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.
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
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