                       UNITED STATES, Appellant

                                    v.

              Juan R. GUTIERREZ, Private First Class
                        U.S. Army, Appellee

                              No. 06-5005

                       Crim. App. No. 20040596

       United States Court of Appeals for the Armed Forces

                       Argued November 14, 2006

                      Decided February 20, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., joined. BAKER, J., filed a dissenting opinion.

STUCKY and RYAN, JJ., did not participate.

                                 Counsel

For Appellant: Captain Trevor B. A. Nelson (argued); Colonel
John W. Miller II, Lieutenant Colonel Michele B. Shields, Major
Paul T. Cygnarowicz, and Major William J. Nelson (on brief).

For Appellee: Captain Patrick B. Grant (argued); Colonel John
T. Phelps II, Lieutenant Colonel Steven Henricks, and Major
Fansu Ku (on brief).

Military Judge:   Stephen R. Henley


       This opinion is subject to revision before final publication.
United States v. Gutierrez, No. 06-5005/AR

     Judge ERDMANN delivered the opinion of the court.

     Private First Class Juan R. Gutierrez entered pleas of not

guilty to one specification of assault with intent to commit

rape, in violation of Article 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 934 (2000), and one specification of

making an official statement with intent to deceive, in

violation of Article 107, UCMJ, 10 U.S.C. § 907 (2000).   Prior

to findings, the specification under Article 107, UCMJ, was

dismissed without prejudice upon the Government’s motion.     The

court-martial members were instructed on the offense of intent

to commit rape and two lesser included offenses, indecent

assault and assault consummated by battery.   Gutierrez was found

not guilty of assault with intent to commit rape but he was

convicted of one of the two lesser included offenses, assault

consummated by battery, in violation of Article 128, UCMJ, 10

U.S.C. § 928 (2000).   Gutierrez was sentenced to two months of

confinement and a bad-conduct discharge.   The sentence was

subsequently approved by the convening authority.

     The United States Army Court of Criminal Appeals reviewed

the case pursuant to Article 66, UCMJ, 10 U.S.C. § 866 (2000),

and specified an issue as to whether the military judge erred by

not instructing the panel members sua sponte on the defense of

mistake of fact as it applied to the offense of assault

consummated by a battery.   United States v. Gutierrez, 63 M.J.



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United States v. Gutierrez, No. 06-5005/AR

568, 569 (A. Ct. Crim. App. 2006).      The lower court found that

Gutierrez had not affirmatively waived the defense of mistake as

it applied to assault consummated by a battery and that the

military judge had therefore erred in not giving the

instruction.    Id. at 573-74.   The Court of Criminal Appeals set

aside the findings and sentence and authorized a rehearing.       Id.

at 575.    The Court of Criminal Appeals subsequently denied the

Government’s motion for reconsideration.     The Judge Advocate

General of the Army certified the affirmative waiver issue to

this court under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)

(2000).1

       The affirmative defense of mistake of fact is a required

instruction under Rule for Courts-Martial (R.C.M.) 920(e)(3).

When this defense is reasonably raised by the evidence, the

military judge is duty-bound to give an instruction, unless it

is affirmatively waived.    See United States v. Wolford, 62 M.J.

418, 422 (C.A.A.F. 2006); United States v. Barnes, 39 M.J. 230,

233 (C.M.A. 1994).    The issue certified by the Judge Advocate

General asks us to determine whether Gutierrez’s defense counsel


1
    The certified issue on review is:

       WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
       APPEALS ERRED IN HOLDING THAT THE TRIAL DEFENSE COUNSEL
       DID NOT AFFIRMATIVELY WAIVE AN AFFIRMATIVE DEFENSE
       INSTRUCTION WITH RESPECT TO A LESSER-INCLUDED OFFENSE.

63 M.J. 469 (C.A.A.F. 2006).



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United States v. Gutierrez, No. 06-5005/AR

affirmatively waived an instruction on the defense of mistake of

fact as it related to the lesser included offense of assault

consummated by battery.   We conclude that defense counsel’s

statement was an affirmative waiver and therefore reverse the

decision of the Court of Criminal Appeals.

