United States v. Elespuru , 73 M.J. 326 ( 2014 )

UNITED STATES, Appellee
v.
Nicholas R. ELESPURU, Airman First Class
U.S. Air Force, Appellant
No. 14-0012
Crim. App. No. 38055
United States Court of Appeals for the Armed Forces
Argued January 13, 2014
Decided July 15, 2014
RYAN, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY, and OHLSON, JJ., joined. BAKER, C.J., filed a separate
opinion concurring in part and dissenting in part.
Counsel
For Appellant: Captain Isaac C. Kennen (argued).
For Appellee: Major Daniel J. Breen (argued); Captain Matthew
J. Neil and Gerald R. Bruce, Esq. (on brief); Colonel Don M.
Christensen.
Military Judge: Vance H. Spath
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Elespuru, 14-0012/AF
Judge RYAN delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of Charge I,
Specification 2, divers occasions of abusive sexual contact, in
violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2006) (amended by National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,
§ 552, 119 Stat. 3136 (2006)); Charge I, Specification 3, divers
occasions of wrongful sexual contact, in violation of Article
120, UCMJ; and Charge II, Specification 1, assault consummated
by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928(2006). Consistent with his pleas, Appellant was found not
guilty of two specifications: aggravated sexual assault and
assault consummated by a battery. The adjudged and approved
sentence provided for a reduction to E-1, thirty-six months of
confinement, and a dishonorable discharge.
The United States Air Force Court of Criminal Appeals
(AFCCA) affirmed the findings and sentence as approved by the
convening authority. United States v. Elespuru, No. ACM 38055,
2013 CCA LEXIS 644, at *14, 2013 WL 3969545, at *4 (A.F. Ct.
Crim. App. July 9, 2013) (per curiam). We granted Appellant’s
petition to review the following issue:
WHETHER SPECIFICATIONS 2 [ABUSIVE SEXUAL CONTACT] AND
3 [WRONGFUL SEXUAL CONTACT] OF CHARGE I ARE
MULTIPLICIOUS.
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Appellant knowingly waived his multiplicity claim.
However, we set aside the wrongful sexual contact conviction --
Charge I, Specification 3 -- because the Government charged
these specifications in the alternative for exigencies of proof
and he remains convicted of both offenses.
I. FACTS
One evening in August 2010, AEL consumed a number of
alcoholic beverages, including a beer at a bowling alley
followed by “a vodka cranberry, a Jell-O shot, and [a mini-
bottle]” at another location. Later that night, she went to
Appellant’s apartment where she ingested prescription medication
that made it difficult for her to stay awake, and she fell
asleep on Appellant’s couch. Appellant then proceeded to touch
AEL on four distinct occasions –– each occasion separated by AEL
awaking, telling Appellant to stop, and Appellant complying
until after AEL fell back asleep. On the first occasion, she
awoke to his hand touching her breast on the outside of her
shirt. On the second, she awoke to Appellant touching her
breast inside her shirt. On the third, she woke up to his hands
touching her vaginal area over her shorts. On the fourth, she
awoke to Appellant’s hands inside her underwear in the vaginal
area.
Based on this conduct, Appellant was charged with both
abusive sexual contact and wrongful sexual contact. Appellant
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submitted a Motion for Unreasonable Multiplication of Charges
for Findings or Finding Charges Multiplicious for Sentencing.
While discussing this motion, 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. The trial counsel
and military judge agreed.
In response to Appellant’s argument that there was an
unreasonable multiplication of charges, the Government stated
that the offenses were charged not as lesser included offenses,
but in the alternative for exigencies of proof. The Government
stated that it included the wrongful sexual contact
specification because this specification was easier to prove
than abusive sexual contact, given the inherent difficulties of
establishing an individual’s incapacitation through the
testimony of someone who was incapacitated at the time of the
alleged offense. Trial counsel therefore agreed that, “In the
event [Appellant] is found guilty of Charge I Specification 2
[abusive sexual contact] and Charge I Specification 3 [wrongful
sexual contact] this Court should merge the offenses for
calculation of maximum punishment.” The military judge denied
Appellant’s motion with respect to the unreasonable
multiplication of charges but stated that if Appellant was
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convicted on both charges that they would be merged for
sentencing.
After the members found Appellant guilty of both abusive
sexual contact and wrongful sexual contact, the military judge
reduced the maximum sentence of eight-and-one-half years to
seven and one-half years as a result of the merger of these
specifications for sentencing, while including time for the
assault charge. See Manual for Courts-Martial, United States
Maximum Punishment Chart app. 12 at A12-4, A12-5 (2008 ed.)
(MCM).
