With a published opinion in United States v. Leal, __ M.J. __, No. 24949 (C.G. Ct. Crim. App. Oct. 19, 2017) (link to slip op.), the Coast Guard CCA reverses a conviction of abusive sexual contact and dismisses the specification, finding that it fails to state an offense because the specification does not allege touching of a body part. Chief Judge McClelland writes:
The specification of which Appellant was found guilty alleges that Appellant committed sexual contact upon NP, “to wit: pulled down the shorts and underwear of [NP] with his hands, exposing [NP]’s buttocks, when the accused knew or reasonably should have known that [she] was asleep.”
Article 120(g)(2) defines sexual contact, in relevant part, as “(A) touching . . ., either directly or through the clothing, the . . . buttocks of any person,” with a certain intent; or “(B) any touching . . ., either directly or through the clothing, any body part of any person,” if done with a certain intent.
The specification in this case does not allege the touching of the buttocks or any other body part of NP. While it may seem impossible to pull down a person’s shorts and underwear without touching a body part at least through the shorts and underwear, the specification does not allege any touching. That the buttocks are alleged to have been exposed does not change the fact that no touching is alleged.
Slip op. at 2.
The opinion is short because at trial, “after the Government presented its case, Appellant moved to dismiss the specification for failure to state an offense.” Slip op. at 3. The military judge denied the motion, and Chief Judge McClelland explains that “the remedy for this erroneously denied motion to dismiss is dismissal.” Slip op. at 3 (quoting United States v. Fosler, 70 M.J. 225, 233 (C.A.A.F. 2011)).
Leal was only convicted of the single specification of abusive sexual contact. The CCA concludes:
We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings of guilty of the charge and specification are set aside and the charge and specification are dismissed. A new trial may be ordered upon a different specification.
Slip op. at 3 (emphasis added). Double jeopardy problems? Nope. Jeopardy is based on the offense. Since the specification failed to state an offense, there was no jeopardy.