                            Background

     The allegations underlying the charge against Gutierrez for

assault with intent to commit rape involved holding the victim

down and touching her breasts and vagina.    At the close of the

evidence, in an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000),

session outside the presence of the court-martial members, the

military judge discussed instructions with counsel.   The

Government requested that the military judge instruct the

members on two lesser included offenses of assault with intent

to commit rape, i.e., indecent assault and assault consummated

by battery.   Defense counsel did not oppose the request and all

remaining lesser included offenses were expressly waived.

     The military judge then discussed defense counsel’s request

for a mistake of fact instruction for two of the three offenses:

assault with the intent to commit rape and indecent assault.

Following a discussion of those two requested instructions, the

military judge asked the defense counsel the following question:

“And there doesn’t appear to be any mistake of fact instruction

with regard to battery.   Are you requesting one?”   Defense



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United States v. Gutierrez, No. 06-5005/AR

counsel responded:   “Your Honor, I simply do not want to request

one for the battery.”   The final instructions included a mistake

of fact instruction for assault with the intent to commit rape

and for indecent assault, but not for assault consummated by

battery.   Gutierrez was convicted of assault consummated by

battery.

     On review at the Court of Criminal Appeals, the lower court

determined that:   (1) the evidence reasonably raised the defense

of mistake of fact with regard to the lesser included offense of

assault consummated by battery; (2) defense counsel’s statement

that he “did not want to request” the instruction was not the

result of a carefully considered tactic and was insufficient to

establish affirmative waiver2; and (3) there was a reasonable

doubt as to whether Gutierrez would have been found guilty if

the military judge had properly instructed the panel on how the

mistake of fact defense applied to assault consummated by

battery.   Gutierrez, 63 M.J. at 572-75.

     Before this court, the Government contends that defense

counsel’s statement was an unambiguous waiver of the mistake of

fact instruction for assault consummated by battery.   The


2
  The Court of Criminal Appeals found that “when viewed in
context of the entire defense case, the statement was little
more than an off-the-cuff acquiescence to the military judge’s
erroneous assertion that the instruction on mistake of fact was
not applicable to the offense of assault consummated by a
battery.” Gutierrez, 63 M.J. at 574.



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United States v. Gutierrez, No. 06-5005/AR

Government argues that although the lower court disagreed with

defense counsel’s choice to waive the mistake of fact defense as

to assault consummated by battery, he did so decisively, while

explicitly requesting the same instruction for the other two

offenses.   According to the Government, defense counsel’s

affirmative waiver was a tactical decision.

     Gutierrez urges us to adopt the lower court’s reasoning.

He argues that defense counsel was confused about the mistake of

fact defense and the statement in question, “I simply do not

want to request one for the battery,” was a simple acquiescence

to the military judge’s assertions on the matter, not an

affirmative waiver.   Gutierrez contends that the entire defense

theory was mistake of fact and that there is no plausible reason

that defense counsel would discard this complete defense with

regard to one of the lesser included offenses.

                            Discussion

     A military judge has a sua sponte duty to give certain

instructions when reasonably raised by the evidence, even though

the instructions are not requested by the parties.    United

States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002).     The defense

of mistake of fact is an affirmative defense and a “required

instruction” under R.C.M. 920(e)(3).     An accused does not waive

his right to this instruction by failure to request it or by

failure to object to its omission.   United States v. Taylor, 26



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United States v. Gutierrez, No. 06-5005/AR

M.J. 127, 128-29 (C.M.A. 1988).    However, even if an affirmative

defense is reasonably raised by the evidence, it can be

affirmatively waived by the defense.      Barnes, 39 M.J. at 233

(citing United States v. Strachan, 35 M.J. 362, 364 (C.M.A.

1992)).3   This court has recognized that there are no magic words

to establish affirmative waiver.       United States v. Smith, 50

M.J. 451, 456 (C.A.A.F. 1999).    In making waiver determinations,

we look to the record to see if the statements signify that

there was a “purposeful decision” at play.      Id.   We review this

instructional claim de novo.   Wolford, 62 M.J. at 420.

