United States v. Brown

UNITED STATES, Appellee

v.

Anthony BROWN, Staff Sergeant
U.S. Army, Appellant

No. 07-0286
Crim. App. No. 20020983

United States Court of Appeals for the Armed Forces

Argued October 2, 2007

Decided November 30, 2007

STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.

Counsel

For Appellant: Frank J. Spinner, Esq. (argued); Major Fansu Ku
(on brief); Captain Richard P. Pizur.

For Appellee: Captain Clare L. O’Shaughnessy (argued); Colonel
John W. Miller II and Captain Michael C. Friess (on brief);
Major Elizabeth G. Marotta and Captain Magdalena A. Acevedo.

Military Judge: Denise K. Vowell

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brown, No. 07-0286/AR

Judge STUCKY delivered the opinion of the Court.

We granted review of this case to consider whether the

military judge erred by instructing the court members that they

could convict Appellant of the offense of indecent assault

without agreeing on which of three possible factual scenarios

constituted the offense. We hold that the military judge

correctly instructed the members and affirm the decision of the

United States Army Court of Criminal Appeals.

I.

A general court-martial with members convicted Appellant of

two specifications of failing to obey a lawful general

regulation, two specifications of failing to obey a lawful

order, two specifications of maltreatment of a subordinate,

indecent assault (as a lesser included offense of rape), and

adultery in violation of Articles 92, 93, and 134, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 892, 893, and 934

(2000). After the military judge dismissed the two

specifications alleging maltreatment of a subordinate as being

an unreasonable multiplication of charges, the court-martial

sentenced Appellant to a dishonorable discharge, confinement for

five years, forfeiture of all pay and allowances, and reduction

to E-1. The Army Court of Criminal Appeals set aside

Appellant’s conviction on one of the specifications of failure

to obey a lawful regulation and reassessed the sentence,

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affirming only the dishonorable discharge, confinement for

fifty-four months, and reduction to E-1. United States v.

Brown, No. ARMY 20020983, slip op. at 5 (A. Ct. Crim. App. Nov.

30, 2006) (unpublished).

II.

Appellant, a drill sergeant at Aberdeen Proving Ground,

Maryland, was originally charged with raping Private First Class

(PFC) NB, a trainee attending an advanced individual training

course. PFC NB was unable to attend a field exercise, which

began at 4:00 a.m., because of a prior physical injury.

Instead, she was directed to go to chow, and then to the orderly

room, where she saw Appellant. Appellant told PFC NB to return

to her room in the female barracks. Appellant entered PFC NB’s

room and started “kissing on” her. He sat on a chair and told

PFC NB to come to him. She did. Appellant pulled down her

pants, sat her on his lap, and inserted his fingers into her

vagina. PFC NB stood up to pull up her pants. Appellant said,

“you have to taste this,” walked up behind her and inserted his

penis inside her vagina for a short period of time (fifteen to

twenty-one seconds). After Appellant withdrew, he told PFC NB

to keep watch at the window in case someone appeared, while he

went to get a condom. She waited a few minutes after Appellant

left the room and then went to a pay phone to call a friend and

tell him about Appellant’s actions. PFC NB asked her friend

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what she should do when Appellant returned with the condom. She

testified she felt that she had to allow Appellant to have

sexual intercourse with her because she might not be allowed to

graduate from the training course. PFC NB’s friend did not have

any advice, so PFC NB went back to her room, waited for

Appellant (she read her Bible and started taking a nap), and

acquiesced to sexual intercourse when he returned around 10:00

a.m. It is unclear how long PFC NB waited for Appellant to

return to her room.

At trial, Appellant’s defense counsel did not request an

instruction on lesser included offenses, specifically telling

the military judge that the defense did not want instructions on

indecent assault or indecent acts. Defense counsel, in answer

to a question from the military judge, agreed with the military

judge that the defense theory on the rape was “all or nothing.”

The Government asked the military judge to instruct on the

lesser included offenses of indecent assault, indecent acts, and

assault consummated by a battery. Appellant’s defense counsel

reiterated that the defense did not want the instruction. The

military judge found sufficient evidence to instruct: “There is

evidence raised that there was sexual intercourse. There is

evidence raised that the accused inserted his fingers into PFC

[NB]’s vagina. Assuming the court members found all of the

other elements to have occurred, they could find that either or

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both of those offenses constituted indecent assault.” Both

trial and defense counsel agreed that the military judge’s

summary was a correct statement of the law.

