## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES OF AMERICA, Petitioner

v. Lieutenant Colonel KENNETH SHAHAN, Military Judge Respondent

and Staff Sergeant FRANCISCO LARA, United States Army Real Party in Interest

ARMY MISC 20160776

For Petitioner: Captain Samu el E. Landes, JA (argued); Captain Samuel E. Landes, JA; Captain Carling M. Dunham, JA (on brief).

For Real Party in Interest : Lieutenant Colonel Chri stopher Daniel Carrier, JA (argued); Colonel Ma ry J. Bradley, JA; Lieutenant Colonel Christopher Daniel Carrier, JA; Captain Cody D. Cheek (on brief).

23 December 2016

---------------------------------------------------------------------------------------------- MEMORANDUM OPINION AND ACTION ON PETITION FOR

EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF PROHIBITION

----------------------------------------------------------------------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

In this case we wrestle wi th the issue of whether to grant the United States’ petition for a writ of prohibition. Specif ically, the government asks this court to prohibit the panel members from redeliberati ng on findings that have already been announced in open co urt. We determine that issuan ce of the writ is necessary and appropriate.

BACKGROUND

As a writ petition, we cons ider a relatively undevelop ed record. However, the material facts do not appe ar to be in dispute.LARA—ARMY MISC. 200160776

2 The real party in interest (hereinafter the accused) was arra igned on a charge

of sexual assault in viola tion of Article 120, Uniform Co de of Military Justice, 10 U.S.C. § 920 (2012 & Supp. II 2015) [hereinafter UCMJ]. As the offense alleged a sexual act of digital penetration, the specification included the specific intent

element that the act was commi tted “with an intent to abuse, humiliate, harass, or degrade any person or to ar ouse or gratify the sexual desire of any person.” UCMJ art. 120(g)(1)(B).

During trial on the merits, “some evid ence” was presented that the accused was intoxicated during the time sexual as sault occurred. Ho wever, the defense theory at trial was that no sexual act took place.

The military judge did not instruct the panel the accused’s voluntary

intoxication could cause him to be unable to form the specific intent required by the specification. Neither side objected to th e military judge’s instructions.

During deliberations, th e panel asked the military judge the following question: “If the assailant of sexual assault is unaware of what he or she is doing, is

the incident still consider ed a wrongful offense?”

In an Article 39(a), UC MJ, session, the military j udge proposed answering the panel’s question by di recting them to the definition of what constitutes a “sexual

act” under Article 12 0(g)(1)(B), UCMJ. Both par ties agreed with the military judge’s proposed answer. The military judge then reread the definition of “sexual act,” to include the requirement that the act be committed with a specific intent.

The president of the panel stated that the military judge had answered their question. Both part ies then again stated they had no objecti on to the military judge’s explanation.

The panel convicted the accu sed of the offense.

The court-martial proceeded directly to presentencing. Th e government called a single sentencing witness who testified about the effects the offense has had on

her.

The defense presented five sentencing witnesses. Th e witnesses testified to the accused’s duty performance, character, and the effect that his conviction would have on his wife and family.

The accused then made an unsworn statement. The statement was made by answering questions by counsel, and included the following exchange:LARA—ARMY MISC. 200160776

3 Q. Did you ever consider te stifying during the case in

chief?

A. I have.

Q. Why didn’t you do that?

A. After drinking for so much , the memories, they’re not really there and my test imony would be, “I don’t remember,” “I don’t remember,” and “I don’t remember.” I don’t know. There’s no po int to it, I don’t think.

Q. You didn’t feel comfor table testifying because you don’t have the memory?

A. No, ma’am.

Q. Now that you’ve heard [t he alleged victim] testify

about what she does rememb er, how does it make you

feel?

A. It makes me feel a little surprised, because that’s not

me. And I’d like to think that I do take care of my

Soldiers and altho ugh she wasn’t my Soldier, she was junior to me. And I wouldn’t try to hurt her, but--I don’t know. I’m sorry. I don’t remember that night to say I’m sorry for this [sic] or for hurting you. I don’t know how to say it. I never meant to do anything. We were in Vegas. We’re--I never m eant for anything, ma’am.