     Initially, we agree with the Court of Criminal Appeals that

the evidence reasonably raised the defense of mistake of fact to

the offense of assault consummated by a battery.      As noted by

3
  In recognizing that our jurisprudence allows affirmative waiver
of affirmative defenses, we are mindful that the dissent
suggests that United States v. Taylor, 26 M.J. 127 (C.M.A.
1988), and United States v. Steinruck, 11 M.J. 322 (C.M.A.
1981), serve as precedent for the opposite conclusion. We
disagree. Neither Taylor nor Steinruck addresses affirmative
waiver. In Taylor, the court noted that a military judge has a
sua sponte duty to give an affirmative defense instruction when
reasonably raised by the evidence. Taylor, 26 M.J. at 128-29
(citing Steinruck, 11 M.J. at 324). The court then proceeded to
decide whether failure to request the instruction constituted
waiver and concluded: “the right to an instruction on
reasonable mistake of fact in a rape case, when appropriately
raised, is not waived by a defense failure to request such an
instruction.” Id. at 129. Similarly, in Steinruck the court
held that it was error for the military judge to fail to
instruct on a defense raised by the evidence where defense
counsel merely failed to request the instruction. 11 M.J. at
324. These decisions, which stand for the proposition that
passive waiver will not be recognized in this context, do not



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United States v. Gutierrez, No. 06-5005/AR

that court, “the charged offense of assault with the intent to

commit rape and the lesser-included offenses of indecent assault

and assault consummated by battery shared a common element; that

the accused inflicted ‘bodily harm’ on [the victim].”

Gutierrez, 63 M.J. at 572.   The military judge found that the

mistake of fact instruction was required for assault to commit

rape and for indecent assault.   As the same legal requirements

and facts were alleged for the common element of the offenses,

the defense of mistake of fact for assault consummated by

battery was reasonably raised by the evidence.

     During the Article 39(a), UCMJ, session, the military judge

raised a possible mistake of fact instruction for assault

consummated by battery and specifically asked the defense

counsel:   “Are you requesting one?”   The question was clear and

defense counsel’s response was equally as clear:   “I simply do

not want to request one for the battery.”    The issue before us

is whether, in the context of the entire record, this statement

constitutes an affirmative waiver.

     We have reviewed on numerous occasions whether the words

and actions of counsel constitute “affirmative waiver” in the

context of instructions on lesser included offenses.    Like

affirmative defenses, lesser included offenses are required

instructions under R.C.M. 920(e) and cannot be waived simply by


require that affirmative waiver of affirmative defenses be


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United States v. Gutierrez, No. 06-5005/AR

counsel’s failure to request such instructions.      Smith, 50 M.J.

at 455-56.    We have previously relied on cases that address

waiver in the context of lesser included offenses to inform our

consideration of waiver issues that arise in the context of

affirmative defenses and vice versa.      See Barnes, 39 M.J. at 233

(citing Strachan, 35 M.J. at 364); Strachan 35 M.J. at 364

(citing Taylor, 26 M.J. at 127).       We do so here as well.

     In United States v. Mundy, 2 C.M.A. 500, 503-04, 9 C.M.R.

130, 133-34 (1953), we concluded that counsel’s deferential

statements as to the defense’s position on lesser included

offense instructions constituted affirmative waiver of the

instructions.   These statements included:     “The defense would

leave it up to the law officer without submitting any specific

recommendations or committing itself one way or the other” and

“defense will consent to the ruling of the law officer.”        2

C.M.A. at 503, 9 C.M.R. at 133.    In Smith, 50 M.J. at 456, we

determined that counsel’s statement in response to the military

judge’s proposed instructions, “[t]hat’s not exactly what I

wanted, but it’s close,” amounted to a conscious choice to omit

lesser included offenses that defense counsel previously

discussed with the military judge and was therefore, affirmative

waiver.   In Strachan, 35 M.J. at 364, we held there was

affirmative waiver when counsel withdrew his request for a



disallowed.

                                   9
United States v. Gutierrez, No. 06-5005/AR

lesser included offense instruction after a brief discussion of

its applicability with the military judge.   In United States v.

Pasha, 24 M.J. 87, 91 (C.M.A. 1987), we found that affirmative

waiver of instructions on lesser included offenses stemmed from

counsels’ expressed satisfaction and agreement with the

determination of the military judge that certain lesser included

offense instructions did not apply.

