CAAFlog » September 2012 Term » United States v. Wilkins

There are two components to the granted issue in United States v. Wilkins, No. 11-0486/NA, 71 M.J. 410 (C.A.A.F. Nov. 16, 2012) (CAAFlog case page) (link to slip op.), which questioned whether the Appellant’s right to due process of law was violated when he was convicted for abusive sexual contact, in violation of Article 120(h) (2007), as a lesser-included offense of aggravated sexual assault, Article 120(c) (2007). The first is whether, under the facts of this case, abusive sexual contact is a lesser-included offense of aggravated sexual assault.  The second is whether, under the fact of this case, it matters.

In its first opinion of the term, authored by Judge Stucky, CAAF answers both questions in the negative.

First, the court finds that “[a]busive sexual contact is an LIO of aggravated sexual assault in some instances. For example, if an accused is charged with aggravated sexual assault by penetrating the genital opening of another, then any penetration of the genital opening would also require a touching of the genital opening.” Wilkins, slip op. at 6-7. “However, in this case, Appellant was charged with aggravated sexual assault by digitally penetrating the anus of a male victim. A sexual act is statutorily limited to genital openings, and the anus is not such an opening. . . . There is plain and obvious error in this case because Appellant was charged with a legal impossibility.” Slip op. at 7. Of note, the statutory language in issue was significantly expanded at the end of 2011.

But, as I predicted in my argument preview, the failure of the Defense to object at trial, the fact that the defense theory was that this was a consensual encounter, and the fact that the Defense theory likely would have been exactly the same if the Government had properly charged the Appellant with a violation of Article 120(h), instead of improperly charging him with a violation of Article 120(c), are serious bars to relief for the Appellant. CAAF finds:

the defense’s strategy demonstrated that Appellant understood he was defending against all of the elements of abusive sexual contact. The defense’s strategy was to (1) question whether the victim was substantially incapacitated, and (2) raise the issue of mistake of fact as to consent by Appellant. To this end, defense counsel’s cross-examination of MA3 L focused on Appellant and MA3 L’s previous friendship and the events leading up to the sexual contact. This strategy would not have changed had the specification properly alleged “contact” instead of “act.”

Defense counsel did not challenge any of the elements of abusive sexual contact beyond MA3 L’s incapacitation or Appellant’s alleged mistake of fact. Instead, throughout the trial and during closing arguments, defense counsel readily conceded that Appellant penetrated or made contact with MA3 L’s anus. The manner in which the case was argued undercuts any argument that Appellant was not on notice of what he had to defend against or that his defense preparations were hampered. Therefore, Appellant has not demonstrated prejudice to a substantial right.

United States v. Wilkins, No. 11-0486/NA, Slip op. at 10-11 (C.A.A.F. 2012). It’s impossible to predict exactly what would have happened at trial had the Defense objected to the military judge’s instruction on the LIO – for instance, would the case have resulted in a jeopardy-triggering acquittal, or would the charge have been dismissed as failing to state an offense, presumably permitting another trial? But there wasn’t an objection, a conviction followed, and CAAF has now affirmed.

Case Links:
NMCCA opinion (Wilkins I)
NMCCA opinion (Wilkins II)
Blog post: The amazing (new) Article 120
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap
CAAF opinion
Blog post: CAAF decides Wilkins
Blog post: Opinion analysis

The CAAF has issued an opinion in United States v. Wilkins.

Judge STUCKY delivered the opinion of the Court. We granted review in this case to determine whether Appellant’s right to due process of law was violated when he was convicted for abusive sexual contact as a lesser included offense (LIO) of aggravated sexual assault. We hold that abusive sexual contact is not an LIO of aggravated sexual assault in this case, but Appellant was not prejudiced by the error. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (CCA).

In my argument preview of United States v. Wilkins, No. 11-0486/NA, I predicted that the court would ask about last term’s opinion in United States v. Rauscher, 71 M.J. 225, No. 12-0172/NA (C.A.A.F. 2012). It took less than four minutes from the beginning of the recording for the court to get to that question, as it tried to pin down the Appellate Defense Counsel who seemed to have an answer for every question.

