United States v. Rodriguez

UNITED STATES, Appellee
v.
Michael J. RODRIGUEZ, Senior Airman
U.S. Air Force, Appellant
No. 07-0685
Crim. App. No. 36455
United States Court of Appeals for the Armed Forces
Argued January 15, 2008
Decided April 23, 2008
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER and STUCKY, JJ. joined. ERDMANN, J., filed a
dissenting opinion.
Counsel
For Appellant: Captain Griffin S. Dunham (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
For Appellee: Captain Jason M. Kellhofer (argued); Colonel
Gerald R. Bruce and Major Donna S. Rueppell (on brief); Major
Matthew S. Ward.
Military Judge: Kevin P. Koehler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rodriguez, No. 07-0685/AF
Judge RYAN delivered the opinion of the Court.
In United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003),
this Court held that the Court of Criminal Appeals could not
review a conviction for factual sufficiency under Article 66,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2000),
when the appellant was charged with committing an illegal act
“on divers occasions,” but was found guilty at trial by
exceptions and substitutions to a single unspecified act.
Walters, 58 M.J. at 394, 396-97. The decision in that case
turned on the fact that the members had found the appellant “not
guilty” of some unspecified occasions, and the consequent
inability of a Court of Criminal Appeals to “find as fact any
allegation in a specification for which the fact-finder below
has found the accused not guilty.” Id. at 395; see also United
States v. Seider, 60 M.J. 36, 38 (C.A.A.F. 2004) (stating the
same).
In this case, Appellant was found guilty of the “on divers
occasions” offense by the members, without exception. In the
course of conducting its review for legal and factual
sufficiency, the United States Air Force Court of Criminal
Appeals (CCA) approved the conviction with respect to a single
act, finding the evidence for the other acts factually
insufficient. United States v. Rodriguez, No. ACM 36455, 2007
2
United States v. Rodriguez, No. 07-0685/AF
CCA LEXIS 254, at *7-*8, 2007 WL 2035048, at *3 (A.F. Ct. Crim.
App. June 26, 2007).
Appellant asserts that Walters and Seider apply, and that
the lower court could not affirm the factual sufficiency of the
conviction in this case under Article 66, UCMJ.1 We disagree:
the difference in the verdicts of the factfinders is the
dispositive distinction between this case and Walters and
Seider. Accordingly, we hold that the lower court properly
conducted a legal and factual sufficiency review pursuant to
Article 66, UCMJ.
I. FACTS
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one
specification of using marijuana on divers occasions and one
specification of using Percocet, a Schedule II controlled
1
The issue, as granted was:
SINCE TWO OF THREE ALLEGED USES OF MARIJUANA WERE
BASED ON UNCORROBORTED CONFESSIONS AND APPELLANT’S
CONVICTION FOR USING MARIJUANA ON DIVERS OCCASIONS WAS
ACCORDINGLY TRANSFORMED INTO A SINGLE USE CONVICTION
BY THE AFCCA, WHETHER UNITED STATES V. SEIDER AND
UNITED STATES V. WALTERS PROHIBIT AFFIRMING EVEN A
SINGLE USE OF MARIJUANA BECAUSE THE MEMBERS COULD HAVE
BASED THEIR “ON DIVERS OCCASIONS” CONVICTION ON THE
TWO UNCORROBORATED CONFESSIONS AND FOUND APPELLANT NOT
GUILTY OF THE ALLEGED USE NOW USED BY THE AFCCA TO
AFFIRM THE SPECIFICATION.
65 M.J. 347 (C.A.A.F. 2008).
3
United States v. Rodriguez, No. 07-0685/AF
substance, on divers occasions, in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a (2000).
The specification at issue in this appeal charged Appellant
with a violation of Article 112a, UCMJ, in that he “did, on
divers occasions, within the continental United States, between
on or about 1 August 2002 and on or about 1 September 2003,
wrongfully use marijuana.”
At trial, the Government presented evidence in support of
its theory that Appellant used marijuana on three separate
occasions during the charged period.2 Four government witnesses
offered relevant testimony. Three testified that Appellant had
admitted to them that he had used marijuana. Only the fourth,
Airman Basic (AB) Maldonado, testified that he actually
witnessed Appellant use marijuana during the timeframe outlined
in the specification. Appellant never asked for a bill of
particulars regarding the three separate alleged uses of
marijuana.
