Petition for Writ of Certiorari — Angelo L. Cepeda, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

ANGELO L. CEPEDA,

Petitioner,

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

__________

JORDAN L. GRANDE

TAMI L. MITCHELL

Counsel of Record

United States Air Force

Appellate Defense Division

Law Office of Tami L. Mitchell

1500 West Perimeter Road

1459 Morales Place

Suite 1100

The Villages, FL 34762

Joint Base Andrews, MD 20762 (719) 426-8967

(240) 612-4770

tamimitchelljustice@gmail.com

Jordan.grande@us.af.mil

Counsel for Petitioner

i

QUESTIONS PRESENTED

1. Is the constitutional right to a fair trial, which

necessarily includes accurate instructions on the

elements of the charged offense and correct

definitions, so fundamental that it cannot be waived

without an affirmative response from the accused on

the record?

2. What is the definition of “unwelcome” as this

term relates to sexual harassment?

ii

PARTIES TO THE PROCEEDING

Petitioner is Technical Sergeant Angelo L. Cepeda.

Respondent is the United States.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

The following is a list of all proceedings related to

this case within the meaning of Rule 14.1(b)(iii):

•

United States v. Cepeda, General Court-

•

United States v. Cepeda, No. 40318, 2025 CCA

•

United States v. Cepeda, No. 26-0027/AF, 2026

Martial, Minot Air Force Base, North Dakota,

January 18, 2022 and April 4-8, 2022.

LEXIS 320, 2025 WL 2028559 (A.F. Ct. Crim.

App. Jul. 21, 2025) (unpub. op.).

CAAF LEXIS 141, 2026 LX 46851 (C.A.A.F.

2026). Review denied on Feb. 10, 2026.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................ i

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

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

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

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

TABLE OF AUTHORITIES ................................................ v

OPINION AND DECISION BELOW ..................................... 1

JURISDICTION ............................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ........................ 1

