UNITED STATES ARMY COURT 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 Samuel E. Landes, JA (argued); Captain Samuel E. Landes, 

JA; Captain Carling M. Dunham, JA (on brief). 

For Real Party in Interest: Lieutenant Colonel Christopher Daniel Carrier, JA 

(argued); Colonel Mary J. Bradley, JA; Lieutenant Colonel Christopher Daniel 

Carrier, JA; Captain Cody D. Cheek (on brief). 

23 December 2016 

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MEMORANDUM OPINION AND ACTION ON PETITION FOR 

EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF PROHIBITION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

WOLFE, Judge: 

In this case we wrestle with the issue of whether to grant the United States’ 

petition for a writ of prohibition. Specifically, the government asks this court to 

prohibit the panel members from redeliberating on findings that have already been 

announced in open court. We determine that issuance of the writ is necessary and 

appropriate. 

BACKGROUND 

As a writ petition, we consider a relatively undeveloped record. However, the 

material facts do not appear to be in dispute. 
LARA—ARMY MISC. 200160776 

2 

The real party in interest (hereinafter the accused) was arraigned on a charge 

of sexual assault in violation of Article 120, Uniform Code 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 committed “with an intent to abuse, humiliate, harass, or 

degrade any person or to arouse or gratify the sexual desire of any person.” UCMJ 

art. 120(g)(1)(B). 

During trial on the merits, “some evidence” was presented that the accused 

was intoxicated during the time sexual assault occurred. However, 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 the military judge’s instructions. 

During deliberations, the 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 considered a wrongful offense?” 

In an Article 39(a), UCMJ, session, the military judge proposed answering the 

panel’s question by directing them to the definition of what constitutes a “sexual 

act” under Article 120(g)(1)(B), UCMJ. Both parties 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 parties then again stated they had no objection to the military 

judge’s explanation. 

The panel convicted the accused of the offense. 

The court-martial proceeded directly to presentencing. The government called 

a single sentencing witness who testified about the effects the offense has had on 

her. 

The defense presented five sentencing witnesses. The 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 testifying 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 testimony would be, “I don’t 

remember,” “I don’t remember,” and “I don’t remember.” 

I don’t know. There’s no point to it, I don’t think. 

 

Q. You didn’t feel comfortable testifying because you 

don’t have the memory? 

A. No, ma’am. 

Q. Now that you’ve heard [the alleged victim] testify 

about what she does remember, 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 although 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 meant for anything, ma’am. 

[. . .] 

Q. Is there anything else that you’d like the panel to 

consider before they deliberate on your sentence? 

A. I don’t have enough recollection of that night to be able 

to say yes or no, either way, but I never intended for 

anything. If it actually did or not, I don’t know, but my 

memory is there--they're not 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 sentencing instructions during an 

Article 39(a), UCMJ, session, the court-martial recessed for the evening. 

The next morning, the military judge informed the parties he believed he erred 

in his findings instructions. Specifically, he stated that he should have given the 

members the voluntary intoxication instruction. See Dep’t. Of Army, Pam. 27-9, 

Legal Services: Military Judge’s Benchbook [hereinafter Benchbook], para. 5-12 

(10 Sep. 2014). The military judge stated that he saw two options: a mistrial or reinstructing the panel then allowing them to re-deliberate. 

The defense said they would not request a mistrial and would instead request 

that the panel be allowed to re-deliberate on findings. 

The government objected to this proposed remedy. The government was 

specifically concerned appellant, who had not testified at trial, had made a lengthy 

unsworn statement during sentencing specifically telling the panel about his mental 

state due to his voluntary intoxication. 

The military judge explained he believed he had committed error in omitting 

the voluntary intoxication instruction and the accused had been prejudiced by the 

error. He also stated, however, the error may be harmless. The military judge sua 

sponte considered, but rejected, declaring a mistrial. In determining whether a 

mistrial was warranted he assessed the 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 the sexual act never occurred and that 

[the alleged victim] was creating false memories due to an 

alcohol-induced blackout. Factually speaking, the 

likelihood that the panel members would have concluded 

that Staff Sergeant Lara penetrated [the alleged victim’s] 

vulva with his fingers, but that he did not do so with the 

intent to arouse—excuse me, with the intent to abuse, 

humiliate, harass, or degrade any person or to arouse or 

gratify the sexual desire of any person, is so remote that 

the very high standard for a mistrial as previously cited is 

not satisfied. 

