                        UNITED STATES, Appellee

                                    v.

                  Michael J. RODRIGUEZ, Senior Airman
                       U.S. Air Force, Appellant

                              No. 07-0685
                         Crim. App. No. 36455

       United States Court of Appeals for the Armed Forces

                        Argued January 15, 2008

                        Decided April 23, 2008

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER and STUCKY, JJ. joined. ERDMANN, J., filed a
dissenting opinion.


                                 Counsel


For Appellant: Captain Griffin S. Dunham (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Jason M. Kellhofer (argued); Colonel
Gerald R. Bruce and Major Donna S. Rueppell (on brief); Major
Matthew S. Ward.

Military Judge:    Kevin P. Koehler


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rodriguez, No. 07-0685/AF


    Judge RYAN delivered the opinion of the Court.

    In United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003),

this Court held that the Court of Criminal Appeals could not

review a conviction for factual sufficiency under Article 66,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2000),

when the appellant was charged with committing an illegal act

“on divers occasions,” but was found guilty at trial by

exceptions and substitutions to a single unspecified act.

Walters, 58 M.J. at 394, 396-97.       The decision in that case

turned on the fact that the members had found the appellant “not

guilty” of some unspecified occasions, and the consequent

inability of a Court of Criminal Appeals to “find as fact any

allegation in a specification for which the fact-finder below

has found the accused not guilty.”      Id. at 395; see also United

States v. Seider, 60 M.J. 36, 38 (C.A.A.F. 2004) (stating the

same).

    In this case, Appellant was found guilty of the “on divers

occasions” offense by the members, without exception.      In the

course of conducting its review for legal and factual

sufficiency, the United States Air Force Court of Criminal

Appeals (CCA) approved the conviction with respect to a single

act, finding the evidence for the other acts factually

insufficient.   United States v. Rodriguez, No. ACM 36455, 2007




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United States v. Rodriguez, No. 07-0685/AF


CCA LEXIS 254, at *7-*8, 2007 WL 2035048, at *3 (A.F. Ct. Crim.

App. June 26, 2007).

      Appellant asserts that Walters and Seider apply, and that

the lower court could not affirm the factual sufficiency of the

conviction in this case under Article 66, UCMJ.1   We disagree:

the difference in the verdicts of the factfinders is the

dispositive distinction between this case and Walters and

Seider.    Accordingly, we hold that the lower court properly

conducted a legal and factual sufficiency review pursuant to

Article 66, UCMJ.

                                 I.   FACTS

       A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of one

specification of using marijuana on divers occasions and one

specification of using Percocet, a Schedule II controlled



1
    The issue, as granted was:

       SINCE TWO OF THREE ALLEGED USES OF MARIJUANA WERE
       BASED ON UNCORROBORTED CONFESSIONS AND APPELLANT’S
       CONVICTION FOR USING MARIJUANA ON DIVERS OCCASIONS WAS
       ACCORDINGLY TRANSFORMED INTO A SINGLE USE CONVICTION
       BY THE AFCCA, WHETHER UNITED STATES V. SEIDER AND
       UNITED STATES V. WALTERS PROHIBIT AFFIRMING EVEN A
       SINGLE USE OF MARIJUANA BECAUSE THE MEMBERS COULD HAVE
       BASED THEIR “ON DIVERS OCCASIONS” CONVICTION ON THE
       TWO UNCORROBORATED CONFESSIONS AND FOUND APPELLANT NOT
       GUILTY OF THE ALLEGED USE NOW USED BY THE AFCCA TO
       AFFIRM THE SPECIFICATION.

65 M.J. 347 (C.A.A.F. 2008).

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United States v. Rodriguez, No. 07-0685/AF


substance, on divers occasions, in violation of Article 112a,

UCMJ, 10 U.S.C. § 912a (2000).

     The specification at issue in this appeal charged Appellant

with a violation of Article 112a, UCMJ, in that he “did, on

divers occasions, within the continental United States, between

on or about 1 August 2002 and on or about 1 September 2003,

wrongfully use marijuana.”

     At trial, the Government presented evidence in support of

its theory that Appellant used marijuana on three separate

occasions during the charged period.2   Four government witnesses

offered relevant testimony.   Three testified that Appellant had

admitted to them that he had used marijuana.   Only the fourth,

Airman Basic (AB) Maldonado, testified that he actually

witnessed Appellant use marijuana during the timeframe outlined

in the specification.   Appellant never asked for a bill of

particulars regarding the three separate alleged uses of

marijuana.