2
During oral argument, the Government raised, for the first
time, the possibility that the record of trial supported only
two, not three, alleged uses of marijuana. In response,
Appellant filed a motion to supplement statement of facts and
analysis in the brief on behalf of Appellant, which we granted.
66 M.J. ___ (C.A.A.F. 2008). We base our decision on three, not
two, alleged uses. Appellant’s appeal was granted on that
basis. Moreover, the CCA based its decision on the premise that
there were three alleged uses, and that premise is supported by
the record.
4
United States v. Rodriguez, No. 07-0685/AF
After hearing this evidence and being instructed on
exceptions and substitutions by the military judge, the members
convicted Appellant of using marijuana “on divers occasions” as
charged. The sentence adjudged by the court-martial and
approved by the convening authority included a bad-conduct
discharge, confinement for five months, forfeiture of all pay
and allowances, and reduction in grade to E-1.
Pursuant to Article 66, UCMJ, the CCA reviewed the case for
legal and factual sufficiency.
On appeal to the CCA, Appellant argued that the evidence
adduced at trial was factually and legally insufficient to
support a conviction for use of marijuana on divers occasions
during the charged period. The CCA found the evidence factually
sufficient to support a conviction for marijuana use on only one
occasion. Rodriguez, 2007 CCA LEXIS 254, at *7-*8, 2007 WL
2035048, at *3. It held that “[t]he evidence regarding
marijuana use is not as compelling” and that due to “the
extremely vague admissions made by the [A]ppellant” that were
recounted by the witnesses at trial, the CCA was unable to state
that the evidence was factually sufficient to support a
conviction for use of marijuana “on any occasion other than the
time in which he smoked it with” AB Maldonado. 2007 CCA LEXIS
254, at *6-*7, 2007 WL 2035048, at *2-*3. Because the CCA
determined that the Government had only proven the one use
5
United States v. Rodriguez, No. 07-0685/AF
described by AB Maldonado beyond a reasonable doubt at trial, it
amended the marijuana specification by striking “on divers
occasions” from the marijuana use specification. 2007 CCA LEXIS
254, at *7-*8, 2007 WL 2035048, at *3.
At the CCA, Appellant also argued that, if the CCA found
the evidence insufficient as to any of the uses undergirding the
“divers occasions” specification, this Court’s decisions in
Seider and Walters dictated that the entire specification be set
aside. 2007 CCA LEXIS 254, at *9, 2007 WL 2035048, at *4.
The CCA distinguished both Seider and Walters, noting that
in those cases the members, rather than the CCA, had made
exceptions to an “on divers occasions” specification, which
resulted in implicit findings of not guilty as to some of the
unspecified occasions. In this case the members, after hearing
the evidence, had returned a general verdict of guilt to the
“divers occasions” specification. 2007 CCA LEXIS 254, at *9,
2007 WL 2035048, at *4.
The CCA affirmed the conviction as to a single use of
marijuana and reassessed Appellant’s sentence, reducing his
confinement from five months to four months. Rodriguez, 2007
CCA LEXIS 254, at *7-*8, 2007 WL 2035048, at *3.
6
United States v. Rodriguez, No. 07-0685/AF
II. ANALYSIS
Whether a CCA can affirm a conviction for a single act
after determining that the evidence is factually insufficient to
support the “on divers occasions” general verdict returned by
the factfinder at trial is a question of law we review de novo.
See, e.g., United States v. Brown, 65 M.J. 356, 358-59 (C.A.A.F.
2007) (factual sufficiency reviewable where members findings are
not ambiguous). We agree with the CCA that so long as the
factfinder entered a general verdict of guilty to the “on divers
occasions” specification without exception, any one of the
individual acts may be affirmed by the CCA as part of its
Article 66, UCMJ, review.
A.
When members find an accused guilty of an “on divers
occasions” specification, they need only determine that the
accused committed two acts that satisfied the elements of the
crime as charged -- without specifying the acts, or how many
acts, upon which the conviction was based. Cf. Brown, 65 M.J.
at 359 (citing Griffin v. United States, 502 U.S. 46, 49-51
(1991); Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality
opinion)). In this case, the Government presented evidence
related to three separate instances of marijuana use in support
of its attempt to prove that Appellant had used marijuana on
divers occasions.
