United States v. Leak , 2005 CAAF LEXIS 785 ( 2005 )

United States, Appellee and Cross-Appellant
v.
Ray T. LEAK, Staff Sergeant
U.S. Army, Appellant and Cross-Appellee
Nos. 03-0647 and 04-5001
Crim. App. No. 20000356
United States Court of Appeals for the Armed Forces
Argued October 6, 2004
Decided July 21, 2005
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.
Counsel
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 Edward E. Wiggers
(argued); Colonel Lauren B. Leeker, Colonel Steven T. Salata,
Lieutenant Colonel Margaret B. Baines, Lieutenant Colonel Mark
L. Johnson, Major Natalie A. Kolb, and Captain Mark J. Hamel (on
brief).
Military Judge: Donna M. Wright
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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.
FACTUAL BACKGROUND
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:
Specialist (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 attendance 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 five 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 71 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 NCO Academy. However, he was not a member of SPC
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M’s platoon; he was not her SGL or instructor. He did
not rate her. On all three occasions, while appellant
and SPC M were wearing battle dress uniforms,
appellant initiated sexual activity with SPC M in the
third floor SGL office during breaks between SPC M’s
classes.
10 September Offenses
Before 10 September 1999, appellant went out of
his way to engage SPC M in personal conversations.
During this time period, SPC M complained to appellant
that her roommate was spreading a rumor that she was
fraternizing with another student. Specialist M asked
for appellant’s help with her roommate. Appellant
responded that he could “get anyone kicked out” of
PLDC, and SPC M assumed that appellant would have her
roommate dismissed from the course. However, her
roommate was not dismissed from the course.
Appellant used two offices at the NCO Academy,
one located on the first floor and one on the third
floor. The first time appellant asked SPC M to go to
the third floor SGL office, she said “no.” Later when
he asked her to go there, she agreed because she did
not “feel like [she] had a choice.” Once in the third
floor SGL office, appellant asked SPC M what her
intentions were toward him. She asked what he meant;
appellant repeated the same question. They went near
a couch. He put his arms around her, pulled her
close, and kissed her. She put her hands on his chest
to “put space between [them]” and leaned back.
Appellant then said he wanted to have sex with her. He
held SPC M’s wrist and started “groping” her and tried
to undo her pants and belt buckle. Specialist M told
him “no” and said, “I know you don’t think you’re
going to get me that easily.” She “wrestled” with
appellant, preventing him from removing her trousers.
This testimony was the basis for appellant’s
conviction of one specification each of maltreatment,
indecent assault, and solicitation to commit adultery.
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
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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.
After this first incident on 10 September 1999,
SPC M “acted like nothing happened” and “blew it off.”
She still smiled at appellant and was courteous to
him.
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.
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Specialist M testified that she let appellant have sex
with her because she was worried that appellant might
dismiss her from PLDC for having a bad attitude given
that she already had trouble with her roommate.
Appellant was found guilty of one specification each
of maltreatment, rape, and adultery for his conduct on
12 September 1999.
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.
United States v. Leak, 58 M.J. 869, 870-72 (A. Ct. Crim. App.
2003).
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Regarding the events of September 21, 1999, at trial Appellant
was found not guilty of rape, but guilty of the lesser included
offense of indecent acts, and guilty of one specification each
of maltreatment and adultery.
PROCEDURAL BACKGROUND
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
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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
1
We heard oral argument in this case at Vermont Law School, South Royalton,
Vermont, as part of the Court’s “Project Outreach.” See United States v.
Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003).
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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.
Discussion
I
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.
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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
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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
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.
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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
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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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.
Id.3
The term “Judicial Council” was the name originally applied to what later
became known as the Court of Military Appeals.
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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
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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.
