United States, Appellee and Cross-Appellant

                                      v.

                   Ray T. LEAK, Staff Sergeant
             U.S. Army, Appellant and Cross-Appellee


                       Nos. 03-0647 and 04-5001

                        Crim. App. No. 20000356

       United States Court of Appeals for the Armed Forces

                        Argued October 6, 2004

                         Decided July 21, 2005

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, and ERDMANN, JJ., joined. GIERKE, C.J., filed
a separate opinion, concurring in part and dissenting in part.

                                  Counsel

For Appellant and Cross-Appellee: Captain Rob W. McDonald
(argued); Colonel Robert D. Teetsel, Lieutenant Colonel Mark
Tellitocci, and Major Allyson G. Lambert (on brief).

For Appellee and Cross-Appellant: Captain Edward E. Wiggers
(argued); Colonel Lauren B. Leeker, Colonel Steven T. Salata,
Lieutenant Colonel Margaret B. Baines, Lieutenant Colonel Mark
L. Johnson, Major Natalie A. Kolb, and Captain Mark J. Hamel (on
brief).



Military Judge: Donna M. Wright


         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     Judge BAKER delivered the opinion of the Court.

     Appellant and Cross-Appellee (Appellant) was tried by a

general court-martial composed of officer members.   Contrary to

his pleas he was convicted of three specifications of

maltreatment, rape, two specifications of adultery, indecent

assault, indecent acts, and solicitation to commit adultery, in

violation of Articles 93, 120 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 893, 920, 934 (2000).   The adjudged

and approved sentence included a dishonorable discharge,

confinement for sixty-one months, forfeiture of $200 pay per

month for sixty months and reduction to the lowest enlisted

grade, E-1.

                          FACTUAL BACKGROUND

     Appellant’s offenses resulted from his conduct with

Specialist (SPC) M on three separate dates.    The facts relied on

by the Court of Criminal Appeals follow:

          Specialist (SPC) M’s testimony was the primary
     basis for appellant’s conviction. The guilty findings
     related to three incidents of sexual activity between
     appellant and SPC M during her attendance as a student
     at the thirty-day Primary Leadership Development
     Course (PLDC) at the 7th Army Noncommissioned Officer
     (NCO) Academy in Grafenwoehr, Germany. At the time of
     her attendance, SPC M had been on active duty between
     four and five years. She was a single parent of a
     fifteen-month old son. Specialist M was 65 inches
     tall and weighed approximately 130 pounds, and
     appellant was 71 inches tall and weighed approximately
     188 pounds. At the time of the offenses, appellant
     was a thirty-four-year-old Small Group Leader (SGL) at
     the NCO Academy. However, he was not a member of SPC


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     M’s platoon; he was not her SGL or instructor. He did
     not rate her. On all three occasions, while appellant
     and SPC M were wearing battle dress uniforms,
     appellant initiated sexual activity with SPC M in the
     third floor SGL office during breaks between SPC M’s
     classes.

                      10 September Offenses

          Before 10 September 1999, appellant went out of
     his way to engage SPC M in personal conversations.
     During this time period, SPC M complained to appellant
     that her roommate was spreading a rumor that she was
     fraternizing with another student. Specialist M asked
     for appellant’s help with her roommate. Appellant
     responded that he could “get anyone kicked out” of
     PLDC, and SPC M assumed that appellant would have her
     roommate dismissed from the course. However, her
     roommate was not dismissed from the course.

          Appellant used two offices at the NCO Academy,
     one located on the first floor and one on the third
     floor. The first time appellant asked SPC M to go to
     the third floor SGL office, she said “no.” Later when
     he asked her to go there, she agreed because she did
     not “feel like [she] had a choice.” Once in the third
     floor SGL office, appellant asked SPC M what her
     intentions were toward him. She asked what he meant;
     appellant repeated the same question. They went near
     a couch. He put his arms around her, pulled her
     close, and kissed her. She put her hands on his chest
     to “put space between [them]” and leaned back.
     Appellant then said he wanted to have sex with her. He
     held SPC M’s wrist and started “groping” her and tried
     to undo her pants and belt buckle. Specialist M told
     him “no” and said, “I know you don’t think you’re
     going to get me that easily.” She “wrestled” with
     appellant, preventing him from removing her trousers.
     This testimony was the basis for appellant’s
     conviction of one specification each of maltreatment,
     indecent assault, and solicitation to commit adultery.

          Appellant told SPC M that he wanted to masturbate
     before she left the room. He got some toilet paper
     and she sat on the couch. Appellant masturbated in
     front of her until he ejaculated. He cleaned himself
     with toilet paper and she left the room. She


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     testified that she did not cry out during the incident
     because she was nervous. She was afraid to run for
     the door because she did not know what he would do.
     She did not report appellant’s behavior because she
     was afraid that he might lie about her, causing her
     dismissal from PLDC. Specialist M emphasized her
     responsibility to her infant son, stating, “I’m a
     single parent ... [and I] had to do what is best for
     both of us.” Appellant was not charged with any
     specific offense for masturbating in SPC M’s presence.

          After this first incident on 10 September 1999,
     SPC M “acted like nothing happened” and “blew it off.”
     She still smiled at appellant and was courteous to
     him.
                      12 September Offenses

          Appellant asked SPC M to go to his third floor
     office two days later. They each went to his office
     separately. Specialist M went “because [she] thought
     [she] could talk [her way] out of it again.”
     Appellant locked the door and left the key in the
     lock, precluding others who shared the office from
     entering during the sexual activity. He said he
     “wanted [her],” but SPC M laughed and said, “I don’t
     have time for this.” He replied that she had twenty
     minutes between classes. Appellant grabbed SPC M and
     wrestled with her, trying to get her trousers down.
     She said “no” more than once. Appellant held one of
     her wrists and tried to unbuckle her trousers with his
     other hand.

          As this was occurring, SPC M decided, “‘I’m not
     going to win this battle.’ I was not going to try to
     fight him, so I let him have sex with me.” She was
     surprised when appellant took a condom out of the
     desk. She noticed he had a box and a bag containing
     condoms. Specialist M accused appellant of “setting
     her up” and “bringing other females up there.” He
     denied that he was setting her up and asserted “that
     he never did anything like that before.” They engaged
     in sexual intercourse on the desk. He ejaculated,
     removed the condom, and wrapped it in a tissue. She
     pulled up her trousers, unlocked the door, and left.




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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     Specialist M testified that she let appellant have sex
     with her because she was worried that appellant might
     dismiss her from PLDC for having a bad attitude given
     that she already had trouble with her roommate.
     Appellant was found guilty of one specification each
     of maltreatment, rape, and adultery for his conduct on
     12 September 1999.

                      21 September Offenses

          On the third occasion, appellant gave SPC M a key
     and asked her to meet him at the third floor SGL
     office after lunch. She asked him, “What happens if I
     get caught going up there?” Appellant responded,
     “I’ll just tell them that I sent you up there for
     something.” About an hour after receiving the key,
     SPC M went to the third floor office. She told
     appellant there was insufficient time for sexual
     activity, but he “begged” her to give him five
     minutes. She said “no” and they “wrestled as usual.”
     He put on a condom and then had sexual intercourse
     with SPC M on the office couch. She was face down
     during the intercourse. Afterwards, appellant put the
     used condom into a tissue. Specialist M pulled up her
     trousers and ran back to class where others noted her
     ebullient demeanor and her efforts to make the
     students laugh.

           Specialist M testified that she did not do
     anything else to let appellant know that she did not
     want to have sex with him. At one point, she asked
     him whether he was forcing himself on her, and he said
     “no.” Later, the following exchange occurred between
     SPC M and trial defense counsel:

          Q. What was it that you were more scared of than
          having sex forced upon you again by the accused?

          SPC M. I was afraid of not graduating [from] the
          class and not being successful, and that’s -- I
          mean this is all I have to take care of my son.
          The Army is all I have.

United States v. Leak, 

, 870-72 (A. Ct. Crim. App.

2003).



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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Regarding the events of September 21, 1999, at trial Appellant

was found not guilty of rape, but guilty of the lesser included

offense of indecent acts, and guilty of one specification each

of maltreatment and adultery.

