Recent AFCCA Opinion: United States v. Da Silva

Below is a brief description of a recent AFCCA opinion.

Appellant was convicted of making sexual advances under Article 92, UCMJ. On appeal, AFCCA considered (1) whether the specifications are void for vagueness from lack of fair notice that “making sexual advances” was criminal; (2) whether the evidence was legally and factually sufficient; (3) whether the military judge abused his discretion by allowing victim unsworn statements; (4) whether the discharge was an inappropriately severe sentence; (5) whether a meaningful opportunity for clemency was denied when the SJAR failed to advise the convening authority that he had the authority to grant clemency; and (6) whether trial counsel’s sentencing argument was improper.[1] In a unanimous opinion, the AFCCA affirmed the findings and the sentence of the trial court.[2]
 
          I. The Term “Making Sexual Advances” Is Not Vague
 
Appellant challenged the term “making sexual advances,” arguing that it should be void for vagueness because it was not clearly defined. The government disagreed, arguing that the Appellant had fair notice of the term from several sources, including caselaw, military regulation, and recruiter training. Ultimately, the Court found that the term had an ordinary meaning and an ordinary person would understand that the conduct was prohibited.
 
          II. The Evidence Was Legally And Factually Sufficient, And The Judge Did Not Abuse His                  Discretion In Admitting the Unsworn Statements
 
Appellant challenged his conviction, claiming there was not enough evidence to find him guilty beyond a reasonable doubt. However, since (1) Appellant kissed the alleged victim; (2) drove her to an empty parking lot; and (3) made inappropriate comments about her appearance, a reasonable fact finder could have determined that he made sexual advances.
 
Additionally, after determining that the women were crime victims[3] through an analysis of their interactions with the Appellant, the Court found that their statements properly were admitted because they did not substantially influence the sentencing.
 
          III. Appellant Did Not Receive An Inappropriately Severe Sentence
 
Appellant argued that his sentence was inappropriately severe due to his admirable service record, citing awards he received over his time in service. However, due to the nature and severity of the crimes, the Court did not think the sentence was inappropriate.
 
          IV. Appellant’s Meaningful Opportunity for Clemency Was Not Denied
 
Appellant argued that the convening authority should have been informed of his power to grant clemency. But, the Court determined that the convening authority would not have granted clemency, even if he were explicitly informed, given the facts of the case.


[1] Since there was no objection during trial, the Court dismissed the sixth issue without further consideration.

[2] Judge Lewis authored the majority opinion, which was joined by Judges Posch and D. Johnson.

[3] A crime victim is someone who has suffered direct physical, emotional, or pecuniary harm as the result of an offense of which the accused was found guilty.

Luke Alter

Intern