UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                              Before
                                  MULLIGAN, FEBBO, and WOLFE
                                     Appellate Military Judges

                   UNITED STATES OF AMERICA, Petitioner
                                        v.
             Lieutenant Colonel KENNETH SHAHAN, Military Judge
                                   Respondent
                                       and
                       Staff Sergeant FRANCISCO LARA,
                               United States Army
                              Real Party in Interest

                                      ARMY MISC 20160776


For Petitioner: Captain Samuel E. Landes, JA (argued); Captain Samuel E. Landes,
JA; Captain Carling M. Dunham, JA (on brief).

For Real Party in Interest: Lieutenant Colonel Christopher Daniel Carrier, JA
(argued); Colonel Mary J. Bradley, JA; Lieutenant Colonel Christopher Daniel
Carrier, JA; Captain Cody D. Cheek (on brief).


                                          23 December 2016

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                  MEMORANDUM OPINION AND ACTION ON PETITION FOR
        EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF PROHIBITION
        ----------------------------------------------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

       In this case we wrestle with the issue of whether to grant the United States’
petition for a writ of prohibition. Specifically, the government asks this court to
prohibit the panel members from redeliberating on findings that have already been
announced in open court. We determine that issuance of the writ is necessary and
appropriate.

                                           BACKGROUND

      As a writ petition, we consider a relatively undeveloped record. However, the
material facts do not appear to be in dispute.
LARA—ARMY MISC. 200160776

       The real party in interest (hereinafter the accused) was arraigned on a charge
of sexual assault in violation of Article 120, Uniform Code of Military Justice, 10
U.S.C. § 920 (2012 & Supp. II 2015) [hereinafter UCMJ]. As the offense alleged a
sexual act of digital penetration, the specification included the specific intent
element that the act was committed “with an intent to abuse, humiliate, harass, or
degrade any person or to arouse or gratify the sexual desire of any person.” UCMJ
art. 120(g)(1)(B).

      During trial on the merits, “some evidence” was presented that the accused
was intoxicated during the time sexual assault occurred. However, the defense
theory at trial was that no sexual act took place.

       The military judge did not instruct the panel the accused’s voluntary
intoxication could cause him to be unable to form the specific intent required by the
specification. Neither side objected to the military judge’s instructions.

       During deliberations, the panel asked the military judge the following
question: “If the assailant of sexual assault is unaware of what he or she is doing, is
the incident still considered a wrongful offense?”

       In an Article 39(a), UCMJ, session, the military judge proposed answering the
panel’s question by directing them to the definition of what constitutes a “sexual
act” under Article 120(g)(1)(B), UCMJ. Both parties agreed with the military
judge’s proposed answer. The military judge then reread the definition of “sexual
act,” to include the requirement that the act be committed with a specific intent.

      The president of the panel stated that the military judge had answered their
question. Both parties then again stated they had no objection to the military
judge’s explanation.

      The panel convicted the accused of the offense.

       The court-martial proceeded directly to presentencing. The government called
a single sentencing witness who testified about the effects the offense has had on
her.

       The defense presented five sentencing witnesses. The witnesses testified to
the accused’s duty performance, character, and the effect that his conviction would
have on his wife and family.

      The accused then made an unsworn statement. The statement was made by
answering questions by counsel, and included the following exchange:

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LARA—ARMY MISC. 200160776


         Q. Did you ever consider testifying during the case in
         chief?
         A. I have.

         Q. Why didn’t you do that?

         A. After drinking for so much, the memories, they’re not
         really there and my testimony would be, “I don’t
         remember,” “I don’t remember,” and “I don’t remember.”
         I don’t know. There’s no point to it, I don’t think.

         Q. You didn’t feel comfortable testifying because you
         don’t have the memory?

         A. No, ma’am.

         Q. Now that you’ve heard [the alleged victim] testify
         about what she does remember, how does it make you
         feel?

