Petition for Writ of Certiorari — Nikolas S. Casillas, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

NIKOLAS S. CASILLAS, et al.,

Petitioners,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

SAMANTHA M. CASTANIEN

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

samantha.castanien.1@us.af.mil

Counsel for Petitioners

i

QUESTION PRESENTED

A “Yates” error occurs when a general verdict is

supportable on one theory of liability but not on

another, and it is impossible to tell which theory the

jury used to convict. Black v. United States, 561 U.S.

465, 470 (2010) (quoting Yates v. United States, 354

U.S. 298, 312 (1957)); see Skilling v. United States,

561 U.S. 358, 414 (2010) (reasoning that Yates errors

are reviewed for harmlessness). While Petitioners’

cases were pending on appeal, the Court of Appeals

for the Armed Forces (CAAF) decided that two

statutory theories of liability for sexual assault were

legally distinct. United States v. Mendoza, 85 M.J.

213, 218-20 (C.A.A.F. 2024). In one of the Petitioners’

cases, the CAAF expanded that holding: the

Government cannot prove sexual assault “without

consent” (10 U.S.C. § 920(b)(2)(A)) by proving a

complainant did not consent because he or she was

asleep at the time—a distinct theory of liability (10

U.S.C. § 920(b)(2)(B)). Pet.App.12a (citing Mendoza,

85 M.J. at 220). Both holdings rested on how the

Government could not charge one theory and then

argue another without violating a defendant’s right to

fair notice. Id. But by addressing one due process

issue, the CAAF created another: a Yates error.

These cases raise the following question:

Were the factfinders able to convict Petitioners on

an invalid alternate theory of liability after being

instructed on the statutory definition of consent?

ii

PARTIES TO THE PROCEEDING

This Rule 12.4 petition consolidates direct appeals

from two service members convicted by courtsmartial. Petitioners are Airman First Class (A1C)

Nikolas S. Casillas, United States Air Force, and

Specialist Three (Spc 3) Devin W. Johnson, United

States Space Force. Respondent in each case is the

United States.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

Other than the direct appeals that form the basis

for this petition, there are no related proceedings for

the purposes of Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

PARTIES TO THE PROCEEDING ...................................... ii

CORPORATE DISCLOSURE STATEMENT.......................... ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF CONTENTS ................................................... iii

TABLE OF AUTHORITIES ............................................... vi

INTRODUCTION ............................................................. 1

PETITION FOR A WRIT OF CERTIORARI .......................... 2

OPINIONS BELOW ......................................................... 3

JURISDICTION ............................................................... 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS

INVOLVED ..................................................................... 4

STATEMENT OF THE CASE ............................................. 6

A. A1C Casillas’s Court-Martial .......................... 7

B. Spc 3 Johnson’s Court-Martial ........................ 8

C. The CAAF decided Mendoza and distinguished

the “without consent” theory of liability. ...... 11

D. Petitioners argued the panel members may

have convicted them on an incorrect legal

theory due to the consent instruction. .......... 12

REASONS FOR GRANTING THE PETITION ..................... 15

I. Changes in the law while Petitioners cases were on

appeal created an unresolved constitutional

violation, a Yates error, that should have resulted

in reversal of their convictions.. .......................... 15

iv

A. Yates errors are a symptom of the general

verdict rule that occur when a conviction is

supportable on one theory of guilt instructed to

the panel but not on another.. ....................... 15

B. In both cases here, a Yates error was created

and then overlooked. ...................................... 17

a. Spc 3 Johnson’s case reveals how 10 U.S.C.

§ 920(b)(2)(A) operated as a catch-all theory

to support a general verdict, which, today is

a Yates error. ............................................. 18

b. A1C Casillas’s case had the same problem: a

Yates error occurred due to the statutorily

driven consent instruction. ....................... 21

C. The CAAF failed to consider how Mendoza

created a Yates error in both cases and

permitted Petitioners to be convicted in

violation of a constitutional right. ................. 23

D. Review of the Yates error would dictate

reversal. .......................................................... 26

CONCLUSION .............................................................. 28

APPENDIX

CAAF Opinion, United States v. Casillas,

No. 24-0089 (Aug. 20, 2025) .................................. 1a

CAAF Order Denying Reconsideration,

United States v. Casillas, No. 24-0089

(Sep. 26, 2025) ..................................................... 18a

Air Force Court Opinion, United States v.

Casillas, No. ACM 40302 (Dec. 15,

2025) .................................................................... 19a

CAAF Opinion, United States v.

Johnson, No. 24-0004 (June 24, 2025) ............... 42a

v

CAAF Order Denying Reconsideration,

United States v. Johnson, No. 24-0004

(July 14, 2025) ..................................................... 59a

Air Force Court Opinion, United States v.

Johnson, No. ACM 40257 (Aug. 9,

2023) .................................................................... 60a

vi

TABLE OF AUTHORITIES

Cases

Black v. United States,

561 U.S. 465 (2010) .................................................. i

Chapman v. California,

386 U.S. 18 (1967) ................................................. 26

Hedgpeth v. Pulido,

555 U.S. 57 (2008) ................................. 1, 16, 25, 26

Mendez v. United States,

No. 21-1536, 2022 U.S. App. LEXIS

34606 (2d Cir. Dec. 15, 2022) ............................... 16

Patterson v. New York,

432 U.S. 197, (1977) .............................................. 23

People v. Gerber,

126 Cal. Rptr. 3d 688 (Cal. Dist. Ct.

App. 2011) ....................................................... 17, 23

Samia v. United States,

599 U.S. 635 (2023) .............................................. 24

Skilling v. United States,

561 U.S. 358 (2010) .............................................. i, 2

Stromberg v. California,

283 U.S. 359 (1931) .................................. 12, 16, 25

United States v. Coe,

No. ARMY 20220052, 2025 CCA

LEXIS 419 (A. Ct. Crim. App. Aug.

28, 2025) ................................................................ 25

United States v. Galecki,

89 F.4th 713 (9th Cir. 2023) ........................... 16, 23

vii

United States v. Grafton,

No. 202400055, 2025 CCA LEXIS

375 (N-M. Ct. Crim. App. Aug. 11,

2025) ................................................................ 24, 25

United States v. Kurlemann,

736 F.3d 439 (6th Cir. 2013) ................................. 16

United States v. Mendoza,

85

M.J.

