On Wednesday, October 28, CAAF will hear oral arguments in United States v. Cardenas. The granted issue question is: 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 briefs here.
Appellant was convicted of sexually assaulting, committing abusive sexual contact upon, and maltreating SPC SD during their personal relationship. In addition to Appellant’s conviction on the above, Appellant was also convicted of impeding the investigation into his alleged misconduct against SPC SD. Appellant was sentenced to a dishonorable discharge, confinement for five years, and reduction to the grade of E-1.
The Appellant appealed to ACCA pursuant to Article 66(c), UCMJ, raising two assignments of error: (1) the factual sufficiency of his convictions of sexual assault by bodily harm and abusive sexual contact; and (2) the legal sufficiency of his conviction of maltreatment.
Sergeant Jesus D. Cardenas (Appellant) engaged in personal relationships with junior enlisted soldier, Specialist (SPC) SD while serving as a cadre member at the Warrior Transition Battalion (WTB). After developing a platonic relationship with SPC SD, appellant invited SPC SD to come to his apartment and stay the night. SPC SD initially said she would only hang out for the evening but eventually agreed to stay over as long as they slept separately.
After a night without incident, Appellant pleaded with SPC SD to be his girlfriend, to which she eventually said yes and agreed to stay another night. She agreed to sleep in appellant’s bed as long as they slept on opposite sides and did not touch each other. SPC SD claims she was fully clothed the night of the incident. Once in bed, Appellant began touching SPC SD and when he placed his hand between her legs, SPC SD told him no. Appellant did not stop and instead pulled down her leggings and underwear. SPC SD struggled against appellant and continued to say no, however, appellant pressed himself against SPC SD and penetrated her vulva with his penis. SPC SD then reported the incident to her social worker at the WTB.
TRIAL JUDGE’s RULING
Based on the language of the charged maltreatment specification, appellant was convicted of maltreating SPC SD in two different ways: (1) by forcing SPC SD into a relationship, and (2) sexually assault SPC SD. While the military judge found appellant guilty of maltreatment by both means, the military judge also found that the language “and sexually assaulting her” contained in the maltreatment specification was an unreasonable multiplication of the charges of sexual assault and abusive sexual contact.
The military judge stated that he would merge the language contained in the maltreatment specification with the other charges, and he would not consider the sexual assault maltreatment language for sentencing. The military judge, however, did not dismiss the language in the maltreatment specification.
The Court found Appellant’s convictions of sexual assault and abusive sexual contact to be factually and legally sufficient, but dismissed Appellant’s conviction for obstruction of justice as factually insufficient. The Court further found that the part of Appellant’s conviction of maltreatment by “pressuring [SD] into a relationship” was factually insufficient. Lastly, the Court found the second basis for Appellant’s conviction of maltreatment, by sexual assault, to be multiplicious with his sexual assault conviction.
While the Court found the second basis for Appellant’s conviction of maltreatment to be factually and legally sufficient, the sexual assault charged as maltreatment in that specification was the same sexual assault of which Appellant was convicted of in the specification of sexual assault. Finding the two specifications to have the same factual components, the Court determined that Appellant’s conviction of maltreatment by sexually assaulting SPC SD was multiplicious with Appellant’s conviction of sexually assaulting SPC SD. In order to convict appellant of maltreatment by sexual assault, the government had to prove the charge of sexual assault first, which makes the sexual assault offense the lesser-included offense of the maltreatment conviction. The Court then authorized the Government to elect to dismiss the greater offense of maltreatment in order to remedy the error of multiplicity.
After dismissing Appellant’s maltreatment and obstruction of justice convictions, ACCA reassessed and affirmed Appellant’s adjudged sentence as it provides for a dishonorable discharge, confinement for four years, and reduction to E-1.
ACCA's Cardenas opinion here.
Appellant argues that the Rules for Courts-Martial (RCM), and the CAAF’s most recent precedent in United States v. Elespuru, are clear that when charges are found to be multiplicious, the lesser-included offense according to the elements test should be dismissed. Appellant contends that the Army Court relied on an improper line of precedents stemming from United States v. Cherukurithat defer to the Government’s choice of which multiplicious charge to dismiss on appeal. Appellant argues that this line of precedent is “a judicially created remedy that gives the Government a windfall to affirm legally erroneous findings, whereas dismissing the lesser-included offense is a bright line rule that promotes the integrity of the military justice system.”
The government counters that this Court has long directed the criminal courts of appeals to remedy multiplicity errors by allowing the government to elect which multiplicious conviction to retain and which to dismiss, adhering to the Supreme Court’s instruction for District Courts to exercise their discretion in vacating multiplicious convictions. The government also emphasizes that while appellant’s sexual assault conviction may have been the elementally lesser-included offense of appellant’s maltreatment conviction, it was the more serious offense because it carried a higher punitive exposure, a mandatory discharge, and a requirement for appellant to register as a sex offender. Counter to appellant’s argument, the government contends it is the Appellant who would receive a windfall by choosing his own sentence, a practice that would severely erode confidence in the military justice system.