This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________
UNITED STATES Appellee v. Thomas E. BARKER, Airman First Class United States Air Force, Appellant No. 17-0551 Crim. App. No. 39086 Argued February 27, 2018—Decided May 21, 2018 Military Judge: James R. Dorman For Appellant: Captain Mark J. Schwartz (argued); Lieu- tenant Colonel Nicholas W. McCue. For Appellee: Major J. Ronald Steelman III (argued); Colonel Julie L. Pitvorec, Lieutenant Colonel Joseph Kubler, and Mary Ellen Payne, Esq. (on brief). Judge RYAN delivered the opinion of the Court, in which Judges OHLSON, SPARKS, and MAGGS, joined. Chief Judge STUCKY filed a separate dissenting opinion. _______________
Judge RYAN delivered the opinion of the Court.
At issue in this case1 is the status of unsworn statements admitted under Rule for Courts-Martial (R.C.M.) 1001A, “Crime victims and presentencing,” Exec. Order No. 13,696, 80 Fed. Reg. 35,783, 35,807−09 (June 17, 2015), where the
1 We granted Appellant’s petition to review the following issues: I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD PROPER FOUNDATION HAD BEEN LAID TO ADMIT EVIDENCE IN AGGRAVATION. II. WHETHER THE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED A REVIEW OF THE PREJUDICE RESULTING FROM THE MILITARY JUDGE’S ERRONEOUS ADMISSION OF EVIDENCE IN AGGRAVATION. United States v. Barker, No. 17-0551/AF Opinion of the Court
statements were offered by the Government, and not by a victim or special victim’s counsel. As R.C.M. 1001(a)(1)(B) recognizes, R.C.M. 1001A constitutes the “[v]ictim’s right to be reasonably heard.” See also R.C.M. 1001A(a). R.C.M. 1001A sets forth the rules regarding the victim’s rights at presentencing, and facilitates the statutory right to “be rea- sonably heard” provided by Article 6b, Uniform Code of Mili- tary Justice (UCMJ), 10 U.S.C. § 806b (Supp. II 2012). R.C.M. 1001A is itself part of the presentencing procedure, and is temporally located between the trial and defense counsel’s respective presentencing cases. It belongs to the victim, and is separate and distinct from the government’s right to offer victim impact statements in aggravation, un- der R.C.M. 1001(b)(4).2 Here, the United States Air Force Court of Criminal Ap- peals (AFCCA) concluded that the Government introduced, and the military judge admitted, the victim impact state- ments under R.C.M. 1001A. United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). Given that there was no compliance with the requirements of R.C.M. 1001A, which contemplates introduction of a sworn or unsworn statement by the victim, the victim’s designee appointed pursuant to R.C.M. 1001A(d)–(e), or her counsel, the statements were improperly admitted. Because we conclude in this military judge-alone case that this error did not substantially influence the sentence, United States v. Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009), the decision of the AFCCA is affirmed. I. Facts and Procedural History On May 16, 2016, a military judge sitting as a general court-martial convicted Appellant, consistent with his pleas, of knowingly and wrongfully possessing and viewing child pornography in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012). In his stip- ulation of fact, included in Appendix A (Stipulation of Fact), Appellant admitted to downloading and viewing a total of approximately 155 videos and 12 photographs of children engaging in sexually explicit conduct between June 14, 2014, and April 18, 2015. The children in these videos and photo- graphs appear to range in age from approximately two years
2 The question whether the Government could have admitted these same statements under R.C.M. 1001(b)(4) is not before us.