213

(C.A.A.F.

2024) ............ i, 1-2, 11, 12, 17, 19-20, 22, 24, 26, 27

United States v. Olano,

507 U.S. 725 (1993) ............................................... 24

United States v. Pitt,

482 F. App’x 787 (4th Cir. 2012) .......................... 16

United States v. Riggins,

75 M.J. 78 (C.A.A.F. 2016) ............................... 1, 12

United States v. Tovarchavez,

78 M.J. 458 (C.A.A.F. 2019) ................................. 26

United States v. Vavic,

139 F.4th 1 (1st Cir. 2025).............................. 16, 23

Yates v. United States,

354 U.S. 298 (1957) .............................. i, 1, 2, 16, 25

Statutes and Constitutional Provisions

U.S. CONST. amend. V .......................................... 4, 23

10 U.S.C. § 920 ............ i, 1, 4, 6-8, 10-14, 15, 19-22, 28

1

INTRODUCTION

The CAAF recently held that the Government

cannot charge sexual assault, 10 U.S.C. § 920(b),

under one enumerated theory of liability and then

argue another enumerated theory without violating

the accused’s due process rights. Mendoza, 85 M.J. at

220 (citing United States v. Riggins, 75 M.J. 78, 83

(C.A.A.F. 2016)). Previously, the Government used

sexual assault without consent, 10 U.S.C.

§ 920(b)(2)(A), as an “umbrella offense that include[d]

every other type of sexual assault in which the victim

[was] incapable of consenting.” Pet.App. 9a-10a. In

Mendoza, the CAAF put the Government on notice

that this charging tactic is not lawful. Sexual assault

without consent under 10 U.S.C. § 920(b)(2)(A) is a

distinct theory of liability from sexual assault upon a

person who is asleep under 10 U.S.C. § 920(b)(2)(B).

Pet.App. 12a. Thus, if the Government charges a

defendant under 10 U.S.C. § 920(b)(2)(A), it “cannot

prove lack of consent by establishing that the victim

was asleep at the time of the act.” Id. Rather, the

Government must prove beyond a reasonable doubt

that the victim was capable of consenting and did not

consent. Mendoza, 85 M.J. at 220. But through

Mendoza’s holding and its application, the CAAF

created a Yates error.

A Yates error occurs when a conviction rests on

multiple theories of guilt and one of those theories is

“legally flawed.” Hedgpeth v. Pulido, 555 U.S. 57, 60

(2008) (per curiam) (citing Yates, 354 U.S. 298). Here,

the statutory definition of consent, captured in 10

U.S.C. § 920(g)(7), conflates multiple theories of

liability on its face through the statutory definition of

consent. “Consent” requires a “competent” person and

a “sleeping, unconscious, or incompetent person

2

cannot consent.” 10 U.S.C. §§ 920(g)(7)(A), (B).

Without any caveat, the statutory definition instructs

the factfinders that they can find no consent in a

“without consent” case by finding the victim was

asleep or otherwise incompetent. But “incompetence”

is a legally impermissible theory of liability under a

“without consent” case. Pet.App.12a (citing Mendoza,

85 M.J. at 220).

For Petitioners, when the panel members (the

military justice system’s equivalent of a jury) were

instructed on the statutory definition of consent, the

instruction told the members they could convict on an

invalid alternative theory of liability: sleep. In

reviewing Petitioners’ cases post-Mendoza, the CAAF

did not recognize or address the constitutional issue

stemming from the consent instruction. Without

further interpretation of the statutory definition of

consent as an instruction, Yates errors will persist and

Petitioners will have been convicted in violation of

their constitutional rights.

Petitioners ask this Court to grant plenary review

to decide whether their convictions were “flawed,”

followed by a remand to the CAAF for the harmlesserror analysis. Skilling, 561 U.S. at 414 (citing Yates,

354 U.S. 298). In the alternative, Petitioners request

this Court grant certiorari, vacate the CAAF’s

opinions affirming their convictions, and remand

Petitioners’ cases to the CAAF for consideration of the

Yates error and harmlessness in the first instance.

PETITION FOR A WRIT OF CERTIORARI

A1C Nikolas S. Casillas, United States Air Force,

and Spc 3 Devin W. Johnson, United States Space

Force, respectfully petition for a writ of certiorari to

review the decisions of the CAAF.

3

OPINIONS BELOW

In A1C Casillas’s case, the Air Force Court of

Criminal Appeal’s (AFCCA’s) decision is unreported.

It is available at 2023 CCA LEXIS 527, 2023 WL

8678806, and is reproduced at pages 19a-41a. The

CAAF’s decision is pending publication in West’s

Military Justice Reporter. It is available at 2025 CAAF

LEXIS 692, 2025 WL 2446502, and reproduced at

pages 1a-17a. The CAAF’s denial of a timely petition

for reconsideration is also pending publication in

West’s Military Justice Reporter. It is available at 2025

CAAF LEXIS 814, 2025 WL 2970996, and reproduced

at page 18a.

In Spc 3 Johnson’s case, the AFCCA’s decision is

unreported. It is available at 2023 CCA LEXIS 330,

2023 WL 5112140, and is reproduced at pages 60a98a. The CAAF’s decision is pending publication in

West’s Military Justice Reporter. It is available at 2025

CAAF LEXIS 499, 2025 WL 1762856, and reproduced

at pages 42a-58a. The CAAF’s denial of a timely

petition for reconsideration is also pending

publication in West’s Military Justice Reporter. It is

available at 2025 CAAF LEXIS 545, 2025 WL

2307855, and reproduced at page 59a.

JURISDICTION

Petitioners were sentenced with punitive

discharges, entitling them to automatic, direct

appellate review. 10 U.S.C. § 866(b)(3). The CAAF

granted review in both cases. 10 U.S.C. § 867(a)(3). In

A1C Casillas’s case, the CAAF issued its opinion on

August 20, 2025. A timely petition for reconsideration

was filed and denied on September 26, 2025. No

extension request was filed at this Court. In Spc 3

Johnson’s case, the CAAF issued its decision on June

4

24, 2025. A timely petition for reconsideration was

denied on July 14, 2025. The Chief Justice extended

the time for filing a petition for writ of certiorari to,

and including, December 11, 2025. For both cases, this

Court’s jurisdiction rests on 28 U.S.C. § 1259(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment, in pertinent part, provides:

“No person . . . shall . . . be deprived of life, liberty, or

property, without due process of law.” U.S. CONST.

amend. V.