Id. at 462 (citations omitted). This language unambiguously
indicates that the Court was expressly acknowledging its lack of
authority to review a factual insufficiency determination that
was based solely on the weight of the evidence. Alternatively,
if that determination was reached after an erroneous
consideration of the elements of the offense, this Court saw
itself as statutorily obligated to review the matter. After
concluding that the board of review had erred by requiring an
additional legal element not required by law, this Court
4
This is the predecessor of the modern Navy-Marine Corps Court of Criminal
Appeals (formerly known as the Navy-Marine Court of Military Review).
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remanded the case to the board for reconsideration in light of
the legal principles announced in the case. In doing so, it
issued a further clarification of the authority it had exercised
by stating, “We should make it abundantly clear that if the
board of review here determined that, conflict as to the issue
of causal connection aside, there was insufficient evidence to
support the findings, we are not reversing that determination.”
Id. at 464.
In United States v. Bunting, 6 C.M.A. 170 (1955), the Court
further interpreted Article 67 in the context of a certified
question submitted after a factual determination by a board of
review disposing of the findings. In that case, the board
concluded “as a matter of fact” that they had a reasonable doubt
as to the accused’s sanity at the time of the offenses and
dismissed the findings. The Judge Advocate General certified a
question asking whether the board had erred as a matter of law
“in its analysis of the testimony” in dismissing the findings.
Id. at 172. After again recognizing its authority over matters
of law exclusively, the Court made the following observation:
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.
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Id. at 173. The Court went on to conclude that the issue as to
the accused’s sanity was “one of fact, not law” and held that
the board had not erred. Neither Thompson nor Bunting have been
overruled by this Court, or abrogated by subsequent legislation
or executive directive.5
These precedents along with the legislative history
convince us that it is within this Court’s authority to review a
lower court’s determination of factual insufficiency for
application of correct legal principles. At the same time, this
authority is limited to matters of law; we may not reassess a
lower court’s fact-finding.6 A contrary reading would defeat the
overall intent of Article 67 –- to grant this Court jurisdiction
to decide matters of law raised by appellants or certified by
Judge Advocates General. Moreover, such a reading would divest
Article 67(a)(2) of its obvious and plain meaning,
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.
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except in those cases where the Court of 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 (2000), thereby putting beyond reach matters of law in those
cases purportedly decided on the grounds of factual
insufficiency. “Although a Court of Criminal Appeals has broad
fact-finding power, its application of the law to the facts must
[still] be based on a correct view of the law.” United States
v. Weatherspoon, 49 M.J. 209, 212 (C.A.A.F. 1998).
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?
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The Double Jeopardy Clause of the Constitution states “nor
shall any person be subject for the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. As is
clear from the text of the clause and common-law origins, the
prohibition is directed at the threat of multiple prosecutions.
United States v. Wilson, 420 U.S. 332, 342 (1975). The Supreme
Court has noted that:
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.
Green v. United States, 355 U.S. 184, 187-88 (1957).
“‘[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 muster
in the first proceeding.’” United States v. DiFrancesco, 449
U.S. 117, 128 (1980)(citation omitted). Thus, the clause
“protects against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for
the same offense after conviction. And it protects against
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multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969) overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989). The first two
protections are relevant to the issues before us.
An 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.” United States v. Ball, 163 U.S. 662, 671 (1896).
“If the innocence of the accused has been confirmed by a final
judgment, the Constitution conclusively presumes that a second
trial would be unfair.” Arizona v. Washington, 434 U.S. 497,
503 (1978).
However, civilian jurisprudence distinguishes between
appellate review in the wake of a verdict of guilty and
appellate review following a jury or bench trial acquittal. In
Wilson, the jury returned a guilty verdict against the defendant
for a federal offense. 420 U.S. at 353. The trial court
dismissed the indictment with prejudice on the ground that the
delay between the offense and the indictment had prejudiced the
defendant’s right to a fair trial. The Government appealed the
ruling dismissing the indictment to the U.S. Court of Appeals
for the Third Circuit. That court held that the Double Jeopardy
Clause barred review of the trial court’s ruling. The Supreme
19
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
Court granted certiorari to consider the applicability of the
Double Jeopardy Clause to Government appeals from post-verdict
rulings by the trial court. In the Court’s view, a decision on
appeal in favor of the Government simply reinstates the guilty
verdict of the jury. Therefore, the Court held that permitting
the Government to appeal would not expose the defendant to a
second trial for the same offense. Id. “Where there is no
threat of either multiple punishment or successive prosecutions,
the Double Jeopardy Clause is not offended.”7 Id. at 344.