2
  During oral argument, the Government raised, for the first
time, the possibility that the record of trial supported only
two, not three, alleged uses of marijuana. In response,
Appellant filed a motion to supplement statement of facts and
analysis in the brief on behalf of Appellant, which we granted.
66 M.J. ___ (C.A.A.F. 2008). We base our decision on three, not
two, alleged uses. Appellant’s appeal was granted on that
basis. Moreover, the CCA based its decision on the premise that
there were three alleged uses, and that premise is supported by
the record.

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United States v. Rodriguez, No. 07-0685/AF


     After hearing this evidence and being instructed on

exceptions and substitutions by the military judge, the members

convicted Appellant of using marijuana “on divers occasions” as

charged.    The sentence adjudged by the court-martial and

approved by the convening authority included a bad-conduct

discharge, confinement for five months, forfeiture of all pay

and allowances, and reduction in grade to E-1.

    Pursuant to Article 66, UCMJ, the CCA reviewed the case for

legal and factual sufficiency.

    On appeal to the CCA, Appellant argued that the evidence

adduced at trial was factually and legally insufficient to

support a conviction for use of marijuana on divers occasions

during the charged period.   The CCA found the evidence factually

sufficient to support a conviction for marijuana use on only one

occasion.   Rodriguez, 2007 CCA LEXIS 254, at *7-*8, 2007 WL

2035048, at *3.   It held that “[t]he evidence regarding

marijuana use is not as compelling” and that due to “the

extremely vague admissions made by the [A]ppellant” that were

recounted by the witnesses at trial, the CCA was unable to state

that the evidence was factually sufficient to support a

conviction for use of marijuana “on any occasion other than the

time in which he smoked it with” AB Maldonado.   2007 CCA LEXIS

254, at *6-*7, 2007 WL 2035048, at *2-*3.    Because the CCA

determined that the Government had only proven the one use


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United States v. Rodriguez, No. 07-0685/AF


described by AB Maldonado beyond a reasonable doubt at trial, it

amended the marijuana specification by striking “on divers

occasions” from the marijuana use specification.    2007 CCA LEXIS

254, at *7-*8, 2007 WL 2035048, at *3.

     At the CCA, Appellant also argued that, if the CCA found

the evidence insufficient as to any of the uses undergirding the

“divers occasions” specification, this Court’s decisions in

Seider and Walters dictated that the entire specification be set

aside.   2007 CCA LEXIS 254, at *9, 2007 WL 2035048, at *4.

     The CCA distinguished both Seider and Walters, noting that

in those cases the members, rather than the CCA, had made

exceptions to an “on divers occasions” specification, which

resulted in implicit findings of not guilty as to some of the

unspecified occasions.    In this case the members, after hearing

the evidence, had returned a general verdict of guilt to the

“divers occasions” specification.     2007 CCA LEXIS 254, at *9,

2007 WL 2035048, at *4.

     The CCA affirmed the conviction as to a single use of

marijuana and reassessed Appellant’s sentence, reducing his

confinement from five months to four months.    Rodriguez, 2007

CCA LEXIS 254, at *7-*8, 2007 WL 2035048, at *3.




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United States v. Rodriguez, No. 07-0685/AF


                            II.   ANALYSIS

     Whether a CCA can affirm a conviction for a single act

after determining that the evidence is factually insufficient to

support the “on divers occasions” general verdict returned by

the factfinder at trial is a question of law we review de novo.

See, e.g., United States v. Brown, 65 M.J. 356, 358-59 (C.A.A.F.

2007) (factual sufficiency reviewable where members findings are

not ambiguous).   We agree with the CCA that so long as the

factfinder entered a general verdict of guilty to the “on divers

occasions” specification without exception, any one of the

individual acts may be affirmed by the CCA as part of its

Article 66, UCMJ, review.

                                  A.

     When members find an accused guilty of an “on divers

occasions” specification, they need only determine that the

accused committed two acts that satisfied the elements of the

crime as charged -- without specifying the acts, or how many

acts, upon which the conviction was based.   Cf. Brown, 65 M.J.

at 359 (citing Griffin v. United States, 502 U.S. 46, 49-51

(1991); Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality

opinion)).   In this case, the Government presented evidence

related to three separate instances of marijuana use in support

of its attempt to prove that Appellant had used marijuana on

divers occasions.


