Argument Preview: Reviewing defenses available in a prosecution for an attempt in United States v. Feliciano, No. 17-0035/AR
CAAF will hear oral argument in the Army case of United States v. Feliciano, No. 17-0035/AR (CAAFlog case page), on Tuesday, February 28, 2017, after the oral argument in Hukill. The case presents two issues related to the appellant’s convictions of attempted sexual assault:
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.
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 and told Feliciano to stop, warning him 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.” App. Br. at 4 (quoting record). Upon hearing this Feliciano ceased sexual contact with the alleged victim (who later returned to her own barracks room where she spent the night with the other soldier).
The members were not instructed on the defense of voluntary abandonment, which “is raised when the accused abandons his effort to commit a crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” App. Br. at 10 (citations omitted). The members were instructed on the defense of mistake of fact as to consent, however they were instructed that any mistake needed to be reasonable. That is the standard for a general intent crime, but an attempt requires specific intent.
The Army CCA affirmed without considering either of the issues before CAAF. I noted the CCA’s opinion in this post for its suggestion that it might be proper to prohibit an accused from referencing sex offender registration in an unsworn statement.
On Monday CAAF granted review of two issues involving instructions in an Army case:
No. 17-0035/AR. U.S. v. Jeffry A. Feliciano, Jr. CCA 20140766. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following 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.
Briefs will be filed under Rule 25.
I discussed the Army CCA’s decision in this case in this post, but not because of the issues now before CAAF. Rather, I thought the case interesting because the CCA suggested that an accused should be prohibited from mentioning sex offender registration during an unsworn statement in sentencing.
The appellant was convicted of two specifications of attempted sexual assault, both arising out of the same alcohol-fueled incident during which the appellant took steps to engage in sexual activity with a seemingly incapacitated soldier, but then stopped after another soldier cautioned him that “what he was doing was rape” and “that if he continued along they would definitely get him for rape. . . .” United States v. Feliciano, No. 20140766, slip op. at 2 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).
The Army CCA suggests that an accused should be prohibited from mentioning sex offender registration during an unsworn statement in sentencing
In United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (CAAFlog case page), CAAF held that because sex offender registration is a collateral consequence of the conviction and not the sentence, a military judge did not err in instructing the members that they could disregard the appellant’s discussion of sex offender registration in his unsworn statement during the sentencing phase of the court-martial.
Talkington was a significant decision, but also a limited one. In particular, the unsworn statement was the only source of information about registration in Talkington, meaning that the issue was a fact not in evidence because “the ‘unsworn statement is not evidence.’” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)).
After CAAF decided Talkington, military judges began to give instructions that functionally told members to disregard registration when determining a sentence. However, in a recent unpublished decision the Army CCA suggests that military judges should go further and “limit unsworn statements to the matters allowed under the rules.” United States v. Feliciano, No. 20140766, slip op. at 9 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).
A footnote elaborates:
Consider the following: Were a military judge to prevent an accused from mentioning sex offender registration during an unsworn statement, such an action will almost certainly be harmless error. Since the panel may be instructed to ignore the information during deliberations, there cannot be prejudice from excluding in the first instance what the panel would be told to ignore in the second.
Id., slip op. at 9 n.4.