II. AFCCA DECISION
On appeal to the AFCCA, Appellant asserted, among other
things, that the specifications for abusive sexual contact and
wrongful sexual contact were multiplicious. Brief for Appellant
at 10, Elespuru, No. ACM 38055, 2013 CCA LEXIS 644, 2013 WL
3969545 (A.F. Ct. Crim. App. Oct. 5, 2012). The AFCCA
characterized the issue as one of unreasonable multiplication of
charges and found no such unreasonable multiplication. 1
Elespuru, 2013 CCA LEXIS 644, at *9-*10, 2013 WL 3969545, at *3.
1
Appellant’s AFCCA brief and the AFCCA’s decision are a reminder
for counsel and military judges alike to distinguish accurately
between multiplicity and an unreasonable multiplication of
charges. See United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2012). Whereas multiplicity addresses double jeopardy
principles, unreasonable multiplication is aimed at preventing
“prosecutorial overreaching.” Id.5
United States v. Elespuru, 14-0012/AF
III. DISCUSSION
A.
Contrary to his position at trial, Appellant now argues
that the Blockburger v. United States elements test requires
that this Court dismiss his wrongful sexual contact conviction
-- Charge I, Specification 3 -- as a lesser included offense of
his abusive sexual contact conviction -- Charge I, Specification
2. See 284 U.S. 299, 304 (1932). “‘The prohibition against
multiplicity is necessary to ensure compliance with the
constitutional and statutory restrictions against Double
Jeopardy . . . .’” Campbell, 71 M.J. at 23 (quoting United
States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). “Offenses
are multiplicious if one is a lesser-included offense of the
other.” United States v. Leak, 61 M.J. 234, 248 (C.A.A.F. 2005)
(internal quotation marks omitted). That determination is made
by utilizing the elements test. United States v. Jones, 68 M.J.
465, 470 (C.A.A.F. 2010).
“A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege.” Johnson v. Zerbst,
304 U.S. 458, 464 (1938). “There is a presumption against the
waiver of constitutional rights,” Brookhart v. Janis, 384 U.S.
1, 4 (1966), although “[n]o magic words are required to
establish a waiver.” United States v. Smith, 50 M.J. 451, 456
(C.A.A.F. 1999). “The determination of whether there has been
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an intelligent waiver . . . must depend, in each case, upon the
particular facts and circumstances surrounding that
case . . . .” Johnson, 304 U.S. at 464.
At trial, Appellant asserted that there was an unreasonable
multiplication of charges for findings. Since at least Quiroz,
a primary factor to be considered in ruling on such a motion is
“whether each charge and specification is aimed at distinctly
separate criminal acts.” Campbell, 71 M.J. at 24 (discussing
Quiroz, 55 M.J. at 338). Thus, while addressing the claim of
unreasonable multiplication of charges, the military judge and
defense counsel expressly considered whether the two offenses
were separate criminal acts by discussing whether wrongful
sexual contact is a lesser included offense of abusive sexual
contact. This inquiry, in turn, expressly referenced the
elements test.
Indeed, defense counsel acknowledged that “[t]he elements
test [was] not met in this case.” Additionally, in response to
the military judge’s question, “is the specification of wrongful
sexual contact [a lesser included offense] of abusive sexual
contact?,” the defense counsel stated, “I would argue, no.”
Moreover, Appellant does not contend that the relevant law has
changed since trial. Cf. United States v. Henry, 472 F.3d 910,
914 (D.C. Cir. 2007) (recognizing that an intervening change in
the law can create an “exceptional circumstance” that overcomes
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waiver). 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.
B.
While Appellant waived his multiplicity claim, a problem
remains. The Government charged and tried the abusive sexual
contact and wrongful sexual contact offenses in the alternative
for exigencies of proof, 2 but nonetheless argues on appeal that
both convictions should stand. While the Government’s charging
strategy was appropriate, we disagree that both convictions may
stand.
2
Specification 2 of Charge I asserted that Appellant did,
on divers occasions engage in sexual contact, to wit:
touching with his hands the genitalia and the breast, of
[the victim] while she was substantially incapable of
declining participation in the sexual contact or
communicating unwillingness to engage in the sexual
contact.
Specification 3 of Charge I alleged that Appellant did,
on divers occasions engage in sexual contact with [the
victim], to wit: touching with his hands her genitalia and
breast, and such sexual contact was without legal
justification or lawful authorization and without the
permission of [the victim].
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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.