STATUTORY AND REGULATORY PROVISIONS INVOLVED.. 1

STATEMENT OF THE CASE ............................................. 2

I. Introduction ...................................................... 2

II. Factual Background ......................................... 2

III. Legal Background ........................................... 6

REASONS FOR GRANTING THE PETITION ....................... 7

I. The Circuits are Split as to Whether Neder v.

United States Precludes Application of Waiver

to Instructional Error Involving Omissions

and/or Incorrect Definitions of Elements of an

Offense. ............................................................. 7

II. This Case Presents Issues of Importance to

Both Military and Civilian Criminal Justice

Systems........................................................... 10

III. The Lower Court’s Decision Conflicts with this

Court’s Precedents on Changing the Theory of

Liability, Definition of Sexual Harassment, and

iv

Evaluating

Legal

Sufficiency

of

the

Evidence………………………………………….12

CONCLUSION .............................................................. 16

APPENDIX

Decision of the Court of Appeals for the Armed

Forces (February 10, 2026)....................................... 1a

Opinion of the Air Force Court of Criminal Appeals

(July 21, 2025)........................................................... 2a

Text of 10 U.S.C. § 892 ........................................... 57a

Text of Rule for Courts-Martial 920(e)(1) .............. 57a

Text of Rule for Courts-Martial 920(f) ................... 57a

Text of Rule for Courts-Martial 920(g)(2023) ........ 58a

Text of Department of the Air Force Instruction

1020.03 .................................................................... 59a

v

TABLE OF AUTHORITIES

Cases

Chapman v. California, 386 U.S. 18

(1967) ....................................................................... 7

Dunn v. United States,

442 U.S. 100 (1979) ............................................... 13

Greer v. United States,

593 U.S. 503 (2021) ................................................. 9

In re Murchison,

349 U.S. 133 (1955) ............................................... 10

Jones v. Flagship Int'l,

793 F.2d 714 (5th Cir. 1986).......................... 12, 15

Meritor Sav. Bank v. Vinson,

477 U.S. 57 (1986) ................................................. 13

Musacchio v. United States,

527 U.S. 237 (2016) ............................................... 14

Neder v. United States,

527 U.S. 1 (1999)............................................passim

Pope v. Illinois,

481 U.S. 497 (1987) ................................................. 7

United States v. Cepeda,

2025 CCA LEXIS 320 (A.F. Ct. Crim.

App. Jul. 11, 2025) (unpub. op.) .....................passim

United States v. Conti,

804 F.3d 977 (9th Cir. 2015) .................................. 8

United States v. Freeman,

70 F.4th. 1265 (10th Cir. 2023) .............................. 8

United States v. Greer

798 Fed. Appx. 483 (11th Cir. 2020) ...................... 9

vi

United States v. Lebeau,

949 F.3d. 334 (7th Cir. 2020)............................ 9, 11

United States v. Muhammad,

14 F.4th 352 (5th Cir. 2021) ................................ 8-9

United States v. Olano,

507 U.S. 725 (1992)................................................. 8

Statutes, Regulations, and Rules

10 U.S.C. § 892 (2016) .......................................passim

Department

(DoDI)

of Defense Instruction

1020.03,

Harassment

Prevention and Response in the

Armed Forces (February 8, 2018) ........................... 3

Rule for Courts-Martial 920(e)(1) ........................... 11

Rule for Courts-Martial 920(f) ................................ 11

Rule for Courts-Martial 920(g)(2023) ..................... 11

Other Authorities

Emily A. Impett and Letitia Anne Pelau,

Why Some Women Consent to

Unwanted Sex with a Dating Partner:

Insights from Attachment Theory, 26

PSYCHOLOGY

OF

WOMEN

QUARTERLY, 360-370 (2002) .............................. 13

Antonin Scalia & Bryan A. Garner

Reading Law: The Interpretation of

Legal Texts 112 (2012) .......................................... 11

Lori E. Shaw,

Title IX, Sexual Assault, and the Issue

of Effective Consent: Blurred Lines—

When Should "Yes" Mean "No?",

vii

91 Ind. L.J. 1363 (2016) ........................................ 13

1

PETITION FOR A WRIT OF CERTIORARI

Technical Sergeant Cepeda, United States Air

Force, respectfully petitions for a writ of certiorari to

review the decision of the United States Court of

Appeals for the Armed Forces in this case.

OPINIONS BELOW

The CAAF’s decision to deny review of Petitioner’s

case appears at page 1a of the appendix to this

petition. It is available at 2026 CAAF LEXIS 141 and

2026 LX 46851. The unpublished opinion of the Air

Force Court of Criminal Appeals (AFCCA) appears at

pages 2a thorough through 56a of the appendix. It is

available at 2025 CCA LEXIS 320 and 2025 WL

2028559.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1259(3). The date of CAAF’s order is Feb. 10, 2026.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment, in pertinent part, provides:

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

property, without due process of law.”

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Article 92 of the Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 892, Article 51(c), UCMJ, Rule

for Courts-Martial (R.C.M.) 920(e)(1), (f), and (g), and

Department of Defense Instruction (DoDI) 1020.03,

Harassment Prevention and Response in the Armed

Forces (February 8, 2018).

2

STATEMENT OF THE CASE

I. Introduction

Technical Sergeant Cepeda was convicted of willful

dereliction of duty for “sexually harassing” a female

subordinate, Airman JJ, in violation of Article 92,

UCMJ (10 U.S.C. § 892). But, the military judge’s

definition of “sexual harassment” was incorrect in

several respects: (1) he incorrectly defined sexual

harassment

as

“nonconsensual”

instead

of

“unwelcome;” and (2) omitted the element that

requires the conduct to be so severe and pervasive that

a reasonable person would believe a hostile

environment was created; and (3) omitted the element

that the alleged victim actually perceived the

environment to be hostile.

