CAAFlog » October 2016 Term » United States v. Rosario

CAAF decided the Marine Corps case of United States v. Rosario, 76 M.J. 114, No. 16-0424/MC (CAAFlog case page) (link to slip op.), on Wednesday, February 22, 2017. The court affirms the Navy-Marine Corps CCA’s consideration of facts supporting sexual assault allegations that resulted in acquittals in the court’s review of a conviction of sexual harassment, concluding that the facts that form the basis for both acquittals and convictions are permissible considerations during a CCA’s review of convictions.

Judge Sparks writes for a unanimous court.

Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment on divers occasions in violation of Article 92. Rosario was also charged with three unlawful touchings in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.

The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to a female subordinate. On appeal Rosario asserted that the evidence was insufficient to sustain a conviction of sexual harassment. The NMCCA rejected this challenge, concluding that the touchings forming the bases of the other charges (of which Rosario was acquitted) were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense –  and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).

CAAF then granted review of two issues:

I. Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

II. Whether the military judge erred when he instructed the members, “If based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Today’s opinion makes relatively short work of the first issue, and summarily rejects the second in light of the court’s opinion in United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Rosario, No. 16-0424/MC (CAAFlog case page): Oral argument audio.

United States v. Commisso, 16-0555/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Marine Corps case of United States v. Rosario, No. 16-0424/MC (CAAFlog case page), on Tuesday, December 6, 2016, at 9:30 a.m. The court granted review of one issue that – similar to an issue in United States v. Swift, No. 16-0407/AR (CAAFlog case page) – questions whether the CCA’s review of the conviction was predicated on conduct that was not the basis for the conviction:

Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment in violation of Article 92. Specifically, the charge alleged that he:

did, on divers occasions, at or near New River, North Carolina, between on or about 13 September 2013 and on or about 21 February 2014, violate a lawful general order, to wit: Marine Corps Order 1000.9a, dated 30 May 2006, by wrongfully sexually harassing Lance Corporal BA, U.S. Marine Corps.

Gov’t Br. at 2 (quoting record) (marks omitted). Rosario was also charged with three unlawful touchings of Lance Corporal (E-3) BA during this time period – “touching her cheek with his mouth” and “touching her ear with his tongue” and “touching her hand with his hand” – in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.

The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to LCpl BA (his subordinate) during the charged time period. On appeal Rosario “argued that the evidence was factually and legally insufficient to sustain his sexual harassment conviction.” Gov’t Br. at 9. The NMCCA rejected this challenge, concluding that the physical touchings of which Rosario was acquitted were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense –  and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).

CAAF then granted review to determine whether the CCA’s review was predicated on the actual factual basis for the conviction.

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