         A. It makes me feel a little surprised, because that’s not
         me. And I’d like to think that I do take care of my
         Soldiers and although she wasn’t my Soldier, she was
         junior to me. And I wouldn’t try to hurt her, but--I don’t
         know. I’m sorry. I don’t remember that night to say I’m
         sorry for this [sic] or for hurting you. I don’t know how
         to say it. I never meant to do anything. We were in
         Vegas. We’re--I never meant for anything, ma’am.

         [. . .]

         Q. Is there anything else that you’d like the panel to
         consider before they deliberate on your sentence?

         A. I don’t have enough recollection of that night to be able
         to say yes or no, either way, but I never intended for
         anything. If it actually did or not, I don’t know, but my
         memory is there--they're not there to say yes or no.




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LARA—ARMY MISC. 200160776

       As an unsworn statement, appellant was not cross-examined. The defense
then rested their sentencing case. After discussing sentencing instructions during an
Article 39(a), UCMJ, session, the court-martial recessed for the evening.

       The next morning, the military judge informed the parties he believed he erred
in his findings instructions. Specifically, he stated that he should have given the
members the voluntary intoxication instruction. See Dep’t. Of Army, Pam. 27-9,
Legal Services: Military Judge’s Benchbook [hereinafter Benchbook], para. 5-12
(10 Sep. 2014). The military judge stated that he saw two options: a mistrial or re-
instructing the panel then allowing them to re-deliberate.

       The defense said they would not request a mistrial and would instead request
that the panel be allowed to re-deliberate on findings.

       The government objected to this proposed remedy. The government was
specifically concerned appellant, who had not testified at trial, had made a lengthy
unsworn statement during sentencing specifically telling the panel about his mental
state due to his voluntary intoxication.

       The military judge explained he believed he had committed error in omitting
the voluntary intoxication instruction and the accused had been prejudiced by the
error. He also stated, however, the error may be harmless. The military judge sua
sponte considered, but rejected, declaring a mistrial. In determining whether a
mistrial was warranted he assessed the evidence in the case as follows:

              . . . the court notes that the defense in this case was not
             that Staff Sergeant Lara did not intend to abuse humiliate
             [the alleged victim] or to arouse himself; rather, the
             defense was that the sexual act never occurred and that
             [the alleged victim] was creating false memories due to an
             alcohol-induced blackout. Factually speaking, the
             likelihood that the panel members would have concluded
             that Staff Sergeant Lara penetrated [the alleged victim’s]
             vulva with his fingers, but that he did not do so with the
             intent to arouse—excuse me, with the intent to abuse,
             humiliate, harass, or degrade any person or to arouse or
             gratify the sexual desire of any person, is so remote that
             the very high standard for a mistrial as previously cited is
             not satisfied.

      The military judge then decided that a mistrial was not warranted and
overruled the government’s objection. The military judge called the members back

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LARA—ARMY MISC. 200160776

into the court-martial, and provided them with the voluntary intoxication instruction.
The parties did not give a second closing argument addressing the new instruction,
nor did they object to not being able to give such argument.
       Shortly after the members began deliberating, this court issued a stay of the
proceedings so that we could consider the instant writ petition. United States v.
Shahan and Lara, ARMY MISC. 20160776 (Army Ct. Crim. App. 9 Dec. 2016)
(order). We held oral argument six days later on 15 December 2016.

                                    DISCUSSION

       To obtain the requested writ of prohibition, petitioner must show: (1) there is
“no other adequate means to attain relief;” (2) the “right to issuance of the writ is
clear and indisputable;” and (3) the issuance of the writ is “appropriate under the
circumstances.” Cheney v. United States Dist. Court, 542 U.S. 367, 380–81 (2004)
(citations and internal quotation marks omitted). “A writ of prohibition . . . is a
‘drastic instrument which should be invoked only in truly extraordinary situations.’”
United States v. Howell, 75 M.J. 386, 390 (C.A.A.F. 2016) (quoting United States v.
Labella, 15 M.J. 228, 229 (C.M.A. 1983)).

