CAAF decided the Army case of United States v. English, 79 M.J. 116, 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.

Judge Ryan begins her analysis with the observation that it was unnecessary for the prosecution to charge English with any specific means of force:

While a violation of Article 120, UCMJ, based on the theory of criminality charged by the Government requires “unlawful force,” Article 120(a)(1), UCMJ, the Government was not required to draft the specification alleging a particular type of force, i.e., that Appellant committed this particular offense by “grabbing her head with his hands.” Cf. United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (observing that “[t]he military is a notice pleading jurisdiction”).

Slip op. at 4. Fosler (discussed here) – which abandoned nearly 60 years of precedent by requiring the prosecution to specifically allege a terminal element in a charge of violation of Article 134 – turned on the constitutional requirement for notice that is codified in the rules for courts-martial: “A specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication.” Fosler, 70 M.J. at 229 (quoting R.C.M. 307(c)(3)) (emphasis added). But the rule said (and still says) more than that. It also says that “a specification is a plain, concise, and definite statement of the essential facts constituting the offense charged.” R.C.M. 307(c)(3) (emphasis added). Accordingly, a specification that merely alleges the elements of the offense (such as: did commit a sexual act by using unlawful force) might be constitutionally adequate but inadequate under military law. Cf. United States v. Weymouth, 43 M.J. 329, 333-34 (C.A.A.F. 1995) (“For offenses in violation of the code, the charge merely indicates the article the accused is alleged to have violated, while the specification sets forth the specific facts and circumstances relied upon as constituting the violation.” (emphasis added)).

That, however, is not at issue in English because the specification did allege facts in addition to the elements, including the fact that the unlawful force was grabbing her head with her hands. Having alleged that specific fact, the prosecution had to prove it:

when [the prosecution] narrowed the scope of the charged offense by alleging the particular type of force, it was required to prove the facts as alleged. As the Government concedes in its brief, once that charging decision was made, it was bound to abide by it.

Slip op. at 4 (citations omitted). Furthermore, Judge Ryan explains that the defense “was entitled to rely on the specifications in the charge sheet as drafted.” Slip op. at 5 (citations omitted).

The prosecution didn’t prove the particular type of force alleged, though it “argued it did [at trial], and [it] did not seek a finding of guilty by exceptions and substitutions.” Slip op. at 5. The Army CCA discovered that failure of proof, “effectively conclud[ing] that Appellant was not guilty of the specification.” Slip op. at 6. Nevertheless, the Army CCA affirmed the conviction of the specification by eliminating the unproven language. CAAF concldues that in so doing, the CCA unconstitutionally expanded the charge:

in this case, when the ACCA excepted language from the specification, it changed the scope of the offense from the specific force alleged and litigated at Appellant’s court-martial to a generic, and thus broader, charge that was not presented at trial. This action both exceeded the ACCA’s appellate authority, Lubasky, 68 M.J. at 265, and violated Appellant’s constitutional due process rights. See Dunn, 442 U.S. at 106–07; United States v. Riley, 50 M.J. 410, 415–16 (C.A.A.F. 1999).

Slip op. at 4-5. Moreover, Judge Ryan explains that while a CCA may affirm a conviction of a lesser included offense if it finds the evidence insufficient to support the greater offense:

there is no authority, statutory or otherwise, that permits the ACCA to except language from a specification in such a way that creates a broader or different offense than the offense charged at trial. See Dunn, 442 U.S. at 107 (“[A]ppellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.”).

Slip op. at 6. In fact, “as the Government concedes, exceptions and substitutions under Rule for Courts-Martial (R.C.M.) 918(a)(1) (2016 ed.), may not be made at the appellate level.” Slip op. at 2 (emphasis added). A footnote adds that “this holding does not call into question our decisions that permit a CCA to narrow the scope of language in a specification.” (Slip op. at 8 n.5 (emphasis in original)). Rather, Judge Ryan explains that once the CCA found the evidence insufficient it had only two options:

(1) set aside the findings as to Specification 6 of Charge I as the finding was not “correct in . . . fact,” Article 66(c), UCMJ; or (2) affirm a lesser included offense, Article 59(b), UCMJ. What the ACCA could not do was strike the charged language regarding specific unlawful force and affirm Specification 6 of Charge I simply because “there was sufficient evidence to prove appellant committed the sexual act by unlawful force.” English, 78 M.J. at 576.

Slip op. at 7.

Judge Ryan’s opinion also notes that approximately two years before its decision in English, the Army CCA issued an unpublished decision in United States v. Johnson, No. 20131075 (A. Ct. Crim. App. Mar. 31, 2016) (link to slip op.), in which it held that it could not do what it later did in this case:

The ACCA itself has observed this limitation in the past. In an unpublished decision, Johnson, 2016 CCA LEXIS 215, 2016 WL 1311423, it considered a case that closely resembles the scenario presented by this appeal. There, the appellant was charged with assault by “pointing” a loaded firearm at the victim, but the testimony and evidence introduced at the court-martial only indicated that he placed two firearms on the table and asked the victim whether “this [was] what it [wa]s going to come to?” Id. at *12, 2016 WL 1311423, at *4. Faced with the discrepancy between the proof and the charges, the ACCA concluded that it could not “affirm a conviction in a circumstance where the evidence necessary to sustain the conviction requires a variance from the specification alleged.” Id. at *14, 2016 WL 1311423, at *4. Citing Lubasky, the court noted that it could not, on appeal, base its review on anything other than “the findings of the court-martial.” Id. at *14, 2016 WL 1311423, at *4.

Slip op. at 7 (marks in original).

Judge Ryan concludes:

Given the Government’s decision to allege a specific type of unlawful force, it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact.

While we do not doubt that multiple methods of force were readily available for the Government to present at trial, absent a finding by exceptions and substitutions under R.C.M. 918 at trial, those alternatives were precluded by the specific language included in Specification 6 of Charge I.

Slip op. at 8 (citation omitted). That conclusion might lead to military prosecutors avoiding all specifics, and to CAAF eventually determining if that violates R.C.M. 307(c)(3).

Case Links:
ACCA opinion (78 M.J. 569)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma) (mp3)
CAAF opinion
Blog post: Opinion analsis

7 Responses to “Opinion Analysis: CAAF holds that a CCA may not affirm a conviction by exceptions that eliminate specific facts, in United States v. English”

  1. Nathan Freeburg says:

    Oh they already are.  I currently have a case where an abusive sexual contact spec reads “by touching her body with his hands”…

  2. Zachary D Spilman says:

    Now image if the specification stated only: by an offensive touching, however slight.

  3. ADLAW GUY says:

    So if LIO is still cool what if ACCA had just affirmed as a sexual assault by bodily harm??  Feels like that would work based the reasoning laid out.  If so it makes this opinion wonky and technical; but not really helpful to the accused or practitioners.

  4. Allan says:

    If the specifications get too general, you can always file a Bill of Particulars. 

  5. Nathan Freeburg says:

    Of course.  Which the government then denies.  Ever seen an OSJA actually reply with one?

  6. Allan says:

    Yes.  The chief of justice went ballistic.  The MJ granted the motion, though.

  7. Zachary D Spilman says:

    I recall some discussion during the oral argument of this case about whether or not a bill of particulars is binding on the prosecution.

    If it is binding, why isn’t the better practice to put the particulars on the charge sheet (as R.C.M. 307(c)(3) seems to require)?

    If it’s not binding, what’s the point?