                         PROCEDURAL BACKGROUND

     Concluding that it was “not convinced beyond a reasonable

doubt that the sexual intercourse on September 12 was done by

force and without SPC M’s consent,” id. at 877, the Army Court

of Criminal Appeals found the evidence of rape factually

insufficient and affirmed the lesser included offense of

indecent assault.   The court also set aside the finding of guilt

on the indecent acts offense and instead affirmed a lesser

included offense of a simple disorder in violation of Article

134, UCMJ.   After reassessing the sentence, the lower court

affirmed only so much of the sentence providing for a

dishonorable discharge, confinement for three years, forfeiture

of $200 pay per month for three years and reduction to the

lowest enlisted grade, E-1.   Appellant then petitioned this

Court for review.

     Subsequent to Appellant’s filing of his petition, the

Government filed a certificate for review asking whether the

lower court applied the correct legal standard in reviewing and

reversing Appellant’s conviction for rape.   While Appellant’s

petition and the Government’s certificate were under


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


consideration, we specified two additional issues relating to

our authority to review the certified question.            We subsequently

specified a third issue related to the previous two specified

questions.    The following issues are now before the Court:1

                            THE GRANTED ISSUE

      WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY
      CONVICTING APPELLANT OF THE GREATER OFFENSE OF
      MALTREATMENT AND ITS LESSER INCLUDED OFFENSE OF A
      VIOLATION OF A SIMPLE DISORDER BASED ON THE SAME ACTS?

                         THE CERTIFIED QUESTION

      WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
      ERRED WHEN IT EMPLOYED A “REASONABLE FEAR OF DEATH OR
      GRIEVOUS BODILY INJURY” STANDARD ON THE ISSUE OF
      CONSTRUCTIVE FORCE IN CONTRAVENTION OF THIS COURT’S HOLDING
      IN UNITED STATES V. SIMPSON, 

 (C.A.A.F. 2003).

                          FIRST SPECIFIED ISSUE

      WHETHER THIS COURT HAS JURISDICTION TO ACT WITH
      RESPECT TO A FINDING SET ASIDE BY A COURT OF CRIMINAL
      APPEALS AS FACTUALLY INSUFFICIENT?

                         SECOND SPECIFIED ISSUE

      WHETHER A COURT OF CRIMINAL APPEALS’ FINDING OF
      FACTUAL INSUFFICIENCY PRECLUDES REINSTATEMENT OF THE
      AFFECTED FINDING OF GUILTY ON DOUBLE JEOPARDY GROUNDS?

                          THIRD SPECIFIED ISSUE

      WHETHER ARTICLE 67(C), UCMJ, WHICH PROVIDES THAT THIS
      COURT “MAY ACT ONLY WITH RESPECT TO THE FINDINGS AND
      SENTENCE . . . AS AFFIRMED OR SET ASIDE AS INCORRECT
      IN LAW BY THE COURT OF CRIMINAL APPEALS”: (1) ALLOWS
      THIS COURT TO ANSWER A CERTIFIED ISSUE CONCERNING A
      REVIEW OF LEGAL STANDARDS EMPLOYED BY THE COURT OF
      CRIMINAL APPEALS IN SETTING ASIDE A SPECIFICATION AS
1
  We heard oral argument in this case at Vermont Law School, South Royalton,
Vermont, as part of the Court’s “Project Outreach.” See United States v.
Mahoney, 

, 347 n.1 (C.A.A.F. 2003).


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     FACTUALLY INSUFFICIENT; AND (2) ALLOWS A CERTIFIED
     ISSUE TO RESULT IN A REMAND TO THE COURT OF CRIMINAL
     APPEALS TO REEVALUATE A SPECIFICATION SET ASIDE AS
     FACTUALLY INSUFFICIENT.

                            Discussion

                                 I

                       THE SPECIFIED ISSUES

     We begin by addressing the specified issues, which together

test our authority to review and decide the certified question.

     A.   Questions of Fact and Law and Article 67, UCMJ

     Article 67, UCMJ, statutorily defines this Court’s

jurisdiction.   The relevant text states:

     (a) The Court of Appeals for the Armed Forces shall review
     the record in –-

     . . .

       (2) all cases reviewed by a Court of Criminal Appeals
     which the Judge Advocate General orders sent to the Court
     of Appeals for the Armed Forces for review;

     . . .

     (c) In any case reviewed by it, the Court of Appeals for
     the Armed Forces may act only with respect to the findings
     and sentence as approved by the convening authority and as
     affirmed or set aside as incorrect in law by the Court of
     Criminal Appeals. In a case which the Judge Advocate
     General orders sent to the Court of Appeals for the Armed
     Forces, that action need be taken only with respect to the
     issues raised by him. In a case reviewed upon petition of
     the accused, that action need be taken only with respect to
     issues specified in the grant of review. The Court of
     Appeals for the Armed Forces shall take action only with
     respect to matters of law.




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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Article 67(a)(2),(c), UCMJ, 10 U.S.C. § 867(a)(2), (c) (emphasis

added).

     Two propositions relevant to the specified issues are

textually plain.    First, subsection (a) requires this Court to

“review” the record in this case.     Second, as stated in the last

sentence of subsection (c), this Court’s review is limited to

questions of law.

     The Judge Advocate General’s certified question asks us to

determine whether the lower court applied the correct law in

reversing Appellant’s conviction for rape on the ground of

factual insufficiency.   In this legal context, two

jurisdictional questions arise.   First, where the Court of

Criminal Appeals has set aside a finding on the ground of

factual insufficiency, may this Court nonetheless review that

decision and address matters of law?    Second, and related, does

the language underscored in subsection (c) delimit, or curtail,

the exercise of this Court’s jurisdiction over a question of law

certified by the Judge Advocate General?

     One possible reading of the language in subsection (c) of

the statute is that because the lower court did not affirm the

finding with respect to Appellant’s rape charge, or set it aside

as incorrect in law, this Court is without authority to “act.”

Under this reading, this Court would be obliged to “review” the




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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Judge Advocate General’s certified question, but we would have

no statutory authority to “act.”2

        However, at the same time the statute states that “[t]he

Court . . . shall take action only with respect to matters of

law.”    Article 67(c), UCMJ, 10 U.S.C. § 867(c) (emphasis added).

As the earlier language can be read narrowly to preclude this

Court’s exercise of jurisdiction in cases where courts of

criminal appeals do not affirm or set aside the findings as

incorrect in law, this later language might be read narrowly to

require this Court to take action in all certified cases with

respect to matters of law.       Further, because the statute does

not define the terms “act” or “review,” the language of the

statute is ambiguous as to what is intended by a structure that

would have this Court review all certified cases, but not act on

certain of those cases.

        Given this ambiguity we believe it axiomatic that Article

67 must be interpreted in light of the overall jurisdictional

concept intended by the Congress, and not through the selective


2
  Neither the statutory language nor the legislative history of Article 67
define the term “act.” However, we are mindful that Congress has chosen
distinct terms to describe this Court’s mandatory “review” of cases certified
by the Judge Advocates General and the limitation in subsection (c) with
respect to this Court “acting” upon cases that the courts of criminal appeals
have not affirmed or set aside as incorrect in law. Read in a manner to give
both sentences their plain meaning, we believe the better view is that
subsection (c) precludes this Court from taking final action on a case by
either affirming or reversing the findings in a case that does not meet the
criteria of subsection (c), but it does not preclude this Court from
reviewing a certified question of law.



                                     10
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


narrow reading of individual sentences within the article.

Having determined the necessity of reviewing the statutory

purpose, we turn now to the history on which these judgments are

based.   We will then consider this Court’s longstanding

precedent in applying Article 67 in light of the statutory

purpose.

     During the congressional drafting process of the UCMJ in

1949, both houses issued committee reports accompanying and

explaining their respective versions of the new Code.   With

respect to Article 67, each report contained the following

identical language:

     The Court of Military Appeals takes action only with
     respect to matters of law . . . . It may act only with
     respect to the findings and sentence as approved by
     the convening authority. If the Board of Review has
     set aside a finding as against the weight of the
     evidence this decision cannot be reconsidered by the
     court. If, on the other hand, the Board has set a
     case aside because of the improper introduction of
     evidence or because of other prejudicial error, the
     Court of Military Appeals may reverse if it finds
     there has been no such error.