II. Factual Background

Petitioner was convicted of willful dereliction of his

duty to not “sexually harass” JJ, a female Airman (E2). They both worked the mid-shift. Petitioner

assigned jobs to JJ and drove the airmen to work in

their designated areas. 1 Despite her junior rank, JJ

was allowed to work on a jet; Petitioner would drive

her back and forth from the jet. 2 He complimented her

physical appearance during their drives. 3 Although JJ

later claimed his compliments were “inappropriate,”

she accepted them; she did not tell him to stop or

indicate to him that his comments made her

“uncomfortable.” 4 JJ was a “Teal Rope” in technical

school, “someone who represented the Sexual Assault

Prevention and Response (SAPR) and Sexual Assault

1 R. 446.

2 R. 450.

3 R. 451-52.

4 R. 452-53.

3

Response Coordinator (SARC) or those resources for

the Airmen.” 5

JJ testified that mid-shift had fewer personnel, so

usually there were only two four-person crews. 6

Sometimes Petitioner picked her up by herself. 7

Sometimes the “run” back to the shop took only a few

minutes, but sometimes it took a few hours, depending

on where she was on the flightline. 8 In September or

October of 2018, they had to pull over and wait for a

jet that was being taxied or towed in front of them. 9

JJ claimed that during this “pull over and wait”

instance, Petitioner tried to touch her thigh and kiss

her at this point. 10 When he leaned in to kiss her, JJ

told him “no.” 11 He stopped. 12 JJ testified that before

this incident, she never felt “harassed” by him. 13

An agent from the Air Force Office of Special

Investigations (OSI) interviewed JJ on October 24,

2019. 14 JJ knew she had to tell the truth and that she

had to tell them everything Petitioner did to make her

feel uncomfortable. 15 JJ repeatedly told the agent that

Petitioner did not touch her in a way that made her

feel uncomfortable. 16 She told the agent he never

asked her questions about her sex life, talked about

having sex with her, made any sexual gestures or

advances to her, or treated female airmen differently

5 R. 505-06.

6 R. 454-55.

7 R. 455.

8 R. 455-56.

9 R. 460.

10

Ibid.

11 R. 461-62.

12

Ibid.

13 R. 518.

14 R. 505.

15

Ibid.

16 R. 504, 750.

4

than male airmen. 17 She claimed other male airmen

harassed her by commenting about her body and

telling her she should be dating them instead of her

boyfriend at the time. 18 JJ told the agent that she did

not think “too much of it” because it was “really

common to hear stuff like that” in the Air Force

environment; it was so common she questioned if it

was really “harassment.” 19

The same OSI agent attempted to interview JJ

again, but JJ “blew her off” several times. 20 JJ was

supposed to return to Minot AFB, but she did not. 21

The agent asked JJ for consent to search her cell

phone several times because JJ claimed it had

corroborating evidence, but JJ never provided her

phone. 22 The agent obtained a search warrant for her

phone, but JJ subsequently claimed it was lost. 23 The

agent later interviewed JJ a second time in California

in March of 2020; she recorded the interview. 24

During that interview, JJ claimed Petitioner “sexually

harassed” her but denied that he touched her. 25

JJ showed TSgt Cepeda pictures of herself on

Instagram, mostly her legs. 26 She told him about

exercises she liked to do at the gym, as he would ask

her about her gym progress. 27 JJ also told TSgt

Cepeda about a time she performed oral sex on her

boyfriend with “pop rocks” in her mouth, as she was

17 R. 506.

18 R. 508-09, 515.

19 R. 520

20 R. 744

21

Ibid,

22 R. 745.

23 R. 745-46.

24 R. 747-48; Def. Ex. A.

25 R. 750.

26 R. 515-16.

27

Ibid.

5

discussing her sex life at work with co-workers. 28 JJ

admitted to initiating this conversation, and that she

did not feel uncomfortable talking to Petitioner about

it. 29

The Government introduced an expired Air Force

Instruction (AFI) into evidence to prove the source of

Petitioner’s duty to not sexually harass JJ. 30

However, the Government failed to introduce the

relevant definition of “sexual harassment” that was

contained within the expired AFI. 31

During

discussion of instructions, the military judge denied

the Government’s request to define “sexual

harassment”

as

“unwanted”

instead

of

“nonconsensual.” 32 The Defense concurred with the

military judge’s use of “nonconsensual.” 33

The

military judge also omitted instructions on essential

elements of sexual harassment, namely that

Petitioner’s conduct was so severe and pervasive that

(1) a reasonable person would perceive the work

environment as hostile and (2) JJ actually perceived

it as such (R. 881). 34 Furthermore, because Petitioner

was charged with willful dereliction of duty, the

Government was also required to prove he actually

knew his conduct was so severe and pervasive that a

reasonable person would perceive the work

environment as hostile and that JJ actually perceived

it as such.

