CAAFlog
  • Home
  • About
    • CAAFlog 2.0
  • Masthead
  • Contact / Submit Guest Post
  • NIMJ.org

CAAFlog

CAAF Opinion: United States v. Cardenas

1/26/2021

5 Comments

 
​In a unanimous opinion written by Judge Sparks, CAAF affirmed the conviction of Sgt. Jesus D. Cardenas. CAAF granted review on the following issue:
 
Whether the Army Court, after finding Appellant’s convictions were multiplicious, erred in permitting the Government to choose which of the Appellant’s convictions to dismiss on appeal.
 
Cardenas opinion here.
 
Background:
Appellant was convicted by a military judge of abusive sexual contact, sexual assault, maltreatment, and obstruction of justice, in violation of Articles 93, 120, and 134, UCMJ. On appeal to ACCA, Appellant’s conviction of sexual assault, as charged, was determined to be a lesser included offense of maltreatment. Under CAAF’s precedent, the Government could elect which multiplicious charge to dismiss to correct the error. Here, the Government elected to dismiss the maltreatment charge because the lesser included offense of sexual assault carried a higher punitive exposure. Given the Government’s election to dismiss the greater offense of maltreatment, and not sexual assault, Appellant petitioned CAAF, arguing that the lesser included offense must be dismissed when there is a multiplicity error.
 
In Cardenas, there does not appear to have been much debate on the granted issue, as the opinion is just six pages long. Truthfully, the opinion merely upholds CAAF’s previous rulings in Cherukuri, Palagar and Frelix-Vann. There is no legal gymnastics employed, just simple facts, the Double Jeopardy Clause requires that a violation be remedied but does not state how. CAAF not only cites the Fifth Amendment but goes a step further and cites R.C.M. 10003(c)(1)(C)(i), where similarly, there is no requirement that a specific multiplicious charge be dismissed. After citing the Fifth Amendment and the R.C.M., CAAF upholds their precedent, finding them workable and not poorly reasoned. In short, the Government may continue to choose which multiplicous charge to dismiss. 
 
Editor’s note: Footnote 4 abrogates a portion of the Court’s opinion in Cherukuri, where CAAF said that the “dismissal of the lesser-included offense is required by the Supreme Court’s recent cases on the Double Jeopardy Clause of the United States Constitution.” In this footnote, CAAF states that their prior reasoning misstated the Supreme Court’s decisions in Ball and Rutledge, and that they understand the confusion caused by their misstatement.

Elizabeth M. Berecin

Managing Editor

5 Comments
1984
1/26/2021 05:26:35 pm

Not surprising, follows precedent and the conclusion is logical...is what I would have said if it were true.

A prosecutor has the duty to charge the most serious crime that is likely to result in a conviction. The selfsame axiom is codified under R.C.M. 921(c)(5), the opinion noted a lesser included offense should
not be voted on by members if an accused is found guilty of
the greater offense.

However, the opinion disregards the value of RCM 921 because it only applies to plebian jurors. And is thus not helpful to appellate courts. Of course, that still does not explain why the axiom should be ignored.

But at the end of the day, SCOTUS gave this discretionary decision making to the courts, which the CAAF has saw fit to further delegate to the Government.

Reply
Anon
1/26/2021 05:35:21 pm

A prosecutor has no such duty. This was merely a “policy” favored by Jeff Sessions.

Reply
1984
1/26/2021 06:34:35 pm

Are you referring to this? ;

9-27.300 - SELECTING CHARGES—CHARGING MOST SERIOUS OFFENSES

As the policy merely favored by Sessions?

Anon
1/26/2021 06:45:09 pm

Yes. And that is from a "policy" manual. This is not an ethical/constitutional/statutory duty.

Reply
1984
1/26/2021 10:35:35 pm

I never called it a statutory duty. I meant a duty in the moral sense, like a prosecutor having a duty to the truth (which we know is not always followed). I used the word "axiom" (proposition) in my original post.

This "duty" did not come from an empty universe. It predates Sessions; See Yates v. United States;

https://s3.us-east-2.amazonaws.com/washlegal-uploads/upload/legalstudies/legalbackgrounder/013015LB_Coffina.pdf

As you can see, the language of that policy was updated, but the gist is the same. I read something similar to Yates in re Courts-Martial a few days ago, but for some inexplicable reason cannot find it.

I'm not advocating the policy, I'm just pointing out the Court ignored it in their analysis.

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    RSS Feed

    Picture
    Home
    About
    Masthead
    Contact/Submit Post
    CAAFlog 1.0 Archive 


    ​Links

    CAAF
    -Daily Journal
    -Current Term Opinions
    ACCA
    AFCCA
    CGCCA
    NMCCA
    Joint R. App. Pro.
    Global MJ Reform
    LOC Mil. Law Resources

    Archives

    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020

The views expressed on this website are expressed in the authors' personal capacities.
Proudly powered by Weebly
  • Home
  • About
    • CAAFlog 2.0
  • Masthead
  • Contact / Submit Guest Post
  • NIMJ.org