United States v. Figuereo presents a situation where the court found a valid claim of ineffective assistance of counsel based on a conflict of interest created by the lead military defense counsel. The court did, however, limit the IAC to the sentencing case. The court also set aside an enlisted panel’s findings of several offenses. In reassessment, the court set aside 10 months of confinement (which the appellant had already served) and left in place three months of confinement.

Initially, the military judge accepted the appellant’s guilty pleas to several charges and specifications. The appellant was then convicted by members of one specification of abusive sexual contact. The guilty plea was for wrongfully consuming alcohol while underage; two specifications of wrongful use of marijuana; two specifications of wrongfully communicating a threat; three specifications of assault consummated by a battery; and one specification of drunk and disorderly conduct.

The facts surrounding the IAC are not pretty, and you should read them for yourself. When done, consider (1) what can and cannot be said to a defense witness about contacting an alleged victim of a sexual assault after that victim has testified, and (2) should you get that wrong, how should you go about explaining your actions when they are brought up when trial counsel brings them up as creating a conflict of interest. And in the process avoid getting your name in the court’s opinion.

 

In United States v. London, the members convicted the appellant of involuntary manslaughter. The NMCCA finds the conviction factually insufficient.

 

Appellant argues that the Government failed to prove that he punched Mr. Hotel, that the testimony and forensic evidence failed to prove that Mr. Hotel was punched, and that the forensic evidence showed that Mr. Hotel’s injury was consistent with falling backwards from pulling on Appellant’s sweatshirt rather than being punched.

The Government here argues that there are three ways in which the circumstantial evidence in this case proves Appellant’s guilt. First, the medical expert testimony eliminated other potential causes for Mr. Hotel’s injuries. Second, the combination of medical evidence and witness testimony show that Appellant punched Mr. Hotel, while Appellant’s false explanation to a physician about his broken hand and his expression of remorse over the fight demonstrate consciousness of guilt. And third, the evidence shows that Appellant was the only one of his party close enough to Mr. Hotel to cause his injuries.

 

The case for and against London heavily depended on forensic evidence–pathology and toxicology. There were eyewitnesses, but none could testify to crucial facts against the appellant–none saw appellant punch the victim. Essentially the government was arguing that Appellant did punch the victim which caused the victim to have an “accelerated fall,” which caused a skull fracture and, ultimately death. Essentially the defense argued that the victim was pulling on Appellant’s sweatshirt so strongly that it caused indicia of strangulation and was so hard it ripped the sweatshirt, and then when the sweatshirt ripped the intoxicated victim fell and struck his head.

 

United States v. Hamlin, __ M.J. ___ (N-M Ct. Crim. App. Apr. 31, 2023). This is a case military defense counsel needs to be aware of an understand. In the age of smartphones and other technology, more and more child-related crimes are being committed using an app on a smartphone. In this case, the prosecution needed to prove that a contraband video sent via Snapchat to a minor was “in the presence of” that minor. Reverting to a prior case, Tabor, the court decided that the recipient had to be awake, aware, and seeing the contraband video at, or near, the same time as the accused.