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old to about sixteen years old. The child pornography includ- ed violent and sadomasochistic sex acts against children, in- cluding the rape of victims as young as two years old. The Defense Computer Forensics Laboratory analyzed Appellant’s electronic equipment and confirmed that Appel- lant possessed nineteen video files and ten image files in- volving specific child victims identified by the National Cen- ter for Missing and Exploited Children (NCMEC). The NCMEC identified KF as one of the victims depicted in a video referred to as part of the “Vicky series.” Appellant’s stipulation of fact expressly admitted that he downloaded and viewed one video in the “Vicky series” on at least one occasion during the charged time frame. At sentencing, trial counsel offered Prosecution Exhibit (PE) 8, which consisted of three victim impact statements purportedly from KF.3 Trial counsel did not introduce any “accompanying affidavits or testimony to establish the origin of these documents, the circumstances of their creation, or where these documents were maintained.” Barker, 76 M.J. at 751. Instead, trial counsel merely proffered that they received the documents from the Federal Bureau of Investigation (FBI), and they were “ ‘redacted already.’ ” Id. All of the statements were prepared before Appellant committed his offenses. Id. Despite these issues, the military judge admitted the victim impact statements, over defense counsel’s objection, during the presentencing portion of Appellant’s trial. Id. The first statement was titled “UPDATED VICTIM IMPACT STATEMENT FROM [redacted] SERIES VICTIM−December 2011.” This statement did not connect the declarant of the statement to the “Vicky series.” The De- cember 2011 statement includes: “I submit the statement to the court for its use in sentencing in cases in [sic] which in- volve my images.” It is dated and notarized on March 6, 2012, and has a redacted signature. The second statement was titled “Supplement to Victim Impact Statement of [redacted] Series Victim January 31, 2013.” The January 2013 statement directly connected its
3 Because of the redactions, it is difficult to know whether or not KF actually wrote the statements unless we rely on trial counsel’s assertion that the FBI provided him with statements from KF.
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declarant to the “Vicky series” and expressed some measure of the declarant’s desire to be heard at a criminal sentencing hearing: I am making this supplement to my prior Vic- tim Impact Statement to make clear that each additional time that another person downloads and sees the computer images that are now known as the “Vicky series” it does me im- measurable additional harm. Despite feeling hurt each time I learn about another case with my images, I feel strongly that I have a right to know about every case. The statement is dated January 31, 2013, and has a redact- ed signature, but is not notarized. The third statement was titled “UPDATED VICTIM IMPACT STATEMENT FROM [redacted] SERIES VICTIM−September 23, 2013.” As with the December 2011 statement, nothing in this statement connected the declar- ant with the “Vicky series.” The September 2013 statement includes the following language: “I submit the statement to the court for its use in sentencings in cases in [sic] which in- volve my images.” This statement is notarized and dated on September 30, 2013, and has a redacted signature. Appellant’s counsel objected to the admission of the statements “for a myriad of reasons,” all of which revolved around both the Government’s failure to timely apprise the defense of the statement and that the statements were not properly admissible under R.C.M. 1001A. As relevant to the granted issue, defense counsel asserted R.C.M. 1001A was an improper vehicle to admit these statements because trial counsel had no personal knowledge of or contact with the declarant, and trial counsel had not reached out to the de- clarant to give her an opportunity to appear at the court- martial and provide a statement. R.C.M. 1001A(a). Defense counsel further argued that victim statements cannot be used in perpetuity, and that a new statement should be ob- tained separately for each individual defendant being sen- tenced. R.C.M. 1001A(e)(1). The military judge disagreed and admitted PE 8 in its entirety under R.C.M. 1001A.4 The military judge then sentenced Appellant to thirty months of
