Attorney Ernesto C. Gapasin Jr.'s Legal Cases

Military law

U.S. v. E-7

May 01, 2011

OUTCOME: Not Guilty to all charges and their specifications.

My client was charged with four specifications under Article 120 and adultery. He was accused of aggravated sexual assault against an E-3 who was allegedly substantially incapacitated. Under cross-ex ... amination at the Article 32, the purported victim testified that she could only identify her attacker because she recognized his voice. Based on the evidence, my client was a possible contributor to a small sample of foreign DNA found from a rectal swab of the purported victim. It was later discovered that the dna was based on skin cells. Semen from the anal swabs also showed no sperm to identify the semen. The incident in question allegedly occurred at his home in the early morning hours of an after party. Semen from another male who she admitted to having had sex with at the party was found on the vaginal swabs. A number of facts on cross-examination at trial illustrated the lack of credibility of the alleged victim. Several witnesses did not corroborate the alleged victimâ€™s story, e.g., her mother testified that she was crying on the phone at 0700 and had to hang up because she could not talk and drive at the same time. But the alleged victim testified she was raped in the early morning hours before the sun came up because it was too dark to physically identify her attacker. The Defense did request judicial notice of an almanac entry that the sun did not come up until 0637. In several accounts, the alleged victim testified she was raped at approximately 0700. Moreover, based on several alibi witnesses, at no time was the accused in the room with the alleged victim. The defense was successful in discovering that the alleged victim actually robbed my client a couple days after she was allegedly raped by him. The defense also discovered that the purported victim had a motive to make false allegations because she believed it was my client's fault for turning her former ex-marine boyfriend to law enforcement for a DUI that left a pedestrian dead. My client was fully acquitted of all rape charges, and the alleged victim is now being prosecuted for burglary and is undergoing an involuntary separation.

Military law

U.S. vs. O-2

Apr 01, 2011

OUTCOME: Not guilty to rape.

My client was charged with three specifications under Article 120 for aggravated sexual assault, abusive sexual contact, and wrongful sexual contact. He was also charged with one specification under A ... rticle 125 for forcible sodomy, and one specification under Article 134 for fraternization. My client is an Active Guard Reserve officer assigned to the 955th Engineer Company, a Troop Program Unit and resident of Fort Leonard Wood. The purported victim was a 24-year-old female who had been an E-5 in the select reserves beginning on 3 August. After a dinner date on 13 August 2010, they returned to my client's house where she was at from 2000 â€“ 0130. She alleged that she had blacked out approximately four times and during intermittent periods of consciousness believed my client performed oral sex on her, digitally penetrated her anus, and had vaginal sex with her. DNA testing did result in positive findings of my client's saliva or epithelial cells from vaginal swab of the purported victim. My client gave a sworn statement to CID wherein he admitted to fingering her vagina and groping her body. At trial, my client testified and denied oral and vaginal sex, as well as digitally penetrating her anus. After a full hearing on the merits, the officer panel found him not guilty of the Article 120 offenses, not guilty of the Article 125 offense, but guilty of fraternization. In a strange turn of events, several months after the trial, the defense discovered that the very same prosecutor who argued that my client should be confined for fraternization was found to have committed fraternization herself by maintaining a relationship with an NCO, also assigned to the military justice section of the Staff Judge Advocate's office. This prosecutor is a Captain and they married just months after the trial against my client. To the defense's knowledge, both the NCO and the Captain received some type of administrative punishment by the Commanding General. The Office of the Staff Judge Advocate refused to disclose the type of punishment received.

Military law

U.S. v. E-3

Mar 01, 2011

OUTCOME: Dismissed without prejudice.

My client was charged with specifications of aggravated assault with the intent to inflict grievous bodily harm and to maim his five month old infant daughter. He was also charged with specifications ... for absence without leave, false official statement, assault and battery upon his spouse, and two specifications for communicating a threat. The Government tried to push the Article 32 forward without affording the defense sufficient time to conduct any investigation into this very complicated case. Defense aggressively pursued a delay of approximately 3 weeks in order to allow the Defense time to acquire an expert pediatric neurologist to help prepare for the Article 32. After much argument from both sides, the 32 IO granted the Defense request to delay, and the Battalion Commander granted the Defense request to have an expert pediatric neurologist appointed to the defense team pre-Article 32. The defense accepted the government provided expert. After extensive preparation with its expert, the Defense aggressively litigated the Article 32, and the IO recommended dismissal of all charges and their specifications. As to the â€œshaken babyâ€ allegations, evidence was elicited at the hearing that the child had a pre-existing condition that resulted in a type of â€œbrittle boneâ€ disease. This information would not have been discovered without having had the expert appointed for the Article 32 hearing.

Military law

U.S. v. E-5

Feb 01, 2011

OUTCOME: Not guilty to all charges and specifications.