Article 120, UCMJ, 10 U.S.C. § 920, in pertinent

part, provides:

(b) Sexual assault. Any person subject to this

chapter [10 USCS §§ 801 et seq.] who— . . .

(2) commits a sexual act upon another

person—

(A) without the consent of the other

person; or

(B) when the person knows or reasonably

should know that the other person is

asleep, unconscious, or otherwise

unaware that the sexual act is occurring;

or

....

(d) Abusive sexual contact. Any person subject

to this chapter [10 USCS §§ 801 et seq.] who

commits or causes sexual contact upon or by

another person, if to do so would violate

subsection (b) (sexual assault) had the sexual

contact been a sexual act, is guilty of abusive

5

sexual contact and shall be punished as a courtmartial may direct.

....

(g) Definitions. In this section:

(1) Sexual act. The term “sexual act” means—

(A) the penetration, however slight, of the

penis into the vulva or anus or mouth;

...

(C) the penetration, however slight, of the

vulva or penis or anus of another by any part

of the body or any object, with an intent to

abuse, humiliate, harass, or degrade any

person or to arouse or gratify the sexual

desire of any person.

(2) Sexual contact. The term “sexual contact”

means touching, or causing another person to

touch, either directly or through the clothing,

the . . . buttocks of any person, with an intent

to . . . arouse or gratify the sexual desire of any

person. Touching may be accomplished by any

part of the body or an object.

....

(7) Consent.

(A) The term “consent” means a freely given

agreement to the conduct at issue by a

competent person. An expression of lack of

consent through words or conduct means

there is no consent. Lack of verbal or

physical resistance does not constitute

consent. Submission resulting from the use

of force, threat of force, or placing another

person in fear also does not constitute

6

consent. A current or previous dating or

social or sexual relationship by itself or the

manner of dress of the person involved with

the accused in the conduct at issue does not

constitute consent.

(B) A sleeping, unconscious, or incompetent

person cannot consent. A person cannot

consent to force causing or likely to cause

death or grievous bodily harm or to being

rendered unconscious. A person cannot

consent while under threat or in fear or

under the circumstances described in

subparagraph (B) or (C) of subsection (b)(1).

(C) All the surrounding circumstances are to

be considered in determining whether a

person gave consent.

(8) Incapable of consenting. The term

“incapable of consenting” means the person is—

(A) incapable of appraising the nature of the

conduct at issue; or

(B) physically incapable of declining

participation

in,

or

communicating

unwillingess [sic] to engage in, the sexual

act at issue.

STATEMENT OF THE CASE

Before Mendoza was decided, both Petitioners

were convicted under a “without consent” theory of

liability, as enumerated by 10 U.S.C. § 920(b)(2)(A).

A1C Casillas was charged and convicted of sexual

assault under 10 U.S.C. § 920(b)(2)(A). Spc 3 Johnson

was charged and convicted of abusive sexual contact

under the theory of liability enumerated under 10

7

U.S.C. § 920(b)(2)(A).1 The theory of liability under 10

U.S.C. § 920(b)(2)(A) proscribes committing a sexual

act, or a sexual contact, against an individual without

his or her consent. But both Petitioners’ cases involved

the complainants being asleep and waking up at some

point during the charged sexual encounter.

A. A1C Casillas’s Court-Martial

In A1C Casillas’s case, the complainant testified

that she fell asleep and “woke up” to being penetrated

by A1C Casillas’s penis. Pet.App. 5a. She testified that

she knew she was being penetrated with A1C

Casillas’s penis because in the moment she woke up,

he was “taking it out.” CAAF.JA 115. The complainant

confronted A1C Casillas after the event, which

revealed how she was “out of it,” “passed out,” and that

she “woke up” and “laid there because [she] didn’t

even understand . . . what was going on.” CAAF.JA

128, 225. The complainant was awake for one

moment, and in that one moment, she did not express

lack of consent, but rather “just laid there” while A1C

Casillas removed his penis from her vagina. CAAF.JA

115.

A1C Casillas was charged with penetrating the

complainant’s vulva without her consent. 10 U.S.C.

§ 920(b)(2)(A). The Government did not charge any

other theory of liability for this act. Trial defense

counsel moved for a special instruction to eliminate

from the panel’s consideration whether the

complainant was “too intoxicated to consent to sex,”

Pet.App. 11a, because significant portions of the

evidence indicated the complainant may have been

1 Abusive sexual contact is criminalized under 10 U.S.C. § 920(d)

but incorporates the theories of liability for sexual assault in 10

U.S.C. § 920(b).

8

“blacked out” due to alcohol rather than asleep.

CAAF.JA 65, 70. Trial defense counsel asserted the

Government could not argue the complainant was

incapacitated from alcohol “because incapacity is not

a charged offense and it is not at issue in this courtmartial.” CAAF.JA 70. But the military judge denied

this instruction, calling it inaccurate and a

misstatement of law. CAAF.JA 72, 455.

The military judge later read the members the

definition of consent provided by 10 U.S.C.

§§ 920(g)(7)(A) and (B): “‘Consent’ means a freely

given agreement to the conduct at issue by a

competent person. . . . A sleeping, unconscious, or

incompetent person cannot consent. All the

surrounding circumstances are to be considered in

determining whether a person gave consent.”

CAAF.JA 459. After a panel member asked what the

definition of “competent and incompetent person”

was, the military judge provided another instruction:

“A competent person is a person who possesses the

physical and mental ability to consent. An

incompetent person is a person who is incapable of

appraising the nature of the conduct at issue or

physically incapable of declining participation in or

communicating unwillingness to engage in a sexual

act . . . .” CAAF.JA 524.

B. Spc 3 Johnson’s Court-Martial

Spc 3 Johnson was charged with three allegations

under 10 U.S.C. § 920: one for touching the

complainant’s buttocks without consent, pursuant to

10 U.S.C. §§ 920(b)(2)(A) and (d), and two for touching

the complainant while she was asleep pursuant to 10

U.S.C. §§ 920(b)(2)(B) and (d). Pet.App. 61a, 66a.