H.R Rep. No. 81-491, at 32 (1949)(emphasis added); S. Rep. No.

81-486, at 29 (1949)(emphasis added) (both reports collected in

Index and Legislative History, Uniform Code of Military Justice

(1950)).   This expression of the committees’ understanding of

Article 67 suggests that with respect to findings of factual

insufficiency, as long as a Judge Advocate General’s certified

question raises a legal issue other than a complaint as to the


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


manner in which the lower court weighed the evidence, this Court

shall review that claim.       Further, the legislative history

indicates that Congress contemplated that this Court and not the

lower courts would decide whether a claim presents a question of

law or fact, and that with respect to questions of law, this

Court would determine whether the lower court engaged in an

erroneous application of the law.         Thus, in testimony before the

House Armed Services Committee, the principal drafter of the

UCMJ, Professor Edmund M. Morgan Jr., stated, “They [the

Judicial Council3] review questions of law only . . . . We limit

the civilian court to the review of questions of law.”             Hearings

on H.R. 2498 Before a Subcommittee of the House Committee on

Armed Services, 81st Cong. 609 (1949) (statement of Prof. Edmund

M. Morgan Jr., Chairman of UCMJ drafting committee), reprinted

in Index and Legislative History, Uniform Code of Military

Justice (1950) (not separately paginated).           When asked who would

determine the initial question whether what was at issue was

indeed a question of law, he explained:

      Why the judicial council would. That is, the court of
      last resort would determine whether it was a question
      of law or a question of fact . . . . . Under our
      system, they would not pass on the weight of the
      evidence in the sense that they would set aside a
      finding because they thought it was against the weight
      of the evidence.

Id.
3
  The term “Judicial Council” was the name originally applied to what later
became known as the Court of Military Appeals.


                                     12
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     If the conclusion is that the lower court has erroneously

applied the law, its decision on the finding is not yet final.

Under these circumstances, the lower court’s action can best be

described as a setting aside of the finding “because of other

prejudicial error,” necessitating a remand to the lower court

for application of proper legal principles.   Once the lower

court has complied and again reached a finding of factual

insufficiency, there can be no further review of that finding.

This scheme of review is not a “reconsideration” of the court’s

decision that the finding is against the weight of the evidence.

And it is consistent with the precedent of this Court dating to

the inception of the UCMJ.

     In United States v. Thompson, 

 (1953), a Navy

board of review4 had dismissed a finding of guilty to missing

movement by neglect.   According to the board of review, there

was no proof of a causal connection between the accused’s

neglect in absenting himself and the missing of the scheduled

movement.   The relevant question certified by the Judge Advocate

General was whether there was sufficient evidence, as a matter

of law, to establish a prima-facie case of missing movement

through neglect.   In other words, the issue was whether the

Government was required to prove as one of the elements of the

offense that the scheduled movement was the proximate cause of




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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


the accused’s unauthorized absence.         Notwithstanding the wording

of the certified question, the Court suggested that the board’s

opinion was unclear as to whether it had reached a conclusion of

factual insufficiency or legal insufficiency.           The Court began

its analysis by noting:

      [As] we read the opinion of the board of review, it
      amounts to a factual determination that there is
      insufficient evidence to support the findings. If
      this determination is based solely on an appraisal of
      the evidence, we shall not overturn it. Our
      jurisdiction is limited to questions of law and we
      shall, therefore, review the decision of the board of
      review only in so far as it purports to delineate the
      legal elements of the offense under consideration.

Id. at 462 (citations omitted).        This language unambiguously

indicates that the Court was expressly acknowledging its lack of

authority to review a factual insufficiency determination that

was based solely on the weight of the evidence.            Alternatively,

if that determination was reached after an erroneous

consideration of the elements of the offense, this Court saw

itself as statutorily obligated to review the matter.             After

concluding that the board of review had erred by requiring an

additional legal element not required by law, this Court




4
  This is the predecessor of the modern Navy-Marine Corps Court of Criminal
Appeals (formerly known as the Navy-Marine Court of Military Review).


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


remanded the case to the board for reconsideration in light of

the legal principles announced in the case.   In doing so, it

issued a further clarification of the authority it had exercised

by stating, “We should make it abundantly clear that if the

board of review here determined that, conflict as to the issue

of causal connection aside, there was insufficient evidence to

support the findings, we are not reversing that determination.”

Id. at 464.

     In United States v. Bunting, 

 (1955), the Court

further interpreted Article 67 in the context of a certified

question submitted after a factual determination by a board of

review disposing of the findings.    In that case, the board

concluded “as a matter of fact” that they had a reasonable doubt

as to the accused’s sanity at the time of the offenses and

dismissed the findings.   The Judge Advocate General certified a

question asking whether the board had erred as a matter of law

“in its analysis of the testimony” in dismissing the findings.

Id. at 172.   After again recognizing its authority over matters

of law exclusively, the Court made the following observation:

     It is implicit in the grant of authority found in
     Article 67 of the Code that a board of review may not
     permissibly defeat review in this Court by labeling a
     matter of law, or a mixed holding of law and fact, as
     a question of fact. To avoid that impasse, we look to
     the substance of the holding, and its rationale, not
     to the characterization by the board of review.




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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Id. at 173.    The Court went on to conclude that the issue as to

the accused’s sanity was “one of fact, not law” and held that

the board had not erred.       Neither Thompson nor Bunting have been

overruled by this Court, or abrogated by subsequent legislation

or executive directive.5

      These precedents along with the legislative history

convince us that it is within this Court’s authority to review a

lower court’s determination of factual insufficiency for

application of correct legal principles.          At the same time, this

authority is limited to matters of law; we may not reassess a

lower court’s fact-finding.6       A contrary reading would defeat the

overall intent of Article 67 –- to grant this Court jurisdiction

to decide matters of law raised by appellants or certified by

Judge Advocates General.       Moreover, such a reading would divest

Article 67(a)(2) of its obvious and plain meaning,



5
  Solely for the purpose of establishing that Bunting remains good law, we
note that it was cited by this Court as recently as 1998 for the proposition
that the “board of review may not exercise its factfinding power in a manner
contrary to what ‘all reasonable men’ would conclude.” United States v.
Townsend, 

, 180 n.11 (C.A.A.F. 1998) (citing Bunting, 6 C.M.A. at
175).
6
  To the extent our judgment today is perceived as encouraging the Government
to certify questions of law in cases where courts of criminal appeals have
ruled against the Government on the ground of factual insufficiency, we note
that this door has been open since the inception of the UCMJ and expressly so
since Thompson was decided in 1953. The Judge Advocates General have not
used their certification authority in such a manner. Were they to do so,
this Court would be obliged to review all such cases, but consistent with
Article 67, could not act with respect to cases it found presented questions
of fact and not law. Where the issue raised was clearly one of fact, and not
law, nothing in Article 67 would preclude this Court from reviewing a case in
a succinct manner.


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


except in those cases where the Court of Criminal Appeals has

affirmed a finding and sentence or decided the case on the

grounds of legal insufficiency.    This view would also make

dispositive the terminology used by the lower courts in

conducting their reviews, under Article 66, UCMJ, 10 U.S.C. §

866 (2000), thereby putting beyond reach matters of law in those

cases purportedly decided on the grounds of factual

insufficiency.   “Although a Court of Criminal Appeals has broad

fact-finding power, its application of the law to the facts must

[still] be based on a correct view of the law.”   United States

v. Weatherspoon, 

, 212 (C.A.A.F. 1998).

     For these reasons, we conclude Article 67 does not preclude

review of questions of law certified by Judge Advocates General

where the courts of criminal appeals have set aside a finding on

the ground of factual insufficiency.    However, such review must

be conducted in a manner consistent with the Double Jeopardy

Clause.

