United States v. Elespuru
2014 CAAF LEXIS 712
C.A.A.F.2014Background
- Defendant convicted of abusive sexual contact (Spec 2), wrongful sexual contact (Spec 3), and assault consummated by a battery; pleaded not guilty to others.
- AFCCA affirmed the findings and sentence; issue on multiplicity arose regarding Spec 2 and Spec 3.
- Defendant waived multiplicity on appeal; the case proceeded on two specifications charged in the alternative for proof exigencies.
- Facts: AEL drank, slept at Appellant’s apartment; on four occasions Appellant touched her while she was partially incapacitated, with increasing invasiveness.
- Trial court merged Spec 2 and Spec 3 for sentencing; maximum punishment adjusted accordingly; Appellant convicted of abusive sexual contact, but wrongful sexual contact later set aside on appeal.
- Court reversed AFCCA as to Spec 3, dismissing that specification, while affirming conviction for abusive sexual contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wrongful sexual contact was a lesser included offense | Elespuru argues multiplicity via lesser included offense. | Elespuru maintains waiver; elements test not met. | Waiver found; Spec 3 dismissed; not a lesser included offense for sentencing. |
| May convictions on both exigencies-of-proof specifications stand | Government argues both may stand due to exigencies of proof. | Defense conceded to some extent; trial strategy allowed both for proof. | No; convictions cannot both stand; Spec 3 dismissed; only abusive sexual contact remains. |
| Validity of waiver given law at time of trial | Waiver presumed; defense did not clearly preserve multiplicity issue. | Waiver should be recognized; defense counsel explicitly accepted non-duplicitous framing. | Waiver found; but Court’s majority deem moot after removal of Spec 3; concurrence questions preservation nuances. |
Key Cases Cited
- United States v. Campbell, 71 M.J. 19 (C.A.A.F.2012) (multiplicity framework and waiver considerations in Article 120 cases)
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F.2001) (double jeopardy and multiplicity principles)
- United States v. Jones, 68 M.J. 465 (C.A.A.F.2010) (elements test for lesser included offenses)
- United States v. Mayberry, 72 M.J. 467 (C.A.A.F.2013) (dismissing specifications charged for exigencies of proof)
- United States v. Morton, 69 M.J. 12 (C.A.A.F.2010) (exigencies of proof charging recognized in military law)
- United States v. Arriaga, 70 M.J. 51 (C.A.A.F.2011) ( lesser included offense jurisprudence in UCMJ context)
- United States v. Wickware, 73 M.J. 350 (C.A.A.F.2014) (discretionary consolidation/dismissal of exigencies-of-proof specifications)
- United States v. Henry, 472 F.3d 910 (D.C.Cir.2007) (intervening legal change as exceptional circumstance for waiver)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (elements test for lesser included offenses)