The issue was the military judge’s order that the cases be tried at Seattle, Washington, as opposed to Alameda, California, as specified in the convening order. (You know, Alameda. It’s where they keep the nuclear wessels).

We get the rest of the story in Brown v. Tousley II, Misc. Dkt. No. 002-12 (C.G. Ct. Crim. App., Nov 17, 2011). In orders dated 24 October and 25 October, the Respondent (the trial Military Judge) ordered that the two general courts-martial would be tried on 17 and 30 January 2012 in Seattle, WA. He also docketed pre-trial 39(a) sessions for 19 and 21 December.

On 26 October the government moved for reconsideration of the orders for trial in Seattle in each case. The Respondent informed the government that he would not rule on the motions for reconsideration until he received certain pre-trial matters, including the witness lists (deadlines: 7 & 9 Dec, and 19 & 23 Dec). On 27 October the government filed its first petition for a writ, which was denied on 1 November because of the pending motions for reconsideration.

But the convening authority was determined to get more from the CCA, so on 14 November he withdrew the motions for reconsideration, and then on 15 November he filed another petition!

The court described the petitioner’s position:

Petitioner argues that Respondent does not have the authority to order the cases to be tried in a location other than that specified in the convening order, and that his attempt to do so is a usurpation of Petitioner’s authority.

However, on 17 November the CCA again denied the petition, reasoning:

[Petitioner] has done nothing to show us that he has no other adequate means to obtain relief. The Government’s motions for reconsideration were a possible means to obtain relief; that the Government has withdrawn them does not in any way strengthen Petitioner’s position. While Petitioner might believe the motions for reconsideration were inadequate because Respondent had not ruled on them yet, Petitioner has not shown that further delay in ruling would impair whatever relief might be granted. Petitioner has also not shown that the Government gave Respondent any specific reason to expedite the rulings. Further, as far as has been shown, the Government has not yet filed its witness lists. As noted above, Respondent has indicated that his rulings on the motions for reconsideration awaited filing of witness lists. Expedited filing of witness lists would be another means toward obtaining relief.

Petitioner’s claim that the delay in ruling “interfer[es] with [his] ability to efficaciously plan for and marshal the necessary resources to carry out his statutory functions” is too vague to be persuasive.

The rest of the story comes from yesterday’s order:

Captain (CAPT) Paul C. LeBlanc, JAGC, USN, and Captain (Capt) Michael D. Berry, USMC, represented the petitioner before both appellate courts and formed an attorney-client relationship with the petitioner. . . .

In June 2011, CAPT LeBlanc and Capt Berry requested that the CA fund their representation of the petitioner at his courtmartial proceedings. The CA declined. In July 2011, charges of negligent homicide and failure to obey a lawful order were preferred and the CA directed an Article 32 investigation into those charges. The Article 32 investigation was held in August 2011. CAPT LeBlanc and Capt Berry were not present. The newly preferred and investigated charges were then referred to a general court-martial. The charges which were affirmed by this court and returned to the convening authority with a rehearing on sentence authorized are not before the current court-martial. In September 2011, during pretrial motions, the military judge denied a defense motion to recognize CAPT LeBlanc and Capt Berry as detailed trial defense counsel. The record does not reflect that the petitioner has submitted a request that CAPT LeBlanc and/or Capt Berry be assigned to represent him as individual military counsel. See Rule for Courts-Martial 506, Manual for Courts-Martial, United States (2008 ed.). The case is currently stayed pending resolution of the petition for extraordinary relief.

The CCA denied the petition, ruling:

We are not persuaded that this set of circumstances merits an extraordinary writ. First, although CAPT LeBlanc and Capt Berry have an attorney-client relationship with the petitioner and are properly assigned to represent him before this court and the Court of Appeals for the Armed Forces, there is no evidence presented in support of this writ that they were ever detailed to represent him before a trial court. The petitioner relies principally on Morgan for the proposition that appellate defense counsel join trial defense counsel as part of an appellant’s “growing defense team.” 62 M.J. at 635. The petitioner argues that the military judge’s erroneous consideration of Morgan’s applicability to this case is an abuse of discretion. However, an abuse of discretion is not a “usurpation of power.” The petitioner continues to retain his original detailed trial defense counsel and does not demonstrate that representation by only these two attorneys, without the assistance of CAPT LeBlanc and Capt Berry, would deprive him of a “clear and indisputable right.” Second, we note that the petitioner has not exhausted his remedies short of extraordinary relief. In particular, he has not requested the assignment of CAPT LeBlanc and/or Capt Berry as individual military counsel. Lastly, we are not convinced that the normal course of appellate review would be insufficient to resolve this case. If the petitioner is convicted at this trial, he will have the benefit of subsequent review and will have the opportunity then to argue why he believes that the principles of United States v. Morgan were violated, or why the absence of CAPT LeBlanc and Capt Berry resulted in undue prejudice to his court-martial.

It appears that the last Air Force published opinion that has actually appeared in the Military Justice Reporter was issued on 3 June 201:  United States v. Thompson, 69 M.J. 516 (A.F. Ct. Crim. App. 2010), rev’d, 69 M.J. 456 (C.A.A.F. 2010) (summary disposition).

Our prior coverage of this unusual appeal can be found here.  In summary:  1st Lt Patrick T. Burke was tried by a military judge sitting as a general court-martial, and was found not guilty only by reason of lack of mental responsibility.  The government thereupon filed an Article 62 notice of appeal, indicating that it had consulted with appellate government counsel and the convening authority’s SJA and stating, in pertinent part, “The Government intends to appeal the order or ruling of the Military Judge that terminated the proceedings.”  Precisely how the government planned to appeal an acquittal was not made clear; but as one of my colleagues here in Las Vegas (a former AF trial defense counsel) speculated, “Maybe the government thinks insanity acquittals should be best two out of three.”

Alas, we will never know.  Today, the government sent notice to the Air Force Court of Criminal Appeals that it would not, in fact, file an Article 62 appeal in Burke.

As we know, Fosler changed that.

The opinion was brazen, casting aside nearly 60 years of jurisprudence. See, e.g., United States v. Marker, 1 U.S.C.M.A. 393, (1952)). The majority finds this result compelled by its renewed interest in United States v. Schmuck, 489 U.S. 705 (1989), which adopted the elements test for lesser-included offenses under Fed. R. Crim. Proc. 31(c); yet it gives lip service to contemporaneous precedent that applied that rule to offenses under the UCMJ. See, e.g., United States v. Foster, 40 M.J. 140 (C.M.A.1994). This is in stark contract to the deliberateness of the Supreme Court in Schmuck. See Schmuck, 489 U.S. at 716 (“[the elements test] is consistent with past decisions of this Court which, though not specifically endorsing a particular test, employed the elements approach.”).

Still, Fosler is part of a larger effort to return to the principles of the elements test adopted and then abandoned so long ago; to reconcile Foster, Teters, Hudson, and the many others that constitute the “Hydra” of lesser-included offenses under the Code; to remove the “outsize pair of spectacles.” See, e.g., United States v. Jones, 68 M.J. 465, 468-469 (C.A.A.F., 2010). But Fosler risks replacing the Hydra with a Medusa. The opinion had a virtual tornado effect, with 51 remands to the courts of criminal appeals that will force the ad hoc development of practical rules to address the myriad circumstances the court of appeals neglected when it ruled only that “because allegation of the terminal element is constitutionally required and the Government failed to satisfy that requirement here, the military judge’s decision to deny Appellant’s motion to dismiss was in error.” Fosler, 29 M.J. at 233.

Since the court of appeals decided Fosler on 8 August, the CCAs analyzed and applied the case six times (by my count – please let me know if I missed any), all unpublished. The breakdown is five N-MCCA cases, and one ACCA case, as follows:

• United States v. Thomas, No. 20100463 (A.Ct.Crim.App., 24 Aug 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Gibson, No. 201000669 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Lonsford, No. 201100022 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted contrary to pleas) – Reversed
• United States v. Leubecker, No. 201100091 (N.M.Ct.Crim.App., 13 Sep 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Scaringello, No. 201100192 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted pursuant to pleas) – Affirmed
• United States v. Walton, No. 201000508 (N.M.Ct.Crim.App., 20 Sep 2011) (convicted contrary to pleas) – Reversed

Edited to add: I overlooked the fact that the specification at issue US v. Thomas (ACCA) actually did allege the terminal element, but was potentially defective in other respects, so that case does not belong on the list. The total is 5 cases, all NMCCA.