7
United States v. Rodriguez, No. 07-0685/AF
Appellant argues that it was impossible for the CCA to know
upon which alleged instances of marijuana use the members based
the verdict of guilty on “divers occasions.” Given the nature
of a general verdict, we agree with Appellant that there is no
way for this Court or the CCA to determine which acts comprised
the “divers occasions” found by the members, and no way to
determine whether the members found Appellant guilty of the
single act alleged in the specification as amended by the CCA.
Appellant is also correct that, if the members found
Appellant not guilty of the act alleged in the specification as
amended by the lower court, the lower court could not conduct a
factual sufficiency review. See Walters, 58 M.J. at 395
(stating that a court “cannot find as fact any allegation in a
specification for which the fact-finder below has found the
accused not guilty” (citing United States v. Smith, 39 M.J. 448,
451 (C.M.A. 1994); United States v. Nedeau, 7 C.M.A. 718, 721,
23 C.M.R. 182, 185 (1957))).
B.
But Appellant fails to account for the longstanding
jurisprudence in the Supreme Court, this Court, and the common
law regarding the presumption that controls general verdicts on
appeal. See Griffin, 502 U.S. at 58-60 (discounting a similar
factual sufficiency argument); Brown, 65 M.J. at 359 (affirming
conviction where members did not specifically articulate which
8
United States v. Rodriguez, No. 07-0685/AF
theory of liability was the basis for the finding of guilt);
Peake v. Oldham, (1775) 98 Eng. Rep. 1083, 1084 (K.B.) (Lord
Mansfield stating, “‘if there is any one count to support the
verdict, it shall stand good, notwithstanding all the rest are
bad’”). The longstanding common law rule is that when the
factfinder returns a guilty verdict on an indictment charging
several acts, the verdict stands if the evidence is sufficient
with respect to any one of the acts charged. Griffin, 502 U.S.
at 49. The rule is based on the presumption that the verdict
attaches to each of the several alternative theories charged.
Turner v. United States, 396 U.S. 398, 420 (1970). Because the
verdict attaches to all theories, the verdict may stand despite
trial errors “‘if any one of the counts is good and warrants the
judgment.’” Griffin, 502 U.S. at 49 (quoting Claassen v. United
States, 142 U.S. 140, 146 (1891)).
The presumption is similarly applicable where an “on divers
occasions” general verdict is modified on appeal to a single
act.3 Here, where the evidence was factually insufficient as to
two of the acts, the charge could nevertheless be sustained as
3
In view of the facts of this case, nothing in Article 66, UCMJ,
Walters, or Seider requires us to disregard Supreme Court
precedent or the precedent of this Court regarding the common
law presumption. There was no actual or implicit finding of not
guilty by the members to any offense in this case, nor did the
CCA find the evidence legally insufficient to support any of the
charged conduct.
9
United States v. Rodriguez, No. 07-0685/AF
to the third marijuana use. But because that single use
affirmed by the CCA no longer constituted an “on divers
occasions” offense the lower court necessarily reconstituted
Appellant’s charge as a single use and reassessed his sentence.
The action by the CCA in this case is no different than if
Appellant had been charged with the three acts in question in
the conjunctive, a general verdict had been returned, and the
CCA found two of the acts to be unsupported by the facts adduced
at trial. Turner, 396 U.S. at 420 (stating the general rule
that “when a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive . . . the verdict
stands if the evidence is sufficient with respect to any one of
the acts charged”).4 Just as in Griffin and Turner, factually
insufficient alternatives were removed on appeal, but the
conviction may nonetheless be sustained.
C.
Walters and Seider are not to the contrary. The crux of
those opinions was that the members’ exceptions and
substitutions on the findings worksheet implicitly meant that
the factfinder had found that the accused was not guilty of some
of the acts alleged at trial. Nothing in Walters or Seiders
4
We note that a different analysis would apply in a case where a
possible basis for conviction was either illegal or
unconstitutional. See Stromberg v. California, 283 U.S. 359,
367-68 (1931).