       At oral argument, both parties appeared to agree that the United States has no
other means of obtaining relief. Should we not issue the writ, both parties believe
that were the members to return a finding of not guilty, that finding would be
conclusive in all respects. "However mistaken or wrong it may be, an acquittal
cannot be withdrawn or disapproved." United States v. Hitchcock, 6 M.J. 188, 189
(C.M.A. 1979) (citing Fong Foo v. United States, 369 U.S. 141, 143 (1962)).
Accordingly, our focus today is on whether the right to the issuance of the writ is
clear and indisputable. Broadly, this question regards the authority of the military
judge. May the military judge of a court-martial composed of members reinstruct
the members and direct them to re-deliberate on findings that have already been
announced in open court?

                                 A. Dietz v. Bouldin

       Recently the U.S. Supreme Court addressed a similar issue in Dietz v.
Bouldin, 136 S. Ct. 1885 (2016). In that civil case, a jury returned a judgement for
the plaintiff of zero dollars. The district court judge thanked the jury for their
service and ordered them “discharged,” and they were “free to go.” However, a few
minutes later the judge ordered the clerk to bring the jurors back. The judge
realized, because of a stipulated agreement on damages, a verdict of zero dollars was
not “legally possible.” Id. at 1890. Over plaintiff’s objection, the judge reinstructed
the jury and directed them to re-deliberate. The Court affirmed the district judge’s
“inherent power” to reinstruct the jury in that case.

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LARA—ARMY MISC. 200160776


       The Court noted that they had never “precisely delineated the outer
boundaries of a district court’s inherent powers . . . .” Id. at 1891. The Court then
established a two-part test for determining whether a federal district judge has an
inherent power:

             First, the exercise of an inherent power must be a
             “reasonable response to the problems and needs”
             confronting the court’s fair administration of justice.
             Degen v. United States, 517 U.S. 820, 823–824 (1996).
             Second, the exercise of an inherent power cannot be
             contrary to any express grant of or limitation on the
             district court’s power contained in a rule or statute. See
             id., at 823; Fed. Rule Civ. Proc. 83(b) (districts courts can
             “regulate [their] practice in any manner consistent with
             federal law”); see, e.g., Bank of Nova Scotia v. United
             States, 487 U.S. 250, 254 (1988) (holding that a district
             court cannot invoke its inherent power to circumvent the
             harmless-error inquiry prescribed by Federal Rule of
             Criminal Procedure 52(a)).

Dietz, 136 S. Ct. at 1892. The Court then concluded:

             These two principles—an inherent power must be a
             reasonable response to a specific problem and the power
             cannot contradict any express rule or statute—support the
             conclusion that a district judge has a limited inherent
             power to rescind a discharge order and recall a jury in a
             civil case where the court discovers an error in the jury’s
             verdict.

Id.

        Applying Dietz to this case we are constrained by two threshold concerns.
First, any direct comparison of the inherent power of a military judge to a federal
district court judge is dangerous. The difference in authority is not so much a
difference in degree, but a difference in kind. It would be wrong to assume that
merely because a district court judge has a certain inherent authority, that same
reasoning would apply to a military judge. However, the flipside to this argument
may be persuasive. A military judge likely does not have greater inherent authority
than a district judge. Not only do military judges and federal district judges stand
on different constitutional footing, but also Article 36, UCMJ, would appear to

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LARA—ARMY MISC. 200160776

operate to provide military judges at most the same authority as a federal district
court judge.

        Second, Dietz was a civil case. The Court in Dietz specifically “caution[ed]
that our recognition here of a court’s inherent power to recall a jury is limited to
civil cases only. . . . we do not address here whether it would be appropriate to recall
a jury after a discharge in a criminal case.” 136 S. Ct. at 1895. Thus, at best, Dietz
is silent (and perhaps skeptical) of allowing a federal district court judge to
reinstruct a jury in a criminal case.

     Notwithstanding these two limiting considerations, we find the Dietz
framework helpful.

          1. A Reasonable Response to the Problems Confronting the Court
       The first question posed by Dietz was whether the judge’s actions are a
reasonable response to the problems and needs confronting the court’s fair
administration of justice. Here, the military judge commendably brought to the
parties’ attention an error he had made when instructing the panel. 1 However, the
military judged recognized the error only after all the sentencing evidence was
already before the members. Thus, the military judge needed to determine whether
it was a reasonable response to the situation to tell the members to ignore all the
sentencing evidence, reinstruct the members, and direct them to re-deliberate. The
accused specifically asked for this remedy.