My client was charged with assault consummated by a battery and aggravated assault with a loaded firearm on 6 July 2010. Ever since the investigation began, my client maintained that she acted in self ... -defense against her then husband, the alleged victim. Upon investigation, the defense learned that two years earlier in Iraq, the alleged victim threatened his ex-wife and another Soldier. This ex-wife was also forced to defend herself against him, and that my client's husband avoided trouble by portraying himself as the victim. Relative to the incident with his ex-wife, the alleged victim testified under immunity for assault consummated by a battery, false official statement, and communicating a threat. The defense also tested the clouded memory of the Governmentâ€™s other witness, a county police officer. My client testified why she felt she needed a firearm to defend herself. The Government failed to prove that my client did not act in self-defense. The officer panel found my client not guilty of all charges and specifications.

Military law

U.S. v. E-4

Nov 01, 2010

OUTCOME: Dismissed without prejudice.

My client was charged with Article 128 and Article 134, UCMJ, regarding an injury his daughter sustained while in the care of a babysitter on 28 November 2009. The CID file and medical information all ... indicated that the injury could only have occurred during the eight hour period when the infant was in the custody of the babysitter; however, CID insisted that neither the civilian babysitter, nor the civilian wife could have possibly harmed the child, even though my client was in contact with her for only 15 to 35 minutes. The client provided documents not included in the CID file produced by the Government, included a report by the leading Child Abuse expert in the Military. Her report indicated that any previous injuries to the child were accidental, except for the broken femur sustained on 28 November, which all medical personnel opined could only have occurred during the eight hour period that the child was in the custody of the babysitter. Her report also indicated that the child was born with toxoplasmosis, a rare disease that affects neurological, ophthalmological, and bone density development. The Article 32 hearing involved conflicting testimony from most of the CID agents involved, and we were able to show that CID never considered the babysitter a suspect solely because she is a civilian, that the agents always considered my client a suspect, but did not read him his rights before obtaining sworn statements from him, and that one of the agents has engaged in a pattern of doctoring CID reports. The IO recommended dismissal of all charges. The case was eventually dismissed without prejudice.

Military law

U.S. v. E-6

Nov 01, 2010

OUTCOME: Virtual acquittal, only received a letter of reprimand.

My client was an IRR Soldier who was assigned to HRC-St. Louis. He was charged with BAH fraud because he changed his permanent address/home of record from a former residence in Louisiana, to his mothe ... râ€™s address in Los Angeles after he got divorced and no longer resided in Louisiana. My client was charged under Articles 107, 121, and 132. His former chain of command assisted him in the process, and allowed him a break in service so that he could change his address and be in compliance with the regulations. A new chain of command took over and noticed that his address in Los Angeles was a business address. They questioned him and he showed them his lease agreement between his motherâ€™s husband and himself, and explained that he was using his motherâ€™s business address for mail, which was easier for her. Defense viewed this case as a reserve issue with no DFAS input, and Defense did not want to give the Government time to perfect its case. Therefore, Defense did not object to the Governmentâ€™s immediate request for trial. The active-component trial counsel did not understand the reserve issues regarding the purposes, requirements and methods for updating addresses, and reserve component mobilizations and releases from active duty. Ultimately, the Government could not overcome the fact that DFAS never notified my client or his chain of command that he had done anything wrong. My client was convicted of false official statement. On sentencing, Defense argued that my client's UCMJ orders were not drafted pursuant to AR 27-10 to allow for confinement. The judge found in favor of the Government on this issue, however, and ruled that my client had been properly extended for UCMJ purposes. The court sentenced my client to a letter of reprimand.

Military law

U.S. v. E-5

Sep 01, 2010

OUTCOME: Partial acquittal, resulting in no discharge and no sex offender registration.

My client was charged with 3 specifications of sexual assault against 3 separate purported victims, 1 specification of aggravated assault, and 1 specification of false official statement. The case was ... preferred in September 2008, but did not go to trial until October 2010. Approximately 2 months before the trial, a fourth charge of rape was preferred regarding a fourth Private. This fourth charge for rape was not included in the referral of the charges for the prior 3 Privates. Despite my client's 3 sworn statements to CID wherein the statements included considerable detail about the alleged sexual assaults, e.g., pressing his hand against one of the Private's mouths, the Defense advised the client to take the stand and testify. In his testimony, my client contested the wording of the sworn statements as well as the testimony of all 3 PVTs. The enlisted panel found him guilty for aggravated assault and false official statement, and found him not guilty of the Article 120 offenses, thus saving him from registering as a sex offender. The court-martial took over 2 years from preferral to trial, and included video depositions at Fort Carson, and two Article 32 hearings in Korea. The court sentenced the accused to 6 months confinement and reduction to E-1.

Military law

U.S. v. E-7

Sep 01, 2010

OUTCOME: Negotiated result, allowing client to retire after 22 year career at just 1 rank reduction.