     Comparatively, defense counsel’s statement in this case, “I

simply do not want to request one for the battery,” when

considered in context is as decisive, if not more decisive, than

these other examples.   Defense counsel was presented with the

opportunity to request or decline the mistake of fact

instruction as to assault consummated by battery.   He chose to

decline it, and in doing so he affirmatively waived his right to

the instruction.

     Our consideration of the exchange between the military

judge and the defense counsel, in the context of the whole

record, leaves us with no doubt that defense counsel’s statement

was a purposeful decision to forego the defense instruction as

to assault consummated by battery.    We hold that defense counsel

affirmatively waived the instruction.

                             Decision

     We answer the certified issue in the affirmative.     The

decision of the United States Army Court of Criminal Appeals is



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United States v. Gutierrez, No. 06-5005/AR

reversed.   The record of trial is returned to the Judge Advocate

General of the Army for remand to that court for further review

pursuant to Article 66(c), UCMJ.




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United States v. Gutierrez, No. 06-5005/AR


     BAKER, Judge (dissenting):

     I agree with the majority’s conclusion that Appellant

waived, or sought to waive, the affirmative defense of mistake

of fact with respect to the lesser included offense of battery.

The military judge asked defense counsel, “[a]nd there doesn’t

appear to be any mistake of fact instruction with regard to

battery.   Are you requesting one?”   Defense counsel’s response

is plain and unambiguous:   “Your Honor, I simply do not want to

request one for the battery.”   Although it is possible for

lawyers to craft language that is more direct and plain than

this language, there is not much room to do so.

     However, the majority does not address the resulting and

underlying question -– whether a military judge has a sua sponte

duty to instruct on an affirmative defense that is reasonably

raised, regardless of an apparent affirmative waiver.   On this

point, the majority concludes that “even if an affirmative

defense is reasonably raised by the evidence, it can be

affirmatively waived by the defense.”   This position is

supported by a citation to United States v. Barnes, 39 M.J. 230,

233 (C.M.A. 1994).   Barnes in turn cites United States v.

Strachan, 35 M.J. 362, 364 (C.M.A. 1992), as purported authority

for the proposition.   However, Strachan is a case addressing

waiver of an instruction on a lesser included offense rather

than waiver of an instruction on an affirmative defense.     Id.
United States v. Gutierrez, No. 06-5005/AR


     The lead opinion does not address the language in United

States v. Taylor, 26 M.J. 127 (C.M.A. 1988) or United States v.

Steinruck, 11 M.J. 322 (C.M.A. 1981), in which this Court stated

that “a ‘military judge has a duty to instruct’ on affirmative

defenses reasonably raised by the evidence, ‘regardless of

defense theories or requests.’”   Taylor, 26 M.J. at 128 (quoting

Steinruck, 11 M.J. at 324).   The Taylor court stated that this

principle was “so well-established” and is based on Article

51(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

851(c) (2000), not Rule for Courts-Martial (R.C.M.) 920(f).      Id.

at 128-29.   However, at the same time Taylor also states that

“with respect to other offenses and other affirmative defenses,

a parallel also exists between the test for a sua sponte duty to

instruct on a lesser-included offense and the test for

instructing on an affirmative defense.”   Id. at 129.    Thus,

while it is well settled that an accused can waive a lesser

included offense, United States v. Mundy, 2 C.M.A. 500, 9 C.M.R.

130 (1953), it is not settled that an accused can waive an

affirmative defense, or if so, which ones.   In light of the

significance of the reasonable doubt principles involved, this

Court should address the underlying issue directly.     Then, it

should either expressly overrule Taylor and Steinruck and state

its reasons for doing so, or affirm the decision of the United

States Army Court of Criminal Appeals not just on the ground of


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United States v. Gutierrez, No. 06-5005/AR


waiver, but on the necessarily correlated ground that an

instruction on the affirmative defense presented was not

required to be provided sua sponte by the military judge.1

       On the one hand, Article 51(c), UCMJ,2 and R.C.M. 920(e)3

appear to be consistent with the legal policy principle that a


1
  The majority responds with a discussion of case law. However,
the case law is uncertain and does not address the question
ultimately raised in this case. The issue for this Court is not
how best to interpret this Court’s past precedent, but what
precedent this Court will set as to whether an accused can
affirmatively waive the government’s obligation to prove guilt
beyond a reasonable doubt where the government bears the burden
of rebutting an affirmative defense that is reasonably raised.
Whatever one’s position on this question, it merits analysis.
2
    This statutory provision reads as follows:

