United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016). The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases. These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.

1. Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.

2. The evidence is factually and legally insufficient to sustain the appellant’s conviction for sexual assault.

3. It was plain error when the military judge admitted evidence of the victim’s prior, unrelated molestation without instructing the members on its permissible use

4. The military judge abused his discretion when he allowed messages from the victim’s Facebook account into evidence without the proper foundation.

5. Certain command, investigative, and prosecutor actions including altering evidence against the appellant amounted to prosecutorial misconduct.

6. Members’ responses at voir dire and existing working relationships with the trial counsel amounted to actual or implied bias.

But, the court concluded: “We find no error and affirm.”

Because of the complexity and politics involved in these cases it would be helpful to consult us as experienced military defense lawyers who has counseled and defended many accused servicemembers.

United States v. Hassoun, No. 201500204 (N-M Ct. Crim. App. 11 August 2016)(unpub.). The issue in this case revolved around proof of desertion. The case has something of an interesting history.

You can read something of the history at these links–here, here, and here.

Hassoun challenge[d] the legal and factual sufficiency of his conviction for desertion with the intent to remain away permanently, asserting that the evidence fails to demonstrate the required intent. Slip op. at 5.

To be guilty of this form of desertion, the appellant must have intended to remain away permanently from his unit, organization, or place of duty. MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶ 9.c.(1)(c)(ii). This intent may have been “formed at any time during the unauthorized absence,” and did not need to “exist throughout the absence or for any particular period of time.” It is sufficient that the appellant formed this intent at some time during the absence. Id. at ¶ 9.c.(1)(c)(i) and (ii). The intent to remain away permanently may be proved by circumstantial evidence. United States v. Oliver, 70 M.J. 64, 66 (C.A.A.F. 2011); MCM, Part IV, ¶ 9.c.(1)(c)(iii). The MCM provides several illustrations of potentially relevant, circumstantial evidence[.]

The conviction and the sentence was affirmed.

Consult with us if you are seeking experienced military lawyer defense counsel for such a case.

For those interested in the litigation to get access to UCMJ art. 32 hearing documents, I have collated the documents here.

There is a new effort to get quicker media access to trial documents from the Hearst Corporation. See, Diego Ibarguen/COL Nance, MJ, ltr of 4 Jan 2016.