     B.   Double Jeopardy

     The specified issues also raise the question of whether

double jeopardy considerations preclude a remand in the event we

answer the certified question in the affirmative.    Rephrased, is

a service court’s determination that the evidence is factually

insufficient on a finding considered an “acquittal” for the

purposes of the Double Jeopardy Clause?


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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     The Double Jeopardy Clause of the Constitution states “nor

shall any person be subject for the same offence to be twice put

in jeopardy of life or limb.”   U.S. Const. amend. V.    As is

clear from the text of the clause and common-law origins, the

prohibition is directed at the threat of multiple prosecutions.

United States v. Wilson, 

, 342 (1975).      The Supreme

Court has noted that:

     The constitutional prohibition against “double
     jeopardy” was designed to protect an individual from
     being subjected to the hazards of trial and possible
     conviction more than once for an alleged offense . . .
     . The underlying idea, one that is deeply ingrained in
     at least the Anglo-American system of jurisprudence,
     is that the State with all its resources and power
     should not be allowed to make repeated attempts to
     convict an individual for an alleged offense, thereby
     subjecting him to embarrassment, expense and ordeal
     and compelling him to live in a continuing state of
     anxiety and insecurity, as well as enhancing the
     possibility that even though innocent he may be found
     guilty.

Green v. United States, 

, 187-88 (1957).

“‘[C]entral to the objective of the prohibition against

successive trials’ is the barrier to ‘affording the prosecution

another opportunity to supply evidence which it failed to muster

in the first proceeding.’”   United States v. DiFrancesco, 

, 128 (1980)(citation omitted).   Thus, the clause

“protects against a second prosecution for the same offense

after acquittal.   It protects against a second prosecution for

the same offense after conviction.   And it protects against



                                18
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


multiple punishments for the same offense.”      North Carolina v.

Pearce, 

, 717 (1969) overruled on other grounds by

Alabama v. Smith, 

 (1989).       The first two

protections are relevant to the issues before us.

     An acquittal has been afforded special consideration in the

law of double jeopardy.   Thus, a “verdict of acquittal . . .

could not be reviewed, on error or otherwise, without putting [a

defendant] twice in jeopardy, and thereby violating the

Constitution.”   United States v. Ball, 

, 671 (1896).

“If the innocence of the accused has been confirmed by a final

judgment, the Constitution conclusively presumes that a second

trial would be unfair.”   Arizona v. Washington, 

,

503 (1978).

     However, civilian jurisprudence distinguishes between

appellate review in the wake of a verdict of guilty and

appellate review following a jury or bench trial acquittal.     In

Wilson, the jury returned a guilty verdict against the defendant

for a federal offense.    420 U.S. at 353.    The trial court

dismissed the indictment with prejudice on the ground that the

delay between the offense and the indictment had prejudiced the

defendant’s right to a fair trial.    The Government appealed the

ruling dismissing the indictment to the U.S. Court of Appeals

for the Third Circuit.    That court held that the Double Jeopardy

Clause barred review of the trial court’s ruling.      The Supreme


                                 19
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Court granted certiorari to consider the applicability of the

Double Jeopardy Clause to Government appeals from post-verdict

rulings by the trial court.       In the Court’s view, a decision on

appeal in favor of the Government simply reinstates the guilty

verdict of the jury.      Therefore, the Court held that permitting

the Government to appeal would not expose the defendant to a

second trial for the same offense.         Id.   “Where there is no

threat of either multiple punishment or successive prosecutions,

the Double Jeopardy Clause is not offended.”7           Id. at 344.

      In United States v. Martin Linen Supply Co., 

(1977), a deadlocked jury was unable to agree upon a verdict at

the defendant corporations’ contempt trial.          The district court

granted motions for judgments of acquittal under Fed. R. Crim.

P. 29 and the Government appealed.         The court of appeals held

that because reversal of the acquittals would enable the

Government to try the defendants a second time, the Double

Jeopardy Clause barred the appeals.         Affirming the lower court,

the Supreme Court reasoned that the trial court had acted where

the jury had not.     It then went on to hold that the Double



7
  Although Wilson was not a case involving Fed. R. Crim. P. 29, the point is
no less illustrative. Fed. R. Crim. P. 29, allows a district court judge to
grant a motion for judgment of acquittal at any one of three points in the
trial: before submitting the case to the jury, if the jury returns
undecided, or after the jury has returned a verdict of guilty. The
Government may appeal such rulings under 18 U.S.C § 3731 except “where the
Double Jeopardy Clause of the United States Constitution prohibits further
prosecution.”



                                     20
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Jeopardy Clause bars appeal from an acquittal entered under Fed.

R. Crim. P. 29 after a jury mistrial.     Id. at 574.

       More recently, in United States v. Genova, 

(7th Cir. 2003)(and cases cited therein), the court of appeals

applied the rationales of both Wilson and Martin Linen Supply

Co.    In Genova, the jury returned guilty verdicts on two counts

of misapplication and diversion of funds in violation of federal

law.   The district court subsequently granted motions for

acquittal under Fed. R. Crim. P. 29 and the Government appealed.

In reinstating the convictions, the Seventh Circuit said, among

other things, that “the Double Jeopardy Clause does not bar a

Government appeal from a ruling in favor of the defendant after

a guilty verdict has been entered by the trier of fact.”     Id. at

756 (quoting DiFrancesco, 449 U.S. at 130).

       Several principles emerge.    First, the Double Jeopardy

Clause bars successive trials.      Second, the clause does not bar

an appeal by the Government following a judge’s entry of a

judgment of acquittal when the jury has previously returned a

verdict of guilty.   However, an acquittal returned by a jury, or

by a judge in a bench trial sitting as the trier of fact, is

final.

       In light of the distinct de novo factual powers of the

service courts of criminal appeals, this precedent does not

create an immediate template for the military context.     As a


                                    21
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


result, this case poses the question whether in the military

justice system the decision to set aside a guilty verdict on

factual insufficiency grounds by a service court of criminal

appeals is equivalent to an acquittal at trial for the purposes

of the Double Jeopardy Clause.   This Court’s decisions in United

States v. Crider, 

 (1973)[hereinafter Crider II],

and United States v. Riley, 

 (C.A.A.F. 2001), offer

some support for both sides of the argument.

     In Crider II, the accused was convicted of four

specifications of premeditated murder.     22 C.M.A. at 108-09.

The Court of Military Review approved as correct in law and fact

the lesser included offense of unpremeditated murder.     This

Court granted the appellant’s petition for review and reversed

the lower court’s decision holding that the members of the

reviewing panel should have recused themselves.     United States

v. Crider, 

 (1972).      On further review, a different

panel of the Court of Military Review affirmed the original

findings of guilt to premeditated murder.     Appellant again

appealed.   Although both sides claimed that double jeopardy

principles turned the decision in their favor, the Court ruled

for Appellant on the ground that in military law “an accused

cannot come to harm by appealing here and securing reversal of

his conviction.”   Crider II, 22 C.M.A. at 110.     However, in

reaching this conclusion, the Court stated, “[i]f the Government


                                 22
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


believes that the Court of Military Review erred, it has the

right to seek certification of the case by the Judge Advocate

General for possible corrective action in this Court.”   Id.    On

the one hand, this statement left open the possibility that had

the Government certified a claim of legal error regarding the

affected offenses and prevailed, the Court of Military Review

could have revisited, from a legal standpoint, its earlier

“acquittal.”   On the other hand, the Court described the fact-

finding function of the courts of criminal appeals as analogous

to the actions of a trial fact-finder.

     Essentially, the Court of Military Review provides a
     de novo trial on the record at appellate level, with
     full authority to disbelieve the witnesses, [and]
     determine issues of fact . . . . We believe such a
     court’s exercise of its fact-finding powers in
     determining the degree of guilt to be found on the
     record is more apposite to the action of a trial court
     than to that of an appellate body.

Id. at 111.