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United States v. Rodriguez, No. 07-0685/AF


     Appellant argues that it was impossible for the CCA to know

upon which alleged instances of marijuana use the members based

the verdict of guilty on “divers occasions.”   Given the nature

of a general verdict, we agree with Appellant that there is no

way for this Court or the CCA to determine which acts comprised

the “divers occasions” found by the members, and no way to

determine whether the members found Appellant guilty of the

single act alleged in the specification as amended by the CCA.

     Appellant is also correct that, if the members found

Appellant not guilty of the act alleged in the specification as

amended by the lower court, the lower court could not conduct a

factual sufficiency review.    See Walters, 58 M.J. at 395

(stating that a court “cannot find as fact any allegation in a

specification for which the fact-finder below has found the

accused not guilty” (citing United States v. Smith, 39 M.J. 448,

451 (C.M.A. 1994); United States v. Nedeau, 7 C.M.A. 718, 721,

23 C.M.R. 182, 185 (1957))).

                                 B.

     But Appellant fails to account for the longstanding

jurisprudence in the Supreme Court, this Court, and the common

law regarding the presumption that controls general verdicts on

appeal.   See Griffin, 502 U.S. at 58-60 (discounting a similar

factual sufficiency argument); Brown, 65 M.J. at 359 (affirming

conviction where members did not specifically articulate which


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United States v. Rodriguez, No. 07-0685/AF


theory of liability was the basis for the finding of guilt);

Peake v. Oldham, (1775) 98 Eng. Rep. 1083, 1084 (K.B.) (Lord

Mansfield stating, “‘if there is any one count to support the

verdict, it shall stand good, notwithstanding all the rest are

bad’”).    The longstanding common law rule is that when the

factfinder returns a guilty verdict on an indictment charging

several acts, the verdict stands if the evidence is sufficient

with respect to any one of the acts charged.    Griffin, 502 U.S.

at 49.    The rule is based on the presumption that the verdict

attaches to each of the several alternative theories charged.

Turner v. United States, 396 U.S. 398, 420 (1970).     Because the

verdict attaches to all theories, the verdict may stand despite

trial errors “‘if any one of the counts is good and warrants the

judgment.’”    Griffin, 502 U.S. at 49 (quoting Claassen v. United

States, 142 U.S. 140, 146 (1891)).

        The presumption is similarly applicable where an “on divers

occasions” general verdict is modified on appeal to a single

act.3    Here, where the evidence was factually insufficient as to

two of the acts, the charge could nevertheless be sustained as


3
  In view of the facts of this case, nothing in Article 66, UCMJ,
Walters, or Seider requires us to disregard Supreme Court
precedent or the precedent of this Court regarding the common
law presumption. There was no actual or implicit finding of not
guilty by the members to any offense in this case, nor did the
CCA find the evidence legally insufficient to support any of the
charged conduct.


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United States v. Rodriguez, No. 07-0685/AF

to the third marijuana use.   But because that single use

affirmed by the CCA no longer constituted an “on divers

occasions” offense the lower court necessarily reconstituted

Appellant’s charge as a single use and reassessed his sentence.

The action by the CCA in this case is no different than if

Appellant had been charged with the three acts in question in

the conjunctive, a general verdict had been returned, and the

CCA found two of the acts to be unsupported by the facts adduced

at trial.   Turner, 396 U.S. at 420 (stating the general rule

that “when a jury returns a guilty verdict on an indictment

charging several acts in the conjunctive . . . the verdict

stands if the evidence is sufficient with respect to any one of

the acts charged”).4   Just as in Griffin and Turner, factually

insufficient alternatives were removed on appeal, but the

conviction may nonetheless be sustained.

                                C.

     Walters and Seider are not to the contrary.   The crux of

those opinions was that the members’ exceptions and

substitutions on the findings worksheet implicitly meant that

the factfinder had found that the accused was not guilty of some

of the acts alleged at trial.   Nothing in Walters or Seiders


4
  We note that a different analysis would apply in a case where a
possible basis for conviction was either illegal or
unconstitutional. See Stromberg v. California, 283 U.S. 359,
367-68 (1931).