The bright line in these cases is clear: where the accused pleaded Guilty to a defective Art. 134 specification, the conviction is affirmed based on the reasoning of United States v. Watkins, 21 M.J. 208 (C.M.A., 1986); where the accused pleaded Not Guilty, the conviction is reversed based on Fosler.

Watkins held that without a showing of prejudice (i.e., a misled accused or double jeopardy concerns), a conviction pursuant to a plea of guilty, first challenged at appeal, will not be reversed for a defective specification unless the specification is so defective that it “cannot within reason be construed to charge [the] crime.” Watkins, 21 M.J. at 210. This Watkins exception to the Fosler rule is perfectly reasonable. An accused who voluntarily and accurately pleaded guilty pursuant to a pretrial agreement, and enjoyed the benefit of that agreement, and who can show no prejudice, undoubtedly understood the offense with which he was charged (i.e., the terminal element was necessarily implied), and no justiciable interest is served by reversing that conviction on technical grounds. However, in breathing new life into this rule, the Army and Navy-Marine Courts of Criminal Appeals are not pitting the reasonableness of Watkins against the reasoning of Fosler.

The Fosler majority emphasized that the three clauses of Art. 134 are “distinct and separate,” and that:

“an accused must be given notice as to which clause or clauses he must defend against. As [the court] explained in the context of a guilty plea: ‘[F]or the purposes of Article 134, UCMJ, it is important for the accused to know whether [the offense in question is] a crime or offense not capital under clause 3, a ‘disorder or neglect’ under clause 1, conduct proscribed under clause 2, or all three.’” Fosler, 70 M.J. at 230 (quoting United States v. Medina, 66 M.J. 21, 26 (C.A.A.F., 2008)) (second and third alterations in original).

This reasoning appears to eliminate the Watkins exception, but Medina (which held that Art. 134 clause 1 and 2 offenses are not necessarily LIOs of clause 3 offenses) is not so broad as Fosler makes it appear. “[In Medina], Appellant was not advised during the plea inquiry that in addition to pleading guilty to the incorporated offenses under 18 U.S.C. §§ 2251 and 2552A, he was by implication also pleading guilty to Article 134(2) UCMJ, offenses.” Medina, 66 M.J. at 27. But in Watkins, the accused was “informed separately of the elements of each … offense by the military judge… . The military judge personally determined the accused’s understanding of the law in relation to the facts … [and] the accused here successfully completed an exhaustive providence inquiry.” Watkins, 21 M.J. at 210. Medina and Watkins present complementary analysis of the fundamental principle that the accused must understand the full meaning and effect of his plea for it to be provident. Fosler doesn’t change that at all.

This makes Fosler a case with a very short lifespan. Prosecutors have already begun to include terminal elements in specifications under clause 1 and 2. Once the present backlog of cases is resolved (presumably by the application of a few bright lines, and a handful of retrials), the need to apply Fosler will be rare, and the next edition of the Manual for Courts-Martial should eliminate application beyond. The post-Jones landscape remains easy. So far, nobody is turning to stone.

UPDATE:  I’m advised that one of the counsel is a Reservist and the court is holding the argument at its courtroom on a Sunday to accommodate the Reservist’s schedule.  BZ, NMCCA!

Sunday, 18 September 2011

1400

United States v. Dominique

A military judge sitting as a general court-martial convicted the appellant, pursuant to  his pleas, of an orders violation, false official statement, conspiracy to commit larceny, and of wrongful appropriation.  The convening authority approved a sentence of 8 months confinement, reduction in rate to E-1, and a bad conduct discharge from the United States Marine Corps.

