U.S. v. Stewart, 71 M.J. 38

First Principles: Constitutional Matters: Double Jeopardy

1. among other protections, the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal; this principle prohibits a reviewing court from rehearing any incidents for which the accused was found not guilty; consistent with this double jeopardy principle, the CCA may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial
2. in this case, the government initially charged appellant with one specification of aggravated sexual assault for engaging in a sexual act with a person “who was substantially incapacitated or substantially incapable of declining participation in the sexual act” in violation of Article 120(c)(2), UCMJ; the military judge severed the sole specification into two separate specifications which were identical except that Specification 1 alleged that the victim was “substantially incapacitated” and Specification 2 alleged that the victim was “substantially incapable of declining participation in the sexual act;” before deliberations, the military judge instructed the members as to the elements of each offense and the definitions of the terms applicable to each offense; when he defined the terms “substantially incapacitated” and “substantially incapable,” the military judge defined them in exactly the same manner; hence, the members were confronted with two offenses that, as instructed, alleged exactly the same offense; as a result, the military judge created the framework for a potential double jeopardy violation; this potential was further crystallized by the procedural instructions that the military judge subsequently provided the members to assist them in reaching their findings when he told them to reach findings on Specification 1 before considering Specification 2; as a result, appellant was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense; even if the members did not first make a decision on Specification 1 before considering Specification 2, as a result of the military judge’s instructions, they were placed in the untenable position of finding appellant both guilty and not guilty of the same offense; under the unique circumstances of this case, the principles underpinning the Double Jeopardy Clause made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found appellant not guilty of in Specification 1; the CCA’s holding to the contrary was error

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (c) Aggravated Sexual Assault

1. there may exist an abstract distinction between “substantially incapacitated” and “substantially incapable,” but whatever distinction exists between the terms, the distinction is rendered meaningless when the military judge defines them as the same
2. in this case, the government initially charged appellant with one specification of aggravated sexual assault for engaging in a sexual act with a person “who was substantially incapacitated or substantially incapable of declining participation in the sexual act” in violation of Article 120(c)(2), UCMJ; the military judge severed the sole specification into two separate specifications which were identical except that Specification 1 alleged that the victim was “substantially incapacitated” and Specification 2 alleged that the victim was “substantially incapable of declining participation in the sexual act;” before deliberations, the military judge instructed the members as to the elements of each offense and the definitions of the terms applicable to each offense; when he defined the terms “substantially incapacitated” and “substantially incapable,” the military judge defined them in exactly the same manner; hence the members were confronted with two offenses that, as instructed, alleged exactly the same offense; as a result, the military judge created the framework for a potential double jeopardy violation; this potential was further crystallized by the procedural instructions that the military judge subsequently provided the members to assist them in reaching their findings when he told them to reach findings on Specification 1 before considering Specification 2; as a result, appellant was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense; even if the members did not first make a decision on Specification 1 before considering Specification 2, as a result of the military judge’s instructions, they were placed in the untenable position of finding appellant both guilty and not guilty of the same offense; under the unique circumstances of this case, the principles underpinning the Double Jeopardy Clause made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found appellant not guilty of in Specification 1; the CCA’s holding to the contrary was error

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

1. among other protections, the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal; this principle prohibits a reviewing court from rehearing any incidents for which the accused was found not guilty; consistent with this double jeopardy principle, the CCA may not conduct a factual sufficiency review when the findings are ambiguous because such action creates the possibility that the court would affirm a finding of guilt based on an incident of which the appellant had been acquitted by the factfinder at trial
2. in this case, the government initially charged appellant with one specification of aggravated sexual assault for engaging in a sexual act with a person “who was substantially incapacitated or substantially incapable of declining participation in the sexual act” in violation of Article 120(c)(2), UCMJ; the military judge severed the sole specification into two separate specifications which were identical except that Specification 1 alleged that the victim was “substantially incapacitated” and Specification 2 alleged that the victim was “substantially incapable of declining participation in the sexual act;” before deliberations, the military judge instructed the members as to the elements of each offense and the definitions of the terms applicable to each offense; when he defined the terms “substantially incapacitated” and “substantially incapable,” the military judge defined them in exactly the same manner; hence, the members were confronted with two offenses that, as instructed, alleged exactly the same offense; as a result, the military judge created the framework for a potential double jeopardy violation; this potential was further crystallized by the procedural instructions that the military judge subsequently provided the members to assist them in reaching their findings when he told them to reach findings on Specification 1 before considering Specification 2; as a result, appellant was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense; even if the members did not first make a decision on Specification 1 before considering Specification 2, as a result of the military judge’s instructions, they were placed in the untenable position of finding appellant both guilty and not guilty of the same offense; under the unique circumstances of this case, the principles underpinning the Double Jeopardy Clause made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found appellant not guilty of in Specification 1; the CCA’s holding to the contrary was error

Trial Stages: Appeals: Invited Error / Open Door

1. although appellant had made a motion for appropriate relief based on an alleged duplicitous pleading (i.e., the victim “was substantially incapacitated or substantially incapable of declining participation in the sexual act”) and the judge severed the specification into two specifications alleging alternative theories of criminal liability, one alleging that the victim was “substantially incapacitated,” and the other alleging that the victim was “substantially incapable of declining participation in the sexual act,” this motion did not invite the error that caused the CCA to impermissibly affirm a finding of guilty of aggravated sexual assault based on conduct for which members had found him not guilty; the problem was not whether the decision to sever the charged specification into two specifications was proper, but rather with the military judge’s subsequent instructions to the members which defined the terms with the same definition and rendered the distinction between the terms meaningless

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

1. absent evidence to the contrary, an appellate court may presume that members follow a military judge’s instructions