Spc 3 Johnson was only convicted of the “without

9

consent” allegation for touching the complainant’s

buttocks.

The Government believed there were two possible

factual bases for conviction on the “without consent”

offense. Pet.App. 83a. The first was when Spc 3

Johnson touched the complainant in the kitchen when

she was baking. Pet.App. 64a. The complainant told

him to watch himself, and Spc 3 Johnson apologized,

saying touching her was an accident. Id. The second

basis was when Spc 3 Johnson and the complainant

were asleep on an air mattress together. Pet.App. 65a66a. The complainant alleged Spc 3 Johnson’s “arm

and hand were down the back of her pants when she

woke up,” clarifying that he “used his left hand to go

into the back of [her] pants and into [her] underwear.’”

Pet.App. 82a.

As with A1C Casillas, the military judge instructed

the members on the definition of consent:

“Consent” means a freely-given agreement to

the conduct at issue by a competent person. A

“competent person” is a person who possesses

the physical and mental ability to consent. A

sleeping, unconscious, or incompetent person

cannot consent. An “incompetent person” is a

person who lacks either the mental or physical

ability to consent because he or she is asleep,

unconscious, or impaired by an intoxicant.

Trial Tr. at 996-97. The military judge also defined

“freely-given agreement:” “[A] person first possesses

the cognitive ability to appreciate the nature of the

conduct in question and then possesses the mental

and physical ability to make and to communicate a

decision regarding that conduct to the other person.”

Id. at 997. He concluded with: “All the surrounding

10

circumstances are to be considered in determining

whether a person gave consent.” Id.

Prior to closing arguments, the panel members

asked two questions about whether the “without

consent” allegation covered the sleeping incident on

the air mattress. Pet.App. 82a. The Government

asserted yes, the “without consent” charge could cover

either the kitchen or air mattress touch and the

Government’s primary theory of liability was that the

touching occurred on the mattress. Pet.App. 82a-83a.

The defense counsel objected to the military judge

explaining the Government’s two theories of liability

to the panel members. Pet.App. 83a. The military

judge brought up the general verdict rule with counsel

and explained the verdict would be valid so long as the

members determined the elements were met under

either theory of liability. Trial Tr. at 1017-18.

Following this discussion, the military judge offered to

instruct the members they had to determine whether

the elements of the offense were met at any time that

day, but would not specify the factual bases, leaving it

up to counsel to argue that. Pet.App 83a-84a. Trial

defense counsel agreed to this instruction. Pet.App

83a.

The military judge declined to remove from the

panel’s consideration the incident where the

complainant was asleep because it was a “surrounding

circumstance” of the offense the panel could take into

consideration as to whether there was consent. Trial

Tr. at 1028; see 10 U.S.C. § 920(g)(7) (defining consent

to include consideration of the “surrounding

circumstances”). While expressing skepticism as to

whether this was accurate, the military judge felt

precedent prevented him from instructing otherwise.

Id.

11

He then advised the members of the elements and

definitions consistent with his previous instructions

and added, “It’s for both parties to argue whether or

not they think those circumstances are here under the

facts of this case. Ultimately, all the surrounding

circumstances are to be considered in determining

whether a person gave consent.” Pet.App. 84a.

C. The

CAAF

decided

Mendoza

and

distinguished the “without consent”

theory of liability.

While Petitioners’ cases were pending at the

CAAF, the CAAF decided Mendoza. 85 M.J. 213. In

Mendoza, the Government charged the appellant with

sexual assault without consent under 10 U.S.C.

§ 920(b)(2)(A) but then “presented significant

evidence” of the complainant’s intoxication at trial,

arguing her “inability to consent established the

absence of consent.” Id. at 216. Subsection (b)(3)(A) of

10 U.S.C. § 920 is an incapacity theory of liability that

criminalizes committing a sexual act when an

individual is incapable of consenting due to an

intoxicant. Id. at 215. The Government did not charge

this theory of liability. Id.

In interpreting 10 U.S.C. § 920, the CAAF held

that “consistent with the language and structure of

Article 120, UCMJ, we hold that subsection (b)(2)(A)

and subsection (b)(3)(A) establish separate theories of

liability.” Id. at 220. “The Government’s approach—

which conflated two different and inconsistent

theories of criminal liability—raises significant due

process concerns.” Id. at 215. The Government cannot

“charge one offense under one factual theory and then

argue a different offense and a different factual theory

at trial.” Id. at 220. “Doing so robs the defendant of his

12

constitutional ‘right to know what offense and under

what legal theory he will be tried and convicted.’” Id.

(citing Riggins, 75 M.J. at 83).

D. Petitioners argued that the panel

members may have convicted them on an

incorrect legal theory due to the consent

instruction.

Following Mendoza, the CAAF ordered additional

briefing in A1C Casillas’s case. United States v.

Casillas, __ M.J. __, 2024 CAAF LEXIS 666 (Oct. 29,

2024). Consistent with Mendoza, A1C Casillas argued

that the theory of liability covering incapacity due to

sleep, 10 U.S.C. § 920(b)(2)(B), is a distinct theory of

liability. Suppl. Br. on Behalf of Appellant at 11-12,

United States v. Casillas, No. 24-0089, __ M.J. __,

2025 CAAF LEXIS 692 (Aug. 20, 2025). Additionally,

A1C Casillas highlighted that the switching of

theories was not based only on the Government’s

argument at trial, but also the statutory definition of

consent as instructed to the members. Id. at 13, 21-23.

A1C Casillas asserted, both facially and as applied,

that the instructions in his case allowed the panel

members to convict him of an improper theory of

liability. Id. During briefing, he did not cite Yates, but

he did cite Hedgpeth and Stromberg v. California, 283

U.S. 359 (1931). Id. at 13.

The CAAF dismissed the facial challenge, holding,

“With the government now on notice that Article

120(b)(2)(A), UCMJ (sexual assault without consent),

is not an umbrella offense that includes every other

type of sexual assault in which the victim is incapable

of consenting, . . . there are many circumstances under

which Article 120, UCMJ, can be validly applied.”