10
United States v. Rodriguez, No. 07-0685/AF
addresses the argument advanced by Appellant today -– that a
general verdict on an “on divers occasions” charge cannot be
changed into a single act on appeal when the general verdict was
reached without exception by the factfinder.5
Last year, in Brown, we revisited the general verdict
concept, that time in an instance where the accused was charged
with rape under a theory of acting either as a principal or
aider and abettor.6 65 M.J. at 358. The members in that case,
instead of returning a general verdict, found the accused guilty
of a lesser included offense of indecent assault, without
stating on which of the alternative theories the lesser included
offense was based. Id. In affirming the conviction, we
repeated our holding in United States v. Vidal, 23 M.J. 319, 325
(C.M.A. 1987): “‘It makes no difference how many members chose
one act or the other, one theory of liability or the other. The
only condition is that there be evidence sufficient to justify a
finding of guilty on any theory of liability submitted to the
members.’” Brown, 65 M.J. at 359.
5
As the specification was charged, Appellant could be sentenced
to a maximum of five years of confinement, rather than the
fifteen available had the acts been charged individually.
Appellant did not request a bill of particulars and the members
were instructed by the military judge on the process for making
findings using exceptions and substitutions.
6
In Rodriguez, the members were presented with three distinct
criminal acts. Each of them or any combination thereof, as with
the alternative theories of liability in Brown, provided each
member with a basis for convicting Appellant.
11
United States v. Rodriguez, No. 07-0685/AF
The rule from Walters and Seider applies “only in those
‘narrow circumstance[s] involving the conversion of a “divers
occasions” specification to a “one occasion” specification
through exceptions and substitutions’” by the members. Brown,
65 M.J. at 358 (quoting Walters, 58 M.J. at 396). An
unadulterated, unobjected-to, general verdict implicitly
contains a verdict of guilt as to each underlying act and the
CCA did not err in exercising its factual and legal review
pursuant to Article 66, UCMJ, here.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
12
United States v. Rodriguez, No. 07-0685/AF
ERDMANN, Judge (dissenting):
Because I view this court’s precedent in United States v.
Walters, 58 M.J. 391 (C.A.A.F. 2003), and United States v.
Seider, 60 M.J. 36 (C.A.A.F. 2004), as controlling in this case,
I respectfully dissent.
This case presents a slight variation on the principle
established in Walters. In both Walters and this case the
appellants had been charged with wrongful use of drugs on divers
occasions. See 58 M.J. at 392. In Walters the members of the
panel issued a general verdict, by exceptions and substitutions,
finding him guilty of one unidentified occasion and not guilty
of “divers occasions.” 58 M.J. at 394. The crux of this
court’s holding was that the panel’s action resulted in an
ambiguous verdict which prevented the Court of Criminal Appeals
(CCA) from conducting a review for factual sufficiency.
Walters, 58 M.J. at 396; see also United States v. Augspurger,
61 M.J. 189, 190 (C.A.A.F. 2005); Seider, 60 M.J. at 38.
In this case the members issued a general verdict finding
Rodriguez guilty of wrongful use on divers occasions. The CCA,
in performing its unique factual sufficiency review under
Article 66(c), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 866 (2000), was convinced beyond a reasonable doubt
that Rodriguez used marijuana on only one specific occasion and
struck the “on divers occasions” language. The issue before
United States v. Rodriguez, No. 07-0685/AF
this court is whether the CCA, in performing its factual
sufficiency review, could make a factual finding that Rodriguez
used marijuana on a specific occasion when it was impossible for
the CCA to determine whether the members had found Rodriguez
guilty of wrongful use on that specific occasion.
The majority acknowledges what the Government concedes --
there is no way for this court or the CCA to determine whether
the members found Rodriguez guilty of the single occasion of
wrongful use of marijuana affirmed by the CCA.1 The majority
initially distinguishes Walters on the grounds that the members
there found him not guilty of “divers occasions” and the members
here found Rodriguez guilty of “divers occasions.” United
States v. Rodriguez, __ M.J. __ (8-10) (C.A.A.F. 2008). But
that distinction does not eliminate the basic issue before the
court -- whether the CCA can find as fact an allegation in a
charge without knowing whether the members found the accused
guilty or not guilty of the same alleged conduct.
In affirming the CCA, the majority relies on the common law
presumption that “when the factfinder returns a guilty verdict
1
The CCA affirmed only the marijuana use occasion testified to
by Maldonado. United States v. Rodriguez, No. ACM 36455, 2007
CCA LEXIS 254, at *7-*8, 2007 WL 2035048, at *2-*3 (A.F. Ct.
