U.S. v. Leak, 61 M.J. 234

First Principles: Constitutional Matters: Double Jeopardy

1. considering the principles behind the Double Jeopardy Clause and precedent, a finding of factual insufficiency by a court of criminal appeals is not the legal equivalent of an acquittal by the trier of fact at the court-martial level
2. Congress intended a court of criminal appeals to act as factfinder in an appellate-review capacity and not in the first instance as a trial court; a court of criminal appeals is more akin to a district court entering its judgment of acquittal pursuant to Fed. R. Crim. P. 29 than it is to a trial jury; in such a case, under the double jeopardy clause the government may appeal the granting of a motion for judgment of acquittal only if there would be no necessity for another trial, i.e., only where the jury has returned a verdict of guilty; in the military justice system, at the time a court of criminal appeals makes a determination of factual insufficiency, a guilty finding will necessarily have been returned by a court-martial
3. a finding of factual insufficiency by a court of criminal appeals is not the legal equivalent of an acquittal by the trier of fact at the court-martial level for purposes of the Double Jeopardy Clause; neither Article 67 nor double jeopardy considerations preclude this Court from reviewing questions of law raised by the government by certification where the members at trial have returned a finding of guilty but that finding has been set aside by the court of criminal appeals for factual insufficiency

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. in military law, rape is an act of sexual intercourse, by force and without consent; although listed within the same element, force and lack of consent are distinct, although related, elements of the offense
2. the lack of consent required for rape 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; such measures of resistance can be verbal, physical, or a combination of the two; in other words, in context, a verbal “no” can manifest the necessary lack of consent for the offense of rape; in such a context, physical resistance is not required; a finding of lack of consent does not require proof that the witness physically resisted her attacker; moreover, proof of resistance in any form is not a necessary element of the offense of rape; it may, however, be probative on the issue of consent; further, verbal or physical measures of resistance are not required 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 lack of mental or physical faculties; in such a circumstance, there is no consent
3. the force required for rape can be accomplished in one of two manners: actual force or constructive force; actual force is physical force used to overcome a victim’s lack of consent; actual force requires more than the incidental force involved in penetration; constructive force may consist of expressed or implied threats of bodily harm; constructive force may be shown by proof of a coercive atmosphere that includes threats to injure others or statements that resistance would be futile
4. as a matter of law, depending on the circumstances, a victim need not physically resist to manifest lack of consent and once lack of consent has been reasonably manifested, one need not continually manifest that lack of consent through resistance

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. considering the principles behind the Double Jeopardy Clause and precedent, a finding of factual insufficiency by a court of criminal appeals is not the legal equivalent of an acquittal by the trier of fact at the court-martial level
2. Congress intended a court of criminal appeals to act as factfinder in an appellate-review capacity and not in the first instance as a trial court; a court of criminal appeals is more akin to a district court entering its judgment of acquittal pursuant to Fed. R. Crim P. 29 than it is to a trial jury; in such a case, under the double jeopardy clause the government may appeal the granting of a motion for judgment of acquittal only if there would be no necessity for another trial, i.e., only where the jury has returned a verdict of guilty; in the military justice system, at the time a court of criminal appeals makes a determination of factual insufficiency, a guilty finding will necessarily have been returned by a court-martial

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. it is within this Court’s authority under Article 67, UCMJ, to review a lower court’s determination of factual insufficiency for application of correct legal principles; this authority is limited to matters of law, and this Court may not reassess a lower court’s factfinding
2. although a Court of Criminal Appeals has broad factfinding power, its application of the law to the facts must still be based on a correct view of the law; Article 67 does not preclude review by this Court 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
3. exercise of this Court’s authority under Article 67 to review certified questions of law does not permit supplementation of the factual record by either side; the lower court’s review having become final with the assumption of this Court’s jurisdiction, the facts, as opposed to the application of the law to those facts, are set
4. in reviewing questions of law certified by the government under Article 67, this Court may not supplant the lower court’s evaluation of the weight of the evidence with its own; that would indeed be acting beyond its statutory authority
5. a finding of factual insufficiency by a court of criminal appeals is not the legal equivalent of an acquittal by the trier of fact at the court-martial level for purposes of the Double Jeopardy Clause; neither Article 67(c) nor double jeopardy considerations preclude this Court from reviewing questions of law raised by the government by certification where the members at trial have returned a finding of guilty but that finding has been set aside by the court of criminal appeals for factual insufficiency

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether the elements of an offense are met is based on a totality of the circumstances

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. offenses are multiplicious if one is a lesser-included offense of the other
2. where accused was convicted of maltreatment under Article 93 for engaging in sexual acts with a person subject to his orders and its lesser offense of a simple disorder under Article 134 for the same conduct, the disorder offense must be dismissed as multiplicious for findings

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. where accused was convicted of maltreatment under Article 93 for engaging in sexual acts with a person subject to his orders and its lesser offense of a simple disorder under Article 134 for the same conduct, the disorder offense must be dismissed as multiplicious for findings