[. . .]

Q. Is there anything else th at you’d like the panel to consider before they deliberate on your sentence?

A. I don’t have enou gh recollection of that night to be able to say yes or no, either wa y, but I never intended for anything. If it act ually did or not, I don’t know, but my memory is there--they're no t there to say yes or no.LARA—ARMY MISC. 200160776

4 As an unsworn statement, appellant was not cross-examined. The defense then rested their sentencing case. After discussing sent encing instructions during an Article 39(a), UCMJ, session, the court-martial recessed for the evening.

The next morning, the milita ry judge informed the part ies he believed he erred in his findings instructions. Specifically, he stated that he s hould have given the members the voluntary in toxication instruction. See Dep’t. Of Ar my, Pam. 27-9, Legal Services: Military Judge’s Benc hbook [hereinafter Be nchbook], para. 5-12 (10 Sep. 2014). The m ilitary judge stated that he sa w two options: a mistrial or reinstructing the panel then allowi ng them to re-deliberate.

The defense said they woul d not request a mistrial and would inst ead request that the panel be allowed to re-deliberate on findings.

The government objected to this pr oposed remedy. Th e government was specifically concerned appellant , who had not testified at trial, had made a lengthy unsworn statement during se ntencing specifically telling the panel about his mental state due to his voluntary intoxication.

The military judge explaine d he believed he had co mmitted error in omitting the voluntary intoxication instruction and the accused had been prejudiced by the

error. He also stat ed, however, the error may be harmless. Th e military judge sua sponte considered, but reje cted, declaring a mistrial. In determining whether a

mistrial was warranted he assessed th e evidence in the case as follows:

. . . the court notes that the defense in this case was not that Staff Sergeant Lara did not intend to abuse humiliate [the alleged victim] or to arouse himself; rather, the

defense was that th e sexual act never occurred and that [the alleged victim] was creati ng false memories due to an

alcohol-induced blackout. Factually sp eaking, the likelihood that the panel members would have concluded that Staff Sergeant Lara penetrated [the alleged victim’s] vulva with his finger s, but that he did not do so with the intent to arouse—excuse me, with the intent to abuse, humiliate, harass, or degrade an y person or to arouse or gratify the sexual desire of an y person, is so remote that the very high standard for a mist rial as previously cited is

not satisfied.

The military judge then decided that a mistrial was not warranted and overruled the government’s objection. Th e military judge called the members backLARA—ARMY MISC. 200160776

5 into the court-martial, and provided them wi th the voluntary intoxi cation instruction. The parties did not give a second closing argument addr essing the new instruction, nor did they object to not bein g able to give such argument. Shortly after the me mbers began deliberating, this court issued a stay of the proceedings so that we could cons ider the instant writ petition. United States v.

Shahan and Lara , ARMY MISC. 20160776 (Army Ct. Crim. App. 9 Dec. 2016) (order). We held or al argument six days la ter on 15 December 2016.

DISCUSSION

To obtain the requested wr it of prohibition, petitioner must sh ow: (1) there is “no other adequate means to a ttain relief;” (2) the “right to issuance of the writ is clear and indisputable;” and (3) the issuance of the writ is “appropria te under the

circumstances.” Cheney v. United States Dist. Court , 542 U.S. 367, 380–81 (2004) (citations and internal quotation marks omitte d). “A writ of pr ohibition . . . is a

‘drastic instrument wh ich should be invoked only in tr uly extraordinary situations.’”

United States v. Howell , 75 M.J. 386, 390 (C .A.A.F. 2016) (quoting United States v.

Labella , 15 M.J. 228, 22 9 (C.M.A. 1983)).

