This opinion is subject to administrative correction before final disposition.




                                Before
                    FULTON, TANG, and HITESMAN,
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                       Jeffrey D. SAGER
           Aviation Ordnanceman Airman (E-3), U.S. Navy
                            Appellant

                             No. 201400356

               Argued: 2 May 2019—Decided: 30 July 2019.

 Appeal from the United States Navy-Marine Corps Trial Judiciary up-
 on further review following remand from the United States Court of
 Appeals for the Armed Forces. Military Judge: Commander John A.
 Maksym, JAGC, USN. Sentence adjudged 29 January 2017 2014 by a
 general court-martial convened at Fleet Activities Yokosuka, Japan,
 consisting of officer and enlisted members. Sentence approved by con-
 vening authority: confinement for two years and a bad-conduct dis-
 charge.

 For Appellant: Lieutenant Commander William L. Geraty, JAGC,
 USN.

 For Appellee: Lieutenant Kimberly Rios, JAGC, USN (argued);
 Captain Brian L. Farrell, USMC (on brief).

 Senior Judge FULTON delivered the opinion of the Court, in which
 Senior Judge TANG and Senior Judge HITESMAN joined.




   Date sentence adjudged administratively corrected in header.
                       United States v. Sager, No. 201400356


                              _________________________

                    PUBLISHED OPINION OF THE COURT

                              _________________________

FULTON, Senior Judge:
    A panel of members with enlisted representation sitting as a general
court-martial convicted the appellant, contrary to his pleas, of one specifica-
tion of abusive sexual contact, in violation of Article 120, Uniform Code of
Military Justice (UCMJ). 1 The members acquitted the appellant of a second
specification also alleging abusive sexual contact against the same complain-
ing witness. The convening authority approved the adjudged sentence of 24
months’ confinement and a bad-conduct discharge.
    This case is before us for the third time. The Court of Appeals for the
Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s
conviction for abusive sexual contact. 2 The unusual posture of this case after
trial required us to decide whether the terms asleep, unconscious, and other-
wise unaware as used in Article 120(b)(2) represented distinct theories of
criminal liability. In our first review of this case, we held that they do not.
Rather, we held that the reasons for a victim’s lack of awareness, be it sleep,
unconsciousness, or something else, were only relevant to whether the ac-
cused should have known that the victim was unaware of the contact. 3
    The CAAF held that our interpretation was incorrect. Reversing this
court, the CAAF held that “ ‘asleep,’ ‘unconscious,’ [and] ‘otherwise unaware’ ”
represent three separate theories of liability. 4 The CAAF also held that the
term “ ‘otherwise unaware’ mean[s] unaware in a manner different from
asleep and . . . unconsciousness.” 5 The CAAF returned the case to us for a
new factual sufficiency review, this time applying the correct interpretation



   1   10 U.S.C. § 920 (2012).
   2 United States v. Sager, No. 201400356, 2015 CCA LEXIS 571 (N-M. Ct. Crim.
App. 29 Dec 2015) (Sager I), rev’d and remanded, United States v. Sager, 76 M.J. 158
(C.A.A.F. 2017) (Sager II).
   3   Sager I, 2015 CCA LEXIS 571 at *9.
   4   Sager II, 76 M.J. at 162.
   5   Id.




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                       United States v. Sager, No. 201400356


