U.S. v. Elespuru, 73 M.J. 326

First Principles: Constitutional Matters: Generally

1. a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case

First Principles: Constitutional Matters: Double Jeopardy

1. the prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against double jeopardy

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case

Trial Stages: Merits: Multiplicity for Findings

1. whereas multiplicity addresses double jeopardy principles, unreasonable multiplication is aimed at preventing prosecutorial overreaching
2. the prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against double jeopardy; offenses are multiplicious if one is a lesser-included offense of the other; that determination is made by utilizing the elements test
3. in this case, appellant knowingly waived his right his claim on appeal that the specifications for abusive sexual contact and wrongful sexual contact were multiplicious, by acknowledging at trial that the elements test was not met and declining to argue that the specification of wrongful sexual contact was a lesser included offense of abusive sexual contact
4. where the government charged and tried abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof because it believed the abusive sexual contact specification was more difficult to prove, both convictions may not stand and the finding of guilty for wrongful sexual contact must be disapproved
5. when a panel returns guilty findings for two specifications and it was agreed that these specifications were charged for exigencies of proof, it is incumbent either to consolidate or dismiss a specification
6. dismissal of specifications charged for exigencies of proof is particularly appropriate given the nuances and complexity of Article 120, UCMJ, which make charging in the alternative an unexceptional and often prudent decision

Trial Stages: Merits: Findings

1. where the government charged and tried abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof because it believed the abusive sexual contact specification was more difficult to prove, both convictions may not stand and the finding of guilty for wrongful sexual contact must be disapproved
2. when a panel returns guilty findings for two specifications and it was agreed that these specifications were charged for exigencies of proof, it is incumbent either to consolidate or dismiss a specification
3. dismissal of specifications charged for exigencies of proof is particularly appropriate given the nuances and complexity of Article 120, UCMJ, which make charging in the alternative an unexceptional and often prudent decision

Trial Stages: Appeals: Harmless / Prejudicial Error

1. although the wrongful sexual contact specification was set aside in this case because it was charged in the alternative for exigencies of proof, appellant remains convicted of abusive sexual contact, a crime carrying a higher sentence; because the military judge merged these specifications for sentencing purposes, under the facts of this case, appellant was not prejudiced with regard to his sentence

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case

Trial Stages: Appeals: Waiver

1. a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case
2. in this case, appellant knowingly waived his right his claim on appeal that the specifications for abusive sexual contact and wrongful sexual contact were multiplicious, by acknowledging at trial that the elements test was not met and declining to argue that the specification of wrongful sexual contact was a lesser included offense of abusive sexual contact

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Generally

1. whereas multiplicity addresses double jeopardy principles, unreasonable multiplication is aimed at preventing prosecutorial overreaching

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. offenses are multiplicious if one is a lesser-included offense of the other; that determination is made by utilizing the elements test

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. whereas multiplicity addresses double jeopardy principles, unreasonable multiplication is aimed at preventing prosecutorial overreaching
2. the prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against double jeopardy; offenses are multiplicious if one is a lesser-included offense of the other; that determination is made by utilizing the elements test
3. in this case, appellant knowingly waived his right his claim on appeal that the specifications for abusive sexual contact and wrongful sexual contact were multiplicious, by acknowledging at trial that the elements test was not met and declining to argue that the specification of wrongful sexual contact was a lesser included offense of abusive sexual contact
4. where the government charged and tried abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof because it believed the abusive sexual contact specification was more difficult to prove, both convictions may not stand and the finding of guilty for wrongful sexual contact must be disapproved
5. when a panel returns guilty findings for two specifications and it was agreed that these specifications were charged for exigencies of proof, it is incumbent either to consolidate or dismiss a specification
6. dismissal of specifications charged for exigencies of proof is particularly appropriate given the nuances and complexity of Article 120, UCMJ, which make charging in the alternative an unexceptional and often prudent decision

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. whereas multiplicity addresses double jeopardy principles, unreasonable multiplication is aimed at preventing prosecutorial overreaching
2. in ruling on a motion for unreasonable multiplication of charges for findings, a primary factor to be considered in ruling on such a motion is whether each charge and specification is aimed at distinctly separate criminal acts