United States v. Rosario
2017 CAAF LEXIS 125
| C.A.A.F. | 2017Background
- Appellant (Sgt. Rosario) was tried by special court-martial and convicted of violating a Marine Corps general order (sexual harassment under MCO 1000.9A) on divers occasions in violation of Article 92, UCMJ; he was acquitted of two abusive sexual contact specifications (Article 120) and one assault consummated by battery (Article 128).
- Victim LCpl B.A. testified to repeated inappropriate comments over months (e.g., “te quiero,” comments about her attractiveness) and several nonverbal/physical contacts (kissing her cheek, touching her neck, putting his hand over hers, sticking his tongue in her ear).
- At trial the government characterized the conduct as a course progressing from verbal harassment to unwanted physical contact; the military judge instructed the panel on the MCO definition of sexual harassment.
- The Navy–Marine Corps Court of Criminal Appeals (NMCCA) affirmed, and in its opinion described the physical-contact incidents (the basis for acquitted charges) as part of the facts supporting the sexual-harassment conviction.
- Rosario appealed to this Court of Appeals for the Armed Forces, arguing the NMCCA erred by considering facts underlying acquitted charges in its Article 66(c), UCMJ, factual-sufficiency review and that the military judge’s use of the word “must” in instructions was plain error.
- The CAAF held the NMCCA properly considered overlapping evidence supporting both convicted and acquitted offenses and rejected the plain-error challenge to the jury instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a CCA may consider facts supporting acquitted offenses when conducting Article 66(c) factual/legal sufficiency review of a separate conviction | Gov’t: CCAs may weigh all record evidence relevant to the convicted offense; overlapping facts remain admissible for review | Rosario: NMCCA improperly "found as fact" allegations of which he was acquitted; double jeopardy and Bennitt/Smith prohibit such factfinding | CAAF: CCAs may consider evidence that overlaps between charged offenses; defendants are acquitted of offenses, not specific facts; NMCCA did not err here |
| Whether NMCCA’s reliance on acquitted-event facts amounted to an inconsistent verdict or forbidden factfinding | Gov’t: No inconsistency; elements differ and overlap does not preclude consideration | Rosario: Use of acquitted facts is equivalent to re‑finding guilt on acquitted offenses | CAAF: Not an inconsistent‑verdict problem like Powell; facts overlapped but elements differed; Gutierrez controls |
| Whether NMCCA’s consideration of acquitted-event facts violated double jeopardy | Rosario: Review that treats acquitted facts as findings infringes double jeopardy | Gov’t: Double jeopardy bars rehearing incidents, but appellate fact‑weighing on a separate offense with different elements is permitted | CAAF: No double jeopardy violation because offenses/elements were not the same |
| Whether the military judge’s instruction (“you must find him guilty”) was plain error | Rosario: Word “must” improperly coerced verdict | Gov’t: No contemporaneous objection; phrase not plain error under McClour | CAAF: No plain error; instruction did not meet the McClour plain‑error standard |
Key Cases Cited
- United States v. Walters, 58 M.J. 391 (C.A.A.F.) (CCA factual/legal sufficiency review standard)
- United States v. Gutierrez, 73 M.J. 172 (C.A.A.F.) (members/CCA may consider evidence of acquitted incident when it bears on a separate offense)
- United States v. Bennitt, 72 M.J. 266 (C.A.A.F.) (CCA cannot find as fact allegations for which accused was found not guilty)
- United States v. Smith, 39 M.J. 448 (C.M.A.) (CCA erred by relying on facts in direct conflict with judge’s excepted findings)
- Dunn v. United States, 284 U.S. 390 (1932) (discussion of verdicts and possible inconsistency)
- United States v. Jackson, 7 C.M.A. 67 (C.M.A.) (inconsistent verdicts jurisprudence)
- United States v. Powell, 469 U.S. 57 (1984) (inconsistent verdicts doctrine)
- United States v. Wilson, 67 M.J. 423 (C.A.A.F.) (double jeopardy limits on appellate rehearing of incidents acquitted below)
- United States v. Stewart, 71 M.J. 38 (C.A.A.F.) (double jeopardy and appellate factfinding limits)
- United States v. McClour, ? (C.A.A.F.) (plain‑error standard for jury instructions)