Figuereo presents a case where the court found a valid claim of ineffective assistance of counsel based on a conflict of interest created by the lead military defense counsel. The court did, however, limit the IAC to the sentencing case. The court also set-aside an enlisted panel's findings of another offense. In reassessment the court set-aside 10 months of confinement (which the appellant had already served by then) and left in place three months of confinement.
a total of 13 months’ confinement, total forfeiture of pay and allowances, and a bad-conduct discharge. The confinement portion of the sentence was segmented. Ten months of the confinement sentence was attributed to the specification of abusive sexual contact, Article 120, UCMJ, and was to run consecutively with the rest of the confinement term (three months) attributed to the other charges and their specifications. For the charges and their specifications to which the Appellant pleaded guilty, the military judge imposed between two and three months’ confinement all to run concurrently with each other.
The facts surrounding the IAC are not pretty, and you should read them for yourself. When done, consider (1) what can and cannot be said to a defense witness about contacting an alleged victim of a sexual assault after that victim has testified, and (2) should you get that wrong how should you go about explaining your actions when they are brought up when trial counsel brings them up as creating a conflict of interest. And in the process avoid getting your name in the court's opinion.
In London, the members convicted the appellant of involuntary manslaughter. The NMCCA finds the conviction factually insufficient.
Appellant argues that the Government failed to prove that he punched Mr. Hotel, that the testimony and forensic evidence failed to prove that Mr. Hotel was punched, and that the forensic evidence showed that Mr. Hotel’s injury was consistent with falling backwards from pulling on Appellant’s sweatshirt rather than being punched.
The case for and against London heavily depended on forensic evidence--pathology and toxicology. There were eyewitnesses, but none could testify to crucial facts against the appellant--none saw appellant punch the victim. Essentially the government was arguing that Appellant did punch the victim which caused the victim to have an "accelerated fall," which caused a skull fracture and, ultimately death. Essentially the defense argued that the victim was pulling on Appellant's sweatshirt so strongly that it caused indicia of strangulation and was so hard it ripped the sweatshirt, and then when the sweatshirt ripped the intoxicated victim fell and struck his head.
United States v. Hamlin, __ M.J. ___ (N-M Ct. Crim. App. Apr. 31, 2023)
Upon consideration of the record of trial and appellate defense counsel’s pleading submitted without specific assignment of error, this Court directed briefing on the following specified issue:
This is a guilty plea case. The appellant used Snapchat to send the victim a video of himself. The court relies on United States v. Tabor, 82 M.J. 637 (N-M. Ct. Crim. App. 2022) for the proposition that the phrase requires "the conjunction of time and place." Tabor is the awake and aware case.
[I]n order to be provident to the crime of sexual assault of a child by indecent conduct, an appellant must have committed the acts “in the presence of” the child as defined in Tabor. Presence can, of course, be “constructive” meaning via communication technology in order to accomplish both a spatial and temporal element. In that respect, we agree with the Government that communication technology can effectively remove the requirement that the perpetrator and victim occupy the same physical space. However, the medium of communication technology still requires temporal presence. In this case, the Government alleged and Appellant agreed that the act was done via communication technology which, in this case, satisfies physical presence. That said, the temporal “presence” requirement still remains—meaning despite communication technology being the mode, we still must determine whether the lewd act was done in the temporal presence of the victim. Current case law requires the presence of both parties, at the same time— either physically or virtually—when the alleged conduct occurs. We find that this means without delay because presence requires both physical presence (which, as discussed, can and was satisfied by communication technology (“there”) as well as temporal presence (“then”).
The Tabor court did have some discussion about the possibility of an LIO for an attempt; not so in Hamlin.
Just as NMCCA appears to be recovering from a break, so are we--more updates to come.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.