                                10
United States v. Rodriguez, No. 07-0685/AF

addresses the argument advanced by Appellant today -– that a

general verdict on an “on divers occasions” charge cannot be

changed into a single act on appeal when the general verdict was

reached without exception by the factfinder.5

     Last year, in Brown, we revisited the general verdict

concept, that time in an instance where the accused was charged

with rape under a theory of acting either as a principal or

aider and abettor.6   65 M.J. at 358.   The members in that case,

instead of returning a general verdict, found the accused guilty

of a lesser included offense of indecent assault, without

stating on which of the alternative theories the lesser included

offense was based.    Id.   In affirming the conviction, we

repeated our holding in United States v. Vidal, 23 M.J. 319, 325

(C.M.A. 1987):   “‘It makes no difference how many members chose

one act or the other, one theory of liability or the other.    The

only condition is that there be evidence sufficient to justify a

finding of guilty on any theory of liability submitted to the

members.’”   Brown, 65 M.J. at 359.


5
  As the specification was charged, Appellant could be sentenced
to a maximum of five years of confinement, rather than the
fifteen available had the acts been charged individually.
Appellant did not request a bill of particulars and the members
were instructed by the military judge on the process for making
findings using exceptions and substitutions.
6
  In Rodriguez, the members were presented with three distinct
criminal acts. Each of them or any combination thereof, as with
the alternative theories of liability in Brown, provided each
member with a basis for convicting Appellant.

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United States v. Rodriguez, No. 07-0685/AF

     The rule from Walters and Seider applies “only in those

‘narrow circumstance[s] involving the conversion of a “divers

occasions” specification to a “one occasion” specification

through exceptions and substitutions’” by the members.   Brown,

65 M.J. at 358 (quoting Walters, 58 M.J. at 396).   An

unadulterated, unobjected-to, general verdict implicitly

contains a verdict of guilt as to each underlying act and the

CCA did not err in exercising its factual and legal review

pursuant to Article 66, UCMJ, here.

                            Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Rodriguez, No. 07-0685/AF


     ERDMANN, Judge (dissenting):

     Because I view this court’s precedent in United States v.

Walters, 58 M.J. 391 (C.A.A.F. 2003), and United States v.

Seider, 60 M.J. 36 (C.A.A.F. 2004), as controlling in this case,

I respectfully dissent.

     This case presents a slight variation on the principle

established in Walters.    In both Walters and this case the

appellants had been charged with wrongful use of drugs on divers

occasions.   See 58 M.J. at 392.    In Walters the members of the

panel issued a general verdict, by exceptions and substitutions,

finding him guilty of one unidentified occasion and not guilty

of “divers occasions.”    58 M.J. at 394.   The crux of this

court’s holding was that the panel’s action resulted in an

ambiguous verdict which prevented the Court of Criminal Appeals

(CCA) from conducting a review for factual sufficiency.

Walters, 58 M.J. at 396; see also United States v. Augspurger,

61 M.J. 189, 190 (C.A.A.F. 2005); Seider, 60 M.J. at 38.

     In this case the members issued a general verdict finding

Rodriguez guilty of wrongful use on divers occasions.    The CCA,

in performing its unique factual sufficiency review under

Article 66(c), Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 866 (2000), was convinced beyond a reasonable doubt

that Rodriguez used marijuana on only one specific occasion and

struck the “on divers occasions” language.    The issue before
United States v. Rodriguez, No. 07-0685/AF


this court is whether the CCA, in performing its factual

sufficiency review, could make a factual finding that Rodriguez

used marijuana on a specific occasion when it was impossible for

the CCA to determine whether the members had found Rodriguez

guilty of wrongful use on that specific occasion.

     The majority acknowledges what the Government concedes --

there is no way for this court or the CCA to determine whether

the members found Rodriguez guilty of the single occasion of

wrongful use of marijuana affirmed by the CCA.1   The majority

initially distinguishes Walters on the grounds that the members

there found him not guilty of “divers occasions” and the members

here found Rodriguez guilty of “divers occasions.”   United

States v. Rodriguez, __ M.J. __ (8-10) (C.A.A.F. 2008).    But

that distinction does not eliminate the basic issue before the

court -- whether the CCA can find as fact an allegation in a

charge without knowing whether the members found the accused

guilty or not guilty of the same alleged conduct.

     In affirming the CCA, the majority relies on the common law

presumption that “when the factfinder returns a guilty verdict


1
  The CCA affirmed only the marijuana use occasion testified to
by Maldonado. United States v. Rodriguez, No. ACM 36455, 2007
CCA LEXIS 254, at *7-*8, 2007 WL 2035048, at *2-*3 (A.F. Ct.
Crim. App. June 26, 2007) (unpublished). It is plausible that
the members rejected this occasion as Maldonado was also the
sole witness for a wrongful use of cocaine charge, of which the
panel found Rodriguez not guilty.


