John A. Evangelista v. United States

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 Petitioner’s case was pending on appeal, the Court of Appeals for the Armed Forces (CAAF) decided that multiple 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); United States v. Moore, 86 M.J. 308, 312 (C.A.A.F. 2026). In those cases, the 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. The question presented is: Were the factfinders able to convict Petitioner on an invalid alternate theory of liability after being instructed on the statutory definition of consent?