CAAFlog » September 2012 Term » United States v. Tunstall

CAAF decided United States v. Tunstall, No. 12-0516/AF, 72 M.J. 191 (CAAFlog case page) (link to slip op.), on Thursday, May 23, 2013, finding that the trial judge erred in instructing the members on the offense of indecent acts as a lesser included offense of aggravated sexual assault, reversing the AFCCA on this issue, and remanding the case to the CCA for further proceedings. The court also finds that despite the Government’s failure to allege a terminal element in the Article 134 offense of adultery, the record or trial demonstrates that the Appellant was on actual notice of the terminal element, and CAAF affirms this finding of guilty.

Judge Erdmann writes for the court, joined by Judge Ryan and Senior Judge Effron. Judge Stucky writes separately concurring in part and in the result. Chief Judge Baker dissents.

The Appellant was convicted, contrary to his pleas by a general court-martial composed of members, of one specification of aggravated sexual assault, one specification of indecent acts (as a lesser included offense of a second specification of aggravated sexual assault), and one specification of adultery, in violation of Articles 120 (2007) and 134, UCMJ. He was sentenced to confinement for six months, a reprimand, reduction to E-1, and a bad-conduct discharge. The convening authority approved the adjudged sentence, and the AFCCA affirmed the findings and sentence.

CAAF granted review of two issues:

I. Whether appellant’s conviction for indecent acts must be set aside because the military judge erred in instructing the jury that indecent acts is a lesser included offense of aggravated sexual assault.
II. Whether the finding of guilty to adultery must be dismissed in accordance with Rule for Courts-Martial 907(b)(1) because it fails to state an offense.

The Appellant engaged in a number of sexual encounters with a very intoxicated Airman KAS. One involved the Appellant digitally penetrating KAS’ vagina while she was leaning over a sink, dry heaving after having vomited, while another airman stood nearby (the other airman eventually said to the Appellant, “[i]t’s not time for that. I mean she’s sick. We need to take care of her.” Slip op. at 4-5). For this specific encounter (there were others) the Appellant was charged with aggravated sexual assault of KAS while she was substantially incapable of declining participation. “During his instructions on findings, the military judge sua sponte instructed the members that the offense of indecent acts was a lesser included offense of the charged offense of aggravated sexual assault.” Slip op. at 5. The Defense did not object to this instruction, and the Appellant was acquitted of aggravated sexual assault and convicted of indecent acts. The CCA affirmed, reasoning “one cannot engage in a ‘sexual act’ with someone who was vomiting in a sink in the presence of a third party without also engaging in an indecent act.” Slip op. at 6 (quoting Tunstall, No. ACM 37592, slip op. at 10).

Beginning his analysis of this instructional issue, Judge Erdmann notes that CAAF reviews for plain error because the Defense did not object to the instruction. He then details the three-prong test for plain error that later becomes a significant theme in the opinion:

Under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.

Slip op. at 6. The Government’s argument was that “the aggravated sexual assault specification at issue could, without alteration, constitute a legally sufficient indecent acts specification. The crux of the Government’s argument is that the act alleged in [the specification] constituted indecent conduct under the above definition because KAS was substantially incapable of declining the participation in the sexual act.” Slip op. at 9. However, Judge Erdmann notes that:

It has long been recognized that a jury must be able to rationally acquit on the greater offense but still convict on the lesser offense. Sansone v. United States, 380 U.S. 343, 350 (1965) (“[T]he lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.”).

Slip op. at 9-10. Normally, when challenging a lesser included offense, the argument is that the lesser offense is too different from the charged offense. But in this case the argument is reversed, and the indecent acts offense fails as a lesser included offense because it is too similar to the charged offense of aggravated sexual assault. Judge Erdmann explains:

Under the facts of this case, where there is no additional fact that the members would need to find in order to establish the offense of aggravated sexual assault which would be unnecessary to establish the offense of indecent acts, the two offenses do not stand in a relationship of greater/lesser offense, because a rational trier of fact could not acquit on the greater offense and convict on the lesser offense.

