United States v. Private E1 CARLOS A. GONZALES-GOMEZ, 2016 CCA LEXIS 694

Background

Appellant, a soldier, was convicted by a court-martial of forcible sodomy, abusive sexual contact, wrongful sexual contact, and several non-sex offenses; sentenced to a dishonorable discharge and six years confinement; convening authority approved.
The sexual offenses arose from a single sexual act in which appellant engaged in anal intercourse with an unconscious fellow soldier after heavy drinking.
After findings, the government moved to dismiss the two sexual-contact specifications as unreasonably multiplied with the forcible sodomy specification; the military judge denied dismissal but merged all three for sentencing to preserve appellate remedies.
The military judge explained denial was to avoid an appellate windfall if the forcible sodomy conviction were later set aside; the judge did not decide the merits of multiplication.
The convening authority took action 641 days post-trial; production and service of the 765-page record took 406 days and another 180 days to mail; the SJAR was not signed until 610 days post-trial. The government conceded the delay lacked reasonable explanation.
The court found the sexual-contact specifications were unreasonably multiplied and dismissed them; it also reduced the sentence by 180 days for unreasonable post-trial delay (but did not find a due-process violation as the majority), restoring certain rights accordingly.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether multiple sexual-contact specifications were unreasonably multiplied with forcible sodomy	Appellant: convictions for multiple offenses arising from the same act are unreasonably multiplied and should be dismissed or consolidated	Government: sought dismissal at trial but opposed on appeal? (on appeal government did not oppose dismissal) Military judge refused dismissal to preserve convictions for appeal	Court: two sexual-contact specifications were unreasonably multiplied with forcible sodomy; dismissed both specifications
Appropriate remedy when trial judge merges but does not dismiss unreasonably multiplied charges	Appellant: trial court should dismiss or conditionally dismiss to avoid over-conviction and appellate complications	Government: preferred preserving convictions for appeal (initially moved to dismiss at trial; on appeal agreed to dismissal)	Court: endorses conditional dismissal as appropriate option; here dismissed two specifications on appeal
Effect of trial judge saving issue for appeal (merging but not deciding)	Appellant: harms appellant by leaving him convicted of extra offenses during appeal; deprives appellate court of trial court’s reasoning	Government: argued preservation for appeal justified to prevent windfall	Court: criticizes saving for appeal; explains harms and urges judges to rule on merits or use conditional dismissal
Whether post-trial delay violated due process and what relief is appropriate	Appellant: sought relief for 641-day post-trial delay (over presumptively reasonable) — claimed due-process violation or, at minimum, sentence relief	Government: conceded delay unexplained and agreed relief appropriate; did not oppose sentence reduction	Court: majority found no due-process violation but awarded 180 days sentence credit for unreasonable post-trial delay; concurrence would have found a due-process violation

Key Cases Cited

United States v. Thomas, 74 M.J. 563 (N.-M. Ct. Crim. App. 2014) (guidance endorsing consolidation or conditional dismissal for unreasonably multiplied charges)
United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (standard for unreasonable multiplication of charges)
United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997) (discussion of conditional dismissals to protect government interests on appeal)
United States v. Parker, 75 M.J. 603 (N.-M. Ct. Crim. App. 2016) (example where a conviction was dismissed and a conditionally dismissed specification revived on review)
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002) (requirement to consider unexplained post-trial delay when reviewing sentence)
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) (due-process standard for extraordinary post-trial delay)