The military judge then decided that a mistrial was not warranted and 

overruled the government’s objection. The military judge called the members back 
LARA—ARMY MISC. 200160776 

5 

into the court-martial, and provided them with the voluntary intoxication instruction. 

The parties did not give a second closing argument addressing the new instruction, 

nor did they object to not being able to give such argument. 

Shortly after the members began deliberating, this court issued a stay of the 

proceedings so that we could consider the instant writ petition. United States v. 

Shahan and Lara, ARMY MISC. 20160776 (Army Ct. Crim. App. 9 Dec. 2016) 

(order). We held oral argument six days later on 15 December 2016. 

DISCUSSION 

To obtain the requested writ of prohibition, petitioner must show: (1) there is 

“no other adequate means to attain relief;” (2) the “right to issuance of the writ is 

clear and indisputable;” and (3) the issuance of the writ is “appropriate under the 

circumstances.” Cheney v. United States Dist. Court, 542 U.S. 367, 380–81 (2004) 

(citations and internal quotation marks omitted). “A writ of prohibition . . . is a 

‘drastic instrument which should be invoked only in truly 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, 229 (C.M.A. 1983)). 

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

other means of obtaining relief. Should we not issue the writ, both parties believe 

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

conclusive in all respects. "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 the right to the issuance of the writ is 

clear and indisputable. Broadly, this question regards the authority of the military 

judge. May the military judge of a court-martial composed of members reinstruct 

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

announced in open court? 

A. Dietz v. Bouldin 

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

Bouldin, 136 S. Ct. 1885 (2016). In that civil case, a jury returned a judgement for 

the plaintiff of zero dollars. The district court judge thanked the jury for their 

service and ordered them “discharged,” and they were “free to go.” However, a few 

minutes later the judge ordered the clerk to bring the jurors back. The judge 

realized, because of a stipulated agreement on damages, a verdict of zero dollars was 

not “legally possible.” Id. at 1890. Over plaintiff’s objection, the judge reinstructed 

the jury and directed them to re-deliberate. The Court affirmed the district judge’s 

“inherent power” to reinstruct the jury in that case. 
LARA—ARMY MISC. 200160776 

6 

The Court noted that they had never “precisely delineated the outer 

boundaries of a district court’s inherent powers . . . .” Id. at 1891. The Court then 

established a two-part test for determining whether a federal district 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 grant of or limitation on the 

district court’s power contained in a rule or statute. See

id., at 823; Fed. Rule Civ. Proc. 83(b) (districts courts can 

“regulate [their] practice in any manner consistent with 

federal law”); see, e.g., Bank of Nova Scotia v. United 

States, 487 U.S. 250, 254 (1988) (holding that a district 

court cannot invoke its inherent power to circumvent the 

harmless-error inquiry prescribed by Federal Rule of 

Criminal Procedure 52(a)). 

Dietz, 136 S. Ct. at 1892. The Court then concluded: 

These two principles—an inherent 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 discharge order and recall a jury in a 

civil case where the court discovers an error in the jury’s 

verdict. 

Id. 

Applying Dietz to this case we are constrained by two threshold concerns. 

First, any direct comparison of the inherent power of a military judge to a federal 

district court judge is dangerous. The difference in authority is not so much a 

difference in degree, but a difference in kind. It would be wrong to assume that 

merely because a district court judge has a certain inherent authority, that same 

reasoning would apply to a military judge. However, the flipside to this argument 

may be persuasive. A military judge likely does not have greater inherent authority 

than a district judge. Not only do military judges and federal district judges stand 

on different constitutional footing, but also Article 36, UCMJ, would appear to 
LARA—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 not address here whether it would be appropriate to recall 

a jury after a discharge in a criminal case.” 136 S. Ct. at 1895. Thus, at best, Dietz 

is silent (and perhaps skeptical) 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 response to the problems and needs confronting the court’s fair 

administration of justice. Here, the military judge commendably 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 needed to determine whether 

it was a reasonable response to the situation to tell the members to ignore all the 

sentencing evidence, reinstruct the members, and direct them to re-deliberate. The 

accused specifically asked for this remedy. 