Pet.App. 9a-10a. Then, the CAAF addressed only the

13

fair notice issue in the as-applied challenge:

“Appellant’s argument fails because [the complainant]

awoke during the sexual assault, creating a period

when Appellant was penetrating her vulva with his

penis while she was awake and capable of consenting.”

Pet.App. 10a. Because this was “exactly the offense

and factual theory that the Government charged,” the

CAAF found nothing in the definition of consent (10

U.S.C. § 920(g)(7)) that “prohibited the Government

from proving that” A1C Casillas committed the

charged act “at least for a brief time after [the

complainant] awoke.” Id.

After the CAAF solidified Mendoza’s holding in

A1C Casillas’s case and found sleep was also a

separate theory of liability under 10 U.S.C. § 920, A1C

Casillas petitioned the CAAF for reconsideration,

arguing the CAAF created a Yates error through its

holding. Appellant’s Pet. for Recons., United States v.

Casillas, No. 24-0089, __ M.J. __, 2025 CAAF LEXIS

814 (C.A.A.F. Sep. 26, 2025). Because the definition

of consent, as statutorily prescribed, conflated two

distinct theories of liability in his case—without

consent and sleep—there was no way to know under

which theory of liability the panel convicted him based

on the facts of his case. Id. The CAAF denied his

petition for reconsideration. Pet.App. 18a.

Spc 3 Johnson raised several issues challenging

whether his conviction was lawful when it was unclear

what conduct constituted the “without consent”

offense: the kitchen touch or the air mattress touch.

Pet.App. 61-62a. One of those issues was based on the

general verdict rule. See Pet.App. 62a (“[W]hether

Appellant’s conviction is ambiguous . . . .”). While the

CAAF did not grant on the general verdict issue, the

CAAF granted on another issue: whether Spc 3

14

Johnson’s conviction triggered an unconstitutional

deprivation of his Second Amendment rights that the

military appellate courts had jurisdiction to review

and correct. Suppl. to the Pet. for Grant of Review,

United States v. Johnson, 84 M.J. 343 (C.A.A.F. Mar.

29, 2024), vacated, 85 M.J. 147 (C.A.A.F. Sep. 24,

2024).

When Mendoza was issued, Spc 3 Johnson’s case

was being briefed by the parties. Appellant’s Motion

to Remand in Lieu of Oral Argument, United States v.

Johnson, No. 24-0004, __ M.J. __, 2025 CAAF LEXIS

499 (C.A.A.F. June 24, 2025) [hereinafter Motion to

Remand]. He raised in briefing, argued in motions,

and asserted at oral argument that the CAAF needed

to answer whether his conviction was valid postMendoza. Appellant’s Pet. for Recons. at 3-4, United

States v. Johnson, No. 24-0004, __ M.J. __, 2025 CAAF

LEXIS 545 (C.A.A.F. July 14, 2025) [hereinafter

Johnson Pet. for Recons.]. He argued that because it

was unknown under which theory of liability he was

convicted, whether the complainant was asleep or she

was capable of consenting and did not consent, he was

convicted unlawfully. Id. at 3-4.

The CAAF did not address whether Spc 3

Johnson’s conviction was still valid post-Mendoza

when it found there was no jurisdiction to correct the

firearm prohibition in his case. Pet.App. 42a-55a.

Spc 3 Johnson then filed a petition for reconsideration

asking the CAAF to take up the new issue triggered

by Mendoza. Johnson Pet. for Recons. Spc 3 Johnson

argued the same issue as A1C Casillas: the

instructions allowed the panel to convict on a sleep

theory of liability, which is impermissible postMendoza, rather than the legally permissible theory

that the complainant was capable of consenting and

15

did not consent. Johnson Pet. for Recons. The CAAF

denied his petition for reconsideration. Pet.App. 59a.

REASONS FOR GRANTING THE PETITION

I. Changes in the law while Petitioners cases

were on appeal created an unresolved

constitutional violation, a Yates error, that

should have resulted in reversal of their

convictions.

In addressing various constitutional issues in

Petitioners’ cases, the CAAF created and then

overlooked a glaring constitutional problem: the

statutory definition of consent, as instructed in both

Petitioners’ cases, created a Yates error.

Casillas cemented that there was a substantive

change in that law that each theory of liability under

10 U.S.C. § 920(b) was distinct and not overlapping.

Pet.App. 9a. Yet neither Spc 3 Johnson, whose case

preceded Casillas, nor A1C Casillas himself, received

the benefit of this change that shows their convictions

were unconstitutional.

A. Yates errors are a symptom of the general

verdict rule that occur when a conviction

is supportable on one theory of guilt

instructed to the panel but not on another.

Ordinarily, “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.”

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

is the general verdict rule, which “is based on the

presumption that the verdict attaches to each of the

several alternative theories charged.” Id. Because the

verdict attaches to all theories, the verdict may stand

16

despite trial errors “if any one of the counts is good

and warrants the judgment.” Griffin v. United States,

502 U.S. 46, 49 (1991) (quoting Claassen v. United

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

But there is an exception to the general verdict

rule. “[W]here the [general] verdict is supportable on

one ground, but not on another, and it is impossible to

tell which ground the jury selected,” there is

reversable error. Yates, 354 U.S. at 312 (citing

Stromberg, 283 U.S. at 367-68). While an

unconstitutional

theory of liability suffices,

Stromberg, 283 U.S. at 370, Yates “extended

[Stromberg’s] reasoning to a conviction resting on

multiple theories of guilt when one of those theories is

. . . otherwise legally flawed.” Hedgpeth, 555 U.S. at

60. Today, the “Stromberg rule” is commonly referred

to as a “Yates error,” due to its expansion and further

modification.2

The reasoning behind expanding Stromberg to the

broader basis for reversal under Yates is sound. As

this Court noted, “Jurors are not generally equipped

2 See, e.g., United States v. Vavic, 139 F.4th 1 (1st Cir. 2025)

(using the term “Yates error”); Mendez v. United States, No. 211536, 2022 U.S. App. LEXIS 34606, at *7 (2d Cir. Dec. 15, 2022)

(calling the instruction in this case a “so-called ‘Yates error’”);

United States v. Pitt, 482 F. App’x 787, 791-92 (4th Cir. 2012)

(analyzing a “Yates error” under plain error review); United

States v. Galecki, 89 F.4th 713, 740 (9th Cir. 2023)

(characterizing “amply proved conduct simply ‘fail[ing] to come

within the statutory definition of the crime’” as subject to the

“Yates legal-error rule”); see also United States v. Kurlemann,

736 F.3d 439, 44-50 (6th Cir. 2013) (“When a jury is instructed

that it may convict on one of two legal theories, one erroneous

and one proper, the possibility that it could choose to convict on

the permissible theory does not necessarily save a general guilty

verdict from reversal.”).