of Article 120(b)(2). 6 In conducting that review, the CAAF directed us to also
consider whether the Supreme Court’s decision in Green v. United States, 7
which held that a jury’s silence as to a charge terminates a defendant’s jeop-
ardy as to that charge, applies to this case.
    We completed our review and found that the appellant’s conviction for
abusive sexual contact was insufficiently supported by the evidence. We set
aside the appellant’s conviction, dismissing the charge and its specification. 8
    Following that decision, the government moved for en banc reconsidera-
tion. 9 The government alleged that the panel erred in three ways. First, the
government alleged that we had failed to consider the alleged victim’s state
before and during the initial sexual contact. Second, the government alleged
that the panel erroneously understood the alleged victim’s testimony to mean
that he was asleep during the sexual contact in question. Third, the govern-
ment alleged that we had not considered whether the appellant was guilty of
abusive sexual contact, which the government suggested was a lesser includ-
ed offense of committing a sexual contact when the appellant knew or rea-
sonably should have known that the victim was asleep, unconscious, or oth-
erwise unaware that the sexual contact was occurring.
    We declined to reconsider the case en banc. But because the panel had not
considered lesser included offenses, we granted panel reconsideration of the
following issue: What, if any, lesser included offenses may this court substi-
tute for the disapproved findings of abusive sexual contact?10
    The prospect of affirming a lesser included offense on reconsideration
raised a second issue. The military judge’s instructions and the record as a
whole suggested that the members had determined the appellant’s guilt as to
the specification by holding separate secret ballots as to at least two elements
of the offense. This raised the possibility that, while two-thirds of the mem-
bers may have concurred as to the appellant’s guilt as to each element, it was
nonetheless possible that two-thirds of the members had not concurred that
the appellant was guilty of every element. We therefore specified this issue,



   6   Id.
   7   355 U.S. 184 (1957).
   8 See United States v. Sager, No. 201400356, 2018 CCA LEXIS 40 (N-M Ct. Crim.
App. 31 Jan 2018) (unpub. op.) (Sager III).
   9   Gov. Motion for En Banc Reconsideration of 5 Mar 2018.
   10   NMCCA Order of 12 Jun. 2018.




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                    United States v. Sager, No. 201400356


asking whether we could be certain that, at a minimum, the same two-thirds
of the members voted that the victim was otherwise unaware of the sexual
contact at issue and that the appellant reasonably should have known that
the alleged victim was otherwise unaware. We asked both parties to brief
these two issues.
    In its brief, the government did not suggest any offenses that, in its view,
could be affirmed as lesser included offenses. Instead, the government urged
us to remand the case to the convening authority for new action. The new
action was necessary, according to the government, because the convening
authority had approved the members’ findings as reflected on the findings
worksheet, which the military judge had published and which specified the
theory under which the members convicted the appellant. The government
argued that the president’s announcement of the verdict, which did not speci-
fy the theory under which the members convicted the appellant, represented
a general verdict of guilt as to the specification, and that the convening au-
thority’s action reflecting the more detailed findings in the findings work-
sheet was error. In oral argument, the government further argued that the
purported error in the convening authority’s action deprived us of jurisdic-
tion.
    On reconsideration, we continue to find that the record does not support a
finding that the appellant committed a sexual contact on the alleged victim
while the alleged victim was otherwise unaware that the contact was occur-
ring (taking otherwise to mean for a reason other than sleep or unconscious-
ness). We also continue to find that under Green v. United States the appel-
lant was functionally acquitted of the language in the specification of which
the members did not convict him.
    We decline to decide the specified issue asking whether the voting proce-
dures in this case guaranteed that at least two-thirds of the members voted
to convict the appellant of every element of the offense. This issue is both
moot and beyond the scope of our remand.
   As for the government’s argument that the convening authority’s action
does not correctly reflect the members’ general verdict, we find that govern-
ment’s request is waived, that this argument contravenes the law of the case,
and that the government’s desired relief is beyond the scope of our remand.

                              I. BACKGROUND

    The appellant and Airman TK were shipmates on a Navy ship homeport-
ed in Yokosuka, Japan. On the evening of the offenses, Airman TK visited
several bars near the naval base and met the appellant, whom he understood
to be his “liberty buddy,” at one of the bars. Airman TK, the appellant, and


