Ray T. LEAK, Staff Sergeant
Nos. 03-0647 and 04-5001
Crim. App. No. 20000356
BAKER, J., delivered the opinion of the Court, in which CRAWFORD, EFFRON, and ERDMANN, JJ., joined. GIERKE, C.J., filed a separate opinion, concurring in part and dissenting in part.
For Appellant and Cross-Appellee: Captain Rob W. McDonald (argued); Colonel Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and Major Allyson G. Lambert (on brief).
For Appellee and Cross-Appellant: Captain
Wiggers (argued); Colonel Lauren B. Leeker, Colonel
Salata, Lieutenant Colonel Margaret B. Baines, Lieutenant
Military Judge: Donna M. Wright
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
Judge BAKER delivered the opinion of the Court.
Appellant and Cross-Appellee (Appellant) was tried by a general court-martial composed of officer members. Contrary to his pleas he was convicted of three specifications of maltreatment, rape, two specifications of adultery, indecent assault, indecent acts, and solicitation to commit adultery, in violation of Articles 93, 120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 893, 920, 934 (2000). The adjudged and approved sentence included a dishonorable discharge, confinement for sixty-one months, forfeiture of $200 pay per month for sixty months and reduction to the lowest enlisted grade, E-1.
Appellant’s offenses resulted from his conduct with Specialist (SPC) M on three separate dates. The facts relied on by the Court of Criminal Appeals follow:
(SPC) M’s testimony was the primary basis for appellant’s conviction. The guilty findings related to three
incidents of sexual activity between appellant and SPC M during her
as a student at the thirty-day Primary Leadership Development Course
(PLDC) at the 7th Army Noncommissioned Officer (NCO)
Academy in Grafenwoehr, Germany. At the
time of her attendance, SPC M had been on active duty between four and
years. She was a single parent of a
fifteen-month old son. Specialist M was
65 inches tall and weighed approximately 130 pounds, and appellant was
inches tall and weighed approximately 188 pounds. At
the time of the offenses, appellant was a
thirty-four-year-old Small Group Leader (SGL) at the
10 September Offenses
used two offices at the
Appellant told SPC M that he wanted to masturbate before she left the room. He got some toilet paper and she sat on the couch. Appellant masturbated in front of her until he ejaculated. He cleaned himself with toilet paper and she left the room. She testified that she did not cry out during the incident because she was nervous. She was afraid to run for the door because she did not know what he would do. She did not report appellant’s behavior because she was afraid that he might lie about her, causing her dismissal from PLDC. Specialist M emphasized her responsibility to her infant son, stating, “I’m a single parent ... [and I] had to do what is best for both of us.” Appellant was not charged with any specific offense for masturbating in SPC M’s presence.
this first incident on
12 September Offenses
Appellant asked SPC M to go to his third floor office two days later. They each went to his office separately. Specialist M went “because [she] thought [she] could talk [her way] out of it again.” Appellant locked the door and left the key in the lock, precluding others who shared the office from entering during the sexual activity. He said he “wanted [her],” but SPC M laughed and said, “I don’t have time for this.” He replied that she had twenty minutes between classes. Appellant grabbed SPC M and wrestled with her, trying to get her trousers down. She said “no” more than once. Appellant held one of her wrists and tried to unbuckle her trousers with his other hand.
As this was occurring, SPC M decided, “‘I’m not going to win this battle.’ I was not going to try to fight him, so I let him have sex with me.” She was surprised when appellant took a condom out of the desk. She noticed he had a box and a bag containing condoms. Specialist M accused appellant of “setting her up” and “bringing other females up there.” He denied that he was setting her up and asserted “that he never did anything like that before.” They engaged in sexual intercourse on the desk. He ejaculated, removed the condom, and wrapped it in a tissue. She pulled up her trousers, unlocked the door, and left.
M testified that she let appellant have sex with her because she was
that appellant might dismiss her from PLDC for having a bad attitude
she already had trouble with her roommate.
Appellant was found guilty of one specification each of
rape, and adultery for his conduct on
21 September Offenses
On the third occasion, appellant gave SPC M a key and asked her to meet him at the third floor SGL office after lunch. She asked him, “What happens if I get caught going up there?” Appellant responded, “I’ll just tell them that I sent you up there for something.” About an hour after receiving the key, SPC M went to the third floor office. She told appellant there was insufficient time for sexual activity, but he “begged” her to give him five minutes. She said “no” and they “wrestled as usual.” He put on a condom and then had sexual intercourse with SPC M on the office couch. She was face down during the intercourse. Afterwards, appellant put the used condom into a tissue. Specialist M pulled up her trousers and ran back to class where others noted her ebullient demeanor and her efforts to make the students laugh.
