The Court of Appeals for the Armed Forces (CAAF) ruled to reaffirm the Navy-Marine Corps Court of Criminal Appeals (CCA) decision of United States v. Rosario. The case ended in a conviction and sentencing of a sexual harassment charge, despite that conviction being based on the same allegations that led to the acquittal of three counts of inappropriate sexual touching. The court held in a unanimous ruling that one set of facts that lead to an acquittal of one charge could also lead to a conviction of another charge without violating laws against double jeopardy or otherwise creating legal conflict.


Sergeant Rosario plead not guilty to sexual harassment but was convicted by a special court-martial regardless. Within the same court-martial, he was also acquitted of three charges of unlawful, inappropriate touching. The sentencing included a rank demotion and a bad-conduct discharge.

The sexual harassment charge brought against Rosario originated after he made repeated inappropriate comments to a female officer of a lesser rank and stationed below him. When Rosario attempted to challenge the court-martial’s decision, the CCA claimed the touching incidents – which were all three acquitted – formed ample evidential grounds for the sexual harassment charge and its conviction. In essence, it claimed that the acquittal of one offense does not automatically disprove all supporting factual allegations of another offense. When Rosario’s arguments against the CCA reached the CAAF, it, too, rejected his challenge. The CAAF explained that an acquittal represents the denial of a charge, not necessarily of facts.

The result of partial-acquittal, partial-conviction was further backed by the recent conclusion of another CAAF case, United States v. McClour. Within this case, it was reinforced that a judge must find a defendant guilty if there is ample and convincing evidence to suggest he or she is guilty of a crime, regardless of any preexisting or simultaneous acquittals.

With that said, the facts pertaining to his inappropriate behavior could be weighed against all of his charges, which would then be judged separately, despite being based on only one set of facts, allegations, or evidence. The conviction of sexual harassment, therefore, does not conflict with the triple acquittal of inappropriate touching, and does not create a scenario of double jeopardy, as Rosario believed it had.


Rosario’s attempts to appeal the CCA decision also touches upon yet another previous military law case, closed back in 1994, United States v. Smith. Rosario and his legal counsel argued that the judge’s ruling of acquittal for the three acts of unlawful touching in fact exempted any related evidence from further review, and that by using that same evidence to reach a conviction of sexual harassment, the judge relied on allegations that had been deemed explicitly excepted. Through U.S. v. Smith, a judge can use specific language to affirm or deny one finding without exempting or affecting the relevant allegations or facts. The CAAF found that the CCA military judge used language specific enough in the rulings to achieve both conviction and acquittals with no legal error.

Military service members from all branches of the United States Armed Forces turn to Joseph L. Jordan, Attorney at Law whenever they need professional legal counsel for a court-martial or case brought to the CAAF. If you are in a legal bind and worry that your military career could be in jeopardy, contact his law firm at your first opportunity to learn about his services.