The Court of Appeals for the Armed Forces [CAAF] recently issued its opinion in United States v. Patterson. SSgt Patterson had been convicted at court-martial of a number of offenses. One of the guilty findings was for an offense against a child. The specification was drafted to allege that the conduct occurred between October 1, 2015 and November 1, 2015. At trial, the child testified that the conduct had actually occurred in spring or early summer of 2015. She testified that it occurred when her mother was five or six months pregnant with her brother, who was born in late September of that year.
The members found SSgt Patterson guilty of this offense despite the discrepancy in dates. On appeal to the Air Force Court of Criminal Appeals, SSgt Patterson argued that his conviction for this offense was not factually sufficient. Service courts of criminal appeals have a unique mandate to scrutinize the factual sufficiency of all guilty findings in cases that come before them.
Under factual sufficiency standard used for offenses that occurred before 2021, the Air Force appellate court had to take a fresh, impartial look at the evidence and ensure that it was convinced of SSgt Patterson’s guilt beyond a reasonable doubt. The Air Force court found this guilty finding to be factually insufficient because no evidence was admitted at court showing that the offense occurred between October 1, 2015 and November 1, 2015. Instead, the court determined that the offense most likely occurred in June 2015. The court set aside this guilty finding and authorized a rehearing on sentence to determine an appropriate sentence without this guilty finding.
The Judge Advocate General of the Air Force then certified the issue to the CAAF. The Government argued that the Air Force court had been wrong to decide the issue under a factual sufficiency review and that it should have considered whether or not the difference in dates constituted a variance that did not prejudice SSgt Patterson.
When the facts at trial vary from those alleged in a specification, a reviewing court will consider whether this variance is material and, if material, whether it was prejudicial to the appellant. A variance in dates of only a few days or weeks is generally not considered to be material. Longer variances might be material, but if the accused was properly on notice of what he needed to defend against and the difference in dates did not affect his defense, it would not be prejudicial. For example, if an accused relied on an alibi defense for the charged time frame, but then the evidence showed that the offense occurred at a different time for which he had no alibi, the variance would clearly have prejudiced his defense. If the accused’s defense was a blanket denial that the offense occurred, his defense may not have been prejudiced by the change in dates. Where a variance is either immaterial or not prejudicial, the conviction can be affirmed.
The CAAF did not address the question of whether or not this was a valid variance. The Court instead found that it did not have authority to review the Air Force court’s determination on factual sufficiency in this case and affirmed the lower court’s decision setting aside the offense.
The CAAF noted that the Government could have taken several steps along the way to resolve the issue with the alleged dates and prevent this result. First, the Government could have carefully drafted its specification to ensure it matched the evidence. Second, if the Government’s understanding of the evidence changed after the specification was drafted, it could have sought to change the specification or withdraw it and replace it with an accurately drafted specification. Finally, if the discrepancy was not apparent until trial, the Government could have asked the military judge to instruct the members to except the drafted dates and substitute the accurate ones in their findings. The Government in this case took none of these steps.
The case will now go back to the trial level for the sentence rehearing.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.