In United States v. Martin Linen Supply Co., 430 U.S. 564(1977), a deadlocked jury was unable to agree upon a verdict at
the defendant corporations’ contempt trial. The district court
granted motions for judgments of acquittal under Fed. R. Crim.
P. 29 and the Government appealed. The court of appeals held
that because reversal of the acquittals would enable the
Government to try the 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
7
Although Wilson was not a case involving Fed. R. Crim. P. 29, the point is
no less illustrative. Fed. R. Crim. P. 29, allows a district court judge to
grant a motion for judgment of acquittal at any one of three points in the
trial: before submitting the case to the jury, if the jury returns
undecided, or after the jury has returned a verdict of guilty. The
Government may appeal such rulings under 18 U.S.C § 3731 except “where the
Double Jeopardy Clause of the United States Constitution prohibits further
prosecution.”
20
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Jeopardy Clause bars appeal from an acquittal entered under Fed.
R. Crim. P. 29 after a jury mistrial. Id. at 574.
More 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 both Wilson and Martin Linen Supply
Co. In Genova, the jury returned guilty verdicts on two counts
of misapplication and diversion of funds in violation of federal
law. The district court subsequently granted motions for
acquittal under Fed. R. Crim. P. 29 and the Government appealed.
In reinstating the convictions, the Seventh Circuit said, among
other things, that “the Double Jeopardy Clause does not bar a
Government appeal from a ruling in favor of the defendant after
a guilty verdict has been entered by the trier of fact.” Id. at
756 (quoting DiFrancesco, 449 U.S. at 130).
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.
In 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
21
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
result, this case poses the question whether in the military
justice system the decision to set aside a guilty verdict on
factual insufficiency grounds by a service court of criminal
appeals is equivalent to an acquittal at trial for the purposes
of the Double Jeopardy Clause. This Court’s decisions in United
States v. Crider, 22 C.M.A. 108 (1973)[hereinafter Crider II],
and United States v. Riley, 55 M.J. 185 (C.A.A.F. 2001), offer
some support for both sides of the argument.
In Crider II, 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 holding that the members of the
reviewing panel should have recused themselves. United States
v. Crider, 21 C.M.A. 193 (1972). On further review, a different
panel of the Court of Military Review affirmed the original
findings of guilt to premeditated murder. Appellant again
appealed. Although both sides claimed that double jeopardy
principles turned the decision in their favor, the Court ruled
for Appellant on the ground that in military law “an accused
cannot come to harm by appealing here and securing reversal of
his conviction.” Crider II, 22 C.M.A. at 110. However, in
reaching this conclusion, the Court stated, “[i]f the Government
22
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
believes that the Court of Military Review erred, it has the
right to seek certification of the case by the Judge Advocate
General for possible corrective action in this Court.” Id. On
the one hand, this statement left open the possibility that had
the Government certified a claim of legal error regarding the
affected offenses and prevailed, the Court of Military Review
could have revisited, from a legal standpoint, its earlier
“acquittal.” On the other hand, the Court described the fact-
finding function of the courts of criminal appeals as analogous
to the actions of a trial fact-finder.
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.
Id. at 111.
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
23
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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.
Considering 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 an
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 Courts of Criminal Appeals to
acquit an accused.” Riley, 55 M.J. at 188. We have also stated
“that Congress intended a Court of Criminal Appeals to act as
factfinder in an appellate-review capacity and not in the first
24
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
instance as a trial court.” United States v. Ginn, 47 M.J. 236,
242 (C.A.A.F. 1997). 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, “[u]nder 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.” Fed. R. Crim.