On brief, the Appellate Defense Counsel argued that the improper charge in this case was like charging “larceny by unlawfully striking a victim. In such a case, even if one takes it as true that the defendant unlawfully struck his victim, the defendant is still not guilty of larceny.” During oral argument, the court seemed very sympathetic to this reasoning, with repeated references to a “legal impossibility” in the charge at issue (that alleged as a sexual act something that wasn’t – under the law at the time – a sexual act). Rauscher had radically different facts, and outside of the early mention seemed to get little attention.

As the argument progressed, the court turned its attention to prejudice, and the Appellate Defense Counsel advanced a surprisingly sensible argument: At trial, the Defense may have tailored its case to the bad (and I’m being charitable here) charging decision of the Government. This included making certain admissions at trial because they believed the Appellant couldn’t be convicted of the charge at issue. And not convicted he was, as the trial judge entered a finding of not guilty, but then permitted instruction on the “lesser-included offense.” This essentially, according to the Appellate Defense Counsel, allowed the Government to change the charged offense after the presentation of evidence, and while the trial judge could have relabeled the charge or amended the specification, he didn’t. Rather, he entered a finding of not guilty. That matters, says the Appellate Defense Counsel.

After only slightly more than half the allotted time, the argument shifted to the Government, and Government Counsel made the sort of ends-justify-the-means case that rarely flies these days:

Appellant walked into court accused of penetrating the anus of an incapacitated victim. He left court convicted of penetrating the anus of an incapacitated victim. There’s no due process violation in that scenario.

Argument audio at 12:30. He then argued that the offense of conviction (abusive sexual contact) is a LIO of the charged offense (aggravated sexual assault) except, he conceded, not under the facts of this case. My notes from the argument have many references to the “he walked into court charged with” theory, and I got the feeling that the Government believes that once the charge sheet alleged that the Appellant “plac[ed] his fingers or another object in the anus of” the victim, then the Appellant could properly be convicted of any offense arising from that act, be it a sexual act, sexual contact, an assault, maltreatment, fraternization, sodomy, or a general disorder. Of course, the Medina, Miller, and Jones line of cases makes clear that this isn’t how the law works.

On prejudice, Government Counsel argued that the element of sexual contact was essentially uncontroverted. However, as argued by Appellate Defense Counsel, this is because the Defense advanced a theory of consent that may have been predicated on the Government’s theory of the case as embodied in the charging decision. But the Government Counsel didn’t (though could have) argue that the Trial Defense Counsel sandbagged this issue. Perhaps (presumably, I’d say) the Defense saw the problem with the language of the charge. However, rather than raise it at the trial level, with a motion to dismiss for failure to state an offense, the Defense went marching on. I’ve previously lamented (with some significant dissent) CAAF’s willingness to overlook such things. I hope this isn’t a similar case.

Still, there was one part of this argument that troubled me. Repeatedly, Judge Ryan questioned the Appellate Defense Counsel about the matter of waiver of the issue of a defective specification, but-for the fact that this is a pre-Jones case. Counsel agreed that the issue would have been waived. However, I’m pretty convinced that McMurrin, Girouard, and Humphries make it clear that where there is no objection at trial to a defective specification, the error is forfeited but not waived. So I’m not sure what Judge Ryan was trying to say.

On balance, after reading the briefs I saw this case as involving a question of CAAF’s willingness to view a particular specification liberally. But after argument, I see it as involving a question of CAAF’s willingness to view the word specification liberally. In this case, the Government charged a specified offense but the Appellant was convicted of a substantially different offense. Presumably, the requirement of Rule for Courts-Martial 307(c)(3) that “a specification is a plain, concise, and definite statement of the essential facts constituting the offense charged” means something.

Well, we’ll see.

Case Links:
NMCCA opinion (Wilkins I)
NMCCA opinion (Wilkins II)
Blog post: The amazing (new) Article 120
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap

Audio of the oral argument of United States v. Wilkins, No. 11-0486/NA, on Tuesday, October 9, 2012, is posted on the court’s website at this link.