       (c) [T]he military judge . . . shall . . . instruct the
       members of the court as to the elements of the offense and
       charge them --

            (1)   that the accused must be presumed to be innocent
            until his guilt is established by legal and competent
            evidence beyond reasonable doubt;
            (2)   that in the case being considered, if there is a
            reasonable doubt as to the guilt of the accused, the
            doubt must be resolved in favor of the accused and he
            must be acquitted;
            (3)   that, if there is reasonable doubt as to the
            degree of guilt, the finding must be in a lower degree
            as to which there is no reasonable doubt; and
            (4)   that the burden of proof to establish the guilt
            of the accused beyond a reasonable doubt is upon the
            United States.
3
    This rule reads in relevant part:

       (e) Required instructions.     Instructions on findings shall
       include:




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United States v. Gutierrez, No. 06-5005/AR


court-martial is a factfinding process intended to serve justice

and not merely serve as a forum for the demonstration of trial

advocacy and tactics.   If a court’s concern is ultimately in

determining beyond a reasonable doubt whether an accused is

guilty, then we should read Article 51(c), UCMJ, and especially

R.C.M. 920(e) to mean what they say:   an instruction on an

affirmative defense or lesser included offense is required if

reasonably raised.   Society’s interest in justice should prevail

over any tactical advantage counsel may foresee in requesting an

instruction on an affirmative defense to a greater offense, but

purportedly waiving that same defense to the lesser included

offense.

     On the other hand, the Supreme Court and this Court have

long held that an accused can waive certain core constitutional

rights, such as the right to trial itself, provided the accused

does so knowingly and voluntarily on the record.   See United

States v. Care, 18 C.M.A. 535, 538-40, 40 C.M.R. 247, 250-52



           (1) A description of the elements of each offense
           charged, unless findings on such offenses are
           unnecessary because they have been entered pursuant to
           a plea of guilty;
           (2) A description of the elements of each lesser
           included offense in issue, unless trial of a lesser
           included offense is barred by the statute of
           limitations . . . and the accused refuses to waive the
           bar;
           (3) A description of any special defense under R.C.M.
           916 in issue[.]



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United States v. Gutierrez, No. 06-5005/AR


(1969).   However, an accused cannot waive some rights.   Once he

decides to plead not guilty and exercise his right to a trial on

the merits, an accused cannot waive the government’s burden to

prove his guilt beyond a reasonable doubt.   Consistent with this

precedent, in military practice an accused can affirmatively

waive an instruction on a lesser included offense, and in effect

make the tactical decision to gamble on a conviction of the

greater offense or full acquittal.   This is sometimes referred

to as the “all-or-nothing doctrine.”   Catherine L. Carpenter,

The All-or-Nothing Doctrine in Criminal Cases: Independent Trial

Strategy or Gamesmanship Gone Awry?, 26 Am. J. Crim. L. 257

(1999).   This practice is consistent with the legal policy that

where an accused’s liberty and reputation are at stake, he ought

to have the opportunity to present his defense based on his

theory of the case and to employ the tactics best suited to

support that theory.

     If this latter position is the correct legal position, as

this Court has held regarding lesser included offenses, then the

question is whether the same conclusion should be reached in the

case of an affirmative defense that is reasonably raised.    After

all, the Taylor Court expressed its belief that “with respect to

other offenses and other affirmative defenses, a parallel also

exists between the test for a sua sponte duty to instruct on a

lesser-included offense and the test for instructing on an


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United States v. Gutierrez, No. 06-5005/AR


affirmative defense.”   26 M.J. at 129.   The requirement to

instruct in both instances is premised on the same article of

the UCMJ and the same provision in the Manual for Courts-

Martial, United States (MCM).    Thus, absent a compelling legal

reason why an instruction on a lesser included offense might be

waived, but an instruction on an affirmative defense may not,

the rule as to both should be the same and this Court should

expressly overrule Taylor.

