CAAF grants review of sentence reassessment issue

I've very excited about CAAF's grant of review in United States v. McCracken, __ M.J. ___, No. 08-0440/MC (C.A.A.F. Sept. 4, 2008), since the case holds the potential to improve the law regarding sentence reassessment vs. remanding for resentencing.

The two granted issues in McCracken are:

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

McCracken arises from two Marines in Iraq engaging in an ongoing non-coital sexual relationship. On one particular night, while in Sgt McCracken's rack in a barracks room where other Marines were trying to sleep, he apparently briefly penetrated his corporal paramour's vagina. One of the other Marines in the room reported the misconduct and Sgt McCracken soon found himself being investigated for rape. At a general court-martial, the members found him not guilty of rape but convicted him of indecent assault, adultery (the corporal was married) and drunk and disorderly conduct.

NMCCA set aside the fiding of guilty to indecent assault on factual sufficiency grounds and, by a 2-1 vote, upheld a finding of guilty to indecent acts instead. NMCCA then knocked the sentence down from confinement for a year, total forfeitures, a BCD, and confinement for six months, a BCD, and reduction to E-1. United States v. McCracken, No. NMCCA 200600484 (N-M. Ct. Crim. App. Jan. 29, 2008).

This is meaningful relief that will almost certainly result in some financial benefit to now-Private McCracken. But it isn't apparent to me how NMCCA purports to know that the members would still have adjudged a BCD if they didn't find him guilty of indecent assault, but found him guilty of indecent acts instead. I look forward to CAAF revisting the sentence reassessment criteria and perhaps adopting the valuable reassessment criteria that Judge Baker offered in his concurring opinion in United States v. Moffeit, 63 M.J. 40, 42-43 (C.A.A.F. 2006) (Baker, J., concurring).

The first granted issue is suggested by Judge Couch's dissent in McCracken. He agreed that the indecent assault specification must be set aside but didn't believe that NMCCA could affirm a finding of guilty to indecent acts instead. Judge Couch reasoned that affirming the finding of guilty to indecent acts would be inconsistent with the "Government's theory of liability presented at trial" as well as with "the actus reus element as provided by the military judge to the members." He explained: "Because the Government did not present a theory of indecent acts with another based upon sexual intercourse in the presence of others at trial, and the members were not instructed with elements of the offense consistent with that theory, I do not think we are free to affirm a conviction on that theory on appeal." Nor did Judge Couch believe that a BCD was appropriate for McCracken's offense, further undercutting the majority's view that it could be sure that the members would still have adjudged a BCD even if they hadn't found McCracken guilty of indecent assault, but had convicted him of indecent acts instead.