Crim. App. June 26, 2007) (unpublished). It is plausible that
the members rejected this occasion as Maldonado was also the
sole witness for a wrongful use of cocaine charge, of which the
panel found Rodriguez not guilty.
2
United States v. Rodriguez, No. 07-0685/AF
on an indictment charging several acts, the verdict stands if
the evidence is sufficient with respect to any one of the acts
charged.” Rodriguez, __ M.J. __ (9) (citation omitted). The
CCA in Walters upheld the conviction by applying this common law
principle, which was recognized by Griffin v. United States, 502
U.S. 46 (1991).2 In Walters this court rejected the common law
argument relied on by the CCA in that case, and by the majority
here, finding that the Air Force court erred when it “relied on
‘the common-law rule regarding general verdicts’” noting that
the “Courts of Criminal Appeals’ appellate review authority
flows from Article 66(c), not the common law.” Walters, 58 M.J.
at 395.3 I do not see the distinction in this case that would
justify departing from our treatment of this common law rule in
Walters.
The common law rule relied upon by the majority arose in a
system where appellate courts did not have fact-finding
2
It was settled law in England before the Declaration
of Independence, and in this country long afterwards,
that a general jury verdict was valid so long as it
was legally supportable on one of the submitted
grounds -- even though that gave no assurance that a
valid ground, rather than an invalid one, was actually
the basis for the jury’s action.
United States v. Walters, 57 M.J. 554, 556 (A.F. Ct. Crim. App.
2002) (quoting Griffin v. United States, 502 U.S. 46, 49 (1991).
3
“While there are instances in military law where common law
principles are applicable, the center of gravity for the Courts
of Criminal Appeals is their statutory review function under
Article 66(c) . . . .” United States v. Walters, 58 M.J. 391,
395 (C.A.A.F. 2003).
3
United States v. Rodriguez, No. 07-0685/AF
authority. In contrast, the structure established in Article
66(c), UCMJ, requires the CCAs to conduct a unique factual
sufficiency review. As recognized by this court, however, that
factual review is subject to a critical limitation: “A Court of
Criminal Appeals cannot find as fact any allegation in a
specification for which the fact-finder below has found the
accused not guilty.” Walters, at 395 (citations omitted).4 As
the CCA could not determine which occasions of marijuana use the
members found Rodriguez guilty or not guilty of, the same
ambiguity that existed in Walters exists here.
Nor do I find this court’s recent decision in United States
v. Brown, 65 M.J. 356 (C.A.A.F. 2007), to be applicable to these
facts. In Brown, the uncertainty in the verdict lay in what the
members believed about the means by which the charged offense
had been committed. Brown, 65 M.J. at 357-58. Here, the
uncertainty does not involve merely an alternative theory of
liability for a single offense, rather it involves which of the
divers occasions the members found Rodriguez guilty of.5
4
The majority’s application of the common law rule would be
well-taken in our civilian court system where appellate courts
generally do not have fact-finding authority similar to that of
the military Courts of Criminal Appeals. See Walters, 58 M.J.
at 395 n.4.
5
Brown was charged with a single incident of rape and this court
held that “[a] factfinder may enter a general verdict of guilt
even when the charge could have been committed by two or more
means, as long as the evidence supports at least one of the
means beyond a reasonable doubt.” 65 M.J. at 359. This case
4
United States v. Rodriguez, No. 07-0685/AF
Finally, despite the Government’s warnings of dire
consequences, application of the Walters holding to this case
and others like it would not create undue administrative hurdles
in cases involving divers occasions of wrongful use of drugs.
The Government is obviously aware of the “divers occasions” it
intends to prove at trial and should be required to list all of
the alleged occasions of wrongful use in the context of one
specification, as is commonly done with bad checks under Article
123a, UCMJ, 10 U.S.C. § 923a (2000). Under this method, the
findings worksheet would include the alleged occasions of use
and the military judge could then instruct the panel to indicate
which of the occasions it has found the accused guilty of. This
would ensure not only that the accused is fully informed of the
specific instances he or she must defend against, it would also
allow the CCA to be fully informed of those occasions where the
accused has been found guilty and those occasions where the
accused has been acquitted.
I would reverse the decision of the United States Air Force
Court of Criminal Appeals as to this specification and order
that the finding of guilty be set aside.
involves which criminal act the members found Rodriguez guilty
of rather than which alternative means were used to commit a
single criminal act.
5