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                         United States v. Sager, No. 201400356


several other Sailors spent the rest of the evening together. Around 2300, the
group left the bar and walked to Petty Officer DS’s apartment, where they
spent the night.
    By this time, Airman TK was “[v]ery drunk.” 11 He was stumbling, slur-
ring his words, and he vomited into a bucket the appellant brought him.
According to Airman TK, after vomiting, he recalls “passing out” on a futon
in the living room. 12 He awoke to the appellant manually stimulating his
penis. Airman TK felt the appellant’s hand on his penis but was unable to
talk or move because he was too drunk. After about five to ten minutes of
manual stimulation, his penis was erect. Although he could not move, Air-
man TK mentally tried without success to lose his erection. After manually
stimulating Airman TK, the appellant performed oral sex on him until he
ejaculated.
    Based on these facts, the government charged the appellant with two
specifications of sexual assault. For fellating Airman TK, the government
charged the appellant with committing a sexual act on Airman TK when the
appellant knew or reasonably should have known that Airman TK was inca-
pable of consenting due to intoxication. The members acquitted the appellant
of this offense. For manually stimulating Airman TK’s penis, the government
charged the appellant with committing a sexual contact on Airman TK when
the appellant knew or reasonably should have known that Airman TK was
asleep, unconscious, or otherwise unaware that the sexual contact was occur-
ring. The members convicted the appellant of this offense.
    The military judge took an unusual approach to findings in this case. In-
stead of instructing the members to vote on the appellant’s guilt in the speci-
fication, the military judge directed the members to hold separate votes for
different theories of liability under Article 120(b)(1):
         [Y]ou have to circle under the charge and specification the the-
         ory of the government you adopt if you convict. You’ll notice
         that . . . [i]t’s he knew or should have known . . . . That means
         you’re going to have to vote . . . on both theories . . . . The first
         vote is going to be, okay, is he guilty or not guilty of the charge
         under the . . . specification under the theory of “knew” he knew.
         Is he guilty or not guilty under the theory of “should have




   11   Record at 522.
   12   Id. at 527.




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                          United States v. Sager, No. 201400356


         known” because the government has both theories . . . . But you
         have to circle the one that’s applicable, okay. 13
    The findings worksheet presented the different theories of liability as
choices for the members to circle if they convicted on that theory. Although
the military judge did not instruct the members that they had to circle
whether they found that Airman T.K. was asleep, unconscious, or otherwise
unaware at the time, the members circled not only that they found the appel-
lant “reasonably should have known,” but also that Airman T.K. was “other-
wise unaware” that a sexual act was occurring. 14 When called upon to an-
nounce the members’ verdict, the president stated in open court that the
appellant was “[t]o the additional Charge and Specification [t]hereunder:
Guilty.” 15 After the members departed the courtroom, the military judge
announced the “entire verdict” as “to the Additional Charge, guilty, in that
Airman Sager committed a sexual contact on Airman [TK] when Airman
Sager reasonably should have known that Airman [TK] was otherwise un-
ware that the sexual act was occurring.” 16 Neither party objected. This is the
finding the CAAF has directed us to review for factual sufficiency.

                                    II. DISCUSSION

A. Scope of Review
   The posture of this case requires us to determine what questions are now
within the scope of our review. As this case is before us on remand, the man-
date rule circumscribes our review.
   The mandate rule is simply a more powerful version of the law-of-the-case
doctrine. 17 A subordinate court “has no power or authority to deviate from




   13   Id. at 1198.
   14 Appellate Exhibit (AE) 131. The findings worksheet presented to the members
read as follows:
    (b) Guilty in that AN Sager committed a sexual contact upon [Airman TK] when
AN Sager (knew) (or) (reasonably should have known) that [Airman TK] was
(asleep), (unconscious), (or) (otherwise unaware) that the sexual act was occurring.
   15   Record at 1252.
   16   Id. at 1254.
   17   LaShawn A. v. Barry, 87 F.3d 1389, 1393 n.3 (D.C. Cir. 1996).




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                        United States v. Sager, No. 201400356


the mandate issued by [a superior] appellate court.” 18 “The mandate rule has
two [distinct] components—the limited remand rule, which arises from action
by an appellate court, and the waiver rule, which arises from action (or inac-
tion) by one of the parties.” 19 Under the limited mandate rule, issues express-
ly or impliedly decided by the appellate court are not remanded to the court
in receipt of the mandate. 20 Under the waiver rule, “any issue that could have
been but was not raised on appeal is waived and thus not remanded.” 21
“[W]here an issue was ripe for review at the time of an initial appeal but was
nonetheless foregone, the mandate rule generally prohibits [a] court from
reopening the issue on remand unless the mandate can reasonably be under-
stood as permitting it to do so.” 22
    The CAAF’s mandate here is straightforward, directing us to decide two
things. First, we must decide whether the conviction is factually sufficient.
Our consideration of this question must take into account the CAAF’s deter-
mination that “otherwise unaware” means unaware in a manner or way
different than sleep or unconsciousness. Second, the mandate directs us to
decide whether Green v. United States applies to this case. In both of these
matters our review is to be “consistent with” the CAAF’s opinion vacating our
first opinion.

B. Jurisdiction
    During oral argument, the government seemed to suggest that we do not
have jurisdiction in this case. 23 The government argued that we may only
affirm findings where we are unsure of what findings the convening authori-
ty approved. We generally have an obligation to ensure that we have jurisdic-
tion to act. Challenges to subject matter jurisdiction are never waived. But
this late challenge to our jurisdiction requires us to reconcile the mandate
rule discussed above with late-but-unwaivable challenges to our jurisdiction.



   18   Briggs v. Penn. R.R. Co., 334 U.S. 304, 306 (1948).
   19   United States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003).
   20  United States v. Husband, 312 F.3d 247, 250-51 (7th Cir. 2002); see also United
States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (“The mandate rule . . . forecloses
relitigation of issue expressly or impliedly decided by the appellate court”) (citation
and internal quotation marks omitted) (emphasis in original).
   21   Husband, 312 F.3d at 250.
   22   Ben Zvi, 242 F.3d at 95 (citations omitted).
   23   Oral argument at 25:27.




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                      United States v. Sager, No. 201400356


    We find no Supreme Court or CAAF precedent on point. We agree, how-
ever, with the several appellate courts that have concluded that challenges to
jurisdiction are always permitted, even when that court’s review is otherwise
limited by a superior court’s mandate. 24 Jurisdiction may be contested at any
time in a proceeding because a lack of jurisdiction deprives a court of taking
any action at all. 25
    Having concluded that we may entertain the government’s jurisdictional
argument, we have no trouble determining that we have jurisdiction in this
case. Article 66(b)(1), UCMJ gives us authority to review cases in which the
sentence, as approved, extends to death, a punitive discharge, or confinement
for one year or more. The convening authority approved a sentence that
included twenty-four months of confinement and a bad-conduct discharge.
We have jurisdiction in this case.

C. The Government’s Request For a New Convening Authority’s Ac-
tion
    After the members adjudged the sentence in this case, the trial counsel
reported the results of trial to the convening authority. Her report was con-
sistent with the military judge’s interpretation of the findings and the mem-
bers’ findings worksheet. The “Report of Results of Trial” indicates that the
members found the appellant “[g]uilty of touching the penis of Airman T.K.
with his hand when he reasonably should have known that . . . Airman T.K.
was otherwise unaware that the sexual contact was occurring.” 26 In his rec-
ommendation to the convening authority, the force judge advocate informed
the convening authority that the trial counsel’s account “accurately reflects
the charges, findings, and sentence adjudged.” 27 The convening authority did
not explicitly approve the members’ findings in his action. His court-martial
order did indicate, however, that the appellant stood convicted of committing




   24  See, e.g., Al Bahlul v. United States, 374 F. Supp. 3d 1250, 1259 (C.M.C.R.
2019) (holding that Court of Military Commission Review may consider new chal-
lenge to its jurisdiction on remand from superior court); United States v. Adesida, 129
F.3d 846, 850 (6th Cir. 1997) (holding that unraised jurisdictional claim could be
considered after remand).
   25   Id.
   26Report of Results of Trial In Case Of United States v. Aviation Ordnanceman
Airman Jeffrey D. Sager, U.S. Navy, of 29 Jan 2014.
   27   Force Judge Advocate’s Recommendation of 8 Sep 2014 at 1.




