On February 9, 2021, the Air Force Court of Criminal Appeals (ACCA) affirmed the sentence of Appellant Jacob T. Orosco. Appellant was sentenced by a military judge sitting as a general court-martial to a bad-conduct discharge, confinement for 14 months, forfeiture of all pay and allowances, and reduction to E-1. In accordance with his pleas and pretrial agreement (PTA), Appellant was found guilty of four specifications of assault consummated by a battery, in violation of Article 128, UCMJ.
Orosco Opinion Here
Appellant was stationed at Cannon Air Force Base when he met victim, AV, on “Tinder,” an online dating application. AV was also stationed at Cannon Air Force Base. AV went to Appellant’s dormitory on 4 August 2018 and found him intoxicated. AV attempted to drive Appellant to purchase more alcohol, as per his request, but they were unsuccessful and returned to his dormitory. When AV tried to leave, Appellant became violent, hitting, choking, and biting her. Appellant at one point forced AV to perform oral sex on him. After several attempts, AV was able to get away from Appellant and get to her car, but Appellant followed her and jumped in her car as she was trying to drive away. In the vehicle, Appellant continued to slap and choke AV. After 10-20 minutes, two Security Forces patrolmen stopped the car and escorted Appellant back to his dormitory.
Appellant originally faced three charges with six specifications. Charge I included two specifications of sexual assault against AV, in violation of Art 120 of the UCMJ. Charges II and III made up four additional specifications for assault consummated by a battery in violation of Art 128 of the UCMJ. Appellant pleaded guilty to charges II and III. The charge I specifications were withdrawn and dismissed pursuant to a pretrial agreement (PTA). As part of the stipulation of fact, Appellant agreed to the admission of a video recording of AV’s interview with Air Force Office of Special Investigation agents and AV’s written statement, both of which include AV’s description of the sexual acts Appellant committed against her. Appellant also “expressly waived any objection he may have to admission of these facts into evidence at trial” as part of the agreement.
Appellant raised three issues on appeal:
(1) whether trial counsel engaged in prosecutorial misconduct by making improper arguments during sentencing argument; (2) whether he is entitled to sentence relief because his case was not timely docketed with this court; and (3) whether this court should exercise its Article 66, UCMJ, 10 U.S.C. § 866, authority to address an unpreserved objection of unreasonable multiplication of charges for sentencing.
The court quickly decided that the second claim does not warrant relief under United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
Appellant argued that trial counsel’s sentencing argument focused excessively on the facts related to sexual assault, making Appellant out to be a “violent sexual predator,” despite the fact that the sexual assault specifications were dismissed. The court clarified that prosecutorial misconduct is a question of law, which is reviewed de novo, and because there was no objection at trial, the court must review for plain error. Plain error, in turn, requires that “(1) there is error, (2) the error is clear or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citing Andrews, 77 M.J. at 401 (quoting United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005))), cert. denied, 140 S. Ct. 2566 (2019). The court did not reach the question of the propriety of trial counsel’s statements, and instead found that Appellant did not prove the third prong of the plain error analysis –that there be material prejudice. In assessing the existence of prejudice, the court applied a three-factor test from United States v. Fletcher: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the sentence.” Fletcher, 62 M.J. at 184.
Severity of the misconduct: The court found that trial counsel’s argument did not amount to severe misconduct because it was concise and predominantly focused on the charged offenses, relied only on stipulated facts, and its inferences regarding Appellants sexually related behavior were “reasonable and derived from the evidence.”
Measures adopted to cure the misconduct: The court acknowledged that this factor adds little to the analysis because this was a judge-alone sentencing case. However, the court also found that Appellant failed to introduce evidence that the military judge improperly relied on the allegedly improper arguments or sentenced Appellant for the withdrawn sexual assault charge.
Weight of the evidence supporting the sentence: The court found that the evidence comfortably supported Appellant’s sentence. The stipulation of fact included AV’s video interview with law enforcement and her written account of the events. Both of these sources detailed Appellant’s repeated assault of AV, both in his dormitory and in her car. The court found that violent conduct to be sufficient alone to support Appellant’s sentence.
Through this analysis of the Fletcher factors, the court found that there was no material prejudice to Appellant’s substantial rights and that, therefore, there was not clear error in the sentencing judgement.
Unreasonable Multiplication of Charges
Appellant’s third argument on appeal was that the court should exercise its authority under Article 66, UCMJ, to address unreasonable multiplication of charges for sentencing. Unreasonable multiplication of charges is premised on the principle that “what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.” R.C.M. 307(c)(4).Appellant therefore argued that because he was charged with four specifications of assault, all of which occurred during a one-hour period, the court should grant relief. However, the court declined to do so because Appellant had expressly waived “any waivable motions” as part of the PTA, and the right to raise unreasonable multiplication of charges is waivable.
The court affirmed Appellant’s sentence of bad-conduct discharge, 14 months confinement, forfeiture of all pay and allowance, and reduction to E-1.
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