TRIAL STAGES: Merits: Findings

2011 (September Term)

United States v. Vela, 71 M.J. 283 (even though the members must keep the evidence of each offense separate, if evidence has been presented which is relevant to more than one offense, they may consider that evidence with respect to each offense to which it is relevant). 

United States v. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside). 

(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision). 

(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict).

(where four out of six images introduced by the government in support of appellant’s conviction for possession of child pornography in violation of Article 134 were constitutionally protected and where it is unknown which images formed the basis for the finding of guilt to the possession of child pornography charge and the finding may have been based on the constitutionally protected images, the general verdict of guilt must be set aside). 

(the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered). 

2010 (September Term)

United States v. Flores, 69 M.J. 366 (in a guilty plea context, a military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense; to do so would compel an accused to incriminate herself in the separate criminal proceeding).  

United States v. Ross, 68 M.J. 415 (a clear record as to the occasion for which an accused is found guilty is necessary when the words “on divers occasions” are excepted from findings). 

(when the phrase “on divers occasions” is included in the charged specification but removed from the findings, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions). 

(where appellant was charged with possession of child pornography on divers occasions during a particular time period and the military judge excepted from the specification the words “on divers occasions” without further explanation, the findings were ambiguous; although excepting those words without explanation created ambiguous findings, the government could nevertheless prevail if the evidence was legally insufficient to show that appellant was guilty of possession with respect to two of the three seized electronic storage media; under those circumstances, as a matter of law, the military judge could have found appellant guilty of possession with respect to only one of the media - in other words, the verdict would be unambiguous; but here, where the evidence was legally sufficient with respect to the presence of child pornography on two of the storage media, the fact remains that an appellate court could not know what the military judge found appellant guilty and not guilty of, or indeed whether he found appellant not guilty of anything at all; under these circumstances, a proceeding in revision is not permitted, and dismissal of the charge and its specification with prejudice is required). 

United States v. Trew, 68 M.J. 364 (when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; if there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous). 

(a finding on the guilt or innocence of the accused is not final until it is formally and correctly announced in open court; the general findings of a court-martial state whether the accused is guilty of each offense charged; one or more words or figures may be excepted from a specification, and, when necessary, others substituted, if the remaining language of the specification, with or without substitutions, states an offense by the accused which is punishable by court-martial; if an error was made in the announcement of the findings of the court-martial, the error may be corrected by a new announcement in accordance with RCM 922; the error must be discovered and the new announcement made before the final adjournment of the court-martial in the case; in the context of a judge-alone trial, clarification of the ambiguity can be accomplished by a clear statement on the record by the military judge as to which alleged incident formed the basis of the conviction). 

(a military judge’s findings of guilty to the LIO of assault consummated by a battery on a child under 16 years, when initially announced, did not reference the charged “divers occasions” language in the specification; however, trial counsel immediately asked for a clarification of those findings with regard to the divers occasions language; when the military judge responded that it was “on the one occasion,” she made clear on the record that her findings as to the LIO were only applicable for one event, rather than multiple incidents as charged; under the facts of this case, a formal recitation of exceptions and substitutions was not necessary because of the military judge’s clarification immediately following her announcement of the findings; the clarification that it was “on the one occasion,” amounted to a correction of the announcement of the findings as permitted by RCM 922). 

(where a specification alleges wrongful acts on “divers occasions,” the members must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based; that can generally be accomplished through reference in the substituted language to a relevant date or other facts in evidence that will clearly put the accused and the reviewing courts on notice of what conduct served as the basis for the findings).

(in a judge-alone case, a military judge can clarify an ambiguity in the findings by making a clear statement on the record as to which alleged incident formed the basis of the conviction).

(in this case, the government charged the accused with indecent acts on “divers occasions,” introduced evidence of more than one occasion, and argued in both opening and closing statements that at least two incidents had occurred; when the military judge clarified that her guilty findings to the LIO of assault consummated by a battery on a child under 16 years were for “one occasion,” she should have made a clear statement on the record as to which alleged incident formed the basis of the conviction; the military judge’s failure to do so resulted in fatally ambiguous finding). 

United States v. Lubasky, 68 M.J. 260 (a variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge). 

(a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance:  under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person). 

United States v. Burton, 67 M.J. 150 (an accused may not be convicted of a crime based on a general criminal disposition). 