4 Nothing (other than assertions by the trial counsel) linked the statements to one another. Barker, 76 M.J. at 755−56.
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confinement, a bad-conduct discharge, forfeiture of all pay and allowances, and a reduction to E-1. The convening au- thority approved the sentence as adjudged. Before the AFCCA, the Appellant argued inter alia, that the military judge erred by admitting the statements pur- portedly from KF under R.C.M. 1001A. Barker, 76 M.J. at 751. The AFCCA addressed the statements as follows: Victim impact evidence is a form of aggra- vation evidence that, with a proper foundation, the Prosecution may introduce during a sen- tencing hearing under R.C.M. 1001(b)(4). Vic- tim impact is also an appropriate topic for a sworn or (in the case of non-capital cases) un- sworn statement offered by a victim in exercis- ing his or her right to be reasonably heard dur- ing a sentencing hearing under R.C.M. 1001A(c). For an unsworn statement, the vic- tim may offer the statement orally, in writing, or both. R.C.M. 1001A(e). While the Prosecu- tion did not indicate whether they were offer- ing the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecu- tion’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A. The rules of evidence had not yet been relaxed on behalf of the Defense. The Prosecution did not attempt to lay the necessary foundation for admission of hearsay victim impact statements under R.C.M. 1001(b)(4) and it appears that, sub silentio, the Prosecution was offering the statements under R.C.M. 1001A. An obvious and necessary foundational predicate for a statement offered under R.C.M. 1001A is that the victim (not just the Prosecution) wishes the court to consider the statement. Id. at 754. In describing its requirement of the admissibility of a victim impact statement, the AFCCA further found that: In continuing crime cases, such as posses- sion and viewing of child pornography, there is no requirement that a victim prepare a sepa- rate statement for each individual case. More-
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over, the fact that a victim impact statement was authored before an accused’s criminal acts does not necessarily make the statement irrel- evant to the accused’s offenses. However, there must be some evidence establishing a founda- tional nexus between the victim impact de- scribed in the statement and the subsequent offenses committed by the accused. Id. at 755. Although the AFCCA found that KF was a “crime victim” for purposes of R.C.M. 1001A(b)(1), the lower court held that because the January 2013 statement alone contained both a nexus to the “Vicky series” and some indication of the de- clarant’s intent for the statement to be used in a criminal sentencing hearing, the military judge abused his discretion when he admitted the December 2011 and September 2013 statements. Id. at 756. The AFCCA did not consider whether the text of R.C.M. 1001A permitted statements to be admit- ted under that rule by anyone other than the victim or spe- cial victim’s counsel, or whether the victim had to intend a statement to be admitted as a victim impact statement in a particular case. Instead, relying on a document of uncertain vintage and pedigree, Appellate Exhibit IV: “Guidance for Use of Victim Impact Statement,”5 the AFCCA determined
5 Guidance for Use of Victim Impact Statement Title 18, United States Code, Section 3771(a) provides certain rights to victims of federal crimes. Those rights include the right to be reasonably pro- tected from the accused, the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding, and the right to be treated with fair- ness and with respect for the victim’s dignity and privacy. .... To comply with the provisions of 18 U.S.C. § 377l(a)(l), (4), and (8), prosecutors should follow these guidelines when obtaining and using victim impact statements in child pornography cases: 1. When providing this statement, the victim only consented to its use at sentencing, probation, or parole proceedings. Therefore, in order to re- spect the terms of the victim’s consent, this
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that the January 2013 statement was sufficient for admissi- bility under R.C.M. 1001A. Barker, 76 M.J. at 756. Because this statement identified the declarant as a victim of child pornography and, according to the lower court, contained some indication of the declarant’s intent for the statement to be used in criminal sentencing hearings, the AFCCA con- cluded the statement was acquired for the express purpose of permitting the victim to exercise her right to be reasona- bly heard, and thus admissible under R.C.M. 1001A. Id. In analyzing error with the admittance of two of the three vic- tim impact statements, the AFCCA found no prejudice and affirmed the findings and sentence. Id at 757. II. Discussion We have no doubt that KF is indeed the child in the “Vicky series,” and that she is a “victim” of child pornogra- phy for the purposes of R.C.M. 1001A. Under R.C.M. 1001A(b)(1), a “crime victim” is “an individual who has suf- fered direct physical, emotional, or pecuniary harm as a re- sult of the commission of an offense of which the accused was found guilty.” Child pornography is a continuing crime: it is “a permanent record of the depicted child’s abuse, and the harm to the child is exacerbated by [its] circulation.” Paroline v. United States, 134 S. Ct. 1710, 1716−17 (2014) (alteration in original) (internal quotation marks omitted) (citation omitted); see also United States v. Goff, 501 F.3d 250, 259 (3d Cir. 2007) (recognizing that even those “who ‘merely’ or ‘passively’ receive or possess child pornography directly contribute to [the child’s] continuing victimization”).
