Navy-Marine Corps Court of Criminal Appeals

United States v. Salinas

The resolution of this case should be easy enough. Appellant’s case was docketed almost three months before this Court’s decision in United States v. Marin, [__ M.J. ___ (N-M Ct. Crim. App. 2023)]which held that the crime of attempt requires the Government to prove an accused had the specific intent to commit the underlying offense and, therefore, an accused cannot be charged or convicted of an attempted sexual assault on the basis that he “reasonably should have known” of an underlying condition. Both parties agree that Appellant’s second assignment of error, which challenges his conviction for attempted sexual assault where he “reasonably should have known” the victim was asleep, has merit. They also agree that the constitutional error involved is not harmless beyond a reasonable doubt. And they agree that the findings and sentence should be set aside, and a rehearing authorized, in light of Marin. But both parties nevertheless insist the Court accompany them on separate, quixotic adventures.
. . . 
In other words, the Government asks the Court to end its opinion where it began—with a rehearing.
. . . 
For that predicament, the Defense proposes a novel solution: a Motion for Expedited Review of Appellant’s second assignment of error. The Defense makes clear that Appellant is “not seeking expedited review” of his ineffective assistance of counsel claim, but merely Appellant’s release from confinement “pending resolution [of that issue].” Put another way, the Defense asks the Court order the rehearing required by Marin immediately, and determine later whether his claim of ineffective assistance of counsel merits—another rehearing.
. . . 
This case has been hard fought since its inception. And left unchecked, counsel for both sides may yet devise even more elaborate proposals to fully achieve pyrrhic victories on behalf of their clients. That is their prerogative. But the “duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”