At oral argument, both part ies appeared to agree that the United States has no

other means of ob taining relief. Should we not is sue the writ, both parties believe

that were the members to return a find ing of not guilty, that finding would be

conclusive in all re spects. "However mistaken or wrong it may be , an acquittal

cannot be withdrawn or disapproved." United States v. Hitchcock , 6 M.J. 188, 189 (C.M.A. 1979) (citing Fong Foo v. United States , 369 U.S. 141, 143 (1962)). Accordingly, our focus today is on whether th e right to the issuan ce of the writ is clear and indisputab le. Broadly, this qu estion regards the auth ority of the military judge. May the milita ry judge of a court-martial co mposed of memb ers reinstruct

the members and direct them to re-deliber ate on findings that have already been

announced in open court?

A. Dietz v. Bouldin

Recently the U.S. Supreme Cour t addressed a similar issue in Dietz v.

Bouldin , 136 S. Ct. 1 885 (2016). In that civil case, a jury returned a judgement for the plaintiff of zero dollars. The distri ct court judge thanke d the jury for their

service and ordered them “dis charged,” and they were “fre e to go.” However, a few minutes later the judge orde red the clerk to bring the jurors back. The judge realized, because of a stipulated agreemen t on damages, a verdic t of zero dollars was not “legally possible.” Id . at 1890. Over plai ntiff’s objection, the judge reinstructed the jury and directed them to re-deliberate. The Court a ffirmed the district judge’s “inherent power” to reinstru ct the jury in that case.LARA—ARMY MISC. 200160776

6 The Court noted that th ey had never “precisely delineated the outer

boundaries of a district court’ s inherent powers . . . .” Id . at 1891. Th e Court then established a two-part test for determinin g whether a federal di strict judge has an inherent power:

First, the exercise of an inherent power must be a “reasonable response to the problems and needs” confronting the court’s fair administration of justice. Degen v. United States, 517 U.S. 820, 823–824 (1996). Second, the exercise of an inherent power cannot be
contrary to any express gran t of or limitation on the district court’s power contai ned in a rule or statute. See id., at 823; Fed. Rule Civ. Proc . 83(b) (distric ts courts can “regulate [their] practice in any manner consistent with federal law”); see , e.g., Bank of Nova Sc otia v. United
States, 487 U.S. 250, 254 (1988) ( holding that a district

court cannot invoke its inhere nt power to circumvent the harmless-error inquiry prescr ibed by Federal Rule of Criminal Procedure 52(a)).

Dietz , 136 S. Ct. at 1 892. The Court th en concluded:

These two principles—an in herent power must be a reasonable response to a specific problem and the power cannot contradict any express rule or statute—support the

conclusion that a district judge has a limited inherent power to rescind a di scharge order and re call a jury in a

civil case where the court disc overs an error in the jury’s

verdict.

Id

.

Applying Dietz to this case we are constraine d by two threshol d concerns. First, any direct comparison of the inherent power of a military judge to a federal district court ju dge is dangerous. The difference in authority is not so much a difference in degree, but a di fference in kind. It would be wrong to assume that merely because a district co urt judge has a certain inherent authority, that same reasoning would apply to a military judge. However, the flipsi de to this argument may be persuasive. A military judge like ly does not have greater inherent authority than a district judge. Not only do military judg es and federal dist rict judges stand on different constitutional footing, but al so Article 36, UCMJ , would appear toLARA—ARMY MISC. 200160776

7 operate to provide military judges at most the same authority as a federal district court judge.

Second, Dietz was a civil case. The Court in Dietz specifically “caution[ed] that our recognition here of a court’s inherent power to recall a jury is limited to civil cases only. . . . we do no t address here whether it would be appropriate to recall a jury after a discharg e in a criminal case.” 136 S. Ct. at 1895. Thus, at best, Dietz is silent (and perhaps skep tical) of allowing a federal district court judge to reinstruct a jury in a criminal case.

Notwithstanding these two limiting considerations, we find the Dietz framework helpful.

1. A Reasonable Response to the Problems Confronting the Court

The first question posed by Dietz was whether the judge’s actions are a reasonable resp onse to the problems and need s confronting th e court’s fair administration of ju stice. Here, the mi litary judge commenda bly brought to the parties’ attention an error he had made when instructing the panel. 1 However, the military judged recognized the error only after all the sentencing evidence was already before the members. Thus, the military judge ne eded to determine whether it was a reasonable response to the situat ion to tell the members to ignore all the sentencing evidence, reinstruct the members, and direct them to re-deliberate. The accused specifically aske d for this remedy.