The specified issue before the Court is the following:

I.  WHETHER AN ACCUSED MAY BE CONVICTED OF AN “IMPLICIT” CONSPIRACY WHERE THERE IS NO EVIDENCE OF EITHER A WRITTEN OR ORAL MEETING OF THE MINDS, BUT RATHER WHERE APPELLANT’S PARTICIPATION IN THE CONSPIRACY IS LIMITED TO KNOWLEDGE THAT HIS “CO-CONSPIRATORS” ARE BREAKING THE LAW AND HIS OMISSION OF ACTION IN PREVENTING THEIR ILLEGAL ACTIVITIES.

[Insert familiar disclosure here.]

Still, AFCCA’s new courtroom has its quirks.

I was able to catch the second half of today’s inaugural argument in United States v. Boore.  Everything inside the courtroom seemed to function as designed, though there may be grounds to question some of those design decisions.  The acoustics were good when counsel were speaking.  They weren’t as good when the judges were speaking, but I suspect that’s because the judges weren’t as close to their microphones when they spoke.

One strange feature of the new courtroom is a Jumbotron composed of four separate video screens mounted on the courtroom’s right wall from the oral advocate’s perspective.  During the argument, the Jumbotron showed the counsel arguing the case — which would have been visible to the advocate in his peripheral vision.  I’m sure that isn’t necessary; no other court I’ve ever been in has had a Jumbotron.  I’m not sure it’s desirable.  I suspect the main reason for throwing the counsel’s giant image up on the Jumbotron was because it was there.

Some of the carpet — particularly by the entrance — already appeared worn even though today was the first time the courtroom was in use.  And while the quality of the carpet seemed tacky compared to the luxurious materials elsewhere in the courtroom, in the interest of fiscal sanity, I recommend keeping it.

My greatest qualm with the courtroom’s design is the amount of space between the counsel’s podium and the judges.  An oral argument should be a conversation, not a speech.  But the 15 feet of open space between the counsel and the center of the judges’ bench doesn’t inspire conversational tones.  I’ve previously complained about the distance between the podium and the appellate bench in NMCCA’s courtroom.  The distance in AFCCA’s new palace of appellate justice appears to be even greater.  (I’ll probably be in NMCCA’s courtroom on Friday; if so, I’ll check out the relative distance between podium and bench then.)  At both CAAF and the Supreme Court, by way of contrast, the podium seems just an arm’s reach from the bench.

Speaking of the NMCCA courtroom, one of its many problems is its lack of accessibility.  There’s no signage on the building.  If you were standing directly next to the Navy Yard’s Center of Appellate Excellence, you’d have no way to know that there was a court lurking inside.  And even if you somehow figured it out, you’d be left wondering how to get into the building.  When the building housed the Marine Corps Museum, the main entrance was on the west side, next to Leutze Park.  That still appears to be the main entrance.  But it’s inaccessible to  visitors.  Nothing tells the visitor that the actual entrance is the second of what look like two back doors on the building’s east side.  AFCCA’s courtroom, on the other hand, is well marked with signs, even though they read like they were written by someone for whom English is a second language.  (In the U.S., we say “Appellate Courtroom.”  “Courtroom Appellate,” as the signs say, reads like an overly literal translation of a sign written in French.)

But even with the signage and the well-designed entrance that (unlike NMCCA’s) architecturally communicates its function, on a normal day a visitor to AFCCA would be flummoxed as to how to enter the court.  The only exterior doors are locked with an electronic pad to control entry.  There’s no sign telling a visitor how to get in, no phone to call someone to open the door, and no list of phone numbers even if the visitor came equipped with a cell phone.  The entry is a sufficient distance from the court’s chambers that even vigorous pounding on the door would be unlikely to attract attention.  So, on a normal day, a visitor might be reduced to tiptoeing across AFCCA’s lawn to rap on a window and beg for someone to open the door.

But not today.  Today the front doors were  unlocked a  half hour before the argument and remained unlocked for the duration.  So for accessibility to see an oral argument, AFCCA’s courtroom gets a much higher grade than NMCCA’s.

It will be interesting to see whether, in time, the technology available inside AFCCA’s courtroom changes the way oral argument is presented.  Instead of seeing themselves on the courtroom’s Jumbotron, might counsel one day use it to depict a particularly salient piece of evidence from the case?  Will counsel deliver PowerPoint-enhanced arguments?  If so, would that be desirable?  Or are the Jumbotron and the monitors perched in front of each judge unwelcome departures from what should be, in its purest form, five lawyers reasoning with one another?  We’ll continue to think about these issues as AFCCA’s grand new courtroom comes into regular use.