Specialist M testified that she did not do anything else to let appellant know that she did not want to have sex with him. At one point, she asked him whether he was forcing himself on her, and he said “no.” Later, the following exchange occurred between SPC M and trial defense counsel:
Q. What was it that you were more scared of than having sex forced upon you again by the accused?
SPC M. I was afraid of not graduating [from] the class and not being successful, and that’s -- I mean this is all I have to take care of my son. The Army is all I have.
the events of
Concluding that it was “not convinced beyond a reasonable doubt that the sexual intercourse on September 12 was done by force and without SPC M’s consent,” id. at 877, the Army Court of Criminal Appeals found the evidence of rape factually insufficient and affirmed the lesser included offense of indecent assault. The court also set aside the finding of guilt on the indecent acts offense and instead affirmed a lesser included offense of a simple disorder in violation of Article 134, UCMJ. After reassessing the sentence, the lower court affirmed only so much of the sentence providing for a dishonorable discharge, confinement for three years, forfeiture of $200 pay per month for three years and reduction to the lowest enlisted grade, E-1. Appellant then petitioned this Court for review.
Subsequent to Appellant’s filing of his petition, the Government filed a certificate for review asking whether the lower court applied the correct legal standard in reviewing and reversing Appellant’s conviction for rape. While Appellant’s petition and the Government’s certificate were under consideration, we specified two additional issues relating to our authority to review the certified question. We subsequently specified a third issue related to the previous two specified questions. The following issues are now before the Court:1
THE GRANTED ISSUE
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY CONVICTING APPELLANT OF THE GREATER OFFENSE OF MALTREATMENT AND ITS LESSER INCLUDED OFFENSE OF A VIOLATION OF A SIMPLE DISORDER BASED ON THE SAME ACTS?
THE CERTIFIED QUESTION
Whether the United States Army Court of Criminal appeals erred when it employed a “reasonable fear of death or grievous bodily injury” standard on the issue of constructive force in contravention of this Court’s holding in United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003).
FIRST SPECIFIED ISSUE
WHETHER THIS COURT HAS JURISDICTION TO ACT WITH RESPECT TO A FINDING SET ASIDE BY A COURT OF CRIMINAL APPEALS AS FACTUALLY INSUFFICIENT?
SECOND SPECIFIED ISSUE
WHETHER A COURT OF CRIMINAL APPEALS’ FINDING OF FACTUAL INSUFFICIENCY PRECLUDES REINSTATEMENT OF THE AFFECTED FINDING OF GUILTY ON DOUBLE JEOPARDY GROUNDS?
THIRD SPECIFIED ISSUE
WHETHER ARTICLE 67(C), UCMJ, WHICH PROVIDES THAT THIS COURT “MAY ACT ONLY WITH RESPECT TO THE FINDINGS AND SENTENCE . . . AS AFFIRMED OR SET ASIDE AS INCORRECT IN LAW BY THE COURT OF CRIMINAL APPEALS”: (1) ALLOWS THIS COURT TO ANSWER A CERTIFIED ISSUE CONCERNING A REVIEW OF LEGAL STANDARDS EMPLOYED BY THE COURT OF CRIMINAL APPEALS IN SETTING ASIDE A SPECIFICATION AS FACTUALLY INSUFFICIENT; AND (2) ALLOWS A CERTIFIED ISSUE TO RESULT IN A REMAND TO THE COURT OF CRIMINAL APPEALS TO REEVALUATE A SPECIFICATION SET ASIDE AS FACTUALLY INSUFFICIENT.
THE SPECIFIED ISSUES
We begin by addressing the specified issues, which together test our authority to review and decide the certified question.
A. Questions of Fact and Law and Article 67, UCMJ
Article 67, UCMJ, statutorily defines this Court’s jurisdiction. The relevant text states:
(a) The Court of Appeals for the Armed Forces shall review the record in –-
. . .
(2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review;
. . .
(c) In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. In a case which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces, that action need be taken only with respect to the issues raised by him. In a case reviewed upon petition of the accused, that action need be taken only with respect to issues specified in the grant of review. The Court of Appeals for the Armed Forces shall take action only with respect to matters of law.
Article 67(a)(2),(c), UCMJ, 10 U.S.C. § 867(a)(2), (c) (emphasis added).
Two propositions relevant to the specified issues are textually plain. First, subsection (a) requires this Court to “review” the record in this case. Second, as stated in the last sentence of subsection (c), this Court’s review is limited to questions of law.
The Judge Advocate General’s certified question asks us to determine whether the lower court applied the correct law in reversing Appellant’s conviction for rape on the ground of factual insufficiency. In this legal context, two jurisdictional questions arise. First, where the Court of Criminal Appeals has set aside a finding on the ground of factual insufficiency, may this Court nonetheless review that decision and address matters of law? Second, and related, does the language underscored in subsection (c) delimit, or curtail, the exercise of this Court’s jurisdiction over a question of law certified by the Judge Advocate General?
One possible reading of the language in subsection (c) of the statute is that because the lower court did not affirm the finding with respect to Appellant’s rape charge, or set it aside as incorrect in law, this Court is without authority to “act.” Under this reading, this Court would be obliged to “review” the Judge Advocate General’s certified question, but we would have no statutory authority to “act.”2
However, at the same time the statute states that “[t]he Court . . . shall take action only with respect to matters of law.” Article 67(c), UCMJ, 10 U.S.C. § 867(c) (emphasis added). As the earlier language can be read narrowly to preclude this Court’s exercise of jurisdiction in cases where courts of criminal appeals do not affirm or set aside the findings as incorrect in law, this later language might be read narrowly to require this Court to take action in all certified cases with respect to matters of law. Further, because the statute does not define the terms “act” or “review,” the language of the statute is ambiguous as to what is intended by a structure that would have this Court review all certified cases, but not act on certain of those cases.
