CAAF revisits the nettlesome question of charging offenses on divers occasions

United States v. Rodriguez, __ M.J. ___, No. 07-0685/AF (C.A.A.F. Apr. 23, 2008), has a certain how-many-angels-can-dance-on-the-head-of-a-pin feel to it. In an opinion by Judge Ryan, a four judge majority and Judge Erdmann debate each other over the metaphysical intersection between divers occasion specs and the CCAs' requirement to review factual sufficiency of the findings of the court-martial.

The problem originally identified by United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), arises when a spec alleges offenses on divers occasions, but the court-martial finds the accused guilty of only a single violation. If the court-martial doesn't specify the particular occasion on which its finding is based, then the CCA has no way to conduct its factual sufficiency review, since it can't review a finding of not guilty and doesn't know which of several alleged acts of misconduct provided the basis for the conviction.

Walters is a hard case to love, conflicting as it does with the common law rule that "a general jury verdict was valid so long as it was legally supportable on one of the submitted grounds even though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury's actions." Walters, 57 M.J. at 556 (quoting Griffin v. United States, 502 U.S. 46, 49 (1991)).

It is, therefore, unsurprising that CAAF would resist the logic of Walters and attempt to confine it to the narrow fact pattern from which it arose.

In Rodriguez, one of the specs of which Senior Airman Rodriguez was convicted alleged marijuana use on divers occasions. The government presented evidence suggesting that SrA Rodriguez had used marijuana three times. The members found SrA Rodriguez guilty as charged. But on appeal, the Air Force Court found the evidence factually sufficient as to only one occasion and affirmed a finding of guilty to a single use.

The problem, of course, is that since there were three possible offenses and SrA Rodriguez was found guilty of use on divers occasions -- meaning two or more times -- the Air Force Court couldn't have known whether the members had found beyond a reasonable doubt that SrA Rodriguez used marijuana on that one occasion.

The majority concedes the logic of that position, Rodriguez, slip op. at 8, but nevertheless affirms. Citing Griffin, CAAF essentially holds that Walters' logic is trumped by the "longstanding jurisprudence in the Supreme Court, this Court, and the common law regarding the presumption that controls general verdicts on appeal." Id.

Walters may be a hard opinion to love, but not hard enough to make its father disown it. Judge Erdmann, Walters' author, stands by the opinion's logic in his dissent. But while the majority distinguishes Walters, id., slip op. at 3, 10-12, Rodriguez appears to be more an exercise in limiting Walters than distinguishing it.

A subtext appears to run through the majority opinion. The opinion observes that the divers occasion spec actually limited SrA Rodriguez's punitive exposure. Id., slip op. at 11 n.5. The opinion also seems to hint that the defense should ask for a bill of particulars when faced with a divers occasions spec. Id., slip op. at 4, 11 n.5.

Had Rodriguez come out the other way, divers occasion charging would no doubt be dead, giving way to mega-specs. And CAAF has held that the maximum punishment for a mega-spec is the aggregate of all the offenses alleged by the mega-spec rather than the punishment for a single offense. United States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995). So CAAF protected "divers occasions" charging, with its benefits to the accused, while providing the bill of particulars roadmap to avoid angels-on-the-head-of-a-pin problems like in Walters and Rodriguez. And all while vindicating the common law rule.