Slip op. at 11 (emphasis added). But Judge Erdmann continues, also finding error in another instruction given by the trial judge that “engaging in a sexual act in the presence of others is considered ‘open and notorious’ behavior which could constitute an indecent act.” Id. Open and notorious is not a theory of aggravated sexual assault, and this instruction “essentially took the ‘substantially incapable of declining participation’ theory for the offense of indecent acts off the table and instead provided the members with detailed instructions as to the ‘open and notorious’ theory for the offense.” Slip op. at 12. Accordingly, “[a]s Tunstall was neither charged with nor on notice of the offense of indecent acts under the ‘open and notorious’ theory until the military judge’s instruction, he was not on fair notice to defend against that offense and his due process rights were violated.” Slip op. at 12-13.

On my first reading of this portion of Judge Erdmann’s opinion, I saw the discussion of the “open and notorious” instruction as superfluous and dicta. But then I remembered last term’s per curiam opinion in United States v. Rauscher, No. 12-0172/NA, in which CAAF explained that it doesn’t matter what offense the Government thinks its charging, so long as the specification itself sets forth all of the elements of the offense of conviction (this principle was again applied in this term’s decision in United States v. Wilkins, No. 11-0486/NA). So, if the charge of aggravated sexual assault in this case had encompassed the “open and notorious” theory, then the conviction for indecent acts could have been affirmed, not as a lesser included offense but simply as a charged offense. I think this is why Judge Erdmann writes that the Appellant was “neither charged with nor on notice. . .”

Unfortunately, Judge Erdmann doesn’t explain this point, or cite Rauscher at all, and he only cites Wilkins for the test for plain error. Moreover, while Judge Stucky’s concurring opinion cites both Wilkins and Rauscher in its first paragraph, he also doesn’t explain why they matter to the treatment of the LIO issue. These omissions make it easy to miss this important part of this opinion (assuming that this is really what the court is trying to say).

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The audio for the last three oral arguments of the calendar year is posted on CAAF’s website at the following links:

United States v. Bowersox, No. 12-0398/AR

United States v. Clifton, No. 12-0486/AR

United States v. Tunstall, No. 12-0516/AF

The last oral argument on Monday, December 3, 2012, is also the last scheduled argument of this calendar year: United States v. Tunstall, No. 12-0516/AF. The case is an interesting way to end the calendar year because when CAAF granted review in August, it ordered the parties to file briefs on both issues:

I. Whether appellant’s conviction for indecent acts must be set aside because the military judge erred in instructing the jury that indecent acts is a lesser included offense of aggravated sexual assault.

II. Whether the finding of guilty to adultery must be dismissed in accordance with Rule for Courts-Martial 907(b)(1) because it fails to state an offense.

It’s rare that the court orders briefs on a terminal-elements issue since the decisions in Fosler, Ballan, and Humphries. The problem with the adultery specification in this case, which was tried in 2009 (before CAAF decided Fosler), is that it lacked a terminal element (like in Fosler), and the Defense did not object at trial (like in Humphries). CAAF granted relief in both Fosler and Humphries, though in Humphries the court rejected the blanket rule that dismissal is required in these circumstances, and instead tested for plain error. But here the Appellant asks CAAF to “revisit its prejudice analysis in Humphries and instead follow Rule for Courts-Martial 907(b)(1)’s plain language that a ‘specification shall be dismissed at any stage of the proceedings if’ it ‘fails to state an offense.'” Appellant’s  Br. at 11 (emphasis added).

The Appellant makes two arguments for dismissal of the adultery specification in this case. The first is application of the plain-error test; that he was prejudiced because:

there was nothing during its case-in-chief that reasonably placed [the accused] on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated. That element was controverted. As the Supreme Court has stated, “A simple plea of not guilty puts the prosecution to its proof as to all elements of the crime charged[.]” Appellant pleaded not guilty to the adultery specifications, thereby controverting all of the specification’s elements. At no time thereafter did the defense enter any stipulations, make any concessions, or take any other action to uncontrovert the adultery specification’s terminal element.