The military judge and parties also discussed the findings

worksheet, and whether to tailor it to reflect the three factual

scenarios in the instruction. The Government originally wanted

the separate acts specifically delineated. The defense,

however, did not want the acts separately described on the

findings worksheet. After some discussion, the Government

agreed that the findings worksheet be left deliberately vague

and that members not be asked to enter findings to a lesser

included offense by exceptions and substitutions.

The military judge instructed the members on rape and the

three lesser included offenses. She instructed the members that

to find Appellant guilty of indecent assault, they could find he

did so “by inserting his fingers and penis, or fingers, or penis

into [PFC NB’s] vagina.” Defense counsel did not object to the

instruction. The members found Appellant not guilty of rape,

but guilty of indecent assault.

III.

Appellant argues that the military judge erred by

instructing the members that Appellant could be convicted of

indecent assault based on any one of three factual scenarios,

without requiring the members to vote on each scenario and to

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disclose the factual basis of their findings. In essence, he

avers that the military judge’s instructions created a situation

akin to a duplicitous pleading, because it allowed the members

to look at three separate scenarios in order to convict of one

offense. As a result, Appellant claims he is unable to receive

an adequate factual sufficiency review of his conviction from

the Court of Criminal Appeals under Article 66, UCMJ, 10 U.S.C.

§ 866 (2000).

In his brief, Appellant relies in large part on this

Court’s holding in United States v. Walters, 58 M.J. 391, 396

(C.A.A.F. 2003). At oral argument, Appellant’s counsel backed

away from Walters and instead focused on the Ninth Circuit’s

holding in United States v. Garcia-Rivera, 353 F.3d 788, 792

(9th Cir. 2003).

Originally charged with use of a controlled substance on

“divers occasions,” Walters was convicted of a single use.

Walters, 58 M.J. at 395. The court members excepted the words

“divers occasions” from the finding, and found Walters not

guilty of the excepted words. Id. at 394. We reversed and set

aside his conviction, holding that the finding was ambiguous

because the members did not specify which of a number of

possible uses served as the basis for the conviction. Id. at

396-97. Such a finding could not support a factual sufficiency

review by the Court of Criminal Appeals under Article 66, UCMJ.

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Id. at 397. We also held that double jeopardy principles and

“the inability to identify and segregate those instances of

alleged use of which Appellant was acquitted from the ‘one

occasion’ that served as a basis for the guilty finding

effectively prevent[ed] any rehearing.” Id.

Walters is inapposite to the present case. Walters applies

only in those “narrow circumstance[s] involving the conversion

of a ‘divers occasions’ specification to a ‘one occasion’

specification through exceptions and substitutions.” 58 M.J. at

396. In this case, the Government neither alleged multiple

offenses occurring on “divers occasions” in a single

specification, nor multiple rapes based on the evidence

presented. Instead, the Government alleged a single incident of

rape occurring at a specific time and place, approaching the two

episodes in PFC NB’s barracks room as a continuing course of

conduct over a short period of time. The members found

Appellant guilty of a single incident of indecent assault, a

lesser included offense of the rape charge. There is,

therefore, nothing ambiguous about the court-martial’s finding.

Furthermore, the military judge’s lesser-included-offense

instruction did not create a duplicitous specification. The

specification neither alleged multiple acts, nor did the court-

martial find multiple acts. Instead, the military judge’s

lesser-included-offense instruction identified different ways

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Appellant could have indecently assaulted the victim at the time

and place alleged, based on the evidence presented at trial and

the parties’ theories of the case. The proper question is,

then, whether the military judge’s instruction was correct.

Whether a military judge properly instructed court members is a

question of law, which we review de novo. United States v.

Schroder, 65 M.J. 49, 54 (C.A.A.F. 2007).