Given this ambiguity we believe it axiomatic that Article 67 must be interpreted in light of the overall jurisdictional concept intended by the Congress, and not through the selective narrow reading of individual sentences within the article. Having determined the necessity of reviewing the statutory purpose, we turn now to the history on which these judgments are based. We will then consider this Court’s longstanding precedent in applying Article 67 in light of the statutory purpose.
During the congressional drafting process of the UCMJ in 1949, both houses issued committee reports accompanying and explaining their respective versions of the new Code. With respect to Article 67, each report contained the following identical language:
The Court of Military Appeals takes action only with respect to matters of law . . . . It may act only with respect to the findings and sentence as approved by the convening authority. If the Board of Review has set aside a finding as against the weight of the evidence this decision cannot be reconsidered by the court. If, on the other hand, the Board has set a case aside because of the improper introduction of evidence or because of other prejudicial error, the Court of Military Appeals may reverse if it finds there has been no such error.
H.R Rep. No. 81-491, at 32 (1949)(emphasis added); S. Rep. No. 81-486, at 29 (1949)(emphasis added) (both reports collected in Index and Legislative History, Uniform Code of Military Justice (1950)). This expression of the committees’ understanding of Article 67 suggests that with respect to findings of factual insufficiency, as long as a Judge Advocate General’s certified question raises a legal issue other than a complaint as to the manner in which the lower court weighed the evidence, this Court shall review that claim. Further, the legislative history indicates that Congress contemplated that this Court and not the lower courts would decide whether a claim presents a question of law or fact, and that with respect to questions of law, this Court would determine whether the lower court engaged in an erroneous application of the law. Thus, in testimony before the House Armed Services Committee, the principal drafter of the UCMJ, Professor Edmund M. Morgan Jr., stated, “They [the Judicial Council3] review questions of law only . . . . We limit the civilian court to the review of questions of law.” Hearings on H.R. 2498 Before a Subcommittee of the House Committee on Armed Services, 81st Cong. 609 (1949) (statement of Prof. Edmund M. Morgan Jr., Chairman of UCMJ drafting committee), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950) (not separately paginated). When asked who would determine the initial question whether what was at issue was indeed a question of law, he explained:
Why the judicial council would. That is, the court of last resort would determine whether it was a question of law or a question of fact . . . . . Under our system, they would not pass on the weight of the evidence in the sense that they would set aside a finding because they thought it was against the weight of the evidence.
If the conclusion is that the lower court has erroneously applied the law, its decision on the finding is not yet final. Under these circumstances, the lower court’s action can best be described as a setting aside of the finding “because of other prejudicial error,” necessitating a remand to the lower court for application of proper legal principles. Once the lower court has complied and again reached a finding of factual insufficiency, there can be no further review of that finding. This scheme of review is not a “reconsideration” of the court’s decision that the finding is against the weight of the evidence. And it is consistent with the precedent of this Court dating to the inception of the UCMJ.
In United States v. Thompson, 2 C.M.A. 460 (1953), a Navy board of review4 had dismissed a finding of guilty to missing movement by neglect. According to the board of review, there was no proof of a causal connection between the accused’s neglect in absenting himself and the missing of the scheduled movement. The relevant question certified by the Judge Advocate General was whether there was sufficient evidence, as a matter of law, to establish a prima-facie case of missing movement through neglect. In other words, the issue was whether the Government was required to prove as one of the elements of the offense that the scheduled movement was the proximate cause of the accused’s unauthorized absence. Notwithstanding the wording of the certified question, the Court suggested that the board’s opinion was unclear as to whether it had reached a conclusion of factual insufficiency or legal insufficiency. The Court began its analysis by noting:
[As] we read the opinion of the board of review, it amounts to a factual determination that there is insufficient evidence to support the findings. If this determination is based solely on an appraisal of the evidence, we shall not overturn it. Our jurisdiction is limited to questions of law and we shall, therefore, review the decision of the board of review only in so far as it purports to delineate the legal elements of the offense under consideration.
It is implicit in the grant of authority found in Article 67 of the Code that a board of review may not permissibly defeat review in this Court by labeling a matter of law, or a mixed holding of law and fact, as a question of fact. To avoid that impasse, we look to the substance of the holding, and its rationale, not to the characterization by the board of review.
or executive directive.5
These precedents along with the
legislative history convince us that it is within this Court’s
review a lower court’s determination of factual insufficiency for
of correct legal principles. At the same
time, this authority is limited to matters of law; we may not reassess
A contrary reading would defeat the overall intent of Article 67
grant this Court jurisdiction to decide matters of law raised by
certified by Judge Advocates General.
Moreover, such a reading would divest Article 67(a)(2)
of its obvious and plain meaning, except in those cases where the Court
Criminal Appeals has affirmed a finding and sentence or decided the
case on the
grounds of legal insufficiency. This view
would also make dispositive the terminology used by the lower courts in
conducting their reviews, under Article 66, UCMJ, 10 U.S.C. § 866
putting beyond reach matters of law in those cases purportedly decided
grounds of factual insufficiency. “Although
a Court of Criminal Appeals has
broad fact-finding power, its application of the law to the facts must
be based on a correct view of the law.”