Did the military judge abuse his discretion in denying the Appellant’s challenge for cause against one of the members,creating serious doubt as to whether the Appellant had a fair and impartial panel when that member questioned a defense witness during the findings phase of the court-martial about whether the witness believed that a pedophile could be rehabilitated.

UPDATE: Mark Sherman, one of AP’s SCOTUS reporters, has the first hearing coverage here. One confusing statement in the report. We’ll see if we can help them out.

UPDATE 2:  Here is NIMJ Executive Director Michelle Lindo McCluer’s synopsis of the arguments.

The sentencing landscape has changed dramatically and “[w]e conclude the only fair course of action is a sentencing rehearing.”  United States v. Buber, 62 M.J. 476, 480 (C.A.A.F. 2006) (citations and quotations omitted).   A rehearing on the sentence may be ordered by the same or different convening authority. 

United States v. Girourd, No. ARMY 20070299 (A. Ct. Crim. App. May 23, 2011) (per curiam).

SrA Datavs was tried in 2009 by a panel of officer and enlisted members on one specification of making a false official statement, in violation of UCMJ Article 107 , and two specifications of forcible sodomy, in violation of Article 125.  He pled not guilty to all three specifications but was convicted despite his pleas.  The members sentenced him to a dishonorable discharge, reduction to E-1, and total forfeitures.  The convening authority approved the sentence as adjudged. 

On appeal, SrA Datavs made four assignments of error: ineffective assistance of counsel, error by the military judge in limiting argument concerning sex offender registration, violation of RCM 1107 by imposition of total forfeitures with no confinement, and inappropriate sentence severity.  The government conceded the RCM 1107 violation, but otherwise urged the court to reject the appellant’s claims.  The court granted oral argument on the first assignment of error, concerning the performance of the trial defense team. 

The primary focus of the argument was on whether the trial defense counsel violated Strickland and Polk by failing to pursue appointment of a defense expert consultant in the field of sexual assault exams.  The government had an expert who testified that the victim sustained injuries consistent with forcible anal sodomy.  The defense requested an expert prior to trial, but the convening authority rejected their request.  The defense then moved to compel appointment of an expert consultant, but withdrew the request pursuant to an agreement limiting the scope of the government expert’s testimony.

On appeal, SrA Datavs argued that his counsel should not have given up on obtaining their own expert.  His appellate defense counsel, Major Michael Kerr, noted that such requests are routinely granted and cited post-trial submissions by the requested expert that contradicted the government witness’ testimony as evidence that the trial team should have persisted.  Without a defense expert, the cross-examination of the government witness was largely unsuccessful, and only one side of the case was presented to the members.

Government counsel, Captain Michael Rakowski, argued that the trial defense team adequately explained their strategy in the post-trial affidavits filed with the court.  In essence, the trial team believed they could successfully counter the testimony of the government expert, who they thought would be equivocal when crossed on the issue of consent .  They were concerned that persisting in their request for an expert would lead to a delay they did not want, because they knew of two witnesses who the prosecution team had not identified and whose testimony would be damaging.  They feared the government would find those witnesses during a delay and on balance concluded foregoing an expert was the better option.  Capt Rakowski argued that even if the defense strategy was deemed deficient, there was no prejudice, because the victim’s testimony alone would have been enough to secure a conviction.  He also noted that the trial defense team achieved an excellent result on sentencing — no confinement, despite a conviction on two specifications of forcible sodomy, is by almost any measure a defense win. 

Maj Kerr argued that the light sentence did not absolve the trial defense team of any shortcomings in the findings phase of the case.  If anything, he argued, the sentence could be construed as evidence that the members considered the government’s case to be weak.  He also took issue with the notion that the trial defense counsel had enough information to formulate a strategy, pointing to language in the original consultant request stating that the defense team had neither the training nor the experience to defend the case without expert assistance.  Whatever strategies they may have settled on thereafter could not be defended, he argued:  “Uneducated counsel cannot make strategic decisions.”  Moreover, because the military judge ultimately granted a delay despite the trial defense team’s wishes, they should have realized that the advantage they sought to gain by foregoing an expert was lost and renewed their request. 