Case Links:
NMCCA opinion (Wilkins I)
NMCCA opinion (Wilkins II)
Blog post: The amazing (new) Article 120
Appellant’s brief
Appellee’s (Government) brief
Blog Post: Argument preview
Oral argument audio

CAAF’s second oral argument of the term is in United States v. Wilkins, No. 11-0486/NA, a case that prompted me to marvel about the amazing (new) Article 120 when it was decided by the NMCCA last year. The case involves a question of whether the Appellant was properly convicted of abusive sexual contact in violation of Article 120(h) (2007), as a lesser-included offense of aggravated sexual assault in violation of Article 120(c) (2007). The Appellant was also convicted (after a contested trial) of forcible sodomy in violation of Article 125.

The charged offense to be considered by CAAF that the Appellant:

engage[d] in a sexual act, to wit: placing his fingers or another object in the anus of Master-at-Arms Third Class [BDL], U.S. Navy, when Master-at-Arms Third Class [BDL], U.S. Navy was substantially incapable of declining participation in the sexual act or communicating unwillingness to engage in the sexual act because he was asleep.

However, under the 2007 statute, placing one’s fingers or another object in another person’s anus is not a sexual act; rather, it is sexual conduct. A sexual act under that statute required either contact between the penis and vulva, or penetration of a genital opening. While the 2012 revision of Article 120 expanded the definition of sexual act to include the penetration of the “vulva or anus or mouth,” this case involves the unusual situation of a specification that does not properly state the charged offense, but that the trial judge found stated a lesser offense and then – without objection from the trial defense counsel – he instructed the members on the elements of the lesser offense, resulting in a conviction. The CCA affirmed in early-2011, finding that

This specification incorporated a term of art from Article 120(c) – “sexual act” – yet described activity that met the definition of “sexual contact,” a term of art found in Article 120(h). The military judge brought this drafting error to the parties’ attention after the close of evidence.

Doubtless the specification could have been drafted better . . . but we cannot conclude that this specification was so defective as to mislead the appellant.

United States v. Wilkins, No. 201000289, slip op. at 6-7 (N-M.Ct.Crim.App. Mar 24, 2011) (Wilkins I) (emphasis added). CAAF summarily remanded on July 27, 2011, “for reconsideration in light of United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011), United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011), United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011), and United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010).” On remand, the CCA determined that:

By penetrating MA3 L’s anus, he must at least have touched MA3 L’s anus. The appellant therefore met the statutory definition of “sexual contact,” noted supra. We do not need to look any further into the legislature’s intent with respect to these two crimes. We conclude that the military judge properly instructed the members that abusive sexual contact is an LIO of aggravated sexual assault.

United States v. Wilkins, No. 201000289, slip op. at 6-7 (N-M.Ct.Crim.App. Nov 29, 2011) (Wilkins II). In April, CAAF again granted review to determine:

Whether Appellant’s right to due process of law was violated when he was convicted for abusive sexual contact as a lesser-included offense of aggravated sexual assault.

The briefs raise two big questions: (1) was abusive sexual contact under Article 120(h) (2007) a lesser-included offense of aggravated sexual assault under Article 120(c) (2007), and (2) if not, was there substantial prejudice to a material right of the Appellant when the military judge improperly instructed the members that it was an LIO? But there’s also a third issue not discussed in the briefs: does it matter?

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Congress amended Article 120, UCMJ, effective 1 October 2007. This new Article 120, codified at 10 U.S.C. § 920, is really a remarkable piece of legislation. It encompasses 36 offenses, it contains a legal impossibility, error can result no matter how the members are instructed, it compelled the government to certify a case to CAAF even though the government prevailed at the CCA, you could hurt yourself trying to explain it, it is apparently constitutional, and now it is remarkably flexible.

This week the N-MCCA released an unpublished opinion in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 29 Nov 2011) (hereinafter Wilkins II). This case was considered on remand from CAAF for reconsideration in light of McMurrin, Girouard, Bonner, and Alson, after the N-MCCA affirmed in United States v. Wilkins, No. 201000289 (N-M Ct. Crim. App., 24 March 2011) (hereinafter Wilkins I). In Wilkins I, the N-MCCA found (1) no prejudicial error in the burden-shifting scheme for an affirmative defense under Article 120 because the military judge did not instruct the members of any burden on the defense, and (2) no prejudicial error in instructing the members that abusive sexual contact under Article 120(h) is a LIO of aggravated sexual assault under Article 120(c). The second issue is the subject of the remand.

The facts are best described in Wilkins II:

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