For these reasons, we conclude Article 67 does not preclude review of questions of law certified by Judge Advocates General where the courts of criminal appeals have set aside a finding on the ground of factual insufficiency. However, such review must be conducted in a manner consistent with the Double Jeopardy Clause.
B. Double Jeopardy
The specified issues also raise the question of whether double jeopardy considerations preclude a remand in the event we answer the certified question in the affirmative. Rephrased, is a service court’s determination that the evidence is factually insufficient on a finding considered an “acquittal” for the purposes of the Double Jeopardy Clause?
Jeopardy Clause of the Constitution states “nor shall any person be
the same offence to be twice put in jeopardy of life or limb.”
The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense . . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
acquittal has been afforded special consideration in the law of double
jeopardy. Thus, a “verdict of acquittal
. . . could not be reviewed, on error or otherwise, without putting [a
defendant] twice in jeopardy, and thereby violating the Constitution.”
jurisprudence distinguishes between appellate review in the wake of a
of guilty and appellate review following a jury or bench trial
States v. Martin Linen Supply Co., 430 U.S. 564 (1977), a
was unable to agree upon a verdict at the defendant corporations’
trial. The district court granted
motions for judgments of acquittal under Fed. R. Crim. P. 29 and the
appealed. The court of appeals held that
because reversal of the acquittals would enable the Government to try
defendants a second time, the Double Jeopardy Clause barred the appeals. Affirming the lower court, the Supreme Court
reasoned that the trial court had acted where the jury had not. It then went on to hold that the Double
Jeopardy Clause bars appeal from an acquittal entered under Fed. R. Crim. P. 29 after a jury mistrial.
recently, in United
States v. Genova, 333 F.3d 750 (7th Cir. 2003)(and
cases cited therein), the court of appeals applied the rationales of
and Martin Linen Supply Co. In Genova,
the jury returned guilty verdicts on two counts of misapplication and
of funds in violation of federal law.
The district court subsequently granted motions for acquittal
R. Crim. P. 29 and the Government appealed.
In reinstating the convictions, the Seventh Circuit said, among
things, that “the Double Jeopardy Clause does not bar a Government
a ruling in favor of the defendant after a guilty verdict has been
entered by the
trier of fact.”
Several principles emerge. First, the Double Jeopardy Clause bars successive trials. Second, the clause does not bar an appeal by the Government following a judge’s entry of a judgment of acquittal when the jury has previously returned a verdict of guilty. However, an acquittal returned by a jury, or by a judge in a bench trial sitting as the trier of fact, is final.
light of the distinct
de novo factual powers of the service courts of criminal appeals, this
precedent does not create an immediate template for the military
context. As a result, this case poses the
whether in the military justice system the decision to set aside a
verdict on factual insufficiency grounds by a service court of criminal
is equivalent to an acquittal at trial for the purposes of the Double
Clause. This Court’s decisions in United
States v. Crider, 22 C.M.A. 108 (1973)[hereinafter
Crider II], and
the accused was convicted of four specifications of premeditated murder. 22 C.M.A. at 108-09. The Court of Military Review approved as
correct in law and fact the lesser included offense of unpremeditated
murder. This Court granted the
appellant’s petition for review and reversed the lower court’s decision
that the members of the reviewing panel should have recused themselves.
Essentially, the Court of Military Review provides a de novo trial on the record at appellate level, with full authority to disbelieve the witnesses, [and] determine issues of fact . . . . We believe such a court’s exercise of its fact-finding powers in determining the degree of guilt to be found on the record is more apposite to the action of a trial court than to that of an appellate body.
In Riley, the appellant was convicted of the unpremeditated murder of her newborn child. 55 M.J. at 186. The Court of Criminal Appeals set aside the conviction of unpremeditated murder on the ground that the evidence was factually insufficient and affirmed a lesser included offense of involuntary manslaughter. This Court reversed, holding that the lower court had affirmed the lesser included offense on a theory not presented to the trier of fact. On remand, the Government argued in the court below that the court was now free to revisit its earlier determination of factual insufficiency on the offense of unpremeditated murder. The lower court disagreed and the Government certified the question whether that court had erred in not revisiting its decision on the unpremeditated murder offense. Concluding that the rationale of Crider II was controlling, this Court held that reinstatement of the conviction of unpremeditated murder was prohibited. Riley, 55 M.J. at 188. This reinforced the holdings in Crider II that an accused should incur no harm by appealing and that absent a certified question on the affected offenses, an accused is entitled to plead double jeopardy against any attempt by the Court of Criminal Appeals to reinstate and affirm the conviction of a greater offense. 22 C.M.A at 111. We then answered the certified question in the negative.
the principles behind the Double Jeopardy Clause and precedent, in our
view a lower
court’s finding of factual insufficiency is not the legal equivalent of
acquittal by the trier of fact at the court-martial level.
