U.S. v. English, 79 M.J. 116

First Principles: Constitutional Matters: Due Process

1. expanding the scope of a specification on appeal beyond that which was presented to the trier of fact is akin to the violation of due process that occurs when an appellate court affirms a conviction based on a different legal theory than was presented at trial
2. in this case, given the government’s decision to allege a specific type of unlawful force, it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact
3. in this case, the CCA, through exception to the specification on appeal, affirmed a charge with a broader factual basis than the theory the government originally charged and proceeded on at trial; such post hoc modification is an error of constitutional magnitude that offends the most basic notions of due process

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Pre-2019 offenses › (a) Rape

1. while a violation of Article 120, UCMJ, based on the theory of criminality charged by the government required “unlawful force,” Article 120(a)(1), UCMJ, the government was not required to draft the specification alleging a particular type of force, i.e., that appellant committed this particular offense by “grabbing her head with his hands;” but when it narrowed the scope of the charged offense by alleging the particular type of force, it was required to prove the facts as alleged; once that charging decision was made, it was bound to abide by it

Trial Stages: Pretrial: Charges and Specifications

1. it is the government’s responsibility, by virtue of its control of the charge sheet, to place the accused on notice of the offense he must defend against

Trial Stages: Merits: Findings

1. 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; where a variance exists, RCM 918(a)(1) permits a factfinder to enter findings of guilty with exceptions and substitutions, so long as the exceptions and substitutions are not used to substantially change the nature of the offense
2. exceptions and substitutions pursuant to RCM 918 may only be made by the factfinder at the findings portion of the trial

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in performing its review under Article 66(c), UCMJ, a court of criminal appeals may narrow the scope of an appellant’s conviction to that conduct it deems legally and factually sufficient
2. pursuant to Article 59(b), UCMJ, a court of criminal appeals may affirm a lesser included offense
3. a court of criminal appeals cannot find the unlawful force as alleged in a rape specification factually insufficient, change the scope of the offense from the specific force alleged and litigated at the court-martial to a generic and thus broader charge that was not presented at trial, and still affirm the finding based on a theory of criminality not presented at trial; such action both exceeds the court’s appellate authority and violates appellant’s constitutional due process rights
4. exceptions and substitutions under RCM 918(a) may not be made at the appellate level, and reviewing courts may not revise the basis on which an appellant is convicted simply because the same result would likely obtain on retrial
5. although a CCA has broad discretion when it reviews the record of trial under Article 66, UCMJ, that discretion is not unlimited; Article 66(c), UCMJ, requires a service court to conduct a plenary review of the record and affirm so much of the findings and sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; relatedly, Article 59(b), UCMJ, grants a reviewing court the discretion to affirm, instead, so much of the finding as includes a lesser included offense; but there is no authority, statutory or otherwise, that permits a CCA to except language from a specification in such a way that creates a broader or different offense than the offense charged at trial
6. when a CCA narrows the scope of language in a specification to affirm only so much as is correct in law and fact rather than broadening the scope of the language, such a change does not run afoul of due process concerns
7. expanding the scope of a specification on appeal beyond that which was presented to the trier of fact is akin to the violation of due process that occurs when an appellate court affirms a conviction based on a different legal theory than was presented at trial
8. in this case, given the government’s decision to allege a specific type of unlawful force, it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact
9. in this case, the CCA, through exception to the specification on appeal, affirmed a charge with a broader factual basis than the theory the government originally charged and proceeded on at trial; such post hoc modification is an error of constitutional magnitude that offends the most basic notions of due process

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

1. in performing its review under Article 66(c), UCMJ, a court of criminal appeals may narrow the scope of an appellant’s conviction to that conduct it deems legally and factually sufficient
2. a court of criminal appeals cannot find the specific unlawful force as alleged in a rape specification factually insufficient, change the scope of the offense from the specific force alleged and litigated at the court-martial to a generic and thus broader charge that was not presented at trial, and still affirm the finding based on a theory of criminality not presented at trial; such action both exceeds the court’s appellate authority and violates appellant’s constitutional due process rights
3. exceptions and substitutions under RCM 918(a) may not be made at the appellate level, and reviewing courts may not revise the basis on which an appellant is convicted simply because the same result would likely obtain on retrial
4. although a CCA has broad discretion when it reviews the record of trial under Article 66, UCMJ, that discretion is not unlimited; Article 66(c), UCMJ, requires a service court to conduct a plenary review of the record and affirm so much of the findings and sentence as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; relatedly, Article 59(b), UCMJ, grants a reviewing court the discretion to affirm, instead, so much of the finding as includes a lesser included offense; but there is no authority, statutory or otherwise, that permits a CCA to except language from a specification in such a way that creates a broader or different offense than the offense charged at trial
5. when conducting a review for factual sufficiency, a CCA considers whether, after weighing the evidence in the record of trial, it is convinced of the accused’s guilt beyond a reasonable doubt
6. in this case, the CCA found that the rape victim’s version of the events credible but determined that her testimony did not support a conviction for a sexual act committed by the unlawful force of appellant grabbing the victim’s head with his hands but rather by a broader, generic unlawful force; by finding the evidence did not support the facts as charged, the CCA effectively concluded that appellant was not guilty of the specification; the CCA had two options: (1) set aside the findings as to rape specification because the finding was not correct in fact; or (2) affirm a lesser included offense, Article 59(b), UCMJ; what the CCA could not do was strike the charged language regarding the specific unlawful force and affirm the rape specification simply because there was sufficient evidence to prove appellant committed the sexual act by unlawful force; to permit the CCA’s revision of the charge sheet in this case would convict appellant, on appeal, of an offense met by a more expansive (and undefined) set of facts than those charged and litigated at trial; while Article 66, UCMJ, provides extensive powers of appellate review to service courts of criminal appeal, it does not permit after-the-fact revisions to the charge sheet that sweep more broadly than what was alleged, and what an appellant was convicted of, at trial
7. when a CCA narrows the scope of language in a specification to affirm only so much as is correct in law and fact rather than broadening the scope of the language, such a change does not run afoul of due process concerns
8. expanding the scope of a specification on appeal beyond that which was presented to the trier of fact is akin to the violation of due process that occurs when an appellate court affirms a conviction based on a different legal theory than was presented at trial
9. in this case, given the government’s decision to allege a specific type of unlawful force, it is a fundamental tenet of due process that an appellate court may not affirm a conviction based on a more generalized and generic theory of force not submitted to the trier of fact
10. in this case, the CCA, through exception to the specification on appeal, affirmed a charge with a broader factual basis than the theory the government originally charged and proceeded on at trial; such post hoc modification is an error of constitutional magnitude that offends the most basic notions of due process

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

1. exceptions and substitutions under RCM 918(a) may not be made at the appellate level, and reviewing courts may not revise the basis on which an appellant is convicted simply because the same result would likely obtain on retrial
2. the scope of an appellate court’s authority is a legal question that a superior appellate court reviews de novo

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

1. the scope of an appellate court’s authority is a legal question that a superior appellate court reviews de novo