At oral argument, Appellant claimed the instruction was

incorrect because it allowed the members to convict Appellant of

indecent assault based on one of three different factual

scenarios. According to Appellant, the instruction permitted a

conviction if some members believed Appellant inserted only his

penis, if others believed he inserted only his fingers, and if

still others believed he inserted both his fingers and penis,

without the requisite number of members agreeing on any

particular scenario. To this end, Appellant urges us to apply

the Ninth Circuit’s decision in Garcia-Rivera to determine the

validity of the military judge’s instruction. We decline to

do so. Not only has Garcia-Rivera never been cited outside the

Ninth Circuit, but the case has been recently distinguished

within it. See United States v. Johal, 428 F.3d 823, 829 (9th

Cir. 2005).

Garcia-Rivera was prosecuted for unlawful possession of a

firearm under 18 U.S.C. § 922(g)(1) (2000). Garcia-Rivera, 353

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F.3d at 790. The judge instructed the jurors that they could

convict if they found that the possession occurred “(a)

uninterrupted between May 19, 2001 and June 7, 2001[,] or (b)

about a week after the purchase of the firearms, or (c) on June

7, 2001.” Id. The instruction further stated that the jury

“must unanimously agree that the possession occurred during (a)

above, or on (b) or (c) above.” Id. The court held the

instruction fatally ambiguous because the jurors could have

concluded unanimously only that possession occurred on one of

the three times, without agreeing on which one. Id. at 792.

Garcia-Rivera, however, is factually distinguishable from the

instant case, which involved a single course of conduct within a

few hours of a single day.

The crux of the issue is whether a fact constitutes an

element of the crime charged, or a method of committing it.

After all, in federal criminal cases, the requirement for juror

unanimity applies only to elements of the offense. Richardson

v. United States, 526 U.S. 813, 817 (1999) (stating that a

“federal jury need not always decide unanimously which of

several possible sets of underlying brute facts make up a

particular element”).

With minor exceptions for capital cases, a “court-martial

panel, like a civilian jury, returns a general verdict and does

not specify how the law applies to the facts, nor does the panel

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otherwise explain the reasons for its decision to convict or

acquit.” United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F.

1997). In returning such a general verdict, a court-martial

panel resolves the issue presented to it: did the accused

commit the offense charged, or a valid lesser included offense,

beyond a reasonable doubt? 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. Griffin v. United

States, 502 U.S. 46, 49-51 (1991); Schad v. Arizona, 501 U.S.

624, 631 (1991) (plurality opinion) (“We have never suggested

that in returning general verdicts in such cases the jurors

should be required to agree upon a single means of commission,

any more than the indictments were required to specify one

alone.”).

We have recognized that military criminal practice requires

neither unanimous panel members, nor panel agreement on one

theory of liability, as long as two-thirds of the panel members

agree that the government has proven all the elements of the

offense. United States v. Vidal, 23 M.J. 319, 325 (C.M.A.

1987). In Vidal, we affirmed a conviction for a single charge

of rape when the government presented evidence that the

appellant had sexual intercourse with the victim and held her

down as another soldier raped her. Id. at 325-26. We held:

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[i]f two-thirds of the members of the court-
martial were satisfied beyond a reasonable doubt
that at the specified time and place, appellant
raped [the victim] -- whether he was the
perpetrator or only an aider and abettor -- the
findings of guilty were proper. 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.

Id. at 325; cf. United States v. Holt, 33 M.J. 400, 404 (C.M.A.

1991) (holding there is no requirement for the prosecution to

elect which acts served as a basis for indecent acts offense

when acts were “so closely connected in time as to constitute a

single transaction”). Notably, Appellant in this case did not

object to the compound instruction, including on the ground that

it covered multiple offenses as opposed to a continuing

transaction.

In this case, the military judge’s lesser-included-offense

instruction was appropriate, given the state of the evidence

presented. Under the facts admitted into evidence, the military

judge was obligated to instruct on the lesser included offense

of indecent assault, and properly did so. United States v.

Bean, 62 M.J. 264, 266 (C.A.A.F. 2005) (holding that the

military judge has a duty to instruct sua sponte on lesser

included offenses reasonably raised by the evidence; evidence

“reasonably raises” a lesser included offense if members could

rely on it). In the case of indecent assault, the elements

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require acts done “with the intent to gratify,” and not the

specification of particular acts or methods of gratification.

Manual for Courts-Martial, United States pt. IV, para. 63.b.(2)

(2005 ed.).

IV.

The decision of the United States Army Court of Criminal

Appeals is affirmed.

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