statement should not be used for any other type of proceeding. 2. Victims may withdraw or revise their statement. Therefore, prosecutors should obtain the state- ment as close as possible to the sentencing date for each individual defendant, in order to best ensure that the most up-to-date statement is used at that sentencing. a) Once obtained, the statement should only be used in connection with the individual de- fendant being sentenced. Rather than re- using statements in subsequent sentencings, a victim impact statement should be obtained separately for each and every individual defendant being sentenced.
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But the status of KF as a “victim” is not the point of conten- tion before this Court. Rather, even assuming (which for the sake of argument alone we will) that the “statements” in PE 8 were KF’s, the question is whether they could be admitted under R.C.M. 1001A, in their extant form, without the par- ticipation of KF or her advocate. We conclude that they could not.6 However, under the circumstances of this case we
6 While the pretrial agreement in this case included a “waive all motions which may be waived” provision, our decision turns on the impropriety of the introduction of statements absent com- pliance with the R.C.M. 1001A, in the face of defense objection on that basis among others. We reject the notion that a waive all waivable motions provision entered at pretrial provides the government carte blanche to introduce at sentencing information that does not conform to the rules, or to make arguments that are prohibited by the law. Cf. United States v. Mooney, 77 M.J. 252, 254−55 (C.A.A.F. 2018) (holding that a waive all waivable motions clause did not apply to the convening authority’s subse- quent action: “because this issue did not arise until post-trial, there was no motion to be made during the court-martial.)” We decline to adopt a reading of a waive all waivable motions provi- sion in a pretrial agreement that either shields the government from the requirements of R.C.M. 1001A or restricts the accused ex ante from objecting to any and all future infirmities unrelated to the plea. Cf. Class v. United States, 138 S. Ct. 798, 805 (2018) (“A valid guilty plea also renders irrelevant—and thereby pre- vents the defendant from appealing—the constitutionality of case- related government conduct that takes place before the plea is en- tered”; “a valid guilty plea relinquishes any claim that would con- tradict the ‘admissions necessarily made upon entry of a voluntary plea of guilty.’ ”) (emphasis added) (citation omitted); United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) ( “[a]n uncondi- tional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings”). Of course, the government remains free to negotiate pretrial specific provisions related to sentencing, such as stipulations of expected testimony, waiver of foundational requirements, etc. But see R.C.M. 705(c)(1)(B) (proscribing the en- forcement of terms in a pretrial agreement that would deprive an accused of certain rights, including “the right to complete sentenc- ing proceedings”); Manual for Courts-Martial, United States, Analysis of the Rules for Courts-Martial app. 21 at A21―40 (2012 ed.) (MCM) (“Subsection (1)(B) lists certain matters which cannot be bargained away. This is because to give up these matters would leave no substantial means to ensure judicially that . . . the sen- tencing proceedings met acceptable standards.” (emphasis added) (citations omitted)).