P. 29 advisory committee’s note (discussing Dec. 1, 1994,
amendments). 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. Indeed, we have distinguished this
de novo review power from a trial in recognizing that the courts
of criminal appeals must exercise their unique fact-finding
powers making allowances for not having personally observed the
witnesses who testified at the trial. United States v. Walters,
58 M.J. 391, 395 (C.A.A.F. 2003); United States v. Turner, 25
M.J. 324, 325 (C.M.A. 1987).
But 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 muster in the first proceeding.’”
25
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
DiFrancesco, 449 U.S. at 128 (citation omitted). 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. Nor, may this Court supplant the lower court’s
evaluation of the weight of the evidence with our own. In such
a case, we would indeed be acting beyond our statutory
authority. This, too, is consistent with the overall
jurisdictional scheme contemplated by Congress. The power of de
novo factual review that the courts of criminal appeals possess
was intended as a safeguard to servicemembers. United States v.
Parker, 36 M.J. 269, 271 (C.M.A. 1993)(declaring that plenary de
novo power of review is to protect an accused); United States v.
Claxton, 32 M.J. 159, 162 (C.M.A. 1991)(describing review under
Article 66(c) as “carte blanche to do justice”).
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.
26
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
II
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, United States, (2002 ed.) (MCM), pt.
IV, ¶ 45.b.
Although listed within the same element, the discussion and case
law make clear that force and lack of consent 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
consent are separate elements . . . .”). Whether the elements
of the offense are met is based on a totality of the
circumstances. United States v. Cauley, 45 M.J. 353, 356
(C.A.A.F. 1996).
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
27
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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, “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. Cauley, 45 M.J.
at 356 (“[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. United States v. Bonano-Torres, 31 M.J.
175, 179 (C.M.A 1990). 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.” MCM, pt. IV,
¶ 45.c. (1)(b). In such a circumstance, there is no consent.
Force is the second essential element of rape. The MCM and
case law recognize that force 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.
United States v. Palmer, 33 M.J. 7, 9 (C.M.A. 1991). Actual
28
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
force requires “more than the incidental force involved in
penetration.” Bonano-Torres, 31 M.J. at 179. However, military
law also recognizes the concept of constructive force, which
“may consist of expressed or implied threats of bodily harm.”
United States v. Hicks, 24 M.J. 3, 6 (C.M.A. 1987).
“Constructive force may be shown by proof of a coercive
atmosphere that includes, for example, threats to injure others
or statements that resistance would be futile.” Simpson, 58
M.J. at 377.
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
29
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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
30
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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
31
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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
32
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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,
33
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
had already found by implication that SPC M had not made her
lack of consent reasonably manifest.
On the other hand, the court does not expressly find that
the putative victim did not make her lack of consent reasonably
manifest, before addressing the question of 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.” Id. at 875-76. The Court of
Criminal Appeals also found that SPC M “wrestled with him and
told him ‘no.’ Appellant was unable to undo her trousers and
belt.” Id. at 876. In this factual context, the court’s
“ceased to resist” statement could suggest that the Court of
Criminal Appeals considered SPC M’s failure to continually
resist, to present, in effect, a legal talisman as to whether or
not she had consented. However, as stated earlier, 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. In some
contexts, a verbal statement of lack of consent will establish
the necessary manifested lack of consent -- “No,” for example.
In other cases, where the lack of consent is not manifest by the
language used, or any language at all, or perhaps where the
34
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
language is superseded or accompanied by competing
manifestations of consent, continual resistance may prove
dispositive on the question of consent. In this case, the lower
court also found as fact that “[w]hen [SPC M] saw multiple
condoms in his office, she was not too intimidated to challenge
his intentions toward other women.” Id. However, this sentence
follows the earlier unequivocal analysis regarding inferred
consent. Without further discussion it is not clear, on the
element of consent (as opposed to force) whether and how this
fact may have modified the lower court’s conclusion on consent.
