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CAAF Finds Error in Army Court’s Alteration of Guilty Rape Finding

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The Court of Appeals for the Armed Forces (CAAF) issued an opinion in the case of United States v. English this summer that reinforced the limitations on the authority of appellate courts. Specialist English was convicted at court-martial of several specifications resulting from a violent sexual attack on his wife. He was sentenced to 23 years confinement, reduction to E-1, and a dishonorable discharge.

On appeal, the Army Court of Criminal Appeals (ACCA) dismissed four of the assault specifications and reduced the adjudged confinement to 22 years. ACCA also addressed an argument by Specialist English that one of the specifications of rape was factually insufficient.

Specification 6 of the offenses charged under Article 120, UCMJ, alleged that Specialist English committed a sexual act by using unlawful force, “to wit: grabbing her head with his hands.” At trial, however the victim did not testify that Specialist English had grabbed her head, saying that she could not remember the exact details of the force used to commit the sexual act. The defense argued in its closing arguments that the force alleged was not proven, but the Specialist was convicted of this offense as charged.

ACCA agreed with the defense that the testimony at trial did not prove that Specialist English used the specific unlawful force of grabbing her head with his hands. However, instead of finding the offense factually insufficient and dismissing the guilty finding, ACCA ordered that the language “to wit: grabbing her head with his hands” be stricken from the offense and affirmed the guilty finding.

CAAF examined this portion of ACCA’s decision and found that ACCA had erred when it excepted language from a specification and affirmed the guilty finding. CAAF reasoned that the Government was not required to include the phrase describing the unlawful force used in the specification in order to allege the offense, which requires only the allegation of the use of unlawful force, not the specifics of the force used. The fact-finder at trial could also have excepted the language in reaching a guilty verdict if it did not believe the specific force alleged was proven. However, once the Government did allege that specific use of force and litigate it at trial, and the fact-finder returned a guilty verdict as it was alleged, the appellate court was not permitted to remove the language and affirm a more general offense than the one Specialist English defended against at trial.

ACCA’s authority to review findings and sentences granted by Article 66(c) does not contain the authority to alter a specification to make it broader or different than the offense litigated at the trial level. CAAF dismissed Specification 6 of Charge I and set aside the sentence, remanding the case to ACCA for a further reassessment of the sentence.

If you or your loved one was convicted of an offense at court-martial, you need someone with experience who knows the law. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please contact Bill Cassara at (706) 445-2943 for a free consultation.

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