     In Riley, the appellant was convicted of the unpremeditated

murder of her newborn child.   55 M.J. at 186.   The Court of

Criminal Appeals set aside the conviction of unpremeditated

murder on the ground that the evidence was factually

insufficient and affirmed a lesser included offense of

involuntary manslaughter.   This Court reversed, holding that the

lower court had affirmed the lesser included offense on a theory

not presented to the trier of fact.   On remand, the Government



                                23
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


argued in the court below that the court was now free to revisit

its earlier determination of factual insufficiency on the

offense of unpremeditated murder.    The lower court disagreed and

the Government certified the question whether that court had

erred in not revisiting its decision on the unpremeditated

murder offense.   Concluding that the rationale of Crider II was

controlling, this Court held that reinstatement of the

conviction of unpremeditated murder was prohibited.   Riley, 55

M.J. at 188.   This reinforced the holdings in Crider II that an

accused should incur no harm by appealing and that absent a

certified question on the affected offenses, an accused is

entitled to plead double jeopardy against any attempt by the

Court of Criminal Appeals to reinstate and affirm the conviction

of a greater offense.   22 C.M.A at 111.   We then answered the

certified question in the negative.

     Considering the principles behind the Double Jeopardy

Clause and precedent, in our view a lower court’s finding of

factual insufficiency is not the legal equivalent of an

acquittal by the trier of fact at the court-martial level.    For

sure, Congress “intended to give an accused a de novo proceeding

on the merits and to empower the Courts of Criminal Appeals to

acquit an accused.”   Riley, 55 M.J. at 188.   We have also stated

“that Congress intended a Court of Criminal Appeals to act as

factfinder in an appellate-review capacity and not in the first


                                24
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


instance as a trial court.”    United States v. Ginn, 

,

242 (C.A.A.F. 1997).   A court of criminal appeals is more akin

to a district court entering its judgment of acquittal pursuant

to Fed. R. Crim. P. 29 than it is to a trial jury.   In such a

case, “[u]nder the double jeopardy clause the government may

appeal the granting of a motion for judgment of acquittal only

if there would be no necessity for another trial, i.e., only

where the jury has returned a verdict of guilty.”    Fed. R. Crim.

P. 29 advisory committee’s note (discussing Dec. 1, 1994,

amendments).   In the military justice system, at the time a

court of criminal appeals makes a determination of factual

insufficiency, a guilty finding will necessarily have been

returned by a court-martial.    Indeed, we have distinguished this

de novo review power from a trial in recognizing that the courts

of criminal appeals must exercise their unique fact-finding

powers making allowances for not having personally observed the

witnesses who testified at the trial.   United States v. Walters,

, 395 (C.A.A.F. 2003); United States v. Turner, 

, 325 (C.M.A. 1987).

     But that is not to say the principles behind the Double

Jeopardy Clause do not apply.   “‘[C]entral to the objective of

the prohibition against successive trials’ is the barrier to

‘affording the prosecution another opportunity to supply

evidence which it failed to muster in the first proceeding.’”


                                 25
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


DiFrancesco, 449 U.S. at 128 (citation omitted).    Exercise of

this Court’s authority under Article 67 to review certified

questions of law does not permit supplementation of the factual

record by either side.   The lower court’s review having become

final with the assumption of this Court’s jurisdiction, the

facts, as opposed to the application of the law to those facts,

are set.   Nor, may this Court supplant the lower court’s

evaluation of the weight of the evidence with our own.   In such

a case, we would indeed be acting beyond our statutory

authority.   This, too, is consistent with the overall

jurisdictional scheme contemplated by Congress.    The power of de

novo factual review that the courts of criminal appeals possess

was intended as a safeguard to servicemembers.    United States v.

Parker, 

, 271 (C.M.A. 1993)(declaring that plenary de

novo power of review is to protect an accused); United States v.

Claxton, 

, 162 (C.M.A. 1991)(describing review under

Article 66(c) as “carte blanche to do justice”).

     For the reasons stated above, we hold that neither Article

67(c) nor double jeopardy considerations preclude this Court

from reviewing the question of law raised by the Government by

certification where the members at trial have returned a verdict

of guilty.




                                26
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


                                       II

                           THE CERTIFIED QUESTION

     A.   Applicable Law

     In military law, rape is “an act of sexual intercourse, by

force and without consent.”    Article 120, UCMJ.   The Manual for

Courts-Martial lists the elements of rape as:

        (1) That the accused committed an act of sexual
     intercourse; and

        (2) That the act of sexual intercourse was done by force
     and without consent.

Manual for Courts-Martial, United States, (2002 ed.) (MCM), pt.
IV, ¶ 45.b.

Although listed within the same element, the discussion and case

law make clear that force and lack of consent are distinct,

although related, elements of the offense.    United States v.

Simpson, 

, 377 (C.A.A.F. 2003)(“[F]orce and lack of

consent are separate elements . . . .”).    Whether the elements

of the offense are met is based on a totality of the

circumstances.   United States v. Cauley, 

, 356

(C.A.A.F. 1996).

     In plain English, consent generally means voluntary

agreement.   See, e.g., Merriam-Webster’s Collegiate Dictionary

265 (11th ed. 2003).   In discussing rape and carnal knowledge,

the MCM amplifies this definition, pointing out that:

     The lack of consent required, however, is more than mere
     lack of acquiescence. If a victim in possession of his or


                                  27
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     her mental faculties fails to make lack of consent
     reasonably manifest by taking such measures of resistance
     as are called for by the circumstances, the inference may
     be drawn that the victim did consent.

MCM, pt. IV, ¶ 45.c. (1)(b).   Significantly, “such measures of

resistance” can be verbal, physical or a combination of the two.

In other words, in context, a verbal “no” can manifest the

necessary lack of consent for the offense of rape.    In such a

context, physical resistance is not required.    Cauley, 45 M.J.

at 356 (“[A] finding of lack of consent does not require proof

that the witness physically resisted her attacker.”).    Moreover,

proof of resistance in any form is not a necessary element of

the offense of rape.   United States v. Bonano-Torres, 

, 179 (C.M.A 1990).   It may, however, be probative on the

issue of consent.   Further, verbal or physical measures of

resistance are not required “if resistance would have been

futile, where resistance is overcome by threats of death or

great bodily harm, or where the victim is unable to resist

because of lack of mental or physical faculties.”    MCM, pt. IV,

¶ 45.c. (1)(b).   In such a circumstance, there is no consent.

     Force is the second essential element of rape.     The MCM and

case law recognize that force can be accomplished in one of two

manners:   actual force or constructive force.   Actual force is

physical force used to overcome a victim’s lack of consent.

United States v. Palmer, 

, 9 (C.M.A. 1991).     Actual



                                28
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


force requires “more than the incidental force involved in

penetration.”   Bonano-Torres, 31 M.J. at 179.    However, military

law also recognizes the concept of constructive force, which

“may consist of expressed or implied threats of bodily harm.”

United States v. Hicks, 

, 6 (C.M.A. 1987).

“Constructive force may be shown by proof of a coercive

atmosphere that includes, for example, threats to injure others

or statements that resistance would be futile.”    Simpson, 58

M.J. at 377.

     In application, the concepts of actual and constructive

force are complex for three reasons.    First, Article 120 is

antiquated in its approach to sexual offenses.    In particular,

the article does not reflect the more recent trend for rape

statutes to recognize gradations in the offense based on

context.   See generally Report of the Commission on the 50th

Anniversary of the Uniform Code of Military Justice 11 (Nat’l

Inst. of Military Justice 2001).     These statutes incorporate the

legal realization that the force used may vary depending on the

relationship and familiarity, if any, between perpetrator and

victim, but the essence of the offense remains the same --

sexual intercourse against the will of the victim.    Because

Article 120 is dated, its elements may not easily fit the range

of circumstances now generally recognized as “rape,” including

date rape, acquaintance rape, statutory rape, as well as


                                29
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


stranger-on-stranger rape.   As a result, the traditional

military rape elements have been applied in contexts for which

the elements were not initially contemplated.     Case law has

evolved to address this reality.      See, e.g., United States v.

Simpson, 58 M.J. at 368 (drill instructor’s coercive influence

over recruits); United States v. Palmer, 33 M.J. at 7 (parental

compulsion found to be a form of constructive force); United

States v. Henderson, 

 (1954)(concept of constructive

force recognized as applicable to military).