(trial counsel’s suggestion during closing argument on findings that the members of the panel could compare the similarities between the charged sex offenses for a propensity to commit these types of offenses and see the accused’s modus operandi was improper argument; although the charged offenses were themselves the proper subject of closing argument, the underlying conduct had not been offered or admitted under MRE 404 or 413 [allowing character evidence when offered first by the accused, allowing evidence of other crimes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and allowing evidence of prior sexual assaults when the accused is charged with a sexual assault offense], and as such, trial counsel’s invitation to the panel to compare the charged offenses to find modus operandi or propensity was improper).  

United States v. Wilson, 67 M.J. 423 (when the phrase “on divers occasions” is removed from a specification, the effect is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; if there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the court of criminal appeals cannot perform a factual sufficiency review). 

(where the military judge found appellant guilty of the specification of rape after multiple incidents of rape were charged in that specification and presented at trial, and where the military judge excepted the words “on divers occasions” from the specification in her findings, she was required to indicate the single incident for which she convicted appellant; because the record did not contain either substituted language or a statement on the record that would identify the specific incident for which the military judge convicted appellant, without such clarification, the findings were fatally ambiguous). 

(clarification of ambiguous findings can generally be accomplished through reference in the substituted language to a relevant date or other facts in evidence that will clearly put the accused and the reviewing courts on notice of what conduct served as the basis for the findings; in addition, in the context of a judge-alone trial, clarification of the ambiguity can be accomplished by a clear statement on the record by the military judge as to which alleged incident formed the basis of the conviction). 

United States v. Marshall, 67 M.J. 418 (the military judge’s findings created a fatal variance where appellant pled not guilty to escaping from the custody of one individual but was convicted, by exceptions and substitutions, of escaping from the custody of another individual). 

(to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby).

(a variance that is material is one that substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense). 

(a variance can prejudice an appellant by (1) putting him at risk of another prosecution for the same conduct, (2) misleading him to the extent that he has been unable adequately to prepare for trial, or (3) denying him the opportunity to defend against the charge). 

(in an escape from custody charge, a variance substituting the identity of the custodian from whom appellant was alleged to have escaped was material; although the nature of the offense remained the same - escape from custody - by substituting the charged custodian with another, the military judge changed the identity of the offense against which the accused had to defend, and this denied him the opportunity to defend against the charge). 

(in an escape from custody charge, a material variance in the custodian from whom appellant was alleged to have escaped was prejudicial where appellant could not have anticipated being forced to defend against the charge of which he was ultimately convicted; had appellant known that he would be called upon to refute an agency theory or to defend against a charge that he escaped from a different individual than the one charged, appellant was unlikely to have focused his defense and his closing argument on the lack of evidence that charged individual placed him in custody or that he escaped from the custody of the charged individual). 

United States v. Rodriguez, 66 M.J. 201 (when members find an accused guilty of an “on divers occasions” specification, they need only determine that the accused committed two acts that satisfied the elements of the crime as charged -- without specifying the acts, or how many acts, upon which the conviction was based). 

(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; the rule is based on the presumption that the verdict attaches to each of the several alternative theories charged; because the verdict attaches to all theories, the verdict may stand despite trial errors if any one of the counts is good and warrants the judgment).

United States v. Brown, 65 M.J. 356 (with minor exceptions for capital cases, a court-martial panel, like a civilian jury, returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to convict or acquit; in returning such a general verdict, a court-martial panel resolves the issue presented to it:  did the accused commit the offense charged, or a valid lesser included offense, beyond a reasonable doubt; a factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt). 

(military criminal practice requires neither unanimous panel members, nor panel agreement on one theory of liability, as long as two-thirds of the panel members agree that the government has proven all the elements of the offense).  

2006

United States v. Finch, 64 M.J. 118 (failure to object at trial to exceptions and substitutions made at findings constitutes waiver of that issue in the absence of plain error).

(to prevail on a fatal-variance claim, appellant must show that the variance was material and that it substantially prejudiced him). 

(a variance that is material is one that, for instance, substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense).  

(with respect to the two-part material variance test, the critical question is one of prejudice; the prejudice prong consists of a two-part analysis: (1) has the accused been misled to the extent that he has been unable adequately to prepare for trial; and (2) is the accused fully protected against another prosecution for the same offense). 

(in this case, the military judge’s finding of guilty by exceptions and substitutions did not result in a material variance with respect to the offense of conspiracy to violate a general order by providing alcohol for consumption to a delayed entry trainee, where the military judge’s exceptions and substitutions did not substantially change the nature of the offense; the primary difference between the charged offense and the offense of which the military judge found appellant guilty went to the acts taken in furtherance of that conspiracy -– specifically, in the location of the consumption of the alcohol that was provided and the exact manner by which it was provided; minor variances, such as the location of the offense or the date upon which an offense is allegedly committed, do not necessarily change the nature of the offense and in turn are not necessarily fatal). 

