CAAF decided the certified Navy case of United States v. Clark, 75 M.J. 298, No. 16-0068/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 17, 2016. In a short opinion the court rejects the certified issues, declining the invitation of the Judge Advocate General of the Navy to impose a standard for a CCA’s treatment of special findings by a military judge and affirming the decision of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.

Judge Stucky writes for a unanimous court.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Clark, No. 16-0068/NA (CAAFlog case page): Oral argument audio

United States v. Rogers, No. 16-0006/CG (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the certified Navy case of United States v. Clark, No. 16-0068/NA (CAAFlog case page), on Tuesday, March 15, 2016. The case presents a Government challenge to the reasoning of a three-judge panel of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.

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A few weeks ago – in this post – I discussed the NMCCA’s per curiam opinion that reversed convictions of rape and forcible sodomy because the CCA found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).

The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. Notably, the appellant was acquitted of aggravated sexual assault by engaging in a sexual act with a person who was substantially incapacitated that was charged in the alternative with the rape charge. Slip op. at 2 n.1.

Reversing the findings, the CCA concluded that “hav[ing] made allowances for not having heard and observed the
witnesses. . . . and having considered the unique facts of this case, we are not personally convinced of the appellant’s guilt of rape or forcible sodomy.” Slip op. at 13.

Now the Judge Advocate General of the Navy has certified the case to CAAF:

No. 16-0068/NA. United States, Appellant v. Dustin M. Clark, Appellee. CCA 201400232. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

ARTICLE 66(c), UCMJ, REQUIRES THAT COURTS OF CRIMINAL APPEALS CONDUCT A PLENARY REVIEW OF THE ENTIRE RECORD AND “RECOGNIZ [E] THAT THE TRIAL COURT SAW AND HEARD THE WITNESSES.” IN REVERSING APPELLEE’S CONVICTIONS FOR FACTUAL INSUFFICIENCY WITHOUT ACKNOWLEDGING THE MILITARY JUDGE’S NON-GUILT SPECIAL FINDINGS DID THE LOWER COURT FAIL TO CONDUCT A COMPLETE ARTICLE 66(c) REVIEW?

IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW, THE LOWER COURT USED A DIFFERENT STANDARD OF REVIEW FOR THE NON-GUILT SPECIAL FINDINGS MADE BY THE MILITARY JUDGE UNDER RULE FOR COURTS-MARTIAL 918(b) THAN THAT ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS. SHOULD THE LOWER COURT HAVE REVIEWED THE MILITARY JUDGE’S NON-GUILT SPECIAL FINDINGS UNDER THE CLEAR ERROR STANDARD ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS?

Significantly, other than the footnote mentioned above, the CCA’s decision does not discuss the military judge’s “non-guilt” findings (presumably this means the acquittal of the alternative charge), nor does the decision reference R.C.M. 918 or any special findings made by the military judge.

Additionally, I’ve been advised that Clark has now been released from confinement.

Back in July, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals issued a per curiam opinion that reversed convictions of rape and forcible sodomy because the panel found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).

The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge.

Considering the relatively little evidence presented at trial, and employing its unique factual sufficiency powers, the NMCCA found the evidence insufficient to sustain the convictions:

We are unconvinced by the record before us that the Government met their heavy burden of proving the required element of force for either offense. While SW’s description of appellant holding her by her arms provided some evidence of force, she could not link this action by the appellant to any further act, sexual or otherwise, and the disorganized, potentially non-sequential order of her memories prevents us from concluding that the charged forcible sexual acts necessarily followed.

Slip op. at 13. As a result, the CCA dismissed the charges with prejudice.

However, the appellant was not immediately released from confinement. Nor was he entitled to immediate release (discussed in depth below). Nevertheless, the appellant sought a writ of habeas corpus from the NMCCA ordering his immediate release. The CCA denied that writ in an en banc decision available here.  The appellant has since appealed that denial to CAAF, where I expect it will also be denied.

This isn’t to say that the appellant is not entitled to be released. Rather, he just has to wait a little bit longer.

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