Appellant’s Br. at 24 (marks and citations omitted). When Humphries was decided, I was hostile to the notion that by sitting on your hands you can possibly preserve the issue of surprise for appeal (as opposed to, say, objecting to the surprise, or even just repeating “wait, what” until the judge takes notice), and I still think this is bad logic. Article 134 is hardly a complex statute, and the concept that mere adultery is not criminal, but adultery coupled with prejudice/discredit is criminal, is pretty basic stuff that counsel are presumed to know. I believe that if a defense counsel didn’t know this, but suddenly realizes it during the trial, he has an obligation to bring it to the court’s attention sometime before appellate division gets the case.

But the Appellant’s brief makes the alternative argument “that Humphries’ prejudice analysis approach is inconsistent with a presidentially prescribed rule in the Manual for Courts-Martial. Under that rule, dismissal is the required remedy for the adultery specification’s failure to state an offense.” Appellant’s Br. at 28. This argument is based on the premise that CAAF must obey the rules for courts-martial established by the President, and that “[t]he President is free to revise that rule if he no longer wishes to mandate dismissal of the specification as the sole remedy for failure to state an offense. But unless and until the President modifies R.C.M. 907(b)(1), it is this Court’s duty to enforce it as written.” Appellant’s Br. at 30. Were CAAF to adopt this reasoning, it would be a dramatic reversal from the court’s decision in Humphries issued just a few months ago. I think it unlikely that CAAF will reverse itself so soon, particularly since Senior Judge Effron (who was in the Humphries (3-2) majority) will return for this case.

But, the Government’s brief highlights a different way CAAF might take its terminal element jurisdiction in a new direction: by changing how it applies the plain-error test. The oral argument in this case will occur immediately after the oral argument in United States v. Clifton, No. 12-0486/AR, and in my argument preview for Clifton I theorized that Clifton “is really about CAAF’s slow-but-steady move to the full, four-prong test for plain error.” The court’s decision to order briefs on the terminal element issue in this case, and to schedule these two cases together, adds weight to that theory. So does the Government’s framing of the issue, which includes a lengthy footnote on page 13 that discusses the full, four-prong test for plain error. Reading the tea-leaves, I see a chance that a CAAF majority is ready to adopt the full plain-error test by (1) finding error that is (2) plain and obvious and (3) materially prejudiced a substantial right of the Appellant (just like in Humphries), but still decline to grant relief because (4) the error [does not] seriously affect the fairness, integrity or public reputation of judicial proceedings.

However, the Government’s brief also emphasizes the prejudice prong of the plain-error test, arguing that “[t]hroughout the government’s case-in-chief, trial defense counsel cross examined several of the government’s witnesses on issues related to the terminal element of adultery. . . . By asking these questions, trial defense counsel elicited evidence he was able to later argue about in closing argument in an effort to acquit Appellant of this specification.” Gov’t Br. at 16. A footnote adds:

In fact, trial defense counsel identified this terminal element as “the most important element” and then read it verbatim to the members from the military judge’s instructions.

Gov’t Br. at 16, N.4.  The Government’s brief also highlights the fact that the Defense introduced evidence of the Appellant’s impending divorce, and that “trial defense counsel argued that this application for dissolution of the marriage was evidence ‘going against’ this third element.” Gov’t Br. at 17-18. This sure seems to undercut the Appellant’s argument of surprise, meaning that even if the court wants to get to the fourth-prong of the plain-error test, this case might not make it that far.

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CAAF granted review of two issues in an Air Force case today:



United States v. Tunstall, __ M.J. __,. No. 12-0516/AF (C.A.A.F. Aug. 8, 2012).  AFCCA’s unpublished decision in the case is available hereUnited States v. Tunstall, No. ACM 37592 (A.F. Ct. Crim. App. Mar. 28, 2012) (per curiam).