As was clear from the colloquy with the military judge
during the motion on unreasonable multiplication of charges, the
Government charged these offenses in the alternative for
exigencies of proof because they believed the abusive sexual
contact specification was more difficult to prove. See
discussion supra p. 4. The Government’s appellate counsel
acknowledged this strategy, explaining, “the existence of
remaining exigencies of proof necessarily required multiple
specifications.” See Brief for the Government at 2, United
States v. Elespuru, No. 14-0012 (C.A.A.F. Dec. 12, 2014). This
was a reasonable decision on the Government’s part:
It is the Government’s responsibility to determine
what offense to bring against an accused. Aware of
the evidence in its possession, the Government is
presumably cognizant of which offenses are supported
by the evidence and which are not. In some instances
there may be a genuine question as to whether one
offense as opposed to another is sustainable. In such
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a case, the prosecution may properly charge both
offenses for exigencies of proof, a long accepted
practice in military law. In cases where offenses are
pleaded for exigencies of proof, depending on what the
plea inquiry reveals or of which offense the accused
is ultimately found guilty, the military judge may
properly accept the plea and dismiss the
remaining offense.
United States v. Morton, 69 M.J. 12, 16 (C.A.A.F. 2010)
(citations omitted).
We have held before that when a “panel return[s] guilty
findings for both specifications and it was agreed that these
specifications were charged for exigencies of proof, it [is]
incumbent” either to consolidate or dismiss a specification.
United States v. Mayberry, 72 M.J. 467, 467-68 (C.A.A.F. 2013);
accord United States v. Wickware, 73 M.J. __, __ (C.A.A.F. 2014)
(order granting review and reversing in part). Dismissal of
specifications charged for exigencies of proof is particularly
appropriate given the nuances and complexity of Article 120,
UCMJ, which make charging in the alternative an unexceptional
and often prudent decision.
Although we set aside the wrongful sexual contact
specification, Appellant remains convicted of abusive sexual
contact, a crime carrying a higher sentence. MCM Maximum
Punishment Chart app. 12 at A12-4. Because the military judge
merged these specifications for sentencing purposes, we find
that, under the facts of this case, Appellant was not prejudiced
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with regard to his sentence. See Elespuru, 2013 CCA LEXIS 644,
at *11, 2013 WL 3969545, at *3.
IV. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Specification 3 of Charge I,
but is otherwise affirmed. The finding of guilty as to Charge
I, Specification 3, is set aside and that specification is
dismissed.
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BAKER, Chief Judge (concurring in part and dissenting in
part):
I join Part III.B. of the majority’s opinion. As drafted,
the specifications charge the same conduct, especially since the
Government chose to allege the conduct as having occurred on
“divers occasions.” That means that the Government was not
charging separate and discrete acts as the lower court
concluded, but instead incorporated all the acts in question
into each specification. In short, as the majority opinion
concludes, these two offenses were charged for contingencies of
proof. As a result, I agree with the decision to set aside the
wrongful sexual contact specification.
However, the Court having set aside the specification at
issue, there seems no need to address waiver or to determine
whether in this case, wrongful sexual contact was a lesser
included offense of abusive sexual contact. Given the legal
uncertainty created by our lesser included offense jurisprudence
at the time of Appellant’s trial, I would not hold in this
circumstance that defense counsel knowingly waived the issue of
multiplicity. First, there is a presumption against
constitutional waiver, which applies in the case of multiplicity
founded as it is on double jeopardy. Second, a succession of
cases leading up to the time of Appellant’s trial provided
anything but clarity as to whether or not wrongful sexual
United States v. Elespuru, 14-0012/AF
contact was a lesser included offense of abusive sexual contact.
See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011)
(housebreaking under Article 130, UCMJ, is lesser included
offense of burglary under Article 129, UCMJ); United States v.
McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (negligent homicide
under Article 134, UCMJ, is not lesser included offense of
involuntary manslaughter under Article 119, UCMJ); United States
v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (negligent homicide
under Article 134, UCMJ, is not lesser included offense of
premeditated murder under Article 118, UCMJ); United States v.
Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (aggravated sexual
assault under Article 120, UCMJ, is lesser included offense of
rape by force under Article 120, UCMJ); United States v.
Yammine, 69 M.J. 70, 76-77 (C.A.A.F. 2010) (indecent acts with a
child under Article 134, UCMJ, is not lesser included offense of
forcible sodomy under Article 125, UCMJ); United States v.
Jones, 68 M.J. 465, 473 (C.A.A.F. 2010) (indecent acts under
Article 134, UCMJ, is not lesser included offense of rape under
Article 120, UCMJ). In such circumstance, it is hard to
conclude that any waiver would be knowing even if there had been
an affirmative waiver -- but there was not. Finally, the
military judge implied that the issue was preserved when he told
counsel, “it is reasonable that if there’s a conviction on both,
both should go up to the Appellate Court to deal with given the
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state of the law with Article 120 that we’ve discussed here.”
It is, therefore, little wonder why the parties at trial and the
military judge seemed confused about the issue.
Under the circumstances, 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.
3