.), who hosted a CAAF End of Term reception at the Navy Yard upon what was scheduled to be the end of oral argument season in CAAF’s 2002-2003 term.  And as occurred this year, CAAF ended up scheduling another oral argument after the End of Term reception.  History repeats itself.

Today’s CAAF oral argument in  Martinez, No. 11-0167/AR, was postponed because the wife of one of the counsel went into labor.  We offer our congratulations to the newest member of the Army JAG Corps family.

Here’s an unusually interesting entry from yesterday’s daily journal:

No. 11-0256/MC. U.S. v. Michael J. CHEESEMAN. CCA 200900567. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) and United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010), said petition is granted on the following specified issue:

WHETHER APPELLANT’S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c)(2), UCMJ, SHOULD BE SET ASIDE IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES v. NEAL, 68 M.J. 289 (C.A.A.F. 2010), AND UNITED STATES v. PRATHER, 69 M.J. 338 (C.A.A.F. 2011).

It is further ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge III and Specification 1 thereunder and as to the sentence, but affirmed in all other respects. The findings as to Charge III and Specification 1 thereunder and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority who may order a rehearing on the affected charge and sentence. Alternatively, a rehearing on sentence only may be ordered with regard to the affirmed findings.

Here’s the NMCCA opinion.  Here’s how NMCCA dealt with the instructions:

Instructional Error

The military judge’s instructions on the affirmative defenses of consent and mistake of fact as to consent omitted the statutorily prescribed burden on the Government “of proving beyond a reasonable doubt that the affirmative defense did not exist,” if the defense first proved “[consent or mistake of fact as to consent] by a preponderance of the evidence.”  Fn.1 Art. 120(t) (16), UCMJ.  Though not objected to at trial or raised on appeal as error, the military judge’s failure to properly instruct the members on these affirmative defenses is not subject to the manual’s waiver rules, and has potential constitutional implications. Medina, 68 M.J. at 590 (citations omitted); United States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003). However, we are convinced beyond a reasonable doubt that these instructions “did not contribute to the [appellant's] conviction or sentence.” Medina, 68 M.J. at 590. As the appellant failed to prove the existence of either affirmative defense by the statutorily mandated “preponderance of the evidence,” the Government’s burden of proof under the statutory scheme was never triggered.  Therefore the military judge’s failure to properly instruct on that statutorily prescribed burden had no impact on the findings or sentence.

Fn.1 The military judge instructed the members that if at the time of the alleged sexual intercourse it was more likely than not that: (1) “[the victim] consented,” or (2) “the [appellant] honestly and reasonably believed that [the victim] consented,” then this consent or mistake “is a complete defense” and “you should find the accused not guilty[].” Record at 253-54 (emphasis added). Similar instructions were addressed in Mozee v. United States, 963 A.2d 151, 159 (D.C. 2009)(where if the appellant met the burden of proving theaffirmative defense of consent by a preponderance of the evidence; the jury was “required” to find him not guilty; see also D.C. Code § 22-3007 (2008)).  We acknowledge the distinction between “required” and “should” with respect to findings of not guilty if the appellant sustains his burden, but find no prejudice where, as here, the appellant failed to sustain that initial burden of proof.