(even assuming there was a material variance between the pleadings and the findings, appellant failed to show prejudice stemming from that error, where the change in the description of the alleged overt acts taken in furtherance of that conspiracy did not prejudice appellant -- that is, it neither misled appellant in preparing or presenting his defense, nor failed to protect him against a subsequent prosecution for the same misconduct; because appellant failed to establish any prejudice by demonstrating that he was misled as to (1) what he had to defend against at trial, or (2) whether he could be tried again for the same offense or a similar one, there was no plain error). 

United States v. Alexander, 63 M.J. 269 (the court-martial announces its findings on each charge and specification following the presentation of evidence, closing arguments, instructions, and deliberations; the findings do not expressly incorporate the text of the charges and the underlying specifications; instead, the findings constitute a decision by the factfinder whether the government has met its burden of proof beyond a reasonable doubt as to the charged offense or as to any lesser included offense). 

(when the court-martial is adjourned following announcement of the sentence, the findings and sentence shall be reported promptly to the convening authority; trial counsel prepares the report of the findings and sentence, which must be submitted in writing; neither the UCMJ nor the MCM offers any guidance as to the amount of detail that should be provided regarding the findings). 

United States v. Cendejas, 62 M.J. 334 (where the military judge found the accused guilty of possessing eight images that met the existing definition of child pornography under the Child Pornography Prevention Act, a definition that included portions later found unconstitutional, his general finding of could not be upheld because it cannot not be determined on appeal whether the military judge only relied on those portions of the statutory definition of child pornography later found constitutional).

(where an accused’s conviction for possessing child pornography in violation of the Child Pornography Prevention Act, 18 USC 2252A, under clause 3 of Article 134 has been set aside, an appellate court can in some circumstances uphold a conviction to a lesser included offense under clauses 1 or 2 of Article 134 if there was sufficient evidence introduced at trial to establish that the accused’s conduct in possessing virtual child pornography was either prejudicial to good order and discipline or service-discrediting; in this case, there was no basis in the record that would support a conviction of a lesser included offense under clauses 1 or 2 of Article 134; there was no such evidence introduced at the accused’s trial nor, since this was a contested charge, was there any discussion by the military judge as to what constitutes conduct that is prejudicial to good order and discipline or what constitutes service-discrediting conduct).

2005

United States v. Augspurger, 61 M.J. 189 (when a servicemember is charged with illegal conduct “on divers occasions” and the members find the accused guilty of charged conduct but strike out the “on divers occasions” language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions).
 
(the military judge should ensure that the members’ findings, as announced, are clear as to the factual basis for an offense; first, the military judge should properly instruct the members that if they except the “divers occasion” language from a specification, they need to make clear which allegation was the basis for their guilty finding; second, after the military judge examines the findings worksheet but prior to announcement, the military judge should ask the members to clarify any ambiguous findings; once the findings of a court-martial have been announced, any finding that amounts to a finding of not guilty is not subject to reconsideration or a post-trial session such as a proceeding in revision).
 
(it is the responsibility of military judges to ensure that any ambiguities in findings are clarified before the findings are announced, and if they fail to do so, the appellate courts cannot rectify that error).

United States v. Scheurer, 62 M.J. 100 (when an accused is charged with committing illegal conduct on divers occasions and the court-martial finds the accused guilty of charged conduct but strikes out the on divers occasions language, the effect of the findings is that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions; thus, where a divers occasions specification is converted to a one occasion specification, the finder of fact should substitute language into the specification to clearly put the accused and the reviewing courts on notice of what conduct served as the basis for the findings). 

2004

United States v. Lovett, 59 MJ 230 (a variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge; the Rules for Courts-Martial authorize findings by exceptions and substitutions, with the caveat that they may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it).

(minor variances that do not change the nature of the offense are not necessarily fatal; where, however, an appellant can demonstrate that a variance is material and that he was prejudiced, the variance is fatal and the findings thereon cannot stand; prejudice may arise from a material variance if an appellant can show that the variance puts him at risk of another prosecution for the same conduct, or alternatively, if he can show that his due process protections have been violated where he was misled to the extent that he has been unable adequately to prepare for trial, or where the variance at issue changes the nature or identity of the offense and he has been denied the opportunity to defend against the charge).