17

to determine whether a particular theory of conviction

submitted to them is contrary to law—whether, for

example, the action . . . fails to come within the

statutory definition of the crime.” Griffin, 502 U.S. at

59. When that happens and jurors are “left the option

of relying upon a legally inadequate theory, there is

no reason to think that their own intelligence and

expertise will save them from that error.” Id. Under

such a circumstance, jurors “may render a verdict on

the basis of the legally invalid theory without

realizing that, as a matter of law, its factual findings

are insufficient to constitute the charged crime.”

People v. Gerber, 126 Cal. Rptr. 3d 688, 705 (Cal. Dist.

Ct. App. 2011).

B. In both cases here, a Yates error was

created and then overlooked.

Mendoza, as reenforced by Casillas, made each

theory of liability in 10 U.S.C. § 920(b) distinct.

Pet.App. 12a (citing Mendoza, 85 M.J. at 220). Sexual

assault without consent, 10 U.S.C. §920(b)(2)(A), is

not an “umbrella” theory of liability. Pet.App. 9a-10a.

If the Government charges 10 U.S.C. § 920(b)(2)(A),

then it must prove that the victim was capable of

consenting and did not consent. Id. at 220. Being

incapable of consenting or being asleep is not the legal

equivalent of an individual who “did not consent.” Id.;

Pet.App. 12a (citing Mendoza, 85 M.J. at 220).

Interpreting the statute otherwise would render the

rest of the theories of liability enumerated by

Congress surplusage and allow the Government to

circumvent the mens rea element in the other

theories. Mendoza, 85 M.J. at 219-20.

Both Petitioners were charged with committing a

sexual act “without consent” under what was then-

18

considered the “umbrella” theory of liability. Pet.App.

7a, 61a. At trial, the Government argued that

Petitioners committed the charged conduct upon the

complainants when the complainants were asleep,

and, thus, did not consent. See Pet.App. 10a (noting

the Government “referenced repeatedly at trial” the

sexual assault began when the complainant was

asleep); see Br. on Behalf of Appellant at 12-14, United

States v. Johnson, No. ACM 40257, 2023 CCA LEXIS

330 (Aug. 9, 2023) (citing the Government’s closing

argument).

Post-Mendoza, this argument is unlawful. But

Government counsel’s arguments at trial are not the

only constitutional problem. The definition of consent

is the reason the Government was able to argue this

switch in theories in the first place. The statutory

definition of consent operates to conflate multiple

theories of liability when only one is lawful under the

charging scheme. And, while both Petitioners’ cases

show how this is so, Spc 3 Johnson’s case

demonstrates it best because the military judge

explained away this very concern through the general

verdict rule.

a. Spc 3 Johnson’s case reveals how 10

U.S.C. § 920(b)(2)(A) operated as a

catch-all theory to support a general

verdict, which today, is a Yates error.

The panel members asked two questions after

receiving instructions that reveal the general verdict

and Yates error here. First, whether the “without

consent” allegation was “only the event in the kitchen,

or [was] it anytime in the evening. For example, are

we determining whether he touched her buttocks

without consent, with a sexual desire, while they were

19

on the air mattress?” Trial Tr. at 1016. Second,

referring to the same allegation, “must the element of

consent come from capable, absence of consent, or can

it come from incapacity to consent?” Id. at 1020. Both

questions asked whether the panel could find a sexual

act occurred “without consent” when the complainant

was incapable of consenting because she was asleep

on the air mattress rather than only when she was

awake in the kitchen.

The definition of consent that the members had

received invited these questions. The first part of the

instruction was that “consent” must be given by a

“competent person.” Id. at 976. The second part of the

instruction equated incompetence to sleep. “A

sleeping . . . or incompetent person cannot consent,”

because an “incompetent person . . . lacks either the

mental or physical ability to consent because he or she

is asleep.” Id. at 997. Finally, the military judge

instructed the members that “[a]ll the surrounding

circumstances are to be considered in determining

whether a person gave consent.” Id. These three

definitions, read together and without caveat, mean

that a sexual assault “without consent” can occur

when the complainant is asleep. As shown by the plain

language of the instructions, the definition of consent

conflated the theories of liability under 10 U.S.C.

§ 920(b) and did not make clear that the complainant

being

“incompetent,”

i.e.,

asleep,

was

an

impermissible legal basis for a conviction in a “without

consent” case. Pet.App. 12a (citing Mendoza, 85 M.J.

at 220).

When these questions arose after the instructions

were read, the military judge explained that if the

Government argued both the touch in the kitchen and

the touch on the air mattress to prove the charged

20

conduct, then this would be a permissible general

verdict. Id. at 1017-18. He explained that “when there

are two legally cognizable theories of liability . . . that

one member could have thought that it was the oven

and one member could have thought that it was the

air mattress,” the verdict is valid “so long as there’s

proof beyond a reasonable doubt to establish both of

those.” Id. at 1017. Pre-Mendoza, the military judge’s

explanation was accurate. When 10 U.S.C.

§ 920(b)(2)(A) was considered an “umbrella” theory of

liability, the other theories enumerated in the statute

and captured in the statutory definition of consent

could support a general verdict that included “without

consent” due to sleep or incompetence.

Nevertheless, the military judge expressed

concerns about how allowing the Government to

pursue a theory of liability that the complainant was

asleep may be impermissible based on the statutory

structure and the canon against surplusage. Id. at

1028. These concerns were ultimately the basis for the

CAAF’s decisions in Casillas and Mendoza, but the

military judge had the benefit of neither at the time.

Mendoza, 85 M.J. at 219-20; Pet.App. 12a (citing

Mendoza, 85 M.J. at 220). Instead, he noted that but

for caselaw at the time, he “would have come to a

contrary conclusion” about the surplusage doctrine.

