Navy-Marine Corps Court of Criminal Appeals

United States v. Figuereo

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.

Initially, the military judge accepted the appellant's guilty pleas to several charges and specifications. The members convicted appellant of one specification of abusive sexual contact. The guilty plea was for wrongfully consuming alcohol while underage; two specifications of wrongful use of marijuana; two specifications of wrongfully communicating a threat; three specifications of assault consummated by a battery; and one specification of drunk and disorderly conduct. The military judge sentenced the appellant to 

​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.

United States v. London

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 Government here argues that there are three ways in which the circumstantial evidence in this case proves Appellant’s guilt. First, the medical expert testimony eliminated other potential causes for Mr. Hotel’s injuries. Second, the combination of medical evidence and witness testimony show that Appellant punched Mr. Hotel, while Appellant’s false explanation to a physician about his broken hand and his expression of remorse over the fight demonstrate consciousness of guilt. And third, the evidence shows that Appellant was the only one of his party close enough to Mr. Hotel to cause his injuries.

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:

     Is there a substantial basis in law or fact to question Appellant’s guilty plea to the Specification of Charge II (Sexual Abuse of a Child) where Appellant stated during the providence inquiry that he video-recorded himself engaging in the charged indecent conduct and then sent the video via an online application to Ms. Bravo, which she then viewed? Under such circumstances, was the indecent conduct done “in the presence of” Ms. Bravo as charged?

After reviewing the record and the pleadings from both Appellant and Government Counsel, we find error and dismiss Charge II, affirm the findings as to Charge I, and reassess and affirm the sentence.

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.

Cheers.

Just as NMCCA appears to be recovering from a break, so are we--more updates to come.