For sure, Congress “intended to give an
accused a de novo proceeding on the merits and to empower the
Criminal Appeals to acquit an accused.” Riley,
55 M.J. at 188.
We have also stated “that Congress intended a Court of Criminal
to act as factfinder in an appellate-review capacity and not in the
instance as a trial court.”
that is not to
say the principles behind the Double Jeopardy Clause do not apply. “‘[C]entral to the objective of the
prohibition against successive trials’ is the barrier to ‘affording the
prosecution another opportunity to supply evidence which it failed to
the first proceeding.’” DiFrancesco,
For the reasons stated above, we hold that neither Article 67(c) nor double jeopardy considerations preclude this Court from reviewing the question of law raised by the Government by certification where the members at trial have returned a verdict of guilty.
THE CERTIFIED QUESTION
A. Applicable Law
In military law, rape is “an act of sexual intercourse, by force and without consent.” Article 120, UCMJ. The Manual for Courts-Martial lists the elements of rape as:
(1) That the accused committed an act of sexual intercourse; and
(2) That the act of sexual intercourse was done by force and without consent.
Manual for Courts-Martial,
Although listed within
element, the discussion and case law make clear that force and lack of
are distinct, although related, elements of the offense.
United States v. Simpson, 58 M.J. 368,
377 (C.A.A.F. 2003)(“[F]orce and lack of
separate elements . . . .”). Whether the
elements of the offense are met is based on a totality of the
In plain English, consent generally means voluntary agreement. See, e.g., Merriam-Webster’s Collegiate Dictionary 265 (11th ed. 2003). In discussing rape and carnal knowledge, the MCM amplifies this definition, pointing out that:
The lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent.
MCM, pt. IV, ¶
45.c. (1)(b). Significantly,
measures of resistance” can be verbal, physical or a combination of the
two. In other words, in context, a verbal
manifest the necessary lack of consent for the offense of rape. In such a context, physical resistance is not
required. Cauley, 45 M.J. at 356
finding of lack of consent does not require proof that the witness
resisted her attacker.”). Moreover,
proof of resistance in any form is not a necessary element of the
is the second essential element of rape.
The MCM and case law recognize that force can be
one of two manners: actual force or
constructive force. Actual force is
physical force used to overcome a victim’s lack of consent.
In application, the concepts of actual and constructive force are complex for three reasons. First, Article 120 is antiquated in its approach to sexual offenses. In particular, the article does not reflect the more recent trend for rape statutes to recognize gradations in the offense based on context. See generally Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice 11 (Nat’l Inst. of Military Justice 2001). These statutes incorporate the legal realization that the force used may vary depending on the relationship and familiarity, if any, between perpetrator and victim, but the essence of the offense remains the same -- sexual intercourse against the will of the victim. Because Article 120 is dated, its elements may not easily fit the range of circumstances now generally recognized as “rape,” including date rape, acquaintance rape, statutory rape, as well as stranger-on-stranger rape. As a result, the traditional military rape elements have been applied in contexts for which the elements were not initially contemplated. Case law has evolved to address this reality. See, e.g., United States v. Simpson, 58 M.J. at 368 (drill instructor’s coercive influence over recruits); United States v. Palmer, 33 M.J. at 7 (parental compulsion found to be a form of constructive force); United States v. Henderson, 4 C.M.A. 268 (1954)(concept of constructive force recognized as applicable to military).
Second, application of the concepts of actual and constructive force is complex because the elements of consent and force are often intertwined. For example, these elements are included within the same statutory element, suggesting an intentional substantive link. They also are often closely allied with regard to proof. The same evidence offered on the issue of force, may also serve to prove lack of consent. In this manner for example, evidence of measure(s) of resistance might prove both the elements of force and lack of consent.
Finally, these concepts are complex because actual and constructive force address bodily harm, but retain subtle but distinct differences in the standard of measurement required to demonstrate each. This is succinctly and clearly stated in Simpson:
Fear of great bodily harm is used in the MCM with respect to inferring consent on the element of lack of consent. With respect to the use of constructive force to prove the element of force, however, we have held that it is sufficient if the Government proves that the abuse of authority placed the victim in fear of physical injury.
58 M.J. at 378-79 (citations omitted). Moreover, in assessing the totality of the circumstances, a court may well address both the actual and constructive force concepts, and then apply the same factual evidence to both, thus weaving facts with legal standards.
B. The Law Applied in this Case
With this backdrop, we turn now to the lower court’s treatment of force and consent. The Government argues that the court applied the wrong legal standard to its factual review of the evidence. In particular, the Government argues that the court applied the more rigorous “grievous bodily harm” measure in finding an absence of constructive force, when Simpson states that the standard for constructive force is “physical injury.” As evidence of this error, the Government focuses almost exclusively on the substance of the following sentence from the lower court opinion, highlighted here within its parent paragraph:
On September 12, SPC M again initially resisted appellant’s sexual advances. She wrestled with him and told him “no.” Appellant was unable to undo her trousers and belt. Appellant never threatened bodily harm to SPC M, nor did he expressly threaten her military career. Specialist M did not have a reasonable fear of death or grievous bodily injury, nor did she have a reasonable basis for her conclusion that resistance would be futile. When she saw multiple condoms in his office, she was not too intimidated to challenge his intentions toward other women. As such, we find that SPC M ceased to resist and then engaged in sexual intercourse with appellant. We may infer consent with respect to a rape charge unless SPC M made her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances.
