CAAF decided the Air Force case of United States v. Elespuru, No. 14-0012/AF, 73 M.J. 326 (CAAFlog case page) (link to slip op.), on Tuesday, July 15, 2014. The court finds that Appellant knowingly waived his multiplicity claim. Nevertheless, the court dismisses one of the offenses at issue; not for multiplicity, but instead because the Government made it clear that the offense was charged in the alternative.

Judge Ryan writes for a practically-unanimous court. Chief Judge Baker concurs in the result but dissents from the majority’s finding of waiver.

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 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.

CAAF granted review to determine:

Whether Specifications 2 [abusive sexual contact] and 3 [wrongful sexual contact] of Charge I are multiplicious.

Slip op. at 2 (modification in original). Appellant’s victim fell asleep after a night of drinking. While she was sleeping, Appellant repeatedly touched her body. She awoke each time, told him to stop, and then fell back asleep. This cycle repeated four times.

The Government charged Appellant with abusive sexual contact (Article 120(g) (2006)) (an offense that involves engaging in sexual contact with someone substantially incapable of declining participation in, or communicating unwillingness to engage in, the sexual contact) and wrongful sexual contact (Article 120(m) (2006)) (an offense that involves unlawful sexual contact with another person without their permission). At trial, Appellant “submitted a Motion for Unreasonable Multiplication of Charges for Findings or Finding Charges Multiplicious for Sentencing.” Slip op. at 4. The Government responded “that the offenses were charged not as lesser included offenses, but in the alternative for exigencies of proof,” and that if Appellant were convicted of both offenses then the court “should merge the offenses for calculation of maximum punishment.” Slip op. at 4. Discussing the motion, Appellant’s defense counsel “conceded that the elements test for lesser included offenses was not met and that Appellant’s charge of wrongful sexual contact was not a lesser included offense of abusive sexual contact.” Slip op at 4.

Appellant was then convicted of both offenses and they were merged for sentencing. This merger meant that Appellant was sentenced only for the greater offense (abusive sexual contact). But on appeal Appellant asserted that the lesser offense should be dismissed because it is a lesser included offense of the greater offense. This assertion was directly contrary to the position advanced at trial.

And yet, CAAF grants Appellant the requested relief, dismissing the wrongful sexual contact offense. The court does so because “the Government charged and tried the abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof.” Slip op. at 9. And it does so unanimously. However, CAAF also finds that Appellant “knowingly waived his right to assert a multiplicity claim on appeal.” Slip op. at 8.

Chief Judge Baker dissents from the waiver decision, asserting that “it is not clear why the majority is reaching so hard to find waiver in a case in which the Court’s unanimous decision renders the issue moot.” Diss. op. at 3. But the Chief Judge’s quest for clarity is likely rhetorical because had the court accepted Appellant’s argument against waiver, it would have marked a major shift in the court’s precedent for claims of ineffective assistance of counsel.

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” Slip op. at 6 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). At trial, Appellant’s counsel explicitly acknowledged that “the elements test [was] not met in this case.” Slip op. at 6 (modification in original). Further, when the military judge asked if wrongful sexual contact is a lesser included offense of abusive sexual contact, “the defense counsel stated, ‘I would argue, no.'” Slip op. at 6. That wasn’t a dodge or an equivocation, and a more clear waiver would be hard to find. As Judge Ryan writes:

It is thus apparent, under the particular facts of this case, that “‘counsel consciously and intentionally failed to save the point and led the trial judge to understand that counsel was satisfied.’” United States v. Mundy, 2 C.M.A. 500, 503, 9 C.M.R. 130, 133 (1953). Accordingly, we find that Appellant knowingly waived his right to assert a multiplicity claim on appeal.

Slip op. at 8. But then, in his brief to CAAF, Appellant asserted:

[T]hose statements are 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). And this position was maintained during the oral argument before the court.

The Government rightly responded that this isn’t an argument against waiver, rather “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 an appellant has a heavy burden when asserting that he suffered from ineffective assistance of counsel (IAC) at trial. He must prove both that his counsel’s performance was deficient and that the deficiency resulted in prejudice. United States v. Green, 68 M.J. 360, 361 (C.A.A.F.) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). His counsel’s performance is given great deference, and the prejudice must be significant enough to “undermine confidence in the outcome” of the trial. Strickland, 446 U.S. at 693. Had CAAF accepted the argument advanced by Appellant in this case – that his counsel’s confusion precluded waiver –  it would have upended its IAC doctrine by allowing any appellant to avoid the Strickland burden with an argument that his counsel was simply confused.

Perhaps this is why it took CAAF so long to decide this case: 183 days from the oral argument (on Jan. 13) to the decision (on Jul. 15). That’s by far the longest delay from argument to decision this term. The next closest is United States v. Finch, 73 M.J. 144 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page) with a mere 148 days from argument (Oct. 9) to decision (Mar. 6). And of the eight undecided cases that were argued this term (Jones, Moon, Davenport, MacDonald, Treat, Leahr, McPherson, and Wilson), the oldest is Jones at 97 days (and counting) since argument on Apr. 9. But the only way Jones takes longer than Elespuru to decide is if CAAF releases its opinion well into the next term.

It’s also notable that Judge Ryan’s decision for the court is a mere eleven pages long, with Chief Judge Baker’s separate opinion taking just three more pages. That’s not the shortest of the term (so far it’s a tie between the unanimous decisions in Cimball Sharpton and Mead, at nine pages each; runner-up status goes to the nine-page majority decision in Warner), but I think it says something that CAAF took so long to say so little.

Ultimately though, Judge Ryan does take something of a hard line over the Government’s trial-stage representation:

For although the evidence adduced both supports a finding that AEL was substantially incapable of declining participation or communicating unwillingness to engage in the sexual contact, and that, when she had moments of consciousness and lucidity, she made clear that she did not give permission, that was not the Government’s theory at trial, although it was the basis upon which the AFCCA affirmed both specifications. Thus, under the facts of this case we disapprove the finding of guilty for wrongful sexual contact.

Slip op. at 9. In other words, while Judge Ryan finds that the court could affirm both convictions, CAAF reverses because the Government’s position at trial suggested that only one conviction should stand.

I can’t help but wonder if this hard line isn’t the result of a compromise in a deadlocked court; a way to find waiver while also granting relief.

Case Links:
• AFCCA opinion
• Blog post: CAAF grant on multiplicity issue
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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