2008 edition - Fort Sam Houston - U.S. Army

App. 21, R.C.M. 917(a) APPENDIX 21
is insufficient to support a rational finding of guilty, there is no
reason to submit the issue to the members. That would be inefficient.
Moreover, if a military judge set aside some but not all of
the findings as “irrational,” it would be awkward to proceed to
sentencing before the same members. However, nothing in this
rule is intended to limit the authority of a military judge to
dismiss charges after findings on other grounds, such as multiplicity
or improper findings (e.g., conviction for both larceny as
perpetrator and receiving stolen property, see United States v.
Cartwright, 13 M.J. 174 (C.M.A. 1982); United States v. Ford,
12 U.S.C.M.A. 3, 30 C.M.R. 3 (1960);cf. United States v. Clark,
20 U.S.C.M.A. 140, 42 C.M.R. 332 (1970)).
(b) Form of motion. This subsection is based on the first sentence
in the second paragraph of paragraph 71 a of MCM, 1969 (Rev.),
except that now a statement of the deficiencies of proof is required.
This will enable the trial counsel to respond to the motion.
(c) Procedure. This subsection is new, although it conforms to
current practice. By ensuring that counsel may be heard on the
motion, a precipitant ruling will be avoided. This is important
since a ruling granting the motion may not be reconsidered. See
United States v. Hitchcock, 6 M.J. 188 (C.M.A. 1979). The first
paragraph in the discussion is based on the fifth sentence of the
second paragraph of paragraph 71 a of MCM, 1969 (Rev.).
(d) Standard. This subsection is based on the fourth sentence of
the second paragraph of paragraph 71 a of MCM, 1969 (Rev.).
See also Jackson v. Virginia, 443 U.S. 307 (1979); United States
v. Varkonyi, 645 F.2d 453 (5th Cir. 1981); United States v. Beck,
615 F.2d 441 (7th Cir. 1980).
(e) Motion as to greater offense. This subsection is new and is
intended to resolve the problem noted in United States v. Spearman,
23 U.S.C.M.A. 31, 48 C.M.R. 405 (1974). See Government
of Virgin Islands v. Josiah, 641 F.2d 1103, 1108 (3d Cir. 1981).
(f) Effect of ruling. This subsection is based on the third sentence
of Article 51(a) and on United States v. Hitchcock, supra.
1994 Amendment. The amendment to subsection (f) clarifies
that the military judge may reconsider a ruling denying a motion
for a finding of not guilty at any time prior to authentication of
the record of trial. This amendment is consistent with United
States v. Griffith, 27 M.J. 42 (C.M.A. 1988). As stated by the
court, the reconsideration is limited to a determination as to
whether the evidence adduced is legally sufficient to establish
guilt rather than a determination based on the weight of the
evidence which remains the exclusive province of the finder of
fact.
(g) Effect of denial on review. This subsection is based on the
last sentence of the first paragraph of paragraph 71 a of MCM,
1969 (Rev.). See also United States v. Bland, 653 F.2d 989 (5th
Cir.), cert. denied, 454 U.S. 1055 (1981).
Rule 918 Findings
( a ) G e n e r a l f i n d i n g s . T h i s s u b s e c t i o n a n d t h e d i s c u s s i o n a r e
based on paragraphs 74 b and c of MCM, 1969 (Rev.). The
discussion of lesser included offenses is also based on Article 80.
See also United States v. Scott, 50 C.M.R. 630 (C.G.C.M.R.
1975).
Failure to reach findings as to the charge or the designation of
A21-66
a wrong article is not necessarily prejudicial. United States v.
Dilday, 471 C.M.R. 172 (A.C.M.R. 1973).
1986 Amendment: The provisions allowing for findings of not
guilty only by reason of lack of mental responsibility were added
to subsections (a)(1) and (2) to implement Article 50a(c), which
was added to the UCMJ in the “Military Justice Amendments of
1986,” Tit. VIII, 802, National Defense Authorization Act for
Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986). This
finding is modeled after 18 U.S.C. § 4242(b)(3), section 403 of
the Insanity Defense Reform Act, ch. IV, Pub.L. No. 98-473, 98
Stat. 2057, 2059. The drafters intended that adoption of the finding
of “not guilty only by reason of lack of mental responsibility”
does not require conformance to the procedures that follow an
insanity acquittal in federal courts (see U.S.C. § 4243 et. seq.).
The Services are free to use available medical and administrative
procedures which address disposition of servicemembers having
psychiatric illnesses. The drafters further intended that, for purposes
of subsequent appellate and other legal reviews under this
Manual, a finding of “not guilty only by reason of lack of mental
responsibility” shall be treated as any other acquittal.
1993 Amendment: The amendment to R.C.M. 918(a)(1) allows
for a finding of guilty of a named lesser included offense of the
charged offense, and eliminates the necessity of making findings
by exceptions and substitutions. This serves to conform military
p r a c t i c e t o t h a t u s e d i n c r i m i n a l t r i a l s b e f o r e f e d e r a l d i s t r i c t
courts. See Fed. R. Crim. P. 31(c); E. Devitt and C. Blackman,
Federal Jury Practice and Instructions, 18.07 (1977). The practice
of using exceptions and substitutions is retained for those
cases in which the military judge or court members must conform
the findings to the evidence actually presented, e.g., a larceny
case in which the finding is that the accused stole several of the
items alleged in the specification but not others.
(b) Special findings. This subsection is based on Article 51(d),
paragraph 74 i of MCM, 1969 (Rev.); United States v. Gerard, 11
M.J. 440 (C.M.A. 1981). See also United States v. Pratcher 14
M.J. 819 (A.C.M.R. 1982); United States v. Burke, 4 M.J. 530
( N . C . M . R . 1 9 7 7 ) ; U n i t e d S t a t e s v . H u s s e y , 1 M . J . 8 0 4
( A . F . C . M . R . 1 9 7 6 ) ; U n i t e d S t a t e s v . B a k e r , 4 7 C . M . R . 5 0 6
( A . C . M . R . 1 9 7 3 ) ; U n i t e d S t a t e s v . F a l i n , 4 3 C . M . R . 7 0 2
(A.C.M.R. 1971); United States v. Robertson, 41 C.M.R. 457
(A.C.M.R. 1969); Schinasi, Special Findings: Their Use at Trial
and on Appeal, 87 Mil.L.Rev. (Winter 1980).
The requirement that a request for special findings be made
before general findings are announced is based on the fifth sentence
of paragraph 74 i of MCM, 1969 (Rev.), and on Fed. R.
Crim. P.23(c). Article 51(d) is patterned after Fed. R. Crim. P.
23(c). United States v. Gerard, supra. The language in Article
51(d) is virtually identical to that in Fed. R. Crim. P. 23(c) as it
existed when Article 51(d) was adopted in 1968. Fed. R. Crim. P.
23(c) was amended in 1977 to provide specifically that a request
for special findings be made before general findings are entered.
Pub. L. No. 95-78 § 2(b), 91 Stat. 320. This was done “to make
clear that deadline for making a request for findings of fact and to
provide that findings may be oral.” Id., Advisory Committee Note
(Supp. v. 1981). Subsection (b), therefore, continues conformity
with federal practice.
( c ) B a s i s o f f i n d i n g s . T h i s s u b s e c t i o n a n d t h e d i s c u s s i o n a r e
based on paragraph 74 a of MCM, 1969 (Rev.). The discussion of
reasonable doubt has been modified based on United States v.