28 R. 512.

29 R. 512-13.

30 Pros. Ex. 13.

31 R. 837-38.

32 R. 840.

33

Ibid.

see DEP’T OF DEFENSE INSTRUCTION (DODI) 1020.03,

Harassment Prevention and Response in the Armed Forces,

34 R. 881;

para. 3.3 (Feb. 8, 2018).

6

III. Legal Background

Petitioner first sought relief from the Air Force

Court of Criminal Appeals (AFCCA). The majority

held the evidence was factually and legally sufficient

to sustain Petitioner’s conviction. 35 While agreeing

with Petitioner that the expired AFI was insufficient,

in and of itself, to prove the source of duty, the AFCCA

majority changed the source from the expired AFI to

a “custom of the service,” based on a witness’s

testimony regarding a “cultural shift” in the Air Force

10-11 years earlier that made “locker room” talk

inappropriate. 36 The majority held that Petitioner

waived the issue of an erroneous instruction on the

definition of sexual harassment because his defense

counsel agreed with the military judge’s use of the

word “nonconsensual.” 37 The majority went on to find

Petitioner’s conviction legally sufficient.

Judge Gruen dissented, noting a variety of flaws in

the majority’s logic, including, but not limited, to: (1)

filling in the gaps in the Government’s case by taking

judicial notice of matters the Government failed to

prove (notably the existence of a duty and Petitioner’s

knowledge of that duty); (2) affirming his conviction

based on a “custom of the Air Force,” when the

Government did not present “custom of the Air Force”

as a basis for finding a duty; (3) the military judge’s

instruction on the definition of “sexual harassment”

was incorrect due to using the term “nonconsensual”

instead of “unwelcome;” and (4) given the parties’ and

the military judge’s disagreement on the definition of

“sexual harassment,” Petitioner could not have

United States v. Cepeda, 2025 CCA LEXIS 320, *16-34 (A.F.

Ct. Crim. App. Jul 21, 2015) (unpub. op.)

36 Ibid., *30-31.

37 Ibid,. *26, 31.

35

7

actually known the scope of his duty. 38 Without a

correct definition of “sexual harassment,” Petitioner’s

conviction was legally insufficient. 39

Petitioner moved AFCCA to reconsider; his motion

was denied. Petitioner subsequently petitioned the

Court of Appeals for the Armed Forces (CAAF) to

review his case. The CAAF denied his petition. 40

REASONS FOR GRANTING THE PETITION

I. The Circuits are Split as to Whether Neder v.

United States Precludes Application of Waiver to

Instructional Error Involving Omissions and/or

Incorrect Definitions of Elements of an Offense.

An error is harmless if it appears “beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.” 41 In Neder v.

United States, this Court directed appellate courts to

review instructional error involving the omission of an

element of an offense for harmlessness instead of

holding that such error is “structural,” requiring

automatic reversal of a conviction. 42 “[W]here a

reviewing court concludes beyond a reasonable doubt

that the omitted element was uncontested [or]

supported by overwhelming evidence, such that the

jury verdict would have been the same absent the

error, the erroneous instruction is properly found to

be harmless.” 43

38

39

Ibid., *44-45 (Gruen, J. dissenting.)

Ibid., *45.

40 Appendix at 1a.

41

Chapman v. California, 386 U.S. 18, 24 (1967).

18-19 (1999); see also Pope v. Illinois, 481 U.S. 497

42 527 U.S. 1,

(1987) (involving an instruction misstating an element of an

offense).

43 Neder, 527 U.S. at 17.

8

In United States v. Conti, the Ninth Circuit held

that when the defense fails to object to an instruction

omitting an essential element of an offense, the

appellate court must review for harmless error using

a “plain error” standard of review. 44 If the error is

“harmless,” then it necessarily also fails the third

prong of the plain error test, meaning that it did not

prejudice the defendant’s substantial rights. 45

However, in order to determine if the error is

harmless, the court must conduct a thorough

examination of all of the evidence in the record to

determine if the omitted element was sufficiently

supported. 46

Other circuits have also conducted a Neder

analysis using the “plain error” standard of review.

For example, the Tenth Circuit applied plain error to

a Neder analysis of a sexual assault conviction in

United States v. Freeman, and found harmless error

in the failure to instruct the jury that the victim was

incapacitated, given the overwhelming evidence of the

victim’s intoxication and Freeman’s admission that he

initiated sex with the victim while she was asleep. 47

The Fifth Circuit also did so in United States v.

Muhammad, for the judge’s failure to instruct the jury

that the Government had to prove he either knew the

chemical substances he created, possessed, and

distributed were controlled under the Controlled

Analogue Substances Act (CASA), or that he knew his

drugs had a stimulant, depressive, or hallucinogenic

see United States v. Olano,

507 U.S. 725, 733-34 (1993) (defining the “plain error” standard

of review).

45 804 F.3d at 981.

46 Ibid. (quoting Neder, 527 U.S. at 17).

47 70 F.4th 1265, 1280-84 (10th Cir. 2023).

44 804 F.3d 977, 981 (9th Cir. 2015);

9

effect on the central nervous system. 48 The Fifth

Circuit held the evidence was overwhelming that

Muhammad knew he was creating, possessing, and

distributing substances controlled under the CASA,

especially given his own testimony that he researched

chemical structures of controlled substances to create

analog drugs that had similar effects, created a

website advertising his drugs as not being controlled,

and therefore, his customers could get high “legally.” 49

And although not citing to Neder, the Eleventh Circuit

conducted a plain error analysis in United States v.

Greer over the judge’s failure to instruct the jury that

the Government had to prove Greer knew he was a

convicted felon, in addition to proving he was actually

a convicted felon when he possession of a firearm. 50

Therefore, if the Eleventh Circuit had conducted a

Neder analysis, it would have held the error to be

harmless. In affirming the Eleventh Circuit’s opinion,

this Court aptly noted, “If a person is a felon, he

ordinarily knows he is a felon. ‘Felony status is simply

not the kind of thing that one forgets.’” 51

In contrast, the Seventh Circuit applied waiver to

a Neder analysis. In United States v. Lebeau, the

Seventh Circuit held that Labeau waived

instructional error by “affirmatively consenting” to

the judge’s proposed instruction which did not include

the element of “materiality” for fraud 52 However, the

Seventh Circuit went even further, declaring that

statements such as “no objection” or “no problem”

48 14 F.4th 352, 358 (5th Cir. 2021).

49

Ibid., 358-59.

aff’d, Greer v. United

States, 593 U.S. 503 (2021). Greer was convicted of five felonies

50 798 Fed. Appx. 483, 486 (11th Cir. 2020),

at the time he possessed the firearm.

51 Ibid., 508 (quotation omitted).

52 949 F.3d 334, 341-42 (7th Cir. 2020).

10

constitute waiver. 53 The Seventh Circuit nevertheless

conducted an “even under a plain error” Neder

analysis and found none.” 54 The lower courts in

Petitioner’s case did no such alternative review.

II. This Case Presents Issues of Importance to Both

the Military and Civilian Criminal Justice

Systems.

Protecting the integrity of the criminal justice

system and upholding the constitutional rights of the

accused, both military and civilian, are important.

The right to a fair trial is a fundamental constitutional

right. 55 It is fundamentally unfair to allow the

Government to prosecute someone and then gain a

conviction with not only insufficient evidence of each

actual element of the offense, but also with inaccurate

and incomplete instructions on the law applicable to

the facts of the case. The irony in Petitioner’s case is

that the Government invited the error by objecting to

“nonconsensual” instead of “unwelcomed.” Now, even

though Petitioner’s alleged conduct was not actually

criminalized when compared to the elements of his

alleged offense, he has a criminal conviction for the

rest of his life.

Another reason important to both the military and

civilian sectors is that the distinction between

“waiver,” which generally precludes appellate review,

and “forfeiture”, which allows appellate review under

a “plain error” standard, has become so blurred that

there is no longer a distinction. “No objection,” which

used to count as a lack of objection and therefore

Ibid., 342.

Ibid., 342-43.

55 In re Murchison, 349 U.S. 133, 136 (1955) (“A fair trial in a fair

53

54

tribunal is a basic requirement of due process.”).

11

“forfeiture,” has morphed into the equivalent of an

intentional abandonment of a known right, i.e.

“waiver.” 56 This creates a dilemma for defense

attorneys, as they are faced with objecting to a

proposed instruction simply to preserve an error for

appellate review, without a good-faith basis for

objecting, or standing mute, which courts do not allow.

Under these circumstances, decisive guidance from

this Court as to the “magic language” for preserving

instructional error for appellate review is necessary.

Specific to military justice, at least two additional

reasons exist to grant this petition for review:

(1) Whether an accused can actually waive a

mandatory instruction is debatable. As Judge Gruen

noted in Petitioner’s case, military accused cannot

waive mandatory instructions. 57 A description of all

of the elements of the offense, which necessarily

implies accurate descriptions, is required. 58 Words

matter; the meaning of “shall” is “mandatory.” 59 Even

under the rule in effect at the time of Petitioner’s

court-martial, a failure to object to a mandatory

instruction equals “forfeiture” not “waiver.” 60

Furthermore, Rule for Courts-Martial 920 was later

amended, permitting an accused to waive a

mandatory instruction on lesser-included offenses. 61

But that kind of waiver requires the accused to

affirmatively acknowledge on the record that he

56

57

See Lebeau, 949 F.3d at 342.

Cepeda, 2025 CCA LEXIS 320 at *29 (Gruen, J. dissenting.).

58 Rule for Courts-Martial (R.C.M.) 920(e)(1).

See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 112 (2012) (“shall is mandatory”

59

and “ought to be replaceable by either has a duty to or is required

to”) (emphasis in the original).

60 R.C.M. 920(f).

61 R.C.M. 920(g) (2023).

12

understands the rights involved, and the waiver must

be made “freely, knowingly, and intelligently.” 62 No

such exception exists for a waiver of an accurate

instruction that fully details all of the elements of the

offense. Nor should it. This Court should hold that

Due Process precludes an accused from waiving

instructions on accurate descriptions of all of the

elements of the charged offense(s), which means

instructional errors in omitting elements and

misstatements of definitions should always be

assessed for plain error which may or may not be

harmless under Neder.

(2) A consistent definition of “unwelcome” is

needed for military personnel to correctly understand

“sexual harassment.” This legal term of art is not

defined in either the UCMJ or military regulations,

including the DoDI that prohibits sexual harassment

across the services.

The Fifth Circuit defines

“unwelcome” as “unsolicited or unincited and

undesirable or offensive to the [complainant].” 63 Had

this definition of “unwelcome” been considered (if

“unwelcome” had been the standard instructed),

Petitioner would likely have been acquitted, given JJ’s

admission that she initiated a discussion about

performing oral sex in the workplace and showed him

pictures of herself working out. 64

III. The Lower Court’s Decision Conflicts with this

Court’s Decisions on Changing the Theory of

Liability on Appeal, the Definition of “Sexual

62

63

Ibid.

Jones v. Flagship Int’l, 793 F.2d 714, 719 (5th Cir. 1986)

(emphasis added).

64 R. 512, 515-16.

13

Harassment,” and Evaluating Legal Sufficiency of

the Evidence.