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.
35
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III
THE GRANTED ISSUE
Regarding the events of September 21, the Court of Criminal
Appeals found that the intercourse that occurred on that date
“was not open and notorious and thus it 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 Article 134 for “sexual activity of
[a noncommissioned officer] cadre with an enlisted soldier in
training.” Id. However, Appellant already stood convicted of
maltreatment under Article 93 for “engaging in sexual acts” with
“a person subject to his orders.” A simple disorder in this
context is a lesser included offense of the maltreatment
offense. “Offenses are multiplicious if one is a lesser-
included offense of the other.” United States v. Palagar, 56
M.J. 294, 296 (C.A.A.F. 2002).
Specifically, the accused was convicted of maltreating
SPC M under Article 93 “by engaging in sexual acts with her.”
The “certain act”8 under Article 134 found by the lower court as
constituting the disorder was “sexual activity” with SPC M.
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).
36
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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 offense as 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. Id.Consequently, the disorder affirmed under Article 134 must be
dismissed.
DECISION
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.
37
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
GIERKE, Chief Judge (concurring in part and dissenting in
part):
The Government asks us to reinstate a finding of guilty
that the lower court reversed as factually insufficient. In my
view, the correct answer to this request is the same as the
punch line of the old joke about the Maine farmer asked for
directions to Millinocket: You can’t get there from here.
Accordingly, I respectfully dissent from the majority opinion’s
resolution of the first and third specified issues. Because I
believe we have no authority to act on a finding that a Court of
Criminal Appeals has set aside as factually insufficient, I
would not reach the certified issue or the second specified
issue. I concur with the majority’s resolution of the granted
issue.
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
1
526 U.S. 529, 535 (1999).
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.”).
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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
3
In re United Mo. Bank of Kansas City, N.A., 901 F.2d 1449,
1451-52 (8th Cir. 1990) (internal citation omitted).
4
10 U.S.C. § 867 (2000).
5
Id. (emphasis added).
2
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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
6
The Government attempts to escape from the inevitable
consequences of its acknowledgement by asking this Court to
exercise “general supervisory power over the administration of
military justice,” citing United States v. Jackson, 5 M.J. 223,
225 (C.M.A. 1978). The reasoning of the Solicitor General’s
brief for the United States in Clinton v. Goldsmith effectively
refuted any notion that this Court has general supervisory
authority beyond the scope of Article 67:
“[S]upervisory authority” is not a basis for
jurisdiction, but instead is a basis for a superior
court to announce rules governing inferior courts, in
the course of deciding cases that are within the
superior court’s jurisdiction. As this Court has
explained, a court’s “supervisory authority” permits
the superior court in some circumstances to “formulate
procedural rules not specifically required by the
Constitution or the Congress [. . .] to implement a
remedy for violation of recognized rights, [. . .] to
preserve judicial integrity [. . .], and [. . .] to
deter illegal conduct.” United States v. Hasting, 461
U.S. 499, 505 (1983).
Reply Brief for Petitioners, Clinton v. Goldsmith, 526 U.S. 529(1999). The Supreme Court’s decision in Goldsmith echoed this
view by observing that “the CAAF is not given authority, by the
All Writs Act or otherwise, to oversee all matters arguably
related to military justice, or to act as a plenary
administrator even of criminal judgments it has affirmed.” 526
U.S. at 536.
7
Lamie v. United States Trustee, 540 U.S. 526, 534 (2004)
(citations and internal quotation marks omitted).
3
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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
8
United States v. Leak, 61 M.J. __ (9-10).
9
Id. at __ (10).
10
Id.4
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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”
11
10 U.S.C. § 867(a) (2000) (emphasis added).
12
10 U.S.C. § 867(c) (2000) (emphasis added).
13
See Leak, 61 M.J. at __ (10 n.2).
