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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19169
Experience:  Lawyer and current JAG officer.
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Tamburello, My husband was just convicted of assault he got

Customer Question

Customer: ***** ***** tamburello, My husband was just convicted of sexual assault he got six months in jail and DD. he did not even had sex that night. Neither one of them had there clothes off. How can this be? He did not do this. I am just trying to help him. He went up against a female Marine.
JA: Thanks. Can you give me any more details about your issue?
Customer: NCIS had her called my husband on the phone and text while she was in there office. He admitted to saying just about anything to get her to go away but she was recording the call. That is all they had on him. He was E6 and she E5. She also has a mental disorder also.
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Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I’m happy to be of assistance.

I can't really tell you what happened specifically in the trial. I was not present. That being said, you can be charged with sexual assault without actually having sex. To forcible have intercourse with someone is rape, not sexual assault.

There are numerous offenses under the UMCJ that relate to sexual assault though, some requiring penetration but others that do not require it. So, the lack of them having sex or even having their clothes off does not preclude some offense has been committed. Sexual assault could occur by reaching under the clothing. Abusive sexual contact can occur without even touching the skin, but rather, making contact on the outside of the cloths.

It is not illegal to call someone and speak to them while recording them. This is called a "pretext call" and is legal when a warrant is issued.

The fact that she had a mental disorder does not legally mean she can't enter evidence.

Obviously, if he was convicted, the panel members must have believed her version of events and considered the statements he made against him. That's not illegal, so I'm not certain of what assistance you are seeking here. His recourse is to file an appeal through his defense attorney, but you've not mentioned any facts or circumstances that would warrant the result be overturned.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 1 year ago.

I saw that you posted the question again, so I'll address it here. Use REPLY and don't create new questions.

They can charge him because they do have evidence. They have her testimony and his own statements where he admitted to things over the phone. That's not "no" evidence. That's actually quite a bit of evidence, so I don't know what you mean by saying there is no evidence here.

Customer: replied 1 year ago.
She lie on the stand over and over. I had this girl in my house and had dinner with her a few times. I watch her baby for months. I sat with her in the hospital for hours. When you leave a court room and everyone on my husband side was in tears you know something went wrong. This case took over 18 months. Her metal disorder can make her believe anything she wants.
Expert:  Allen M., Esq. replied 1 year ago.

The fact that she lied on the stand would have to be proved.

These are all things would could have and should have been raised during the trial. Saying that she was lying is not a very strong defense, because anyone can say that someone was lying. You have to have absolute evidence that she was lying that was presented to the jury.

I understand your frustration, but unless you have obtained some admission from her that would allow a retrial, it's going to take more than your statement that she was lying.

You have the right to appeal, as I noted before, but these arguments that you are making are not legal arguments. They are factual arguments and the jury decided, for whatever reason, that her version was the facts that they would apply. Fair or not, that is the juries job. Unless you have some evidence that was hidden by the prosecution which shows that she was lying or you were not given the chance to present evidence to the jury of her lack of truthfulness, there isn't anything to appeal here.

If you DO have that sort of evidence, then file an appeal.

If you feel that your husband's attorney didn't do his job, then hire your own civilian attorney and appeal based on ineffective assistance of counsel.

Expert:  Allen M., Esq. replied 1 year ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required.

If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.