The judges seemed troubled by the deal between the government and the defense.  Given the nature of the defense concerns (i.e., that the government was unaware of certain evidence), it would have been virtually impossible for the defense to fully explain why they were agreeing to what one judge called a sub-rosa agreement.  In my experience, when faced with withdrawal of a motion for an expert, the trial judge would ordinarily ask the accused whether his counsel advised him of their reasons for withdrawing the request and whether he believed their decision was in his best interest; but neither counsel suggested that such a colloquy occurred in this case.

The judges were also concerned about the trial defense counsel’s assertion that they lacked sufficient expertise to try the case without a consultant.  It’s easy to envision a distinction between the expertise needed to choose between several possible trial strategies and the expertise needed to pursue one or more of those possible paths: for instance, a counsel might not need the assistance of a DNA expert to determine that mistaken identity will not be a viable defense, even though such an expert would be required if identity was going to be the issue.  In some cases, however, the assistance of the expert might be needed to choose between strategies.  Neither side explored this issue in depth during argument.  It will be interesting to see how the court addresses it when the decision is released.

* Disclosure note: the senior trial defense counsel worked for me indirectly prior to my retirement.

NIMJ Director MMM confirms that the Army Court of Criminal Appeals has “moved the historic Ali (first civilian court-martialed by the US in decades) argument to June 3 at 10AM.”

I.  THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION FOR MISTRIAL, BASED ON THE TRIAL COUNSEL’S FAILURE TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

II.  THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION FOR NEW TRIAL, BASED ON THE TRIAL COUNSEL’S FAILURE TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

III.  THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY FAILING TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

V.  THE MILITARY JUDGE REVERSIBLY ERRED BY GIVING AN IMPROPER INSTRUCTION LIMITING APPELLANT’S RIGHT TO SELF DEFENSE.

VII.  THE MILITARY JUDGE REVERSIBLY ERRED BY FAILING TO INSTRUCT THE MEMBERS, SUA SPONTE, ON THE LESSER-INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER.

Army Lurker, are you out there?  How long does ACCA usually take from argument to decision?  (ACCA hears far more oral arguments than do the other CCAs, so presumably there’s some sort of established norm.)

WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

Oral argument is scheduled for 24 May 2011 at 1000.

I believe, if my sources are correct, that this is United States v. Mohammad Allaa Ali, the first and only civilian court-martial under the amended Art. 2(a)(10), UCMJ.  We discussed here the possibility of the Army JAG sending the Art. 69 appeal to ACCA, but thought it was a long shot.  Well I guess I’ll be a monkey’s uncle because it has come to pass.  Anyone with the briefs on hand, we’d appreciate a copy.  Send to noman@caaflog.com.

UPDATE:  And how did I miss this, “On March 31, 2010, Army TJAG certified Ali court-martial to Army Court of Criminal Appeals on whether court-martial had jurisdiction under Article 2(a)(10) and whether court-martial had subject-matter jurisdiction over the offenses.” And the government brief, now here, and defense brief, now here.

H/t MMM

I.  WHETHER THE CHARGES OTHER THAN CHARGE I:  ARTICLE 120 AGGRAVATED SEXUAL ASSAULT SHOULD HAVE BEEN SEVERED TO AVOID PREJUDICE TO THE APPELLANT.

III.  WHETHER THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO FAILURE TO FILE A MOTION TO SEVER THE OTHER CHARGES FROM THE TRIAL OF CHARGE I, ARTICLE 120 AGGRAVATED SEXUAL ASSAULT AND FAILURE TO OBJECT TO THE ARGUMENTS OF THE GOVERNMENT CREATING IMPERMISSIBLE SPILLOVER.

IV.  WHETHER THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT CHARGE I:  AGGRAVATED SEXUAL ASSAULT BEYOND A REASONABLE DOUBT TO NEGATE THE DEFENSES OF CONSENT AND MISTAKE OF FACT AS TO CONSENT.