United States v. Sager
201400356
| N.M.C.C.A. | Jul 30, 2019Background
- Appellant Jeffrey D. Sager, a Navy airman, was convicted by a general court-martial of one specification of abusive sexual contact (manual stimulation) and acquitted of a related sexual-act specification (fellatio). Sentence: 24 months confinement and a bad-conduct discharge.
- Victim (Airman TK) was highly intoxicated, vomited, and testified he "passed out" on a futon; he later awoke to Sager manually stimulating his penis and to Sager performing oral sex.
- At trial the military judge instructed members to vote on separate theories (knew vs. reasonably should have known; and whether the victim was asleep, unconscious, or "otherwise unaware"). Members circled findings that the appellant "reasonably should have known" and that the victim was "otherwise unaware." The announcing officer gave a general guilty verdict; the judge later announced a more specific finding.
- The case has been remanded twice: NMCCA initially affirmed, CAAF reversed and held that "asleep," "unconscious," and "otherwise unaware" are distinct theories under Article 120(b)(2), and returned the case for factual-sufficiency review and consideration of Green v. United States.
- On remand the court (NMCCA panel) found the abusive-sexual-contact specification factually insufficient under the CAAF’s correct statutory interpretation, applied Green (jury silence acquittal rule), and dismissed the charge and specification.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Sager) | Held |
|---|---|---|---|
| Whether the evidence is factually sufficient to sustain a conviction for sexual contact when the victim was "otherwise unaware" (distinct from asleep/unconscious) | Government: members’ worksheet and post-trial paperwork show members found victim was "otherwise unaware" and appellant reasonably should have known; conviction should be sustained | Sager: evidence did not support finding victim was "otherwise unaware" in a manner other than asleep/unconscious; factual sufficiency lacking | Court: specification factually insufficient under CAAF’s interpretation; finding and sentence disapproved; charge dismissed |
| Whether Green v. United States applies (jury silence as acquittal) | Government: argued umbrella/administrative issues about verdict form and convening authority action; sought new convening-authority action instead of affirming lesser offenses | Sager: Green applies; where members were silent as to particular language, that silence functions as acquittal | Court: Green applies as earlier explained; appellant was functionally acquitted of the language on which members were silent |
| Whether the convening authority’s action must be remanded because it reflects a specific theory not announced by the members in open court | Government: convening authority’s adoption of worksheet-based specific finding was erroneous; asks remand for new action | Sager: trial and post-trial practice (no objection) validated the specific finding; no remand needed | Court: government waived this late argument; mandate and law of the case bar reopening; no remand granted |
| Whether voting procedures (separate secret ballots on different elements/theories) create doubt that same two-thirds agreed on every element | Government: raised concern about secret ballots and element-level votes (suggesting possible nonconcurrence) | Sager: (defense) argued issue either moot or not grounds to sustain conviction | Court: issue is moot and beyond CAAF mandate; declined to decide |
| Whether lesser-included offenses may be affirmed instead of the overturned finding | Government: sought remand rather than proposing lesser offenses; conceded court may not affirm lesser offenses without remand | Sager: opposed affirming any lesser without proper remand/new action | Court: agreed with government concession — may not affirm lesser included offenses absent remand/post-trial action |
Key Cases Cited
- Green v. United States, 355 U.S. 184 (1957) (jury silence as to a charge functions as an acquittal)
- United States v. Sager, 76 M.J. 158 (C.A.A.F. 2017) (CAAF: "asleep," "unconscious," and "otherwise unaware" are distinct theories under Article 120(b)(2))
- Briggs v. Penn. R.R. Co., 334 U.S. 304 (1948) (mandate rule and limits on subordinate courts post-remand)
- LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (description of mandate rule / law-of-the-case principles)
- United States v. Husband, 312 F.3d 247 (7th Cir. 2002) (mandate rule and waiver of issues not raised on appeal)