Here is a link to the government notice of an intent to appeal, and a motion I have filed with the ACCA.
So, client is a medical provider initially accused of committing sexual contact by a, “fraudulent representation that the sexual contact served a professional purpose.”
Six former patients alleged that when the client gave them a heart and lung examination when they presented for medical care, he didn’t need to give one, or that it was done improperly.
After the Article 32, UCMJ, investigation the convening authority elected not to proceed on one of them, but elected to refer five specifications to general court-martial.
At trial we litigated a motion that the CA abused his discretion because the IO did not find reasonable grounds to believe a crime had been committed for three of the five. The military judge denied the motion.
At trial we raised the motion for dismissal for failure to state an offense. The touching’s had all been done with a stethoscope. At no time did any complaining witness say she was touched by his body. The argument is based on a failure in the statute to require that an object can be the source of the wrongful contact vice what the statute says – a body part. The judge decided to defer ruling until the RCM 917 stage of trial.
Prior to evidence, the prosecution withdrew two specifications which left three for trial before the members. The military judge denied an RCM 917 motion and again kicked the failure to state can down the road.
The members found the client guilty of only one of the three specifications. At that time I asked the judge to enter a finding of not guilty citing to United States v. Griffith, and also asked for a decision on the motion. Deferred again.
The members adjudged a dismissal only.
At this time the judge denied the Griffith motion, but did dismiss the specification for failure to state an offense.
Now we are waiting to see if the Gov. will take an Article 62 appeal.
This case presents some interesting factual, legal, and strategy issues. But regardless the client’s not in jail.