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United States v. Rodriguez, No. 07-0685/AF


on an indictment charging several acts, the verdict stands if

the evidence is sufficient with respect to any one of the acts

charged.”    Rodriguez, __ M.J. __ (9) (citation omitted).   The

CCA in Walters upheld the conviction by applying this common law

principle, which was recognized by Griffin v. United States, 502

U.S. 46 (1991).2    In Walters this court rejected the common law

argument relied on by the CCA in that case, and by the majority

here, finding that the Air Force court erred when it “relied on

‘the common-law rule regarding general verdicts’” noting that

the “Courts of Criminal Appeals’ appellate review authority

flows from Article 66(c), not the common law.”    Walters, 58 M.J.

at 395.3    I do not see the distinction in this case that would

justify departing from our treatment of this common law rule in

Walters.

     The common law rule relied upon by the majority arose in a

system where appellate courts did not have fact-finding

2
     It was settled law in England before the Declaration
     of Independence, and in this country long afterwards,
     that a general jury verdict was valid so long as it
     was legally supportable on one of the submitted
     grounds -- even though that gave no assurance that a
     valid ground, rather than an invalid one, was actually
     the basis for the jury’s action.

United States v. Walters, 57 M.J. 554, 556 (A.F. Ct. Crim. App.
2002) (quoting Griffin v. United States, 502 U.S. 46, 49 (1991).
3
  “While there are instances in military law where common law
principles are applicable, the center of gravity for the Courts
of Criminal Appeals is their statutory review function under
Article 66(c) . . . .” United States v. Walters, 58 M.J. 391,
395 (C.A.A.F. 2003).


                                  3
United States v. Rodriguez, No. 07-0685/AF


authority.   In contrast, the structure established in Article

66(c), UCMJ, requires the CCAs to conduct a unique factual

sufficiency review.    As recognized by this court, however, that

factual review is subject to a critical limitation:    “A Court of

Criminal Appeals cannot find as fact any allegation in a

specification for which the fact-finder below has found the

accused not guilty.”   Walters, at 395 (citations omitted).4   As

the CCA could not determine which occasions of marijuana use the

members found Rodriguez guilty or not guilty of, the same

ambiguity that existed in Walters exists here.

     Nor do I find this court’s recent decision in United States

v. Brown, 65 M.J. 356 (C.A.A.F. 2007), to be applicable to these

facts.   In Brown, the uncertainty in the verdict lay in what the

members believed about the means by which the charged offense

had been committed.    Brown, 65 M.J. at 357-58.   Here, the

uncertainty does not involve merely an alternative theory of

liability for a single offense, rather it involves which of the

divers occasions the members found Rodriguez guilty of.5


4
  The majority’s application of the common law rule would be
well-taken in our civilian court system where appellate courts
generally do not have fact-finding authority similar to that of
the military Courts of Criminal Appeals. See Walters, 58 M.J.
at 395 n.4.
5
  Brown was charged with a single incident of rape and this court
held that “[a] factfinder may enter a general verdict of guilt
even when the charge could have been committed by two or more
means, as long as the evidence supports at least one of the
means beyond a reasonable doubt.” 65 M.J. at 359. This case


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United States v. Rodriguez, No. 07-0685/AF


     Finally, despite the Government’s warnings of dire

consequences, application of the Walters holding to this case

and others like it would not create undue administrative hurdles

in cases involving divers occasions of wrongful use of drugs.

The Government is obviously aware of the “divers occasions” it

intends to prove at trial and should be required to list all of

the alleged occasions of wrongful use in the context of one

specification, as is commonly done with bad checks under Article

123a, UCMJ, 10 U.S.C. § 923a (2000).   Under this method, the

findings worksheet would include the alleged occasions of use

and the military judge could then instruct the panel to indicate

which of the occasions it has found the accused guilty of.    This

would ensure not only that the accused is fully informed of the

specific instances he or she must defend against, it would also

allow the CCA to be fully informed of those occasions where the

accused has been found guilty and those occasions where the

accused has been acquitted.

     I would reverse the decision of the United States Air Force

Court of Criminal Appeals as to this specification and order

that the finding of guilty be set aside.




involves which criminal act the members found Rodriguez guilty
of rather than which alternative means were used to commit a
single criminal act.


                                5