The lower court’s majority decision is incorrect for

three reasons. First, it contradicts this Court’s

decision in Dunn v. United States, prohibiting an

appellate court from affirming a conviction based on a

theory of liability different from the theory pursued at

trial. 65 The AFCCA majority upheld Petitioner’s

conviction, and the CAAF essentially affirmed, based

on a non-existent “custom of the service” violation,

which was not pursued at trial, instead of the

presented theory of an Air Force Instruction

violation. 66

This makes a difference, given

acknowledgement that the expired AFI was

insufficient to prove the source of Petitioner’s duty to

not sexually harass JJ. 67

Second, the lower courts’ decision to approve the

definition of “sexual harassment” as “nonconsensual”

instead of “unwelcome” contradicts this Court’s

definition in Meritor Sav. Bank v. Vinson. 68 In

Meritor, this Court held that sexual harassment is

conduct

that

is

“unwelcome”

instead

of

“nonconsensual,” as the purported victim’s voluntary

participation in the conduct was irrelevant. 69 The

distinction

between

“unwelcome”

and

“nonconsensual” is a distinction with a difference, as

one can voluntarily respond to unwanted sexual

advances. 70 However, the lower courts in Petitioner’s

65 442 U.S. 100, 106-07 (1979).

66

67

Cepeda, 2025 CCA LEXIS 320 at *19-22, 28.

Ibid., *29.

68 477 U.S. 57 (1986).

Ibid., 68.

See Lori E. Shaw, Title IX, Sexual Assault, and the Issue of

Effective Consent: Blurred Lines—When Should “Yes” Mean

“No?”, 91 IND. L.J. 1363, 1394 (2016); see also Emily A. Impett

69

70

14

case refused to recognize this nuanced distinction. 71

Third, the manner in which the lower court

conducted its legal sufficiency review was contrary to

Musacchio v. United States, 72 in which this Court held

that the legal sufficiency of the evidence must be

evaluated against the actual elements of the offense,

not the jury instruction. 73 Where an instruction

includes all of the elements of the offense, but

incorrectly adds an element, “the defendant has

received the minimum due process required: a

‘meaningful opportunity to defend’ against the charge

against him and a jury finding of guilt ‘beyond a

reasonable doubt.’” 74

Petitioner’s case is not Mussachio—the military

judge misstated an essential element of the offense of

“sexual harassment” by instructing the panel that it

had to be “nonconsensual” as opposed to

“unwelcomed,” and he omitted two essential elements.

The lower courts failed to compare the legal

sufficiency of the evidence to the actual elements of

Petitioner’s alleged offense. When comparing the

evidence presented at trial to the actual elements of

the offense, the Government’s case was lacking with

respect to Petitioner’s “unwelcomed” conduct, given

JJ’s discussion of oral sex in the workplace and

showing Petitioner pictures of herself working out. 75

The case was also utterly lacking in evidence

regarding the “pervasiveness and severity” of his

and Letitia Anne Peplau, Why Some Women Consent to

Unwanted Sex with a Dating Partner: Insights from Attachment

Theory, 26 PSYCHOLOGY OF WOMEN QUARTERLY, 360–370 (2002).

71 Cepeda, 2025 CCA LEXIS 320 at *32.

72 577 U.S. 237 (2016).

Ibid., 243-44.

Ibid., 243.

75 Jones, 793 F.2d at 719.

73

74

15

conduct such that a reasonable person would perceive

a hostile work environment. Nor was there evidence

that JJ actually perceived her work environment to be

hostile; to the contrary, sexual banter occurred in the

work place so much that she questioned whether there

was any “harassment.” 76 The one instance during

which she alleged Petitioner leaned in to kiss her, she

told him to stop; he stopped. 77 As Judge Gruen noted,

the erroneous instruction “invited the members to

convict Appellant on an uncharged theory, namely

sexual assault, which improperly divorced the sexual

advances or requests for sexual favors from the

required element of affecting one's job, employment,

or career development.” 78

76 R. 520.

77 R. 461-62.

78

Cepeda, 2025 CCA LEXIS 320 at *61 (Gruen, J. dissenting).

16

CONCLUSION

For all of the aforementioned reasons, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

TAMI L. MITCHELL

Counsel of Record

Law Office of Tami L. Mitchell

1459 Morales Place

The Villages, FL 34762

(719) 426-8967

tamimitchelljustice@gmail.com

JORDAN L. GRANDE

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

Jordan.grande@us.af.mil

Counsel for Petitioner