     Second, application of the concepts of actual and

constructive force is complex because the elements of consent

and force are often intertwined.      For example, these elements

are included within the same statutory element, suggesting an

intentional substantive link.   They also are often closely

allied with regard to proof.    The same evidence offered on the

issue of force, may also serve to prove lack of consent.     In

this manner for example, evidence of measure(s) of resistance

might prove both the elements of force and lack of consent.

     Finally, these concepts are complex because actual and

constructive force address bodily harm, but retain subtle but

distinct differences in the standard of measurement required to

demonstrate each.   This is succinctly and clearly stated in




                                 30
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Simpson:

     Fear of great bodily harm is used in the MCM with respect
     to inferring consent on the element of lack of consent.
     With respect to the use of constructive force to prove the
     element of force, however, we have held that it is
     sufficient if the Government proves that the abuse of
     authority placed the victim in fear of physical injury.

58 M.J. at 378-79 (citations omitted).    Moreover, in assessing

the totality of the circumstances, a court may well address both

the actual and constructive force concepts, and then apply the

same factual evidence to both, thus weaving facts with legal

standards.

     B.    The Law Applied in this Case

     With this backdrop, we turn now to the lower court’s

treatment of force and consent.    The Government argues that the

court applied the wrong legal standard to its factual review of

the evidence.   In particular, the Government argues that the

court applied the more rigorous “grievous bodily harm” measure

in finding an absence of constructive force, when Simpson states

that the standard for constructive force is “physical injury.”

As evidence of this error, the Government focuses almost

exclusively on the substance of the following sentence from the

lower court opinion, highlighted here within its parent

paragraph:

     On September 12, SPC M again initially resisted appellant’s
     sexual advances. She wrestled with him and told him “no.”
     Appellant was unable to undo her trousers and belt.
     Appellant never threatened bodily harm to SPC M, nor did he


                                  31
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


     expressly threaten her military career. Specialist M did
     not have a reasonable fear of death or grievous bodily
     injury, nor did she have a reasonable basis for her
     conclusion that resistance would be futile. When she saw
     multiple condoms in his office, she was not too intimidated
     to challenge his intentions toward other women. As such,
     we find that SPC M ceased to resist and then engaged in
     sexual intercourse with appellant. We may infer consent
     with respect to a rape charge unless SPC M made her lack of
     consent reasonably manifest by taking such measures of
     resistance as are called for by the circumstances.

Leak, 58 M.J. at 876 (citations, footnotes, and internal

quotation marks omitted) (emphasis added).

     Responding, Appellant argues that this Court does not have

jurisdiction to answer this question, but that in any event, the

lower court has applied the correct standard to its legal

review.    Therefore, under either argument the lower court’s

decision to set aside Appellant’s conviction for rape is final.

         We conclude the Court of Criminal Appeals has included

within its opinion the essential elements of rape, and has

correctly disaggregated the concepts of actual and constructive

force.    It also applied the correct legal measure to both

concepts.    The language cited by the Government is addressed to

the element of consent and not the element of force.

     To start, the sentence appears within a paragraph

discussing consent and not the element of force.    Moreover,

breaking the sentence down into its constituent parts, it is

evident that the first and second clauses of the sentence are




                                  32
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


intended to address the second and first clauses of the MCM’s

text concerning inferred consent, which states:

     Consent, however, may not be inferred if resistance would
     have been futile, where resistance is overcome by threats
     of death or great bodily harm, or where the victim is
     unable to resist because of the lack of mental or physical
     faculties. In such a case there is no consent and the
     force involved in penetration will suffice.

MCM, pt. IV, ¶ 45.c. (1)(b)(emphasis added).

     Thus, the lower court did not confuse the requisite

standard of physical apprehension addressed to the element of

consent with the lesser apprehension of physical injury

necessary to demonstrate constructive force.

     However, we are less certain of the lower court’s

application of the law to the facts with respect to this

statement:

     we find that SPC M ceased to resist and then engaged in
     sexual intercourse with appellant. We may infer consent
     with respect to a rape charge unless SPC M made her lack of
     consent reasonably manifest by taking such measures of
     resistance as are called for by the circumstances.

Leak, 58 M.J. at 876 (citations and internal quotation marks

omitted).

     On the one hand, this language might be read as the

sequential evaluation of resistance as a measure of lack of

consent.    The court, having found in the preceding sentences

that resistance would not have been futile, and that resistance

was not overcome with the threat of death or great bodily harm,



                                 33
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


had already found by implication that SPC M had not made her

lack of consent reasonably manifest.

     On the other hand, the court does not expressly find that

the putative victim did not make her lack of consent reasonably

manifest, before addressing the question of inferred consent.

The court found “SPC M’s testimony to be credible with respect

to her unrebutted descriptions of her initial physical and oral

manifestations of resistance and the eventual occurrence of

sexual activity with appellant.”      Id. at 875-76.   The Court of

Criminal Appeals also found that SPC M “wrestled with him and

told him ‘no.’   Appellant was unable to undo her trousers and

belt.”   Id. at 876.   In this factual context, the court’s

“ceased to resist” statement could suggest that the Court of

Criminal Appeals considered SPC M’s failure to continually

resist, to present, in effect, a legal talisman as to whether or

not she had consented.   However, as stated earlier, as a matter

of law depending on the circumstances, a victim need not

physically resist to manifest lack of consent and once lack of

consent has been reasonably manifested, one need not continually

manifest that lack of consent through resistance.      In some

contexts, a verbal statement of lack of consent will establish

the necessary manifested lack of consent -- “No,” for example.

In other cases, where the lack of consent is not manifest by the

language used, or any language at all, or perhaps where the


                                 34
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


language is superseded or accompanied by competing

manifestations of consent, continual resistance may prove

dispositive on the question of consent.      In this case, the lower

court also found as fact that “[w]hen [SPC M] saw multiple

condoms in his office, she was not too intimidated to challenge

his intentions toward other women.”    Id.    However, this sentence

follows the earlier unequivocal analysis regarding inferred

consent.   Without further discussion it is not clear, on the

element of consent (as opposed to force) whether and how this

fact may have modified the lower court’s conclusion on consent.

       Because this text is susceptible to two interpretations,

one correct in law and the other not, we conclude that a remand

for clarification is necessary.    We are conscious that few

appellate opinions can survive the degree of line diagramming

asked by the Government, and now by this Court.     At the same

time, we are not prepared to read between the lines of the lower

court’s opinion and infer application of a correct standard of

law given the importance of this matter of law to this case, and

to the law generally.   Nor do we have authority to find any

facts necessary to reach such a conclusion ourselves.     However,

on remand for clarification the factual findings made by the

Court of Criminal Appeals during its Article 66 review are final

and may not be reevaluated.   See generally Riley, 55 M.J. at

185.


                                  35
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


                                     III

                            THE GRANTED ISSUE

      Regarding the events of September 21, the Court of Criminal

Appeals found that the intercourse that occurred on that date

“was not open and notorious and thus it was not ‘indecent.’”

Leak, 58 M.J. at 878.      Accordingly, the court determined the

evidence was legally insufficient to sustain a conviction for

indecent acts.      Instead, the court affirmed the lesser offense

of a simple disorder under Article 134 for “sexual activity of

[a noncommissioned officer] cadre with an enlisted soldier in

training.”    Id.    However, Appellant already stood convicted of

maltreatment under Article 93 for “engaging in sexual acts” with

“a person subject to his orders.”          A simple disorder in this

context is a lesser included offense of the maltreatment

offense.    “Offenses are multiplicious if one is a lesser-

included offense of the other.”        United States v. Palagar, 

, 296 (C.A.A.F. 2002).

           Specifically, the accused was convicted of maltreating

SPC M under Article 93 “by engaging in sexual acts with her.”

The “certain act”8 under Article 134 found by the lower court as

constituting the disorder was “sexual activity” with SPC M.


8
  Under the MCM, if conduct violating Article 134 “is punished as a disorder
or neglect to the prejudice of good order and discipline in the armed forces
or was of a nature to bring discredit upon the armed forces, “one of the
elements to be proved is “[t]hat the accused did or failed to do certain
acts.” MCM, pt. IV, ¶ 60.a. (1).


