CAAF will hear oral argument in the Air Force case of United States v. Elespuru, No. 14-0012/AF (CAAFlog case page), on Monday, January 13, 2014. The court will consider a single issue:
Whether Specifications 2 and 3 of Charge I are multiplicious.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification each of abusive sexual contact upon a substantially incapacitated person, wrongful sexual contact, and of assault consummated by a battery, in violation of Articles 120 (2006) and 128. He was sentenced to reduction to E-1, confinement for 36 months, and a dishonorable discharge.
The issue in this case involves the separate offenses of “abusive sexual contact upon a substantially incapacitated person” and “wrongful sexual contact.”
The misconduct underlying the two specifications at issue here consisted of Appellant touching AEL’s breasts and vagina as she was sleeping in his residence at Kadena Air Base, Japan. The touching occurred over four separate incidents. During each incident, AEL awoke to Appellant touching her breasts and her vagina with his hands. AEL would tell Appellant to stop, and he would. AEL would fall back to sleep and be awoken again by the Appellant touching her.
App. Br. at 2 (citation to record omitted). The version of Article 120 signed into law in 2006, and in effect at the time of Appellant’s misconduct, included separate prohibitions on “abusive sexual contact” (Article 120(g)), and “wrongful sexual contact” (Article 120(m)). Abusive sexual contact included engaging in sexual contact with someone who was substantially incapable of declining participation in the sexual contact or communicating unwillingness to engage in the sexual contact. Wrongful sexual contact was any unlawful sexual contact with another person without their permission. Notably, lack of consent is not an element of abusive sexual contact (because the other person is “substantially incapable” of declining or communicating unwillingness), but it is an element of wrongful sexual contact (because the contact must be “without that other person’s permission”).
Appellant was charged with both offenses because “Appellant’s conduct involved attacks on his victim while she was incapacitated and while she was [not] incapacitated. The United States would not have been able to capture Appellant’s full criminal conduct in one specification.” Gov’t Br. at 2. At trial, Appellant’s defense counsel moved to merge the abusive sexual contact and wrongful sexual contact specifications into one, asserting that they were an unreasonable multiplication of charges. The defense counsel did not argue that the specifications were multiplicious, but instead conceded that “[t]he elements test is not met in this case and that wrongful sexual contact [i]s not a lesser included offense of abusive sexual contact.” App. Br. at 5.
So the first question CAAF will answer is whether Appellant waived this issue by his counsel’s concession at the trial stage.
Appellant’s brief argues against waiver, asserting instead that the concession was “a result of counsel’s confusion regarding the application of the elements test for multiplicity, not an express and knowing and intelligent waiver by Appellant.” App. Br. at 7 (emphasis in original). The Government’s response rightly points out that “this argument is actually an ineffective assistance of counsel claim which Appellant never raised on appeal and [is] not properly before this Court.” Gov’t Br. at 5 N.3.
But assuming CAAF does not consider the issue waived, there’s still the interesting question of whether CAAF will test the case for preserved error or plain error. If CAAF finds that the trial objection fairly raised the issue of multiplicity and preserved the issue (unlikely considering the concession), Appellant’s burden to get relief will lighten significantly. However, if CAAF finds that the issue was forfeited by failure to litigate it at the trial stage, Appellant will have to meet the three prongs of the plain error test: Error, that was plain and obvious, and that caused material prejudice to a substantial right.
On the question of error, Appellant asks CAAF to find that wrongful sexual contact is a lesser included offense of abusive sexual contact. He does so by asserting that the “elements test” that CAAF returned to in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (link to CAAFlog discussion) is more than “a wooden verbatim comparison between elements.” App. Br. at 8. Rather, Appellant argues that the test “requires a careful comparison of the statutory elements for each offense to determine whether the elements of one offense are necessarily included in the other.” App. Br. at 9.
The key differences between the offenses, and the reason for Appellant’s trial defense counsel’s concession on the motion, are the element of “substantial incapability” in the abusive sexual contact charge, and the elements of “without permission” and “wrongfulness” in the wrongful sexual contact charge. Appellant’s brief asserts that “lack of consent and wrongfulness are implied and necessary elements of abusive sexual contact,” making wrongful sexual contact a lesser included offense of abusive sexual contact. App. Br. at 11. The Government’s brief disputes Appellant’s premise, arguing that “the fact-pattern in this case represents only one of a number of different scenarios in which a lack of consent is not ‘subsumed’ into incapacitation.” Gov’t Br. 10. Sadly, the Government’s brief provides no examples of the “number of different scenarios.” Counsel will likely get a chance to provide these examples, and debate their adequacy, during the oral argument.
A final issue is the question of remedy, as the two offenses were merged for the purpose of determining the maximum sentence. Because a court-martial sentence is not adjudged for each individual offense, but instead is based on a maximum sentence that is calculated by adding together the maximums for each individual offense, that sentence is de facto consecutive. Merging offenses for sentencing means adding only the greatest of the merges offenses into the maximum punishment computation, essentially creating a concurrent sentence for the merged offenses. Unfortunately, while the military judge merged the sexual offenses in this case, “the members were not instructed that the Appellant could not be punished for both offenses.” App. Br. at 4. This seems like a glaring omission. The members are presented with a maximum possible sentence, not a calculation with the judge showing his work. Merging two sexual offenses without explanation means nothing to people who aren’t lawyers.
However, while the briefs don’t say what the maximum confinement was, I calculate it at 8.5 years without merger of any offense. Of that, seven years are from the abusive sexual contact offense and only one year is from the wrongful sexual contact (with the assault providing the six months). Regardless of CAAF’s resolution of this case, at least 7.5 of that 8.5 year maximum was properly before the members, and with the merger for sentencing that’s the maximum was included in the instructions from the judge. Moreover, the members certainly knew that the offenses arose out of a single encounter (and they acquitted Appellant of a greater sexual offense, also related to that encounter). So the omission of a detailed instruction on merger certainly looks like harmless error.
Appellant may convince CAAF that wrongful sexual contact is a lesser included offense of abusive sexual contact, and he may win dismissal of the lesser offense, but it likely won’t change the sentence.