The government, by contrast, believes that the panel cannot be expected to ignore the accused’s lengthy unsworn statem ent regarding his intoxication at the

time of the assault. More specifically, the government believes the effect of the military judge’s actions allows the accuse d to present exculpatory evidence during

1 We note that the mi litary judge described the volunt ary intoxication instruction as a mandatory instruction on a defense. U nder R.C.M. 920(e)(3) a military judge is required to instruct on “any special defe nse under R.C.M. 916 in issue.” However, voluntary intoxication is no t a defense under R.C.M. 916 and is not otherwise a “special defense.” See R.C.M. 916(a) (definiti on of “special defe nse”). Rather, the instruction guides a panel in assessing whether the govern ment has met its burden of proving beyond a reasonable doubt that the acc used possessed a certain specific intent. However, wh ether it is an instruction on a defense—or whether it is a mandatory or discretionary in struction—all appear to be beside the point. The military judge determined ba sed on the case in front of him that its omission was

error. This decision we do not second guess in dete rmining this writ petition.LARA—ARMY MISC. 200160776

8 sentencing without subjecti ng himself to the crucib le of cross-examination. 2 Given the military judge’s superior position, we do not find the military judge’ s actions to be unreasonable given the prob lems confrontin g the court.

2. Contrary to any limita tion contained in the rules

The second question Dietz poses is can a judge exer cise an inherent power that is “contrary to any express grant of or limitation on the di strict court’s power

contained in a rule or statute.” 136 S. Ct. 1888. We address the two ru les on point. Rule for Courts-Martial [h ereinafter R.C.M.] 924 addr esses when a court-martial may reconsider a finding. R.C.M. 1102 addresse s the military judg e’s authority to order a proceeding in revision.

a. Rule for Courts-Martial 924 : Reconsideration

At oral argument, counsel for the accused argued that the military judge was exercising his inherent authority to allow the members to reconsider their findings. For courts-martial composed of members, R.C.M. 924 reads as follows: “(a) Time for reconsideration. Members may reconsider any fi nding reached by them before such finding is announc ed in open sess ion.” Counsel fo r the accused argued that we should interpret this rule as limiting only the member’s author ity to initiate a reconsideration, an d not a limitation on the military judge’s aut hority to direct the members to reconsider a finding. We do not find that interpreta tion persuasive, and

instead find that the rule cl early prohibits reconsiderations of a panel’s finding after

it has been announced in open session.

First, we note that the drafter’s analys is to the 199 5 amendment to the R.C.M.

states that the rule “limits reconsiderat ion of findings by th e members to findings

reached in closed session bu t not yet announced in open court . . . .” R.C.M. 924 analysis at A21-72.

Second, we note that our superior court has stated , citing R.C.M. 922 and 924(a) that “when the panel announced its fi ndings in open cour t, those findings were final and were not subject to reconsideration by the members.” United States v. Thompson , 59 M.J. 432, 440 (C .A.A.F. 2004). In Thompson , the Court of Appeals for the Armed Forces (CAAF) f ound that the military judge’s ability to re instruct the

2 Here, the defense specifically declined to ask for a mistrial . Thus, were the government to ask for a mistri al, or were the judge to di rect a mistrial sua sponte, the government may be barred from retrying the accused under the Double Jeopardy

Clause. See Watada v. Head , 530 F. Supp. 2d 1136 (W.D. Wash. 2007) (federal district judge prohibited retr ial of soldier when first court-martial ordered mistrial over defense objection).LARA—ARMY MISC. 200160776

9 panel regarding faulty instructions ended on ce the panel’s findi ngs were a nnounced.