       The government, by contrast, believes that the panel cannot be expected to
ignore the accused’s lengthy unsworn statement regarding his intoxication at the
time of the assault. More specifically, the government believes the effect of the
military judge’s actions allows the accused to present exculpatory evidence during


1
  We note that the military judge described the voluntary intoxication instruction as
a mandatory instruction on a defense. Under R.C.M. 920(e)(3) a military judge is
required to instruct on “any special defense under R.C.M. 916 in issue.” However,
voluntary intoxication is not a defense under R.C.M. 916 and is not otherwise a
“special defense.” See R.C.M. 916(a) (definition of “special defense”). Rather, the
instruction guides a panel in assessing whether the government has met its burden of
proving beyond a reasonable doubt that the accused possessed a certain specific
intent. However, whether it is an instruction on a defense—or whether it is a
mandatory or discretionary instruction—all appear to be beside the point. The
military judge determined based on the case in front of him that its omission was
error. This decision we do not second guess in determining this writ petition.

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LARA—ARMY MISC. 200160776

sentencing without subjecting himself to the crucible of cross-examination. 2 Given
the military judge’s superior position, we do not find the military judge’s actions to
be unreasonable given the problems confronting the court.

                   2. Contrary to any limitation contained in the rules
        The second question Dietz poses is can a judge exercise an inherent power
that is “contrary to any express grant of or limitation on the district court’s power
contained in a rule or statute.” 136 S. Ct. 1888. We address the two rules on point.
Rule for Courts-Martial [hereinafter R.C.M.] 924 addresses when a court-martial
may reconsider a finding. R.C.M. 1102 addresses the military judge’s authority to
order a proceeding in revision.

                  a. Rule for Courts-Martial 924 : Reconsideration
       At oral argument, counsel for the accused argued that the military judge was
exercising his inherent authority to allow the members to reconsider their findings.
For courts-martial composed of members, R.C.M. 924 reads as follows: “(a) Time
for reconsideration. Members may reconsider any finding reached by them before
such finding is announced in open session.” Counsel for the accused argued that we
should interpret this rule as limiting only the member’s authority to initiate a
reconsideration, and not a limitation on the military judge’s authority to direct the
members to reconsider a finding. We do not find that interpretation persuasive, and
instead find that the rule clearly prohibits reconsiderations of a panel’s finding after
it has been announced in open session.

       First, we note that the drafter’s analysis to the 1995 amendment to the R.C.M.
states that the rule “limits reconsideration of findings by the members to findings
reached in closed session but not yet announced in open court . . . .” R.C.M. 924
analysis at A21-72.

       Second, we note that our superior court has stated, citing R.C.M. 922 and
924(a) that “when the panel announced its findings in open court, those findings
were final and were not subject to reconsideration by the members.” United States
v. Thompson, 59 M.J. 432, 440 (C.A.A.F. 2004). In Thompson, the Court of Appeals
for the Armed Forces (CAAF) found that the military judge’s ability to reinstruct the

2
  Here, the defense specifically declined to ask for a mistrial. Thus, were the
government to ask for a mistrial, or were the judge to direct a mistrial sua sponte,
the government may be barred from retrying the accused under the Double Jeopardy
Clause. See Watada v. Head, 530 F. Supp. 2d 1136 (W.D. Wash. 2007) (federal
district judge prohibited retrial of soldier when first court-martial ordered mistrial
over defense objection).
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LARA—ARMY MISC. 200160776

panel regarding faulty instructions ended once the panel’s findings were announced.
See also UCMJ art. 52(c) (requiring a vote of more than one-third of the members to
reconsider a finding of guilty). Similarly, in United States v. Chandler, 74 M.J. 674
(Army Ct. Crim. App. 2015), we considered whether a military judge’s post-trial
hearing to address instructional error could be considered a reconsideration, stating:

              The hearing could also be viewed as a flawed attempt at
              reconsideration of findings, for which R.C.M. 924
              governs. Contrary to R.C.M. 924, the proceeding occurred
              after the panel unambiguously announced findings on 10
              July 2012, and it occurred at the military judge's direction
              instead of a panel member's proposal.