Leak, 58 M.J. at 876 (citations, footnotes, and internal quotation marks omitted) (emphasis added).
Responding, Appellant argues that this Court does not have jurisdiction to answer this question, but that in any event, the lower court has applied the correct standard to its legal review. Therefore, under either argument the lower court’s decision to set aside Appellant’s conviction for rape is final.
We conclude the Court of Criminal Appeals has included within its opinion the essential elements of rape, and has correctly disaggregated the concepts of actual and constructive force. It also applied the correct legal measure to both concepts. The language cited by the Government is addressed to the element of consent and not the element of force.
To start, the sentence appears within a paragraph discussing consent and not the element of force. Moreover, breaking the sentence down into its constituent parts, it is evident that the first and second clauses of the sentence are intended to address the second and first clauses of the MCM’s text concerning inferred consent, which states:
Consent, however, may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in penetration will suffice.
MCM, pt. IV, ¶ 45.c. (1)(b)(emphasis added).
Thus, the lower court did not confuse the requisite standard of physical apprehension addressed to the element of consent with the lesser apprehension of physical injury necessary to demonstrate constructive force.
However, we are less certain of the lower court’s application of the law to the facts with respect to this statement:
we find that SPC M ceased to resist and then engaged in sexual intercourse with appellant. We may infer consent with respect to a rape charge unless SPC M made her lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances.
Leak, 58 M.J. at 876 (citations and internal quotation marks omitted).
On the one hand, this language might be read as the sequential evaluation of resistance as a measure of lack of consent. The court, having found in the preceding sentences that resistance would not have been futile, and that resistance was not overcome with the threat of death or great bodily harm, had already found by implication that SPC M had not made her lack of consent reasonably manifest.
the other hand,
the court does not expressly find that the putative victim did not
lack of consent reasonably manifest, before addressing the question
inferred consent. The court found “SPC
M’s testimony to be credible with respect to her unrebutted
descriptions of her
initial physical and oral manifestations of resistance and the eventual
occurrence of sexual activity with appellant.”
Because this text is susceptible to two interpretations, one correct in law and the other not, we conclude that a remand for clarification is necessary. We are conscious that few appellate opinions can survive the degree of line diagramming asked by the Government, and now by this Court. At the same time, we are not prepared to read between the lines of the lower court’s opinion and infer application of a correct standard of law given the importance of this matter of law to this case, and to the law generally. Nor do we have authority to find any facts necessary to reach such a conclusion ourselves. However, on remand for clarification the factual findings made by the Court of Criminal Appeals during its Article 66 review are final and may not be reevaluated. See generally Riley, 55 M.J. at 185.
THE GRANTED ISSUE
events of September 21, the Court of Criminal Appeals found that the
intercourse that occurred on that date “was not open and notorious and
was not ‘indecent.’” Leak, 58 M.J. at 878. Accordingly,
the court determined the evidence was legally insufficient to sustain a
conviction for indecent acts. Instead,
the court affirmed the lesser offense of a simple disorder under
for “sexual activity of [a noncommissioned officer] cadre with an
soldier in training.”
accused was convicted of maltreating SPC M under Article 93 “by
sexual acts with her.” The “certain act”8
under Article 134 found by the lower court as constituting the disorder
“sexual activity” with SPC M. Leak,
58 M.J. at 878.
Since “every enumerated offense under the UCMJ is per se
prejudicial to good order and discipline,” the elements of the disorder
affirmed under Article 134 are wholly contained in the maltreatment
it was charged. United States v.
Fuller, 54 M.J. 107, 112 (C.A.A.F. 2000)(sexual
relations with subordinate found as lesser included offense of
maltreatment). Thus, Appellant stands
convicted of a greater
and lesser offense based on the same conduct.
The granted issue is answered in the affirmative. The conviction for a simple disorder affirmed by the Court of Criminal Appeals is dismissed. The certified question and the second specified issue are answered in the negative. Finally, the first and third specified issues are answered in the affirmative. The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army with instructions to the court to clarify its decision in accordance with the principles set forth in this opinion.
oral argument in this case at
2 Neither the statutory language nor the legislative history of Article 67 define the term “act.” However, we are mindful that Congress has chosen distinct terms to describe this Court’s mandatory “review” of cases certified by the Judge Advocates General and the limitation in subsection (c) with respect to this Court “acting” upon cases that the courts of criminal appeals have not affirmed or set aside as incorrect in law. Read in a manner to give both sentences their plain meaning, we believe the better view is that subsection (c) precludes this Court from taking final action on a case by either affirming or reversing the findings in a case that does not meet the criteria of subsection (c), but it does not preclude this Court from reviewing a certified question of law.
5 Solely for the purpose of establishing that Bunting remains good law, we note that it was cited by this Court as recently as 1998 for the proposition that the “board of review may not exercise its factfinding power in a manner contrary to what ‘all reasonable men’ would conclude.” United States v. Townsend, 49 M.J. 175, 180 n.11 (C.A.A.F. 1998) (citing Bunting, 6 C.M.A. at 175).