                                     36
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Leak, 58 M.J. at 878.   Since “every enumerated offense under the

UCMJ is per se prejudicial to good order and discipline,” the

elements of the disorder affirmed under Article 134 are wholly

contained in the maltreatment offense as it was charged.    United

States v. Fuller, 

, 112 (C.A.A.F. 2000)(sexual

relations with subordinate found as lesser included offense of

maltreatment).   Thus, Appellant stands convicted of a greater

and lesser offense based on the same conduct.   Id.

Consequently, the disorder affirmed under Article 134 must be

dismissed.

                                 DECISION

     The granted issue is answered in the affirmative.     The

conviction for a simple disorder affirmed by the Court of

Criminal Appeals is dismissed.   The certified question and the

second specified issue are answered in the negative.    Finally,

the first and third specified issues are answered in the

affirmative.   The decision of the United States Army Court of

Criminal Appeals is set aside.   The record of trial is returned

to the Judge Advocate General of the Army with instructions to

the court to clarify its decision in accordance with the

principles set forth in this opinion.




                                 37
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


      GIERKE, Chief Judge (concurring in part and dissenting in

part):

      The Government asks us to reinstate a finding of guilty

that the lower court reversed as factually insufficient.          In my

view, the correct answer to this request is the same as the

punch line of the old joke about the Maine farmer asked for

directions to Millinocket:       You can’t get there from here.

Accordingly, I respectfully dissent from the majority opinion’s

resolution of the first and third specified issues.          Because I

believe we have no authority to act on a finding that a Court of

Criminal Appeals has set aside as factually insufficient, I

would not reach the certified issue or the second specified

issue.   I concur with the majority’s resolution of the granted

issue.

                            I.   Article 67(c)

      This is a Court of limited jurisdiction.          As the Supreme

Court emphasized in Clinton v. Goldsmith, “CAAF’s independent

statutory jurisdiction is narrowly circumscribed.”1          We are an

Article I court.2     “Article I courts are courts of special

jurisdiction created by Congress that cannot be given the

plenary powers of Article III courts.         The authority of the

1
  

, 535 (1999).
2
  Article 141, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 941 (2000) (“There is a court of record known as the United
States Court of Appeals for the Armed Forces. The court is
established under article I of the Constitution.”).
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Article I court is not only circumscribed by the [C]onstitution,

but limited as well by the powers given to it by Congress.”3

Unless Congress has given us the authority to act, we may not do

so.

      Congress established our jurisdiction and powers in Article

67 of the Uniform Code of Military Justice (UCMJ).4     Article

67(c) provides, “In any case reviewed by it, the Court of

Appeals for the Armed Forces may act only with respect to the

findings and sentence as approved by the convening authority and

as affirmed or set aside as incorrect in law by the Court of

Criminal Appeals.”5     This language conveys a clear and plain

meaning:   in a case where a Court of Criminal Appeals sets aside

a finding on factual insufficiency grounds, rather than on legal

grounds, we have no power to “act” on that finding.     Such a

ruling of the Court of Criminal Appeals is final.

      That plain language meaning is so clear that the Army

Government Appellate Division has recognized it in its brief to

this Court.    In its response to the third specified issue, the

Government acknowledges that “[c]onsideration of the granted

issue” falls “outside the specific terms of Article 67.”     That

acknowledgement -- which reflects a correct reading of Article


3
  In re United Mo. Bank of Kansas City, N.A., 

,
1451-52 (8th Cir. 1990) (internal citation omitted).
4
  10 U.S.C. § 867 (2000).
5
  Id. (emphasis added).

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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


67 -- is dispositive of this case, because as an Article I court

we have no power to act outside the specific terms of Article

67.6

       As the Supreme Court has observed, “It is well established

that when the statute’s language is plain, the sole function of

the courts -- at least where the disposition required by the

text is not absurd -- is to enforce it according to its terms.”7


6
  The Government attempts to escape from the inevitable
consequences of its acknowledgement by asking this Court to
exercise “general supervisory power over the administration of
military justice,” citing United States v. Jackson, 

,
225 (C.M.A. 1978). The reasoning of the Solicitor General’s
brief for the United States in Clinton v. Goldsmith effectively
refuted any notion that this Court has general supervisory
authority beyond the scope of Article 67:

       “[S]upervisory authority” is not a basis for
       jurisdiction, but instead is a basis for a superior
       court to announce rules governing inferior courts, in
       the course of deciding cases that are within the
       superior court’s jurisdiction. As this Court has
       explained, a court’s “supervisory authority” permits
       the superior court in some circumstances to “formulate
       procedural rules not specifically required by the
       Constitution or the Congress [. . .] to implement a
       remedy for violation of recognized rights, [. . .] to
       preserve judicial integrity [. . .], and [. . .] to
       deter illegal conduct.” United States v. Hasting, 

, 505 (1983).

Reply Brief for Petitioners, Clinton v. Goldsmith, 

(1999). The Supreme Court’s decision in Goldsmith echoed this
view by observing that “the CAAF is not given authority, by the
All Writs Act or otherwise, to oversee all matters arguably
related to military justice, or to act as a plenary
administrator even of criminal judgments it has affirmed.” 526
U.S. at 536.
7
  Lamie v. United States Trustee, 

, 534 (2004)
(citations and internal quotation marks omitted).

                                      3
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


So the plain meaning of the Article 67(c) -- that we are without

power to act on a finding that a Court of Criminal Appeals has

set aside as factually insufficient -- should prevail.

      The majority opinion acknowledges this as a possible

interpretation of Article 67(c),8 yet declines to adopt it.       The

majority offers two bases for rejecting what I view as the

plain-meaning interpretation.        First, the majority contends that

Article 67(c)’s provision that this Court “shall take action

only with respect to matters of law” “might be read narrowly to

require this Court to take action in all certified cases with

respect to matters of law.”9       But that language appears to be a

limitation on our power to act, not an express command that we

take certain action.      Acting with respect to a matter of fact

would violate that provision; failing to act on a matter of law

would not.

      The majority also argues that because Article 67 “does not

define the terms ‘act’ or ‘review,’ the language of the statute

is ambiguous as to what is intended by a structure that would

have this Court review all certified cases, but not act on

certain of those cases.”10

      I see no ambiguity.      Congress clearly intended our Article

67(c) power to act on a case to be narrower than our Article

8
   United States v. Leak, 61 M.J. __ (9-10).
9
   Id. at __ (10).
10
    Id.

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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


67(a) responsibility to review certain cases.           Article 67(a)

provides that this Court “shall review the record in . . . (2)

all cases reviewed by a Court of Criminal Appeals which the

Judge Advocate General orders sent to the Court of Appeals for

the Armed Forces to review.”11       Article 67(c) provides that “[i]n

any case reviewed by it, the Court of Appeals for the Armed

Forces may act only with respect to the findings and sentence .

. . as affirmed or set aside as incorrect in law by the Court of

Criminal Appeals.”12     Congress established the authority to act

as a subset of the authority to review.          This Court must review

the record when a Judge Advocate General certifies an issue, but

the result of that review may be to say that we have no

statutory authority to act.       Such an interpretation is

consistent with the majority’s own analysis of the terms

“review” and “act.”13

       Additionally, the majority’s own construction of Article

67(c) would not avoid this perceived ambiguity.          For example,

hypothesize that a Court of Criminal Appeals set aside a finding

of guilty as factually insufficient and that the relevant Judge

Advocate General then certified to this Court an issue expressly

asking whether the evidence was factually sufficient.          Under the

plain meaning of Article 67(c), we would be required to “review”

11
     10 U.S.C. § 867(a) (2000) (emphasis added).
12
     10 U.S.C. § 867(c) (2000) (emphasis added).
13
     See Leak, 61 M.J. at __ (10 n.2).

                                      5
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


the record in that case.       But the majority would agree that we

would have no power to “act” in that case.14            So under either the

majority’s interpretation or my interpretation, Article 67(c)

requires this Court to “review all certified cases, but not act

on certain of those cases.”15       The only question that divides us

is which cases fall within the latter prohibition.            I believe

that the plain language of Article 67(c) answers that question:

we may not “act” with respect to the portion of a finding that a

Court of Criminal Appeals has set aside as factually

insufficient.

