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.

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Audio of today’s oral arguments is available at the following links:

United States v. Hornback, No. 13-0442/MC (CAAFlog case page): Oral argument audio

United States v. Elespuru, No. 14-0012/AF (CAAFlog case page): Oral argument audio

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.

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On Tuesday CAAF granted review in United States v. Elespuru, No. 14-0012/AF, with the following issue:

Whether Specifications 2 and 3 of Charge I are multiplicious.

The court ordered briefs, but even if the specifications are multiplicious this case looks to be a likely candidate for a summary decision without oral argument, as the Air Force CCA considered this issue and determined:

Considering the record of trial and the legal arguments presented by both sides, we do not find that the military judge abused his discretion by failing to dismiss one of the specifications before findings and, rather, deciding to merge them for sentencing. We also note he did not dismiss one of these two specifications, even after the appellant was found guilty of both. We do not find this to be an error either.

United States v. Elespuru, No. 38055 (A.F.Ct.Crim.App. Jul. 9, 2013) (per curiam) (emphasis added) (slip op. here). Merging for sentencing in what appears to be a judge alone case (the CCA opinion doesn’t specify) obviates any prejudice in the sentence (though there is still prejudice from multiple convictions).