CAAFlog » October 2018 Term » United States v. English

CAAF decided the Army case of United States v. English, 79 M.J. __, No. 19-0050/AR (CAAFlog case page) (link to slip op.), on July 30, 2019. Considering a conviction of forcible rape where the charged force was the accused grabbing the alleged victim’s head with his hands, CAAF holds that because the Army CCA found the evidence insufficient to prove that specific force, the CCA was prohibited from affirming the conviction on an alternative basis. CAAF reverses that conviction and remands the case to the Army CCA for sentence reassessment.

Judge Ryan writes for a unanimous court.

Specialist (E-4) English was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of numerous offenses in connection with “a brutal and protracted sexual altercation with his ex-wife,” and he was sentenced to confinement for 23 years, reduction to E-1, and a dishonorable discharge. Slip op. at 2. One of the convictions was of the offense of forcible rape in violation of Article 120(a)(1) (2012). That offense has two elements: (1) that the accused committed a sexual act upon another person, and (2) that the accused did so with unlawful force. See ¶ 45.b.(1), Part IV, MCM (2016 ed.).

English was charged with committing the sexual act “by unlawful force to wit: grabbing her head with his hands.” (slip op. at 3 (quoting record). English’s ex-wife testified that English committed the sexual act, but she testified that she could not recall whether he grabbed her at all. Nevertheless, in closing arguments the prosecution “repeatedly emphasized that Appellant accomplished the penetration by grabbing the victim’s head with his hands,” while the defense argued “against th[at] characterization.” Slip op. at 3. The military judge convicted English as charged.

On review, in a published opinion that primarily addressed the military judge’s erroneous admission of a hearsay statement as a recorded recollection under Mil. R. Evid. 803(5), the Army CCA found that there was no evidence to prove that English committed the sexual act by grabbing his ex-wife’s head with his hands. The CCA did, however, find that “there was sufficient evidence to prove appellant committed the sexual act by unlawful force,” and so “the ACCA excepted the words ‘to wit: grabbing her head with his hands’ from the charge sheet and affirmed Appellant’s conviction based on the remaining language.” Slip op. at 3-4. CAAF granted review to determine whether the CCA may do that, with the following issue:

Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.

“The answer,” explains Judge Ryan, “is clearly no.” Slip op. at 2.

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

United States v. English, No. 19-0050/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

United States v. Navarette, No. 19-0066/AR (CAAFlog case page): Oral argument audio (wma) (mp3)

The audio is also available on our oral argument audio podcast.

This week at SCOTUS: A new cert. petition (available here) was filed in Cooper v. United States, No. 18-423, on May 13, 2019. In United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), a nearly-unanimous court found finds that the failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The question presented in the petition is:

Whether the United States Court of Appeals for the Armed Forces exceeded its statutory authority under 10 U.S.C. § 867(c) when it took action with respect to a matter of fact.

The petition asserts:

The CAAF reversed the lower court because it found Cooper knowingly and intelligently waived his right to IMC. (Pet. App. 4a, 16a.) But what a defendant knew or understood at any given moment in time is a historical fact: making a state of mind determination calls for a “recital of external events and the credibility of their narrators.” Thompson v. Keohane, 516 U.S.99, 110 (1995) (internal quotations omitted).

The CAAF took action on a matter of fact—an authority specifically withheld from CAAF and provided to the NMCCA. Compare 10 U.S.C. § 866(c) with 10 U.S.C. §867(c). In exercising its authority under 10 U.S.C. § 866(c), the NMCCA found, as fact, that Cooper did not make a knowing and intelligent waiver of his right to IMC. Without so much as a declaration that this finding was clear error, the CAAF disagreed.

Pet at 12.

Additionally, the Solicitor General requested and has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

Finally, the cert. petition in Hale was distributed for conference on May 30, 2019.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF will hear oral argument infour cases this week:

Tuesday, May 21, 2019, at 9:30 a.m.:

United States v. English, No. 19-0050/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Navarette, No. 19-0066/AR (CAAFlog case page)

Issues:
I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).
II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, May 22, 2019, at 9:30 a.m.:

United States v. Coleman, No. 19-0087/AR (CAAFlog case page)

Issue: Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page)

Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.

Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Blog post: JAG cross-certifies
Granted Issue: Appellant’s brief
Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
Certified Issue: Cross-Appellee’s brief
Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments. 

Yesterday CAAF granted review in this Army case:

No. 19-0050/AR. U.S. v. Luke D. English. CCA 20160510. 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 granted on the following assigned issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS CAN FIND THE UNLAWFUL FORCE, AS ALLEGED, FACTUALLY INSUFFICIENT AND STILL AFFIRM THE FINDING BASED ON A THEORY OF CRIMINALITY NOT PRESENTED AT TRIAL.

Briefs will be filed under C.A.A.F. R. 25.

The CCA’s opinion is available here. It primarily addressed the military judge’s erroneous admission of a hearsay statement as a recorded recollection under Mil. R. Evid. 803(5). But the CCA also found part of one of the convictions to be factually insufficient:

Notwithstanding the credit we give to DE’s version of events, the evidence still has to support the charging language. With respect to some of the language in Specification 6 of Charge I, the record of trial is completely silent. Specification 6 of Charge I reads as follows:

[In that appellant] [d]id on or about 18 September 2015, at or near Fort Bliss, Texas, commit a sexual act upon Ms. [D.E.], to wit: penetrating her mouth with his penis, by unlawful force to wit: grabbing her head with his hands.

While we find there was sufficient evidence to prove appellant committed the sexual act by unlawful force, there is no evidence that he did so by “grabbing her head with his hands.” Therefore, we will strike that language in our decretal paragraph. . . .

Specification 6 of Charge I, excepting the words “to wit: grabbing her head with his hands,” is AFFIRMED. The findings of guilty as to Additional Charge I and its specifications are SET ASIDE. The remaining findings of guilty are AFFIRMED.

Slip op. at 10-11 (modifications in original). The obvious question is: if there was no evidence that the appellant grabbed the alleged victim with his hands, then what (if any) unlawful force did he use?