6 To the extent our judgment today is perceived as encouraging the Government to certify questions of law in cases where courts of criminal appeals have ruled against the Government on the ground of factual insufficiency, we note that this door has been open since the inception of the UCMJ and expressly so since Thompson was decided in 1953. The Judge Advocates General have not used their certification authority in such a manner. Were they to do so, this Court would be obliged to review all such cases, but consistent with Article 67, could not act with respect to cases it found presented questions of fact and not law. Where the issue raised was clearly one of fact, and not law, nothing in Article 67 would preclude this Court from reviewing a case in a succinct manner.
8 Under the MCM, if conduct violating Article 134 “is punished as a disorder or neglect to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces, “one of the elements to be proved is “[t]hat the accused did or failed to do certain acts.” MCM, pt. IV, ¶ 60.a. (1).
GIERKE, Chief Judge (concurring in part and dissenting in part):
Government asks us to reinstate a finding of guilty that the lower
as factually insufficient. In my view, the
correct answer to this request is the same as the punch line of the old
I. Article 67(c)
This is a Court of limited jurisdiction. As the Supreme Court emphasized in Clinton v. Goldsmith, “CAAF’s independent statutory jurisdiction is narrowly circumscribed.”1 We are an Article I court.2 “Article I courts are courts of special jurisdiction created by Congress that cannot be given the plenary powers of Article III courts. The authority of the Article I court is not only circumscribed by the [C]onstitution, but limited as well by the powers given to it by Congress.”3 Unless Congress has given us the authority to act, we may not do so.
Congress established our jurisdiction and powers in Article 67 of the Uniform Code of Military Justice (UCMJ).4 Article 67(c) provides, “In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.”5 This language conveys a clear and plain meaning: in a case where a Court of Criminal Appeals sets aside a finding on factual insufficiency grounds, rather than on legal grounds, we have no power to “act” on that finding. Such a ruling of the Court of Criminal Appeals is final.
That plain language meaning is so clear that the Army Government Appellate Division has recognized it in its brief to this Court. In its response to the third specified issue, the Government acknowledges that “[c]onsideration of the granted issue” falls “outside the specific terms of Article 67.” That acknowledgement -- which reflects a correct reading of Article 67 -- is dispositive of this case, because as an Article I court we have no power to act outside the specific terms of Article 67.6
As the Supreme Court has observed, “It is well established that when the statute’s language is plain, the sole function of the courts -- at least where the disposition required by the text is not absurd -- is to enforce it according to its terms.”7 So the plain meaning of the Article 67(c) -- that we are without power to act on a finding that a Court of Criminal Appeals has set aside as factually insufficient -- should prevail.
The majority opinion acknowledges this as a possible interpretation of Article 67(c),8 yet declines to adopt it. The majority offers two bases for rejecting what I view as the plain-meaning interpretation. First, the majority contends that Article 67(c)’s provision that this Court “shall take action only with respect to matters of law” “might be read narrowly to require this Court to take action in all certified cases with respect to matters of law.”9 But that language appears to be a limitation on our power to act, not an express command that we take certain action. Acting with respect to a matter of fact would violate that provision; failing to act on a matter of law would not.
The majority also argues that because Article 67 “does not define the terms ‘act’ or ‘review,’ the language of the statute is ambiguous as to what is intended by a structure that would have this Court review all certified cases, but not act on certain of those cases.”10
I see no ambiguity. Congress clearly intended our Article 67(c) power to act on a case to be narrower than our Article 67(a) responsibility to review certain cases. Article 67(a) provides that this Court “shall review the record in . . . (2) all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces to review.”11 Article 67(c) provides that “[i]n any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence . . . as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.”12 Congress established the authority to act as a subset of the authority to review. This Court must review the record when a Judge Advocate General certifies an issue, but the result of that review may be to say that we have no statutory authority to act. Such an interpretation is consistent with the majority’s own analysis of the terms “review” and “act.”13
Additionally, the majority’s own construction of Article 67(c) would not avoid this perceived ambiguity. For example, hypothesize that a Court of Criminal Appeals set aside a finding of guilty as factually insufficient and that the relevant Judge Advocate General then certified to this Court an issue expressly asking whether the evidence was factually sufficient. Under the plain meaning of Article 67(c), we would be required to “review” the record in that case. But the majority would agree that we would have no power to “act” in that case.14 So under either the majority’s interpretation or my interpretation, Article 67(c) requires this Court to “review all certified cases, but not act on certain of those cases.”15 The only question that divides us is which cases fall within the latter prohibition. I believe that the plain language of Article 67(c) answers that question: we may not “act” with respect to the portion of a finding that a Court of Criminal Appeals has set aside as factually insufficient.
Because the statute’s meaning is plain, we need not -- and should not -- go beyond the statute’s text to interpret it. As Judge Easterbrook has written for the Seventh Circuit, “legislative history . . . may be used only when there is a genuine ambiguity in the statute.”16 But if it were proper to consult the UCMJ’s legislative history, such consultation would support the conclusion that Congress did not intend to allow this Court to act on a finding that a Court of Criminal Appeals has set aside as factually insufficient.