On 19 July 2010, charges were preferred against my client for soliciting, distributing, receiving, and possessing images and videos of child pornography. Between 1 August 2009 and 1 January 2010, my c ... lient possessed at least 625 images and videos of child pornography. These images and videos were electronic visual depictions of girls well under the age of 18, usually pre-pubescent, engaged in sexually explicit conduct. The images and videos showed the underage girls engaging in genital-genital and oral-genital sexual intercourse, penetration of their vaginas by fingers and other objects, and lascivious exhibition of their genitals and pubic areas. Also, my client knowingly distributed at least 227 images and videos of child pornography to other individuals and knowingly received images and videos of child pornography from other individuals. My client knowingly made and published notices and advertisements through Giga Tribe chats and emails seeking and offering to receive, exchange, distribute, and reproduce visual depictions of minors engaging in sexually explicit conduct. My client also possessed 3,979 images and videos of â€œchild erotica,â€ including images and videos of girls well under the age of 18, usually pre-pubescent, wearing small amounts of clothing including only underwear and swimsuits, posing in sexually provocative poses, and candid images and videos of underage, pre-pubescent girls. At the Article 32, Defense revealed that the lead CID agent modified the Agentâ€™s Investigation Report (AIRs) in order to hide from defense counsel the fact that the chain of custody to the accusedâ€™s government computer had been broken. The original AIR indicated that one of the accusedâ€™s computers at issue had been sitting in a storage room for two full months. The revised AIR â€“ which was hand-delivered to the Defense by the TC one day before the Article 32 â€“ had completely deleted this fact and was worded to misrepresent that the accusedâ€™s government computer was directly handed to CID by the accusedâ€™s 1SG. Under cross-examination, the CID agent admitted he knew that the Defense would review the AIRs. Defense used this clear violation as a means to reach a deal that was acceptable by my client, who had previously provided CID with two incriminating sworn statements as well as a consent to search all of his personal hard drives. In the offer to plead, the Convening Authority would disapprove any confinement in excess of 6 months and would disapprove a punitive discharge. The court rendered an adjudged sentence of 6 months confinement and reduction to E-4. Defense counsel submitted clemency on behalf of the client and the Convening Authority reinstated the accused to SSG (E-6), allowing him to retire after a 22 year career at E-6.

Military law

U.S. v. E-6

Apr 01, 2010

OUTCOME: Virtual acquittal resulting in a sentence of no punishment.

My client was charged with one specification of rape, one specification of aggravated sexual assault and one specification of false official statement. The aggravated sexual assault charge stemmed fro ... m a sexual encounter he had with female Soldier at Camp Zama, Japan in early 2008 and the second from a sexual encounter he had with a different female Soldier at Camp Zama, Japan in mid 2009. In both instances, my client is alleged to have gone to the Camp Zama Club (an on post entertainment facility) with the females and later engaged in sexual acts with them against their will. My client received an Article 15 for the first charge back in early 2008, however the government charged the same offense to paint the accused as a serial rapist. In the second charge, my client was alleged to have physically restrained the alleged victim while violently raping her inside of another Soldierâ€™s barracks room until someone walked in on them while they were having sex. The government pointed to the multiple bruises on the second alleged victim thus showing the amount of force and violence used by the accused. This was rebutted, however, by testimony from the governmentâ€™s medical witnesses regarding the timeline of bruising in relation to the coloring of the bruise. The defense also attacked CID for not testing DNA evidence and conducting a sloppy investigation. The enlisted panel acquitted the accused of the rape charges, but found him guilty of wrongful sexual contact. Despite this finding, however, the panel sentenced my client to no punishment because he had already accepted an Article 15 one year earlier on this offense.

Military law

U.S. v. O-3

Jan 01, 2010

OUTCOME: Not guilty to all charges and specifications.

My client was a soldier with First Special Forces (Airborne) based out of Torii Station, Okinawa, Japan. He was a team leader who has been charged with 17 specifications under the UCMJ. My client was ... charged with the following: three specifications for willfully disobeying orders; failing to pay BAH to his spouse who he is separated from; failing to obey orders to sign in with the staff duty officer; disobeying a lawful order by possessing a fixed-blade knife with a blade longer than three inches (although he was charged with this, most of the Soldiers in Special Forces had fixed-blade knives with blades longer than three inches -- including the former XO, who had a knife with a blade longer than three inches placed on his bookshelf behind his office desk; my client was also charged with two specifications for submitting a false official statement. He was also charged with two specifications under Article 120 for the sexual assault of his estranged spouse; two specifications of aggravated assault; one specification of obstruction of justice; and charged with specifications under Article 133 for allegedly tape-recording a conversation involving his spouse and family members without either party's consent; also for the wrongful wear of military ribbons and awards, as well as other accusations of physical, verbal, and mental abuse against his spouse. All allegations began when my client's spouse spoke to a physician at Lester Naval Hospital regarding pain to her vagina and intestines. This physician reported allegations of sexual assault due to suspicions that my client was forcing her to have vaginal and anal sex. At the end of a 5-day trial, the officer panel at Camp Zama, Japan found my client not guilty of all charges and specifications.

Ernesto C. Gapasin Jr.'s Legal Cases (12)

U.S. v. E-7

U.S. vs. O-2

U.S. v. E-3

U.S. v. E-5

U.S. v. E-4

U.S. v. E-6

U.S. v. E-5

U.S. v. E-7

U.S. v. E-6

U.S. v. O-3