CAAFlog » October 2018 Term » United States v. Rodriguez

CAAF decided the Coast Guard case of United States v. Rodriguez, __ M.J. __, No.18-0350/CG (CAAFlog case page) (link to slip op.), on June 20, 2019. Reviewing a conviction of sexual abuse of a child that was based on the act of kissing the child’s feet, CAAF finds the evidence legally sufficient and affirms the conviction and the decision of the Coast Guard CCA.

Judge Sparks writes for a unanimous court.

CAAF granted review to determine:

Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.

There are four major versions of Article 120, UCMJ. The first was in effect from 1951 to 2007 and prohibited rape, which was defined as sexual intercourse by force and without consent. The second was in effect from October 1, 2007, to June 27, 2012, and it fundamentally reformed the prosecution of sex crimes under the UCMJ by codifying 36 separate offenses into the one, far-reaching Article. The third was in effect from June 27, 2012, until December 31, 2018, and it largely restyled the 2007 version by dividing it into Article 120 (for adult sex offenses), 120b (for child sex offenses), and 120c (for other sexual misconduct). Finally, the current version was enacted as part of the Military Justice Act of 2016, it took effect on January 1, 2019, and it largely mirrors the 2012 version.

Rodriguez involves the 2012 version; specifically, Article 120b(c) which defined (and still defines) the offense of sexual abuse of a child as committing a lewd act upon a child. A lewd act is a legal term of art that encompasses a wide variety of activity including any sexual contact. A sexual contact is also a legal term of art that is defined in Article 120 (and incorporated into Article 120b by reference). That definition, however, changed significantly between the 2012 and 2019 versions of Article 120. Under the 2012 version, a sexual contact included any touching of any part of the body if accompanied by a sexual intent:

(2) Sexual contact. The term ‘sexual contact’ means . . .

(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

Article 120(g)(2) (2012). Congress significantly narrowed the definition in the 2019 version, limiting a sexual contact to:

touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object.

Article 120(g)(2) (2019). Rodriguez, however, involves the broader, 2012 definition.

Boatswain’s Mate Second Class (E-5) Rodriguez was convicted of sexual abuse of a child and adultery in violation of Articles 120b (2012) and 134, and sentenced to reduction to confinement for 18 months, reduction to E-1, and a bad-conduct discharge. Rodriguez’s sexual abuse conviction was of this specification:

In that [Appellant], on active duty, did, at or near Nederland, Texas, on divers occasions, between December 2014 and April 2015, commit a lewd act upon V.G., a child who had not attained the age of 12 years, to wit: kissing V.G.’s feet with his lips, with an intent to arouse and gratify his own sexual desire.

Slip op .at 1-2 (emphasis added). The child and her mother (Rodriguez’s fiancé) both testified that Rodriguez kissed the child’s feet, though “their testimony indicates [Rodriguez] exhibited no outward signs he was kissing V.G.’s feet with an intent to arouse or gratify his sexual desire.” Slip op. at 3. Rather, Rodriguez’s sexual intent was proven by text messages that Rodriguez exchanged with his paramour (who was married to one of his subordinates). In those messages Rodriguez expressed a sexual fetish involving feet and also referenced V.G.

On appeal, Rodriguez challenged the legal sufficiency of the evidence to prove the existence of sexual intent at the time he kissed the child’s feet, characterizing the kissing as “a fatherly, nonsexual” act and the text messages “as pure sexual fantasy.” Slip op. at 3. CAAF, however, is unconvinced.

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

United States v. Rodriguez, No.18-0350/CG (CAAFlog case page): Oral argument audio (wma mp3)

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

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF will hear oral argument in three cases this week:

Tuesday, April 23, 2019, at 9:30 a.m.:

United States v. Gonzales, No. 18-0347/AR (CAAFlog case page)

Issue: Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

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

Followed by:

United States v. Haynes, No. 18-0359/AR (CAAFlog case page)

Issues:
I. Whether an appellant is authorized to request Pierce credit for the first time at a Court of Criminal Appeals.

II. If the Army Court of Criminal Appeals erred in holding that the failure to request Pierce credit below constituted waiver, was its actual review of this issue under its article 66(c), UCMJ authority still sufficient?

Case Links:
ACCA opinion (77 M.J. 753)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, April 24, 2019, at 9:30 a.m.:

United States v. Rodriguez, No.18-0350/CG (CAAFlog case page)

Issue: Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.

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

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 30, 2019.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2019.

Last Thursday CAAF granted review in two cases:

No. 18-0350/CG. U.S. v. Michael R. Rodriguez. CCA 1450. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER UNITED STATES v. ORBEN, WHICH ESTABLISHED WHAT THE GOVERNMENT MUST SHOW TO PROVE INTENT FOR INDECENT LIBERTIES UNDER ARTICLE 134 (THE PRECURSOR TO ARTICLE 120b), APPLIES TO THE INTENT ELEMENT OF ARTICLE 120b(c), SEXUAL ABUSE OF A CHILD.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s decision is available here. The case involves a conviction for sexual abuse of a child based upon Rodriguez kissing a child’s feet with an intent to arouse or gratify his own sexual desire. To prove Rodriguez’s intent, the military judge allowed the prosecution to admit evidence of Rodriguez’ foot fetish. The CCA affirmed.

No. 18-0362/AR. U.S. v. Nicholas L. Frost. CCA 20160171. 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 issue:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING HEARSAY STATEMENTS AS PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) WHERE THE DEFENSE THEORY POSITED THE IMPROPER INFLUENCE OR MOTIVE PRECEDED THE ALLEGEDLY CONSISTENT STATEMENTS.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The CCA rejected the granted issue in a footnote, concluding: “Miss DF’s initial statement to her mother and SC in August 2013 was properly admitted by the military judge. A prior consistent statement that precedes an allegation of improper influence is not hearsay. Mil. R. Evid. 801(d)(1)(B).” Slip op. at 10 n.6.