See also UCMJ art. 52(c) (requiring a vote of more than one-third of the members to

reconsider a find ing of guilty). Similarly, in United States v. Chandler , 74 M.J. 674 (Army Ct. Crim. App. 2015), we considered whether a military judge’s post-trial hearing to address instructional error could be considered a reconsideration, stating:

The hearing could also be view ed as a flawed attempt at

reconsideration of findings, for which R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the panel unambiguously announced findings on 10 July 2012, and it occu rred at the military judge's direction instead of a panel me mber's proposal.

Id . at 684.

Accordingly, we find that R.C.M. 924 unambiguou sly prohibits the members from reconsidering their findings after th ey have been announ ced in open court.

b. Rule For Courts-Martial 1 102: Proceedings in Revision

R.C.M. 1102(b)(1) allows a military judge to direct a proceeding in revision “to correct an apparent erro r, omission, or improper or inconsistent action by the court-martial, which can be rectified by reopening the proceedings without material prejudice to the accused.”

In Chandler , this court determined that pr oceedings in revision may not be

used to correct instructional error:

We endorse initiati ve-taking by military judges. Such an approach is crucial in our justice system, which favors

resolution of di sputed issues at tria l. We also understand the desire for quickly reaching a solution in the field, instead of waiting for a convening authority or an appellate court to order the same solution. However, our system's range of post-trial remedies does not include remand to an original finder of fact in order to cure

instructional error. This limit ation is unders tandable, since one cannot reasonably expect panel members to set aside their original findings and deliberate anew.

Id . at 684. We went on to describe the post-trial hearing as “void ab initio ” and a “nullity.” Id . We did not consider the re-announced findings as having cured anyLARA—ARMY MISC. 200160776

10 instructional error. In short, we determ ined that reinstructi ng the panel and asking them to re-deliberate, did not, in law, cure the initial instructional error. Our superior court reached a simila r conclusion, albeit regarding sentenci ng instructions.

United States v. Gleason , 43 M.J. 69, 71 n. 4 (C.A.A.F. 1995) (“[T ]he purpose of the proceeding . . . was to correct an error in the sentencing instructions, which is not a proper purpose fo r a proceeding in revision.”).

We have one stark differe nce, however, between Chandler

, Gleason , and the case before us today. Here , the accused requested the panel be reinstructed and

allowed to re-deliberate. However, we do believe that the military judge’s authority

to order re-deliberation can turn on the tactic al decisions of the accused. In

Chandler , for example, we describe d the proceeding as not be ing lawful. 74 M.J. at

683.

Accordingly, the binding precedent of this court and our superior court prohibits a proceeding in revi sion in these circumstances.

B. Issuance of the Writ

If the military judg e may not allow the panel to reconsider (under R.C.M. 924) or revise (under R.C.M. 1102) the panel’s findings , then the findings must

stand or be set aside. Theref ore, we find that the govern ment’s right to the issuance of the writ is clear and indisp utable. If findings cannot be reconsidered or revised,

and there cannot be two sets of findings as to the same specifica tion from the same court-marital, issuance of the writ is appropriate.

C. Mistrial

Our issuance of the writ prohibits the military ju dge from allowing the panel members to re-deliberate the findings in this case. However, the writ does not prohibit the military judge from considering whether a mistrial is an appropriate remedy for the instructional error in the ca se. We note that the initial decision not to grant a mistrial was base d on two considerations. First, the military judge

believed a less drastic reme dy was available. Second, the accused did not ask for a mistrial because, at least partially, he preferred the remedy of reinstructing the panel. Accordingly, at the request of the accu sed or sua sponte, the military judge should consider whether, “as a matter of discretion” a mistrial is “manifestly necessary in the inte rests of justice beca use of circumstance s arising during the proceedings which cast substantial doubt u pon the fairness of the proceedings.”

R.C.M. 915.LARA—ARMY MISC. 200160776

11 CONCLUSION

The writ of prohibition sought by the Unit ed States is GRANTED. The record of trial is returned to the military judge for ac tion not inconsistent with this opinion.

Senior Judge MULLIGAN and Judge FEBBO concur.

FOR THE COURT:

JOHN P. TAITT Acting Clerk of Court JOHN P. TAITT Acting Clerk of Court FOR THE COURT: