Prosecutors sometimes create specifications that cover multiple instances of the same alleged criminal behavior. For example, in a domestic violence case where the servicemember is accused of assaulting his spouse on several occasions over a period of time, this can be charged as one specification of assault occurring “on divers occasions” over that period. This helps the prosecutor when the exact number of occasions or the dates when they occurred might be hard to pin down. As long as at least two occasions are proven beyond a reasonable doubt, the factfinder can find the accused guilty of this offense.
The problem with charging in this manner is found when the factfinder only finds the accused guilty of one instance, but does not clarify which one. Here is an example: Private Jones is charged with assaulting his spouse “on divers occasions” between January and June of 2023. Mrs. Jones testifies that Private Jones assaulted her once in February 2023 and once in May 2023. The members deliberate and decide that they are not convinced beyond a reasonable doubt that the February 2023 assault happened. They fill out the findings worksheet and cross out the words “on divers occasions.” They then mark the specification as modified as a guilty finding. When the findings are announced, the president of the panel reads that Private Jones is guilty of “assaulting Mrs. Jones between January and June of 2023.” The members are dismissed and the military judge conducts sentencing on the guilty finding.
The case then goes up to the appellate court. The court can see that Private Jones was found guilty of one instance of assault. The appellate court needs to review this finding to make sure that it should be affirmed. However, the court also sees that, by deleting the language “on divers occasions”, the members have also necessarily found Private Jones not guilty of the other instance of assault during that period. The appellate court cannot review an assault of which Private Jones was found not guilty. So which one is which? If the record does not make clear which one is which, the appellate court cannot do its job.
In 2003, the Court of Appeals for the Armed Forces decided the case of United States v. Walters. The issue was how an appellate court can review a guilty finding when it cannot tell which instance the accused was found guilty of. The Court determined that an appellate court cannot conduct a review in those circumstances, so the guilty finding must be set aside. Further, the accused servicemember cannot be retried for the offense. The Constitution prevents the government from trying someone again for an offense after they were found not guilty. Once more, the government cannot say which instance the accused was found not guilty of, so they cannot retry him for either. This situation results in an accused servicemembers’ conviction being set aside with no possibility for retrial.
Because of the dire consequences for getting this wrong, prosecutors and military judges must tread carefully when dealing with specifications charged on divers occasions. If a finding like the one described above comes back from the factfinder, the government and military judge must clarify on the record which instance the factfinder found the accused guilty of.
Recently, our office had a case that presented this issue. In United States v. Martinez Colon, the Soldier was charged with assault “on one or more occasion” [sic] during a defined period of time. The alleged victim testified that the assault happened more than once over that time frame. The military judge, who was the factfinder in this case, announced that he found the Soldier guilty of the specification “except the words ‘or more’.” He did not clarify which instance he was finding the Soldier guilty of or which he was finding him not guilty of. On appeal, the Army Court of Criminal Appeals followed the law set out in Walters and set aside the guilty finding. As a result, his sentence was reduced by one year of confinement.
Our firm identified the judge’s ambiguous findings and was able to get our client real relief as a result. If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.