      Because the statute’s meaning is plain, we need not -- and

should not -- go beyond the statute’s text to interpret it.            As

Judge Easterbrook has written for the Seventh Circuit,

“legislative history . . . may be used only when there is a

genuine ambiguity in the statute.”16        But if it were proper to

consult the UCMJ’s legislative history, such consultation would

support the conclusion that Congress did not intend to allow

this Court to act on a finding that a Court of Criminal Appeals

has set aside as factually insufficient.

      This meaning is reflected by the House and Senate Armed

Services Committees’ reports on the draft UCMJ.            Those reports


14
   See id. at __ (15, 16 n.6).
15
   Id. at __ (10).
16
   Board of Trade of the City of Chicago v. S.E.C., 

,
720 (7th Cir. 1999).

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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


are particularly significant because, as the Supreme Court has

noted, a “committee report represents the considered and

collective understanding of those Congressmen involved in

drafting and studying proposed legislation.”17          Both reports

observed, “If the Board of Review has set aside a finding as

against the weight of the evidence this decision cannot be

reconsidered by the [C]ourt [of Military Appeals].”18          The

reports contrast such a ruling with one in which a board of

review “has set a case aside because of the improper

introduction of evidence or because of other prejudicial

error.”19   Thus, the Armed Services Committees’ analysis of

Article 67(c) emphasized the basis on which the board of review

ruled.   If that basis was factual insufficiency, then the board

of review’s ruling was final.        If, on the other hand, the basis

was some form of legal error, then the issue could be certified

to this Court for further review.         In this case, the basis of

the Army Court’s ruling was factual insufficiency.          So under

both the plain language of the statute and the Armed Services

Committees’ analysis of the statute, that ruling is final.             We

have no power to revive the portion of the finding that the Army

Court set aside as factually insufficient.


17
   Zuber v. Allen, 

, 186 (1969).
18
   H. Rep. No. 81-491, at 32 (1949); S. Rep. No. 81-486, at 29
(1949).
19
   Id.

                                      7
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


      The majority, however, finds an “ambiguity in statutory

intent” and posits that it is “axiomatic that Article 67 must be

interpreted in light of the overall jurisdictional concept

intended by the Congress, and not through the selective narrow

reading of individual sentences within the article.”20          But

concluding that Congress precluded this Court from reviving a

finding that a Court of Criminal Appeals set aside as factually

insufficient is not a “narrow reading” of Article 67(c); it is

the plain meaning of Article 67(c).         In any event, courts are

supposed to read Article I courts’ jurisdictional statutes

narrowly.    The majority’s conceptual approach appears to violate

the general principle of statutory construction that

“jurisdiction of courts is neither granted nor assumed by

implication.”21    That maxim is particularly apt in the case of an

Article I court, whose jurisdiction “must be strictly

construed.”22

      The majority emphasizes that this Court retains the

authority to determine whether a decision of a Court of Criminal

Appeals is a legal or factual ruling.23         I agree.   But as the

majority itself acknowledges, “the Army Court of Criminal

20
   Leak, 61 M.J. __ at (10-11).
21
   3A Norman J. Singer, Statutes and Statutory Construction §
67.3 (6th ed. 2003).
22
   Northrop Grumman Corp. v. United States, 

, 40
(2000) (quoting Mega Construction Co. v. United States, 24 Fed.
Cl. 396, 472 (1993)).
23
   Leak, 61 M.J. at __ (12).

                                      8
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Appeals found the evidence of rape factually insufficient and

affirmed the lesser included offense of indecent assault.”24          So

this is not a case where a Court of Criminal Appeals ruled on a

legal matter but attempted to insulate its ruling from further

review by pretending that it had, instead, ruled on a factual

matter.     The majority has exercised this Court’s authority to

distinguish legal from factual rulings by concluding that the

lower court’s decision was based on factual insufficiency.           This

conclusion places this case outside our Article 67(c) authority

to act.

       In discussing the legislative history that indicates this

Court retains the discretion to decide whether the lower court’s

ruling was a factual or legal decision, the majority states that

if we conclude “that the lower court has erroneously applied the

law,” then the lower court’s “decision on the finding is not yet

final.”25    This puts the cart before the horse.        Under the

majority’s interpretation, we must determine the merits of the

case before making what I view as the threshold decision of

whether we have the power to act on the case.           In this case, we

still do not know whether the lower court erroneously applied

the law because this Court concludes that the Army Court’s

opinion is “susceptible to two interpretations, one correct in


24
     Id. at __ (6).
25
     Id. at __ (13).

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United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


law and the other not.”26      Additionally, the majority’s approach

appears to allow the certification of almost all cases that

result in a finding of factual insufficiency, because such

decisions will almost invariably discuss the law and apply the

law to the facts of the case.        Under the majority’s approach,

this Court would be required to analyze any such discussion or

application of the law for legal correctness.           The plain meaning

interpretation of Article 67(c) is far easier to apply, because

it merely calls for a determination of the basis of the lower

court’s ruling rather than a far more searching analysis of

whether any legal errors contributed to the ultimate ruling.

      The majority ably demonstrates that its interpretation of

Article 67(c) finds support in this Court’s early precedent.27

But because this precedent’s approach conflicts with Article

67(c)’s plain meaning, I would give effect to the congressional

limitation on our power.       Additionally that half-century old

precedent28 was decided without the benefit of the Supreme




26
   Id. at __ (35).
27
   Id. at __ (13-16).
28
   The majority also cites the more recent case of United States
v. Weatherspoon, 

 (C.A.A.F. 1998). See Leak, 61 M.J.
at __ (17). But in Weatherspoon, the Air Force Court of
Criminal Appeals had affirmed the findings. See 49 M.J. at 210.
So Weatherspoon says nothing about whether this Court may act on
a finding that the Court of Criminal Appeals set aside as
factually insufficient.

                                     10
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Court’s recent emphasis on the limitations of this Court’s

jurisdiction.29

      The majority concludes its analysis of this issue by

holding that “Article 67 does not preclude review of questions

of law certified by Judge Advocates General where the courts of

criminal appeals have set aside a finding on the ground of

factual insufficiency.”30      That holding is absolutely correct.

This Court does have power to review such issues.          As an Article

I court, we are not bound by any Article III prohibition against

“answer[ing] certified questions which would not or did not

alter the position of the parties.”31         We have, on occasion,

issued such opinions.32      What this Court lacks is any statutory

authority to act in such instances.

      So this Court is free to address whether the Army Court

employed a correct or incorrect constructive force standard.

This Court is free to provide analysis of this question that

will guide the lower court -- and other military justice

practitioners -- in future cases.         But Congress has not

authorized us to act on a case like this.          Accordingly, the

majority exceeds its authority when it returns the case for the

29
   See Goldsmith, 

.
30
   Leak, 61 M.J. __ at __ (17).
31
   United States v. Russett, 

, 185 (C.A.A.F. 1994).
32
   See generally id. at 185-86 (citing United States v. Martin,

 (C.M.A. 1985); United States v. Wheaton, 

 (C.M.A. 1984); United States v. Kuehl, 

 (C.M.A.
1981)).

                                     11
United States v. Leak, Nos. 03-0647/AR and 04-5001/AR


Army Court to clarify its holding regarding Charge II,

Specification 1 -- a finding on which this Court has no

authority to “act.”

                           II.   Double Jeopardy

      Nor do I join in the portion of the majority opinion

addressing the double jeopardy implications of reviving Charge

II, Specification 1.      Under the doctrine of constitutional

avoidance, when “‘a statute is susceptible of two constructions,

by one of which grave and doubtful constitutional questions

arise and by the other of which such questions are avoided, our

duty is to adopt the latter.’”33        In this case, construing

Article 67(c) to deprive this Court of authority to revive

Charge II, Specification 1 would avoid having to address the

double jeopardy issue.      Because we can -- and should -- adopt

that construction, I would not reach the double jeopardy

question.




33
  Harris v. United States, 

, 555 (2002) (quoting
United States ex rel. Attorney General v. Delaware & Hudson Co.,

, 408 (1909)).

                                     12