Trial Tr. at 1028. Ultimately, the military judge did

not alter the instruction for how the panel could

determine liability under a “without consent” case. Id.

His instructions to the panel reflected his conclusion

about the general verdict rule and binding precedent.

Spc 3 Johnson’s case epitomizes how the consent

instruction invited confusion on what the lawful basis

for conviction under the charging scheme could be pre-

21

Mendoza and Casillas, evidencing a clear Yates error

today.

b. A1C Casillas’s case had the same

problem: a Yates error occurred due to

the

statutorily

driven

consent

instruction.

Viewing the facts available to the panel in concert

with the instructions given shows the Yates error in

A1C Casillas’s case. Unlike in Spc 3 Johnson’s case,

there were not two distinct sexual acts, but rather one

act punctuated by the complaint’s capacity to consent.

As the CAAF described, there was only “a brief time”

where the complainant was awake and capable of

consenting after she woke up and A1C Casillas was

still committing a sexual act upon her. Pet.App. 10a.

That later timeframe was the only legal basis for

conviction, rather than when she was asleep. Pet.App.

12a-13a. It is this dynamic that created two sexual

assaults under different theories of liability.

To convict, the panel was required to find

penetration occurred “without consent,” as defined in

Spc 3 Johnson’s case. CAAF.JA 548-49 (referencing 10

U.S.C. §§ 920(g)(7)(A), (B)). The panel was told a

sleeping person cannot consent. Id.

The instructions prompted a question from the

panel: “[W]hat is the definition of competent and

incompetent we should use in reference to the

definition of consent?” CAAF.JA 552. The military

judge instructed the panel that an “incompetent

person” is “incapable of appraising the nature of the

conduct at issue, or physically incapable of declining

participation in or communicating unwillingness to

engage in the sexual act at issue.” CAAF.JA 556. This

final instruction was like the one given in Spc 3

22

Johnson’s case: an “incompetent person . . . lacks . . .

the mental or physical ability to consent.” Trial Tr. at

997.

As with Spc 3 Johnson, these three definitions

without caveat dictated that a sexual assault “without

consent” could occur when the complainant was

asleep. But today, Mendoza prohibits convicting A1C

Casillas under that theory of liability because it was

not charged; “without consent” is not legally

equivalent to the complainant being asleep. Pet.App.

12a (citing Mendoza, 85 M.J. at 220). Yet the

instructions conflated the theories of liability under

10 U.S.C. § 920(b) without making clear to the panel

that the complainant being “incompetent” is not a

legal basis for a “without consent” guilty verdict.

When an instructional issue was raised to the

CAAF, the CAAF narrowed its analysis and holding to

only fair notice, mirroring the granted issue. Pet.App.

3a n.2. “[The complainant] awoke during the sexual

assault, creating a period when [A1C Casillas] was

penetrating her vulva with his penis while she was

awake and capable of consenting. This is exactly the

offense and factual theory that the Government

charged, giving [him] sufficient notice . . . .” Pet.App.

10a. But this conclusion overlooked the underlying

problem with the verdict: two theories of liability were

instructed on—but one of those theories was invalid.

See Pet.App. 9a (acknowledging that “now,” postMendoza, the Government is on notice that 10 U.S.C.

§ 920(b)(2)(A), is not an “umbrella offense”). Though

the CAAF found that A1C Casillas had the

constitutionally required notice for the Government’s

theory of liability, nothing about the CAAF’s analysis

recognized or addressed the impact the instructions

had on the factfinder.

23

C. The CAAF failed to consider how Mendoza

created a Yates error in both cases and

permitted Petitioners to be convicted in

violation of a constitutional right.

In both Petitioners’ cases, the panel members “may

[have] render[ed] a verdict on the basis of the legally

invalid theory without realizing that, as a matter of

law, its factual findings [were] insufficient to

constitute the charged crime.” Gerber, 126 Cal. Rptr.

3d at 705 (emphasis added). Despite this, the CAAF’s

opinion in Casillas only addressed fair notice—

whether the Government’s argument blind-sided the

defendant. Pet.App. 6a-13a The CAAF did not

consider the ultimate source of the due process

concerns post-Mendoza: the instructions allowed the

factfinder to convict on an invalid legal theory,

independent of the Government’s argument.

“Fair notice,” as analyzed in Casillas, is not the

Government’s only due process obligation. “The Due

Process Clause [also] requires the prosecution to prove

beyond a reasonable doubt all of the elements

included in the definition of the offense of which the

defendant is charged.” Patterson v. New York, 432

U.S. 197, 210, (1977). In Petitioners’ cases, the

Government may have “amply proved” a type of

sexual assault, but that “amply proved conduct simply

‘fails to come within the statutory definition of the

crime.’” Galecki, 89 F.4th at 740 (citing Griffin, 502

U.S. at 59). Furthermore, if the Government proves its

case under a theory of liability not captured under the

charging scheme, there is a Yates error if the

factfinder was permitted to convict under that invalid

theory. See, e.g., Vavic, 139 F.4th at 19-20 (holding the

jury could have found that a “thing of value” for a

bribery charge was “a payment to the bank account for

24

the [school] water polo team,” which was proven

conduct, but not a legal basis for a conviction under

the charging scheme).

The CAAF’s analysis overlooked the fundamental

problem: properly instructing the factfinder. When

factfinders can rely upon a legally invalid theory to

convict, “there is no reason to think that their own

intelligence and expertise will save them from that

error.” Griffin, 502 U.S. at 59. As the panel member

questions in both cases reveal, the members were

considering the legal bases of conviction through the

meaning of a “competent person.” But, in both cases,

if the complainant was asleep, that could not be the

legal basis for “without consent.” Pet.App. 12a (citing

Mendoza, 85 M.J. at 220).

While fair notice to the defendants may have

existed, Pet.App. 10a, that does not save the

factfinders from convicting on an invalid theory of

liability that was instructed to them. Jurors are

presumed to “attend closely the particular language”

of instructions and “‘strive to understand, make sense

of, and follow them.” Samia v. United States, 599 U.S.

635, 646 (2023) (quoting United States v. Olano, 507

U.S. 725, 740 (1993)). In doing so here, the

instructions could have misled them into convicting on

an invalid theory.