Id. at 684.

      Accordingly, we find that R.C.M. 924 unambiguously prohibits the members
from reconsidering their findings after they have been announced in open court.

              b. Rule For Courts-Martial 1102: Proceedings in Revision

       R.C.M. 1102(b)(1) allows a military judge to direct a proceeding in revision
“to correct an apparent error, omission, or improper or inconsistent action by the
court-martial, which can be rectified by reopening the proceedings without material
prejudice to the accused.”

       In Chandler, this court determined that proceedings in revision may not be
used to correct instructional error:

              We endorse initiative-taking by military judges. Such an
              approach is crucial in our justice system, which favors
              resolution of disputed issues at trial. We also understand
              the desire for quickly reaching a solution in the field,
              instead of waiting for a convening authority or an
              appellate court to order the same solution. However, our
              system's range of post-trial remedies does not include
              remand to an original finder of fact in order to cure
              instructional error. This limitation is understandable, since
              one cannot reasonably expect panel members to set aside
              their original findings and deliberate anew.

Id. at 684. We went on to describe the post-trial hearing as “void ab initio” and a
“nullity.” Id. We did not consider the re-announced findings as having cured any

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LARA—ARMY MISC. 200160776

instructional error. In short, we determined that reinstructing the panel and asking
them to re-deliberate, did not, in law, cure the initial instructional error. Our
superior court reached a similar conclusion, albeit regarding sentencing instructions.
United States v. Gleason, 43 M.J. 69, 71 n.4 (C.A.A.F. 1995) (“[T]he purpose of the
proceeding . . . was to correct an error in the sentencing instructions, which is not a
proper purpose for a proceeding in revision.”).

       We have one stark difference, however, between Chandler, Gleason, and the
case before us today. Here, the accused requested the panel be reinstructed and
allowed to re-deliberate. However, we do believe that the military judge’s authority
to order re-deliberation can turn on the tactical decisions of the accused. In
Chandler, for example, we described the proceeding as not being lawful. 74 M.J. at
683.

      Accordingly, the binding precedent of this court and our superior court
prohibits a proceeding in revision in these circumstances.

                                B. Issuance of the Writ

       If the military judge may not allow the panel to reconsider (under R.C.M.
924) or revise (under R.C.M. 1102) the panel’s findings, then the findings must
stand or be set aside. Therefore, we find that the government’s right to the issuance
of the writ is clear and indisputable. If findings cannot be reconsidered or revised,
and there cannot be two sets of findings as to the same specification from the same
court-marital, issuance of the writ is appropriate.

                                      C. Mistrial

       Our issuance of the writ prohibits the military judge from allowing the panel
members to re-deliberate the findings in this case. However, the writ does not
prohibit the military judge from considering whether a mistrial is an appropriate
remedy for the instructional error in the case. We note that the initial decision not
to grant a mistrial was based on two considerations. First, the military judge
believed a less drastic remedy was available. Second, the accused did not ask for a
mistrial because, at least partially, he preferred the remedy of reinstructing the
panel. Accordingly, at the request of the accused or sua sponte, the military judge
should consider whether, “as a matter of discretion” a mistrial is “manifestly
necessary in the interests of justice because of circumstances arising during the
proceedings which cast substantial doubt upon the fairness of the proceedings.”
R.C.M. 915.



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LARA—ARMY MISC. 200160776


                                    CONCLUSION

The writ of prohibition sought by the United States is GRANTED. The record of
trial is returned to the military judge for action not inconsistent with this opinion.

      Senior Judge MULLIGAN and Judge FEBBO concur.


                                         FOR THE COURT:
                                        FOR THE COURT:



                                        JOHN P. TAITT
                                         JOHNClerk
                                        Acting P. TAITT
                                                   of Court
                                         Acting Clerk of Court




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