5
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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 the draft UCMJ. Those reports
14
See id. at __ (15, 16 n.6).
15
Id. at __ (10).
16
Board of Trade of the City of Chicago v. S.E.C., 187 F.3d 713,
720 (7th Cir. 1999).
6
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
are particularly significant because, as the Supreme Court has
noted, a “committee report represents the considered and
collective understanding of those Congressmen involved 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 the evidence this decision cannot be
reconsidered by the [C]ourt [of Military Appeals].”18 The
reports contrast such a ruling with one in which a board of
review “has set a case aside because of the improper
introduction of evidence or because of other prejudicial
error.”19 Thus, the Armed Services Committees’ analysis of
Article 67(c) emphasized the basis on which the board of review
ruled. If that basis was factual insufficiency, then the board
of review’s ruling was final. If, on the other hand, the basis
was some form of legal error, then the issue could be certified
to this Court for further review. In this case, the basis of
the Army Court’s ruling was factual insufficiency. So under
both the plain language of the statute and the Armed Services
Committees’ analysis of the statute, that ruling is final. We
have no power to revive the portion of the finding that the Army
Court set aside as factually insufficient.
17
Zuber v. Allen, 396 U.S. 168, 186 (1969).
18
H. Rep. No. 81-491, at 32 (1949); S. Rep. No. 81-486, at 29
(1949).
19
Id.7
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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
20
Leak, 61 M.J. __ at (10-11).
21
3A Norman J. Singer, Statutes and Statutory Construction §
67.3 (6th ed. 2003).
22
Northrop Grumman Corp. v. United States, 47 Fed. Cl. 20, 40
(2000) (quoting Mega Construction Co. v. United States, 24 Fed.
Cl. 396, 472 (1993)).
23
Leak, 61 M.J. at __ (12).
8
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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 decide whether the lower court’s
ruling was a factual or legal decision, the majority states that
if we conclude “that the lower court has erroneously applied the
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 what I view as the threshold decision of
whether we have the power to act on the case. In this case, we
still do not know whether the lower court erroneously applied
the law because this Court concludes that the Army Court’s
opinion is “susceptible to two interpretations, one correct in
24
Id. at __ (6).
25
Id. at __ (13).
9
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
law and the other not.”26 Additionally, the majority’s approach
appears to allow the certification of almost all cases that
result in a finding of factual insufficiency, because such
decisions will almost invariably discuss the law and apply the
law to the facts of the case. Under the majority’s approach,
this Court would be required to analyze any such discussion or
application of the law for legal correctness. The plain meaning
interpretation of Article 67(c) is far easier to apply, because
it merely calls for a determination of the basis of the lower
court’s ruling rather than a far more searching analysis of
whether any legal errors contributed to the ultimate ruling.
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
26
Id. at __ (35).
27
Id. at __ (13-16).
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.
10
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
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 Army Court
employed a correct or incorrect constructive force standard.
This Court is free to provide analysis of this question that
will guide the lower court -- and other military justice
practitioners -- in future cases. But Congress has not
authorized us to act on a case like this. Accordingly, the
majority exceeds its authority when it returns the case for the
29
See Goldsmith, 526 U.S. 529.
30
Leak, 61 M.J. __ at __ (17).
31
United States v. Russett, 40 M.J. 184, 185 (C.A.A.F. 1994).
32
See generally id. at 185-86 (citing United States v. Martin,
20 M.J. 227 (C.M.A. 1985); United States v. Wheaton, 18 M.J.
159 (C.M.A. 1984); United States v. Kuehl, 11 M.J. 126 (C.M.A.
1981)).
11
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR
Army Court to clarify its holding regarding Charge II,
Specification 1 -- a finding on which this Court has no
authority to “act.”
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.
33
Harris v. United States, 536 U.S. 545, 555 (2002) (quoting
United States ex rel. Attorney General v. Delaware & Hudson Co.,
213 U.S. 366, 408 (1909)).
12