This meaning is
reflected by the House and Senate Armed Services Committees’ reports on
draft UCMJ. Those reports are
particularly significant because, as the Supreme Court has noted, a
represents the considered and collective understanding of those
in drafting and studying proposed legislation.”17 Both reports observed, “If
the Board of Review has set aside a finding as against the weight of
evidence this decision cannot be reconsidered by the [C]ourt [of
The reports contrast such a ruling with one in which a board of
“has set a case aside because of the improper introduction of evidence
because of other prejudicial error.”19 Thus, the Armed Services
of Article 67(c) emphasized the basis on which the board of review
ruled. If that basis was factual
the board of review’s ruling was final.
If, on the other hand, the basis was some form of legal error,
issue could be certified to this Court for further review.
In this case, the basis of the
The majority, however, finds an “ambiguity in statutory intent” and posits that it is “axiomatic that Article 67 must be interpreted in light of the overall jurisdictional concept intended by the Congress, and not through the selective narrow reading of individual sentences within the article.”20 But concluding that Congress precluded this Court from reviving a finding that a Court of Criminal Appeals set aside as factually insufficient is not a “narrow reading” of Article 67(c); it is the plain meaning of Article 67(c). In any event, courts are supposed to read Article I courts’ jurisdictional statutes narrowly. The majority’s conceptual approach appears to violate the general principle of statutory construction that “jurisdiction of courts is neither granted nor assumed by implication.”21 That maxim is particularly apt in the case of an Article I court, whose jurisdiction “must be strictly construed.”22
The majority emphasizes that this Court retains the authority to determine whether a decision of a Court of Criminal Appeals is a legal or factual ruling.23 I agree. But as the majority itself acknowledges, “the Army Court of Criminal Appeals found the evidence of rape factually insufficient and affirmed the lesser included offense of indecent assault.”24 So this is not a case where a Court of Criminal Appeals ruled on a legal matter but attempted to insulate its ruling from further review by pretending that it had, instead, ruled on a factual matter. The majority has exercised this Court’s authority to distinguish legal from factual rulings by concluding that the lower court’s decision was based on factual insufficiency. This conclusion places this case outside our Article 67(c) authority to act.
In discussing the
legislative history that indicates this Court retains the discretion to
whether the lower court’s ruling was a factual or legal decision, the
states that if we conclude “that the lower court has erroneously
law,” then the lower court’s “decision on the finding is not yet final.”25 This puts the cart
before the horse. Under the majority’s
interpretation, we must determine the merits of the case before making
view as the threshold decision of whether we have the power to act on
case. In this case, we still do
not know whether the lower court erroneously applied the law because
concludes that the
The majority ably demonstrates that its interpretation of Article 67(c) finds support in this Court’s early precedent.27 But because this precedent’s approach conflicts with Article 67(c)’s plain meaning, I would give effect to the congressional limitation on our power. Additionally that half-century old precedent28 was decided without the benefit of the Supreme Court’s recent emphasis on the limitations of this Court’s jurisdiction.29
The majority concludes its analysis of this issue by holding that “Article 67 does not preclude review of questions of law certified by Judge Advocates General where the courts of criminal appeals have set aside a finding on the ground of factual insufficiency.”30 That holding is absolutely correct. This Court does have power to review such issues. As an Article I court, we are not bound by any Article III prohibition against “answer[ing] certified questions which would not or did not alter the position of the parties.”31 We have, on occasion, issued such opinions.32 What this Court lacks is any statutory authority to act in such instances.
So this Court is free
to address whether the
II. Double Jeopardy
Nor do I join in the portion of the majority opinion addressing the double jeopardy implications of reviving Charge II, Specification 1. Under the doctrine of constitutional avoidance, when “‘a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.’”33 In this case, construing Article 67(c) to deprive this Court of authority to revive Charge II, Specification 1 would avoid having to address the double jeopardy issue. Because we can -- and should -- adopt that construction, I would not reach the double jeopardy question.
2 Article 141, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 941 (2000) (“There is a court of record known as the United States Court of Appeals for the Armed Forces. The court is established under article I of the Constitution.”).
Government attempts to escape
from the inevitable consequences of its acknowledgement by asking this
exercise “general supervisory power over the administration of military
justice,” citing United States v. Jackson, 5 M.J. 223, 225
1978). The reasoning of the Solicitor
General’s brief for the
“[S]upervisory authority” is not a basis
for jurisdiction, but instead is a basis for a superior court to
governing inferior courts, in the course of deciding cases that are
superior court’s jurisdiction. As this
Court has explained, a court’s “supervisory authority” permits the
in some circumstances to “formulate procedural rules not specifically
by the Constitution or the Congress [. . .] to implement a remedy for
of recognized rights, [. . .] to preserve judicial integrity [. . .],
and [. .
.] to deter illegal conduct.”
Brief for Petitioners, Clinton v. Goldsmith, 526
28 The majority also cites the more recent case of United States v. Weatherspoon, 49 M.J. 209 (C.A.A.F. 1998). See Leak, 61 M.J. at __ (17). But in Weatherspoon, the Air Force Court of Criminal Appeals had affirmed the findings. See 49 M.J. at 210. So Weatherspoon says nothing about whether this Court may act on a finding that the Court of Criminal Appeals set aside as factually insufficient.