     However, a compelling legal reason for treating the two

situations differently can be found in the government’s burden

of proof beyond a reasonable doubt.   Regarding affirmative

defenses, the MCM states, “Except for the defense of lack of

mental responsibility and the defense of mistake of fact as to

age . . . in a prosecution for carnal knowledge, the prosecution

shall have the burden of proving beyond a reasonable doubt that

the defense did not exist.”   R.C.M. 916(b).   The Drafters’

Analysis to R.C.M. 916(b) states that “[t]his subsection is

based on the fourth paragraph of paragraph 214 of the MCM, 1969

(Rev.).”   MCM, Analysis of the Rules for Courts-Martial app. 21

at A21-63 (2005 ed).    The fourth paragraph of paragraph 214 of

the revised edition of the 1969 MCM states:    “The burden of

proof to establish the guilt of the accused beyond a reasonable

doubt is upon the Government, both with respect to those

elements of the offense which must be established in every case


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United States v. Gutierrez, No. 06-5005/AR


and with respect to issues involving special defenses which are

raised by the evidence.”   Thus, while it is permissible to

assign the burden of proving affirmative defenses to the

accused, see Patterson v. New York, 432 U.S. 197, 215-16 (1977);

Martin v. Ohio, 480 U.S. 228, 234-36 (1987), the President has

granted the military accused a degree of process that requires

the government to disprove certain affirmative defenses as part

of its ultimate burden of proving the offense beyond a

reasonable doubt.   Because an accused is presumed innocent, in

cases where such an affirmative defense is reasonably raised,

and where the government does not rebut or answer such a

defense, a reasonable doubt as to guilt should arise.    While an

accused can waive many constitutional rights, an accused cannot

waive the government’s burden at trial of proving guilt beyond a

reasonable doubt.   See In re Winship, 397 U.S. 358, 363-64

(1969).

     For these reasons, I would conclude that for those defenses

in which the government bears the burden of rebutting a

reasonably raised defense, an accused cannot waive the

instruction anymore than he can waive the application of the

reasonable doubt standard.   However, if the accused has the

burden of raising an affirmative defense, as well as the burden

of persuasion and the burden of proof, an accused should be

allowed to waive the defense.


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United States v. Gutierrez, No. 06-5005/AR


     The waiver of a lesser included offense is distinct from

the waiver of an affirmative defense for which the government

bears the burden of rebuttal.   In the case of a waived lesser

offense, the government is not relieved of its burden to prove

the offense beyond a reasonable doubt.   In undertaking its

burden to prove the greater offense beyond a reasonable doubt,

the government will necessarily also shoulder its burden to

prove the lesser offense beyond a reasonable doubt.   However,

allowing the lesser offense to go to the members and purportedly

waiving a raised affirmative defense to that offense amounts to

waiving the government’s burden of proving the lesser offense

beyond a reasonable doubt.

     In this case, Appellant was charged with assault with

intent to commit rape.   Neither the parties nor the majority

take issue with the fact that the lesser offenses of indecent

assault and assault consummated by a battery were raised.     Nor

is there disagreement at this point that the affirmative defense

of mistake of fact was raised as to the charged offense, as well

as both lesser included offenses.    Since the military judge gave

a mistake of fact instruction regarding the charged offense and

the lesser offense of indecent assault, the debate now hinges on

whether Appellant waived an instruction on the defense to

assault consummated by a battery.    As the defense is one for

which the Government had the burden of disproving beyond a


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United States v. Gutierrez, No. 06-5005/AR


reasonable doubt under R.C.M. 916(b), I conclude that

notwithstanding defense counsel’s purported affirmative waiver

of the defense, the military judge was required to give the

instruction once the members were also instructed on the lesser

included offense of assault consummated by a battery.    Had

Appellant waived this lesser included offense, then an

instruction on the affirmative defense would not have been

required.   As a result, I respectfully dissent.




                                 9