(upon receiving a charge of soliciting the murder of his wife, appellant’s defense team channeled its efforts in the direction of solicitation of premeditated murder, in order to defeat the Government’s attempt to prove premeditated murder beyond a reasonable doubt; given the explicit language of the charge, appellant could not have anticipated conviction for a lesser-included offense of soliciting a person to wrongfully prevent his wife from appearing in a judicial proceeding; because he lacked notice to prepare an adequate defense, there was a fatal variance between the precise specification as charged, and the general findings as returned by the members).

(we hold that a soliciting murder charge did not put appellant on notice to defend against a lesser-included offense of soliciting the commission of obstruction of justice; consequently, there was a fatal variance between the specification as charged and the members’ ultimate findings).

United States v. Roberts, 59 MJ 323 (it is well accepted that circumstantial evidence is sufficient to sustain a finding of guilt).

United States v. Thompson, 59 MJ 432 (when the panel announced its findings in open court, those findings were final and were not subject to reconsideration by the members; to the extent that a military judge may clarify an ambiguous finding, any such authority is not applicable in the present case; the military judge had instructed the members that they could return a verdict of guilty to the lesser-included offense of indecent acts with a child; he also had instructed them that they could find appellant guilty if they determined that these acts occurred at any time between September 1, 1992, and March 1, 1996; they returned a verdict in which their findings mirrored the military judge’s instruction both as to the lesser-included offense of indecent acts and the full period of time from September 1, 1992, to March 1, 1996; there was no ambiguity; the findings were clear; the problem was not that the military judge permitted an ambiguous verdict; the problem was that, absent a statute of limitations waiver, the military judge was required to provide the members with instructions that focused their deliberations on a much narrower period of time -- January 3, 1995, to March 1, 1996 -- the period not barred by the statute of limitations; the time to focus the members’ attention on the correct time period was before they concluded their deliberations -- not after they concluded their deliberations and returned a finding that addressed a much longer span of time; the failure to do so was not relieved by the military judge’s subsequent reference to evidence in the record that could support the finding; the issue here is not legal sufficiency of the evidence; it is the failure of the military judge to focus the panel’s deliberations on the narrower time period permitted by the statute of limitations).

(where the panel’s findings were not ambiguous, the military judge was not authorized to modify them, irrespective of any subsequent discussions with the members).

2003

United States v. Teffeau, 58 MJ 62 (variance between pleadings and proof exists when evidence at trial establishes the commission of a criminal offense by the accused, but the proof does not conform strictly with the offense alleged in the charge; the MCM anticipates the potential for a variance by authorizing findings by exceptions and substitutions; but findings by exceptions and substitutions may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it).

(minor variances, such as the location of the offense or the date upon which an offense is allegedly committed, do not necessarily change the nature of the offense and in turn are not necessarily fatal; where, however, an appellant can demonstrate that a variance is material and that he or she was prejudiced, the variance is fatal and the findings thereon can not stand).

(prejudice can arise from a material variance in a number of ways: appellant may show that the variance puts him at risk of another prosecution for the same conduct; and appellant may show that his due process protections have been violated where he was misled to the extent that he has been unable adequately to prepare for trial, or where the variance at issue changes the nature or identity of the offense and he has been denied the opportunity to defend against the charge).

(to the extent that the Court's opinion in United States v. Allen, 50 M.J. 84 (C.A.A.F. 1999) could be read to require that appellant must show both that he or she was misled and that the variance put appellant at risk of another prosecution, the Court now makes it clear that a dual showing is not required and that these are alternative forms of demonstrating error).

(where a conviction is predicated upon a different incident than the one originally alleged in the specification, such a conviction violates due process; prejudice flows from any material variance that changes the very nature of the offense in issue and impacts upon an accused’s ability to defend against the charge against him; when a material variance deprives an accused of the fundamental right to due process, he has been prejudiced).

United States v. Walters, 58 MJ 391 (when a specification alleging instances of misconduct on divers occasions is involved, findings by exceptions and substitutions eliminating all but one instance are a distinct possibility; both trial practitioners and military judges need to be aware of the potential for ambiguous findings in such cases and take appropriate steps through instruction and pre-announcement review of findings to ensure that no ambiguity occurs).

(while the R.C.M. 922 discussion indicates that the military judge can seek clarification of ambiguous findings after announcement, a verdict which excepts "divers occasions" and substitutes on "one occasion" involves a dual finding of guilty and not guilty; once announced, the latter aspect of the verdict clearly becomes final and cannot be reconsidered; in order to avoid any uncertainty as to when post-announcement "clarification" under R.C.M. 922 crosses the line into prohibited "reconsideration" under R.C.M. 924, ambiguities in this type of verdict should be resolved prior to announcement).

1999