Recent NMCCA Decision: United States v. Hoffmann

​In 2013, Appellant was convicted of child sex offenses and the NMCCA affirmed.[1] But, the CAAF set aside the findings, dismissing one charge with prejudice and authorizing a rehearing on the others because the military judge failed to suppress evidence that was unlawfully obtained.[2] At the rehearing, he was convicted of two charges.[3] However, in this appeal, he moved for reconsideration due to new decisions from the CAAF.[4] With his case before the NMCCA for the third time, the Court affirmed unanimously.
 
          

I. The Child Enticement Statute Was Not Preempted 

A crime promulgated under Article 134 is preempted if that crime is codified in any of the other Articles. Appellant argued that Article 120(j), which criminalizes indecent liberties with a child, preempts the crime of child enticement under Article 134.[5] However, the Court found no preemption because Article 120(j)’s plain language did not cover Article 134’s crime of child enticement.
 
          II. The Military Judge Properly Admitted Evidence under M.R.E. 414 

Appellant argued that the military judge should have excluded evidence of two allegations of enticement because those alleged victims could not identify him. But the Court reasoned that the evidence was properly admitted because the evidence, taken together with the facts of this case, satisfied M.R.E 414.
 
          III. The Military Judge Properly Instructed the Members 

Appellant claimed that the members were not properly instructed on the burden of proof. The Court noted that Appellant did not object to the instructions, and nevertheless concluded that the record contained no evidence that the instructions were improper.
 
          IV. The Staff Justice Advocate (SJA) Did Not Prejudice the Proceedings 

Appellant argued that the SJA, who later was disqualified for his prior role in the case, prejudiced the proceedings. [6] But the Court found no prejudice because a deputy SJA independently advised the convening authority after the SJA’s disqualification, which allowed the convening authority to reconsider his initial findings.
 
          V. There Was No Sentencing Disparity 

Appellant contended that his case was closely related to United States v. Rodriquez,[7] so he should have received a sentence similar to that defendant’s sentence.  But the Court found Rodriquez factually distinguishable from Appellant’s case, creating no sentencing disparity between the two.
 
Note: Maj. Thomas Fricton, CAAFlog Military Justice Editor, represented Appellant.


[1] U.S. v. Hoffmann, 74 M.J. 542 (N-M. Ct. Crim. App. 2014).

[2] U.S. v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016).

[3] U.S. v. Hoffmann, No. 201400067, 2018 LEXIS 326 (N-M. Ct. Crim. App. July 9, 2018) (unpub. op.). 

[4] The Court found many of his arguments either (1) foreclosed by CAAF precedent or (2) waived.  The arguments that the Court did consider are summarized below.

[5] Appellant also claimed that (1) the statute failed to state an offense and (2) criminalized lawful behavior, and (3) the members were not properly instructed about it.  But, the Court rejected them.

[6] Appellant also argued that the military judge should have been recused because he was OIC of the organization that prosecuted Appellant.  But the Court found no evidence counseling recusal.

[7] No. 20130577, 2015 CCA LEXIS 551 (A. Ct. Crim. App. Dec. 1, 2015) (unpublished opinion).

James Taglienti

Senior Intern