It’s tempting to dismiss CAAF’s opinion in United States v. Stewart, No. 11-0440/MC, as a fluke attributable to a military judge’s poor choice of instructions. Unfortunately, the history of the case demonstrates that the issue presented in Stewart is the product of a more-systemic failure.

Captain Stewart attended a graduation party in 2008 where he had a sexual encounter with a very-intoxicated civilian female, [Ms. N], with whom he had previously engaged in sexual activity during a relationship in 2003-2004. Based on the events at the party, Captain Stewart was charged with a violation of Article 120(c)(2) (aggravated sexual assault upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness) in a specification that read:

In that Captain Nicholas S. Stewart, U.S. Marine Corps, on active duty, did, at or near Fairfax, Virginia, on or about 17 May 2008, engage in a sexual act, to wit: using his penis to penetrate the vagina of [Ms. N], who was substantially incapacitated or substantially incapable of declining participation in the sexual act.

At trial, the defense objected to the specification as duplicitous. In the words of the NMCCA,”the appellant maintained that if convicted of the specification as alleged, it would be impossible to determine whether a 2/3 majority found that Ms. N was substantially incapacitated, substantially incapable of declining participation, or both.” United States v. Stewart, No. 201000021, Slip op. at 3 (N. M. Ct. Crim. App., January 31, 2011). The government conceded that the specification was duplicitous and argued that, pursuant to R.C.M. 906(b)(5), the sole remedy was severance. The specification was severed into two, one stating “substantially incapacitated” and one stating “substantially incapable,” but these terms were defined to the members with identical language. The members were then instructed that they may return a finding of guilty of only one of the two offenses, and they returned findings of not guilty to the first specification and guilty of the second. Accordingly, “Stewart was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense.” United States v. Stewart, No. 11-0440/MC, Slip op. at 13 (C.A.A.F., 2012).

CAAF unanimously concludes that “the principles underpinning the Double Jeopardy Clause as recognized in United States v. Smith made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found Stewart not guilty of in Specification 1. … The findings and the sentence are set aside and the specification and the charge are dismissed with prejudice.” Stewart, No. 11-0440/MC, Slip op. at 14 (C.A.A.F., 2012).

The tragedy is that CAAF’s resolution turns on the amateurish charging decision of the government, rather than any of the other significant issues presented by this case (which included the important question of the proper role of the military judge in determining the availability of the defense of consent). The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled (see, for example, the United States Attorneys’ Manual entry on the subject), and a court-martial is specifically authorized, by R.C.M. 918, to return findings with exceptions. The use of the word “or” in place of “and” doesn’t just make a specification duplicitous, it creates a potential referral (i.e., jurisdictional) issue as the court-martial cannot know which facts were the basis for the “reasonable grounds to believe that an offense triable by a court-martial has been committed,” as required by R.C.M. 601(d)(1).

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CAAF published its opinion in United States v. Stewart, No. 11-0440/MC, earlier this week (analysis to follow), in which it ruled:

Under the unique circumstances of this case, we hold that the finding of guilty affirmed by the CCA was impermissibly based on conduct for which the members had found Stewart not guilty. Accordingly, we reverse the decision of the CCA, set aside the findings and the sentence, and dismiss the specification and the charge with prejudice.

McClatchy’s Marisa Taylor provides media coverage in this article.

Audio of today’s CAAF argument in United States v. Stewart, No. 11-0440/MC, is available here.

Tomorrow CAAF will hear oral argument in United States v. Stewart, No. 11-0440/MC. The case is a Prather trailer that presents the following issues:

I. Under United States v. Prather, is it legally possible for the prosecution to disprove an affirmative defense beyond a reasonable doubt once the military judge has determined that the defense has been proved by a preponderance of the evidence and, if not, is the military judge required to enter a finding of not guilty in such a case under RCM 917?

II. Whether the Navy-Marine Corps Court of Criminal Appeals erred in finding the evidence factually sufficient beyond a reasonable doubt to sustain appellant’s conviction under specification 2 because in doing so it (1) violated the Prather legal-impossibility principle and (2) impermissibly found as facts allegations that he was found not guilty of in specification 1.

III. Whether the military judge committed prejudicial error by requiring the defense to present evidence on the defense of consent at an Article 39(a) session prior to trial.

The appellant, a Marine Corps Captain, was convicted in 2009, contrary to his plea, of one specification of aggravated sexual assault in violation of Article 120, UCMJ.

Prior to trial, the trial military judge “ruled that because he was ‘in the best position’ to determine if the consent defense is raised by the evidence, Capt Stewart was required – then and there – ‘to show by a preponderance of the evidence’ the existence of consent in the case.” Appellant’s Brief at 5. The defense presented evidence, and the military judge ruled that it had met the preponderance burden and permitted the defense.

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Here is a link to United States v. Stewart, NMCCA 201000021, slip op. (N-M. Ct. Crim. App. Jan. 31, 2011).   It’s not published but the hearing conducted by the military judge on Art. 120 was interesting.  The panel finds an error in the Art. 120 burden of proof harmless beyond a reasonable doubt after the judge conducted a “novel’ Art. 120 hearing and found that the accused had presented sufficient evidence to raise the defense of consent and shifted the burden back to the government.  Slip op. at 7-8.  A few other errors are addressed, and Judge Booker dissents on the factually sufficiency finding but finds it would not have changed the sentence.