The service Courts of Criminal Appeals (CCAs)

have recognized this problem. The Navy-Marine

Corps Court of Criminal Appeals (Navy-Marine Corps

Court) recently held that “the military judge erred

when instructing the members . . . that a sleeping or

unconscious person cannot consent such that they

could find Appellant guilty as charged to sexual

assault ‘without consent.’” United States v. Grafton,

25

No. 202400055, 2025 CCA LEXIS 375, at *14 (N-M.

Ct. Crim. App. Aug. 11, 2025). The Navy-Marine

Court recognized a Yates error because the definition

of consent, without any caveat, tells the panel that the

members can convict when a named victim is sleeping.

Id. This alternate theory of liability is “invalid” postMendoza and Casillas. Hedgpeth, 555 U.S. at 58 (first

citing Stromberg, 283 U.S. 359; and then citing Yates,

354 U.S. 298).

Multiple judges on the CCAs have highlighted that

the “full” definition of consent cannot be given in

courts-martial after Mendoza. See, e.g., United States

v. Coe, No. ARMY 20220052, 2025 CCA LEXIS 419, at

*57 (A. Ct. Crim. App. Aug. 28, 2025) (Murdough, J.,

dissenting) (noting that “Mendoza appears to read an

additional element into [10 U.S.C. § 920](b)(2)(A) that

is at odds with the statutory text”); Grafton, No.

202400055, 2025 CCA LEXIS 375, at *34 (Harrell,

S.J., concurring in part and dissenting in part) (noting

the instruction “‘[a] sleeping, unconscious, or

incompetent person cannot consent’ is irreconcilable

with the CAAF’s interpretation of [10 U.S.C.

§ 920](b)(2)(A) in Mendoza”). Their concerns signal a

Yates error: factfinders in sexual assault “without

consent” cases may be convicting on an invalid theory

of liability if the complete statutory definition of

consent is instructed to them, as had occurred in

Petitioners cases. See Coe, No. ARMY 20220052, 2025

CCA LEXIS 419, at *28-29 (noting that without the

“benefit” of Mendoza “the trial judge may have

erroneously believed appellant could be convicted

either due to a lack of consent or due to the victim’s

inability to consent in the first instance”).

Casillas shows the propriety of these concerns. It

is true “[n]othing in Congress’s definition of consent in

26

Article 120(g)(7), UCMJ, prohibited the Government

from proving that—at least for a brief time after [the

complainants] awoke—Appellant[s] committed the

charged sexual act upon [them] and that [they] did not

consent to that act.” Pet.App. 10a. But it is equally

true that nothing in Congress’s definition of consent

prohibited the panels from finding that, for the time

before the complainants awoke, Petitioners

committed the charged sexual acts upon them

“without their consent” because the complainants

were asleep. The panels in Petitioners cases did not

get an appropriately tailored instruction explaining

that to convict under the charging scheme, the

complainants had to be “capable of consenting but

[did] not consent.” Mendoza, 85 M.J. at 220. Nor did

Petitioners get the benefit of any court’s review of this

issue. See Pet.App. 18a, 59a (denying Petitioners’

requests for reconsideration on the Yates error). Had

Petitioners received the same review as the appellants

in Grafton and Coe, the result would have been

different.

D. Review of the Yates error would dictate

reversal.

Whether under de novo or plain error review, the

Government would be required to show the Yates

errors were harmless beyond a reasonable doubt to

avoid a new trial. Hedgpeth, 55 U.S. at 61; Chapman

v. California, 386 U.S. 18, 24 (1967); see United States

v. Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019)

(holding “where a forfeited constitutional error was

clear and obvious” the Chapman standard applies).

The Government cannot meet this burden because no

court could conclude beyond a reasonable doubt that

the “verdict would have been the same absent the

error.” Neder v. United States, 527 U.S. 1, 17 (1999).

27

This is because post-Mendoza, the Government would

have had to prove the complainants did not consent

after they woke up. Pet.App. 10a.

In both Petitioners’ cases, there was not

overwhelming evidence to support the “without

consent” theory of liability. Instead, there was only a

moment when the complainants were awake and the

sexual act was still on-going. CAAF.JA 115 (showing

for A1C Casillas, the complainant woke up as he was

removing his penis); Trial Tr. at 444-46 (showing for

Spc 3 Johnson, the complainant woke up with his “left

arm reaching into her pants . . .[for] a few seconds”).

Much of the other evidence focused on the

complainants being asleep, either through Petitioners’

statements or the complainants’ explanation for why

they did not consent. Pet.App. 40a-41a, 79a-80a.

Because the cases centered around the

complainants being asleep and there were only

seconds when they were awake while the sexual act or

contact was still on-going, the Government would not

be able to carry its burden to establish “beyond a

reasonable doubt” that the jury would have convicted

Petitioners of “sexual assault without consent” even if

the sleep theory of liability had been excised. Neder,

527 U.S. at 17. This is particularly true where these

two theories of liability are “legally contradictory

rather than overlapping;” a finding for one barred a

finding for the other. Mendoza, 85 M.J. at 230-31

(Sparks, J., concurring in part and dissenting in part

and in the judgment). Based on the limited evidence,

no court would be convinced beyond a reasonable

doubt that Petitioners would have been convicted but

for the complainant’s incompetence due to sleep. The

Yates errors here are not harmless beyond a

reasonable doubt and deserve review. This is

28

especially so because the CAAF’s decision in Mendoza

decided an important federal question on the theories

of liability in 10 U.S.C. § 920(b) in a way that, upon

application, conflicts with this Court’s decision in

Yates.

CONCLUSION

The Yates errors in Petitioners’ cases evolved from

the CAAF’s decision and application of Mendoza. Both

issues were tied to the granted issues in each case, but

the Yates errors were still overlooked. Because the

errors are not harmless beyond a reasonable doubt

and would prevail under any standard of review, this

Court should grant the petition to settle what is a

pervasive due process problem stemming from the

CAAF’s interpretation of 10 U.S.C. § 920 and the

definition of consent. Alternatively, this Court can

grant, vacate, and remand Petitioners’ cases to the

CAAF with specific instructions to address the Yates

error in the first instance.

Respectfully submitted,

SAMANTHA M. CASTANIEN

Counsel of Record

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

samantha.castanien.1@us.af.mil

Counsel for Petitioners