The government, by contrast, believes that the panel cannot be expected to 

ignore the accused’s lengthy unsworn statement regarding his intoxication at the 

time of the assault. More specifically, the government believes the effect of the 

military judge’s actions allows the accused to present exculpatory evidence during 

 

1

 We note that the military judge described the voluntary intoxication instruction as 

a mandatory instruction on a defense. Under R.C.M. 920(e)(3) a military judge is 

required to instruct on “any special defense under R.C.M. 916 in issue.” However, 

voluntary intoxication is not a defense under R.C.M. 916 and is not otherwise a 

“special defense.” See R.C.M. 916(a) (definition of “special defense”). Rather, the 

instruction guides a panel in assessing whether the government has met its burden of 

proving beyond a reasonable doubt that the accused possessed a certain specific 

intent. However, whether it is an instruction on a defense—or whether it is a 

mandatory or discretionary instruction—all appear to be beside the point. The 

military judge determined based on the case in front of him that its omission was 

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

8 

sentencing without subjecting himself to the crucible 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 problems confronting the court. 

2. Contrary to any limitation contained in the rules 

The second question Dietz poses is can a judge exercise an inherent power 

that is “contrary to any express grant of or limitation on the district court’s power 

contained in a rule or statute.” 136 S. Ct. 1888. We address the two rules on point. 

Rule for Courts-Martial [hereinafter R.C.M.] 924 addresses when a court-martial 

may reconsider a finding. R.C.M. 1102 addresses the military judge’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 finding reached by them before 

such finding is announced in open session.” Counsel for the accused argued that we 

should interpret this rule as limiting only the member’s authority to initiate a 

reconsideration, and not a limitation on the military judge’s authority to direct the 

members to reconsider a finding. We do not find that interpretation persuasive, and 

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

it has been announced in open session. 

First, we note that the drafter’s analysis to the 1995 amendment to the R.C.M. 

states that the rule “limits reconsideration of findings by the members to findings 

reached in closed session but 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 findings in open court, 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) found that the military judge’s ability to reinstruct the 

 

2

 Here, the defense specifically declined to ask for a mistrial. Thus, were the 

government to ask for a mistrial, or were the judge to direct 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 retrial of soldier when first court-martial ordered mistrial 

over defense objection). 
LARA—ARMY MISC. 200160776 

9 

panel regarding faulty instructions ended once the panel’s findings were announced. 

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

reconsider a finding 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 viewed 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 occurred at the military judge's direction 

instead of a panel member's proposal. 

Id. at 684. 

Accordingly, we find that R.C.M. 924 unambiguously prohibits the members 

from reconsidering their findings after they have been announced in open court. 

b. Rule For Courts-Martial 1102: Proceedings in Revision 

R.C.M. 1102(b)(1) allows a military judge to direct a proceeding in revision 

“to correct an apparent error, 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 proceedings in revision may not be 

used to correct instructional error: 

We endorse initiative-taking by military judges. Such an 

approach is crucial in our justice system, which favors 

resolution of disputed issues at trial. 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 limitation is understandable, 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 any 
LARA—ARMY MISC. 200160776 

10 

instructional error. In short, we determined that reinstructing the panel and asking 

them to re-deliberate, did not, in law, cure the initial instructional error. Our 

superior court reached a similar conclusion, albeit regarding sentencing 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 for a proceeding in revision.”). 

We have one stark difference, 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 tactical decisions of the accused. In 

Chandler, for example, we described the proceeding as not being lawful. 74 M.J. at 

683. 

Accordingly, the binding precedent of this court and our superior court 

prohibits a proceeding in revision in these circumstances. 

B. Issuance of the Writ 

If the military judge 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. Therefore, we find that the government’s right to the issuance 

of the writ is clear and indisputable. If findings cannot be reconsidered or revised, 

and there cannot be two sets of findings as to the same specification from the same 

court-marital, issuance of the writ is appropriate. 

C. Mistrial 

Our issuance of the writ prohibits the military judge 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 case. We note that the initial decision not 

to grant a mistrial was based on two considerations. First, the military judge 

believed a less drastic remedy 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 accused or sua sponte, the military judge 

should consider whether, “as a matter of discretion” a mistrial is “manifestly 

necessary in the interests of justice because of circumstances arising during the 

proceedings which cast substantial doubt upon the fairness of the proceedings.” 

R.C.M. 915. 
LARA—ARMY MISC. 200160776 

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CONCLUSION 

The writ of prohibition sought by the United States is GRANTED. The record of 

trial is returned to the military judge for action 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: