IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, ) Appellee, ) APPELLANT S BRIEF v. ) ) Crim.App. Dkt. No. 200900053 Jose MEDINA ) USCA Dkt. No. 10-0262/MC Staff Sergeant (E-6) ) U.S. Marine Corps, ) Appellant. ) TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: MICHAEL D. BERRY Captain, USMC Appellate Defense Counsel Navy-Marine Corps Appellate Review Activity 1254 Charles Morris Street SE Bldg. 58, Suite 100 Washington Navy Yard, DC 20374 (202) 685-7713 Bar Number 34828

Table of Contents Table of Authorities...iii Issue Presented WHETHER THE LOWER COURT ERRED IN HOLDING THAT ARTICLE 120(c)(2), UCMJ, IS NOT FACIALLY UNCONSTITUTIONAL...1 Statement of Statutory Jurisdiction...1 Statement of the Case...1 Statement of Facts...2 Summary of Argument...5 Argument...6 I. THE LOWER COURT ERRED IN HOLDING THAT ARTICLE 120(c)(2) IS NOT FACIALLY UNCONSTITUTIONAL...6 A. Under Martin v. Ohio and Humanik v. Beyer, an affirmative defense may not pose the same ultimate issue as an element of the charged offense...7 B. The affirmative defense of consent and the element of substantial incapacity pose the same ultimate issue...9 C. Consent is not a true affirmative defense because it cannot co-exist with substantial incapacity...12 Conclusion...13 Certificate of Compliance...15 Certificate of Filing and Service...16 ii

Table of Authorities SUPREME COURT OF THE UNITED STATES Leland v. Oregon, 343 U.S. 790 (1952)...7 Martin v. Ohio, 480 U.S. 228 (1987)...7, 12 Patterson v. New York, 432 U.S. 197 (1977)...6, 7, 12, 14 United States v. Salerno, 481 U.S. 739 (1987)...13 In re Winship, 397 U.S. 358 (1970)...6 UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES United States v. Disney, 67 M.J. 46 (C.A.A.F. 2008)...6 United States v. Neal, 68 M.J. 289 (C.A.A.F. 2009)...6, 10, 11 FEDERAL CIRCUIT COURTS OF APPEALS Humanik v. Beyer, 871 F.2d 432 (3d Cir. 1989)...8, 9 SERVICE COURTS OF CRIMINAL APPEALS United States v. Medina, 68 M.J. 587 (N-M. Ct. Crim. App. 2009)...2, 9, 11, 12, 13 FEDERAL STATUTES 10 U.S.C. 866...1 10 U.S.C. 867...1 10 U.S.C. 892...1 10 U.S.C. 920...1, 5, 10, 11, 12 10 U.S.C. 928...1 SECONDARY SOURCES 1 W. LaFave & A. Scott, Substantive Criminal Law, (1986)...7 BLACK S LAW DICTIONARY 302 (8th ed. 2007)...10, 11 iii

Issue Presented WHETHER THE LOWER COURT ERRED IN HOLDING THAT ARTICLE 120(c)(2), UCMJ, IS NOT FACIALLY UNCONSTITUTIONAL. Statement of Statutory Jurisdiction Staff Sergeant Jose Medina, U.S. Marine Corps, received a court-martial sentence that included a punitive discharge. Accordingly, the Navy-Marine Corps Court of Criminal Appeals had jurisdiction pursuant to Article 66(b)(1), Uniform Code of Military Justice (UCMJ). 1 Appellant invokes this Court s jurisdiction under Article 67(a)(3), UCMJ. 2 Statement of the Case A general court-martial comprised of officer and enlisted members convicted Appellant, contrary to his pleas, of willful dereliction of duty, aggravated sexual assault, and assault consummated by a battery in violation of Articles 92, 120 and 128, UCMJ. 3 Appellant was sentenced to be reduced to the pay-grade of E-1, to be confined for a period of eighteen months, to forfeit all pay and 1 10 U.S.C. 866(b)(1) (2006). 2 10 U.S.C. 867(a)(3) (2006). 3 10 U.S.C. 892, 920, 928 (2006). 1

allowances for eighteen months, and to be discharged from the service with a bad-conduct discharge. 4 On January 9, 2009, the Convening Authority approved fifteen months of the adjudged confinement and approved the remainder of the adjudged sentence; he also ordered that the approved sentence, except for the discharge, be executed. 5 On December 17, 2009, the lower court affirmed the findings and sentence as adjudged. 6 On February 12, 2010, Appellant, through counsel, filed a Petition for Grant of Review and a Supplement to the Petition. This Court granted review on March 30, 2010. Statement of Facts Appellant met Lance Corporal (LCpl) [CB], U.S. Marine Corps, on July 5, 2007. 7 The two developed a platonic relationship over the course of the next five months. On October 7, 2007, LCpl [CB] hosted a barbecue party at her house. LCpl [CB] recalled speaking with Appellant that day, but could not recall whether she mentioned to him 4 Joint Appendix (JA) at 51. 5 General Court-Martial Order and Action 09-08 of Jan. 9, 2009. 6 United States v. Medina, 68 M.J. 587 (N-M. Ct. Crim. App. 2009); JA at 1-25. 7 JA at 26. 2

that she was hosting a party. 8 Appellant told Naval Criminal Investigative Service (NCIS) that LCpl [CB] invited him to her party. 9 During the party, LCpl [CB] consumed a significant amount of alcohol and became intoxicated. Due to her intoxication, LCpl [CB] s friend helped her go upstairs to her bedroom to rest. 10 On the day of the party, Appellant had just returned to San Diego from an out-of-town trip, and drove from the airport to LCpl [CB] s house. 11 When Appellant arrived, he asked some of the other party-goers where LCpl [CB] was and they told him that she was in her room. Appellant went to LCpl [CB] s bedroom and found her laying on the bed, face down. 12 Appellant told NCIS that when he got to her bedroom, he woke her by saying, wake up, I am here. 13 Appellant stated that LCpl [CB] awoke, hugged Appellant, asked about his trip, and said come give me a hug and a kiss. 14 Appellant stated that they started kissing, one thing led 8 JA at 42. 9 JA at 53. 10 JA at 38. 11 JA at 53. 12 JA at 54. 13 JA at 53. 14 JA at 53. 3

to another, and he began kissing her neck and breasts. 15 Appellant stated that LCpl [CB] told him that the door was open so he got up, closed the bedroom door, and when he returned, LCpl [CB] was passed out and not moving. 16 Appellant then resumed kissing LCpl [CB] s breasts, removed her underwear and put his index finger in her vagina. LCpl [CB] responded by pushing Appellant s hand away. 17 Appellant immediately stopped. 18 He then put LCpl [CB] s underwear back on and was sitting on the edge of the bed when LCpl [CB] s friends came in the bedroom and told Appellant to leave immediately. 19 LCpl [CB] testified that she was resting in her bed and the next thing she remembered was seeing Appellant and feeling him kissing her on her neck and her breasts. 20 During the trial, the military judge found that the evidence had raised the issue of consent. Accordingly, he provided the members with instructions regarding the affirmative defenses of consent and mistake of fact as to consent. 21 15 JA at 53-54. 16 JA at 53-54. 17 JA at 53-54. 18 JA at 52. 19 JA at 54. 20 JA at 39. 21 JA at 44. 4

Summary of Argument Article 120(c), UCMJ, requires an accused to disprove the element of incapacity by a preponderance of the evidence to benefit from the affirmative defense of consent. The statute is therefore unconstitutional on its face. By definition, consent and substantial incapacity cannot co-exist. Consent is defined as words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. 22 The statutory definition further provides that A person cannot consent to sexual activity if... substantially incapable of appraising the nature of the sexual conduct at issue due to mental impairment or unconsciousness resulting from consumption of alcohol.... 23 Applying these definitions, if the alleged victim consented, she could not have been substantially incapacitated. Conversely, if she was substantially incapacitated, she could not have consented. The statute therefore requires Appellant to disprove an element of the crime, substantial incapacity, in order to prove the 22 10 U.S.C. 920(t)(14). 23 10 U.S.C. 920(t)(14)(B)(i)(I). 5

affirmative defense of consent. This deprives Appellant of his constitutional right to due process. Argument THE LOWER COURT ERRED IN HOLDING THAT ARTICLE 120(c)(2) IS NOT UNCONSTITUTIONAL. 1. Standard of Review: This Court reviews the constitutionality of statutes de novo. 24 2. Discussion: The statutory scheme set forth in Article 120, UCMJ, is unconstitutional because it creates an affirmative defense that requires the accused to disprove an element of aggravated sexual assault by a preponderance of the evidence. It does this in violation of the Due Process Clause of the Fifth Amendment, which protects a defendant from conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 25 As this Court has recently noted, this guarantee precludes shifting the burden of proof from the government to the defense with respect to a fact which the State deems so important that it must be either proved or presumed. 26 In this case, the necessary fact where the 24 United States v. Disney, 67 M.J. 46, 48 (C.A.A.F. 2008). 25 United States v. Neal, 68 M.J. 289, 298 (C.A.A.F. 2010) (quoting In re Winship, 397 U.S. 358, 364 (1970)). 26 Id. (quoting Patterson v. New York, 432 U.S. 197, 215 (1977)). 6

burden is impermissibly shifted is the element of the putative victim s substantial incapacity. A. Under Martin v. Ohio and Humanik v. Beyer, an affirmative defense may not pose the same ultimate issue as an element of the charged offense. In Martin v. Ohio, the Supreme Court upheld shifting the burden of proof to the accused to prove an affirmative defense only in instances where the affirmative defense does not require the accused to disprove an element of the offense charged. 27 To that end, it must appear that the so-called defense does not in actuality negate any element of the crime. 28 The accused cannot bear the burden of proof to negative guilt by cancelling out the existence of some required element of the crime. 29 In Humanik v. Beyer, the United States Court of Appeals for the Third Circuit found that a defendant s due process rights had been violated under a New Jersey statute that required a defendant to prove, by a preponderance of the evidence, the existence of mental disease or defect that negated the accused s state of mind, an element of 27 Martin v. Ohio, 480 U.S. 228, 233-34 (1987); see also Patterson, 432 U.S. at 207; Leland v. Oregon, 343 U.S. 790, 800 (1952). 28 1 W. LaFave & A. Scott, Substantive Criminal Law 1.8, at 75 (1986). 29 Id. 7

murder. 30 The court found that the ultimate issue posed by the statutory defense, and the ultimate issue posed by the state of mind element, were identical. 31 It therefore held that the statute was unconstitutional. 32 In analyzing the issue, the Humanik court recognized that in situations where the ultimate issues posed by one of the elements of the offense and by an affirmative defense are different but nevertheless are such that subsidiary facts are relevant to both issues as was the case in Martin a due process violation has not occurred. However, the court also recognized that... [a] different and more serious problem is presented in the situation where the element of the offense and the so-called affirmative defense pose the same ultimate issue and a state places the burden of persuasion on the defendant with respect to that ultimate issue. In such a situation, the relevance of the subsidiary facts in the case are the same and the sole significance of the defendants evidence concerning the so-called affirmative defense is to create a reasonable doubt about the existence of an element of the offense. In this context... it is not constitutionally permissible under Winship and Martin to charge the jury that the defendant has the burden of proving his defense by a preponderance of the evidence. 33 30 Humanik v. Beyer, 871 F.2d 432 (3d Cir. 1989). 31 Humanik, 871 F.2d at 442-43. 32 Id. at 433. 33 Id. at 440. 8

In declaring the New Jersey statue unconstitutional, the Humanik court further stated that the constitutional ill is not cured by an instruction from the judge that the prosecution has the ultimate burden of proof. 34 B. The affirmative defense of consent and the element of substantial incapacity pose the same ultimate issue. This case falls within the latter situation discussed in Humanik for two reasons. First, the affirmative defense of consent poses the same ultimate issue as substantial capacity. Second, Congress has placed the burden of proof upon Appellant with respect to that issue. The statute requires that the accused prove the victim was competent by a preponderance of the evidence in order to use the affirmative defense this is exactly the same as requiring the accused disprove that the victim was incapacitated. But the lower court reached the opposite conclusion, noting that... the appellant, in asserting the affirmative defense of consent, is not required to prove capacity. 35 A plain reading of the statute demonstrates the lower court s error in reaching this conclusion. 34 Humanik, 871 F.2d at 440-41. 35 Medina, 68 M.J. at 589; JA at 4. 9

elements: Article 120(c)(2) requires the government to prove two 1) That the accused engaged in a sexual act with another person, who is of any age; and 2) That the other person was substantially incapacitated. 36 Article 120(t)(14) defines consent as words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. 37 The definition further provides that a person cannot consent to sexual activity if... substantially incapable of appraising the nature of the sexual conduct at issue due to mental impairment or unconsciousness resulting from consumption of alcohol. 38 The statute does not define competent or incapacitated, therefore they must be given their ordinary meanings. 39 An incapacitated person is a person who is impaired... to the extent that personal decisionmaking is impossible. 40 A person who is competent has 36 10 U.S.C. 920(C)(2) 37 10 U.S.C. 920(t)(14) (emphasis added). 38 Id. (emphasis added). 39 See Neal, 68 M.J. at 306. 40 BLACK S LAW DICTIONARY 302 (8th ed. 2007). 10

the mental ability to understand problems and make decisions. 41 Unlike the statutorily defined force and consent, which focus separately on the mental states and actions of the accused and the putative victim, 42 incapacity and competence both focus on the exact same issue the putative victim s ability to make a decision regarding the sexual conduct. By the terms of the statute, competence is a prerequisite for consent. Without competence, consent is impossible. When the accused puts forth evidence showing the putative victim was competent or had the ability to make decisions, he also necessarily shows that the alleged victim was not incapacated or that personal decisionmaking was not impossible for that person. 43 Therefore, evidence regarding competence does not simply overlap the issue of the putative victim s incapacity, it directly contradicts it. As a result, when the statute requires the accused to prove that the putative victim was competent it, in effect, requires him to disprove that the putative 41 BLACK S LAW DICTIONARY at 302. 42 Neal, 68 M.J. at 302-03; Article 120(t)(5), UCMJ, 10 U.S.C. 920(t)(5); Article 120(t)(14), UCMJ, 10 U.S.C. 920(t)(14). 43 See Medina, 68 M.J. at 600 (Beal, J., dissenting); JA at 21-22. 11

victim was incapacitated. 44 In doing so, it shifts the burden of proof on this element to the accused in violation of the Due Process Clause of the Fifth Amendment. 45 C. Consent is not a true affirmative defense because it cannot co-exist with substantial incapacity. Article 120(t)(16), UCMJ, defines Affirmative Defense as follows: [A]ny special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly, or partially, criminal responsibility for those acts. The accused has the burden of proving the affirmative defense by a preponderance of the evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist. 46 Accordingly, if actual consent is truly an affirmative defense, then it must be a fact that is able to co-exist with the facts that constitute the elements of the crime. 47 However, substantial incapacity and consent cannot coexist. The lower court acknowledged this and found that [a]s a matter of law, the affirmative defense of consent is unavailable where the putative victim is substantially 44 Medina, 68 M.J. at 600 (Beal, J., dissenting); JA at 21-22. 45 See Martin, 480 U.S. at 233-34; Patterson, 432 U.S. at 215. 46 10 U.S.C. 920(t)(16). 47 Medina, 68 M.J. at 600 (Beal, J., dissenting); JA at 21-22; see also Martin, 480 U.S. at 233-34. 12

incapacitated[]. 48 Nevertheless, it failed to further recognize that consent is therefore not a true affirmative defense as defined by the statute. The affirmative defense of consent only shifts the burden of proof from the government to the defense by requiring the defense to disprove the element of substantial incapacity. This statutory scheme therefore violates due process. Conclusion In this case, Article 120(c)(2) is unconstitutional because consent and substantial incapacity pose the same ultimate issue. Furthermore, given the statutory definitions of consent and substantial incapacity, no combination of facts and circumstances can ever exist that would escape a due process violation. As such, there is no possible constitutional interpretation of Article 120(c)(2). 49 Should this Court find no constitutional violation, it runs the risk of allow[ing] a legislature to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. The sole requirement is that any references to the factor be confined to those 48 Medina, 68 M.J. at 589; JA at 4. 49 See United States v. Salerno, 481 U.S. 739, 745 (1987) (noting successful facial challenge must establish no set of circumstances under which law could be valid). 13

sections that provide for an affirmative defense. 50 This Court should find that Article 120(c)(2) is unconstitutional on its face. Accordingly, Appellant respectfully requests that his conviction for aggravated sexual assault be set aside and dismissed with prejudice. Michael D. Berry Captain, USMC Navy-Marine Corps Appellate Review Activity 1254 Charles Morris Street, SE Building 58, Suite 100 Washington, D.C. 20374 (202) 685-7713 Bar Number 34828 michael.d.berry1@navy.mil 50 Patterson, 432 U.S. at 223. 14

Certificate of Compliance 1. This brief complies with the type-volume limitation of Rule 24(d) because this brief contains 2215 words. 2. This brief complies with the typeface and type style requirements of Rule 37 because it has been prepared in monospaced typeface using Microsoft Word 2003 with Courier New, 12-point font. Michael D. Berry Captain, USMC Navy-Marine Corps Appellate Review Activity 1254 Charles Morris Street, SE Building 58, Suite 100 Washington, D.C. 20374 (202) 685-7713 Bar Number 34828 michael.d.berry1@navy.mil 15

Certificate of Filing and Service I certify that the foregoing was delivered to the Court, Appellate Government Division and to Code 40 on April 28, 2010. Michael D. Berry Captain, USMC Navy-Marine Corps Appellate Review Activity 1254 Charles Morris Street, SE Building 58, Suite 100 Washington, D.C. 20374 (202) 685-7713 Bar Number 34828 michael.d.berry1@navy.mil 16