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                          United States v. Sager, No. 201400356


a sexual contact on Airman T.K. while he was “otherwise unaware” that the
sexual contact was occurring. 28
    When this case was first before us, the appellant alleged that the force
judge advocate’s recommendation was erroneous and asked for a new post-
trial process. The government disagreed. Now for the first time on reconsid-
eration of this remand, the government argues that the convening authority’s
action does not reflect the members’ findings and that we should remand for
a new action. The thrust of the government’s argument is that the members
announced a general verdict, and that to the extent the military judge, the
trial counsel, the force judge advocate, and the convening authority relied on
the findings worksheet to arrive at more particularized findings, the reliance
was error.
     The mandate rule prevents us from reaching this issue. The government
did not object to the military judge’s instructions when they were given. Nor
did it object to the military judge’s “publi[cation]” of the “entire verdict” clari-
fying the members’ announcement. 29 Trial counsel’s report on results of trial
listed the members’ finding as specifically a finding that the appellant had
assaulted Airman T.K. while he was “otherwise unaware that the sexual
contact was occurring.” 30 The convening authority concurred in this assess-
ment, as reflected in the court-martial order. Before us on initial appeal, the
government did not argue that the court-martial order did not correctly re-
flect the members’ verdict and even opposed the appellant’s request for a new
post-trial action. The government failed to raise this argument before the
CAAF. Unsurprisingly, the CAAF, like the trial counsel and the convening
authority, found that the appellant had been convicted of committing a sexu-
al contact while Airman T.K. “was otherwise unaware that the sexual act
was occurring” and endorsed the court-martial order as accurately reflecting
the members’ finding. 31 The government did not ask the CAAF to reconsider.
Because the government could have but did not raise this issue earlier in this
litigation, it is waived and thus not remanded. 32 We may not entertain it now
and stay within our mandate.




   28   General Court-Martial Order No. 3-14 of 19 Sep 2014.
   29   Record at 1254.
   30   Report of Results of Trial at 2.
   31   Sager II, 76 M.J. at 160.
   32   Husband, 312 F.3d at 250.




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                        United States v. Sager, No. 201400356


    Even if we were to accept the government’s contention that it litigated
this issue before the CAAF, we would still find the issue to be outside the
scope of our mandate. To the extent the finding in this case was in dispute,
the dispute was resolved by the CAAF in favor of the finding promulgated by
the convening authority in the court-martial order. We must consider the
remanded issues in a manner “consistent with [the CAAF’s] opinion.” 33 We
are not at liberty to disturb this aspect of the CAAF’s opinion.

D. The Members’ Voting Procedure
    During the course of our review on remand, we noted that the military
judge had directed the members to hold separate (presumably secret) ballots
on the two theories of guilt concerning the appellant’s knowledge: whether
the appellant knew or reasonably should have known that Airman T.K. was
unaware of the sexual contact at issue. Although the military judge’s instruc-
tions on the voting procedure were not clear, we were concerned that a mem-
bers panel following the military judge’s instructions might have held sepa-
rate secret ballots on the elements of this specification. In our first opinion,
we disapproved the sole guilty finding, which obviated the need to address
this issue. On reconsideration, however, we specified the issue.
   Based on our resolution of the case, this issue is moot. It is also beyond
the CAAF’s mandate. We will not decide this specified issue.

E. Factual Sufficiency and Application of Green v. United States
    We continue to find the specification factually insufficient for the reasons
stated in our opinion of 31 January 2018. We also continue to find that Green
v. United States applies to this case in the same way and for the same rea-
sons we articulated in that opinion.

F. Lesser Included Offenses
    The government concedes that if we decline to return this case to the con-
vening authority for new post-trial processing, we may not affirm any lesser
included offenses. We agree with this concession.




   33   Sager II, 76 M.J. at 162.




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                 United States v. Sager, No. 201400356


                          III. CONCLUSION

    The findings and sentence are DISAPPROVED. The charge and specifi-
cation are DISMISSED.
   Senior Judge TANG and Senior Judge HITESMAN concur.

                            FOR THE COURT:




                            RODGER A. DREW, JR.
                            Clerk of Court




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