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hold that the statements did not have a substantial influ- ence on the sentence. A. Article 6b, UCMJ, outlines the rights of a victim within the military justice system, including the right to: “reasona- ble, accurate, and timely notice” of a range of proceedings related to an accused. Article 6b(a)(2), UCMJ. These rights include the reasonable right to “confer with the counsel rep- resenting the Government” in any such proceeding, Article 6b(a)(5), UCMJ, and the right to be “reasonably heard” in public hearings related to pretrial confinement, a sentencing hearing, the public proceeding of the service clemency, and a parole relating to the offense. Article 6b(a)(4), UCMJ. Provi- sion is also made for the appointment of an individual to as- sume the Article 6b, UCMJ, rights of a victim who is under the age of eighteen, or “incompetent, incapacitated, or de- ceased.” Article 6b(c), UCMJ. R.C.M. 1001A(b)(4)(B) effectuates the right to be heard at presentencing, and thus provides that, in noncapital cas- es, the victim has the right to be reasonably heard through a sworn or unsworn statement. The contents of the statements may include “victim impact or matters in mitigation.” R.C.M. 1001A(c). The victim may use an unsworn statement that can be oral, written, or both, and the victim may not “be cross-examined by the trial counsel or defense counsel upon it or examined upon it by the court-martial.” R.C.M. 1001A(e). Indeed, victim testimony under R.C.M. 1001A does not constitute witness testimony. R.C.M. 1001A(a). However, the prosecution or defense may rebut any state- ments of fact in an R.C.M. 1001A(e) statement. B. We agree with the AFCCA that the Government admits aggravation evidence, to include victim impact statements, under R.C.M. 1001(b)(4), and victims exercise their right to reasonably be heard at presentencing under R.C.M. 1001A. Barker, 76 M.J. at 752. We also agree with the AFCCA’s conclusion that the statements at issue in this appeal were not admitted by the Government as aggravation evidence under R.C.M. 1001(b)(4). Id. at 754. Rather, they were of- fered by the Government under R.C.M. 1001A. Id. But we part ways with the AFCCA on whether the January 2013 statement in this case was properly offered by the Govern- ment under R.C.M. 1001A solely because it was possible to
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glean from the circumstances that the Government acquired it to permit KF (with whom trial counsel never spoke) to ex- ercise her right to be heard, especially given that there was no indication that KF intended to “be heard” at Appellant’s sentencing hearing.7 Interpreting R.C.M. 1001A is a question of law, which we review de novo. United States v. Leahr, 73 M.J. 364, 369 (C.A.A.F. 2014) (citing United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008)). We conclude that the rights vindicated by R.C.M. 1001A are personal to the victim in each individ- ual case. Therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, R.C.M. 1001A(a), the spe- cial victim’s counsel, id., or the victim’s representative, R.C.M. 1001A(d)–(e).8 This Court reviews “a military judge’s decision to admit evidence for an abuse of discretion.” United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002) (citation omit- ted). A military judge abuses his discretion when he admits evidence based on an erroneous view of the law. United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013) (citing United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)). Assuming without deciding such victim impact statements are evidence,9 here, the military judge’s understanding of the law was erroneous, and thus, he abused his discretion.
7 We note that whatever the genesis or legal import of the as yet unidentified Appellate Exhibit IV, it is clear that its dictate to obtain up-to-date statements for use in connection with an indi- vidual sentencing case was overlooked by the AFCCA. 8 Nothing in this opinion prohibits the government from seek- ing to admit victim impact evidence in aggravation under R.C.M. 1001(b)(4). 9 The Government and the AFCCA have taken various posi- tions on this question. Compare Barker, 76 M.J. at 754–55 (treat- ing victim impact statements under R.C.M. 1001A as subject to the Military Rules of Evidence (M.R.E.), specifically M.R.E. 403); Final Brief on Behalf of United States at 4, 5, 12–14, 25, 31, 35, United States v. Barker, 17-0551/AF (Dec. 8, 2017) (referring to the victim impact statements in this case as evidence), with Unit- ed States v. Hamilton, 77 M.J. 579, 585–86 (A.F. Ct. Crim. App. 2017) (finding that victim impact states are not evidence subject to the M.R.E., overruling Barker, 76 M.J. at 754–55, insofar as it held otherwise); Oral Argument at 20:45–21:30; 33:50–35:05,
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In the discussion of PE 8, the trial counsel stated how the statements came to him from the FBI: Given the nature of these cases, her contact in- formation is not necessarily available, and so the FBI, in sending it to me, it’s a part of a da- tabase that they have, you can see many of these redactions were even — they came to the government redacted already, and so victim K.F., and victims like her, do not want to be contacted because that’s all they would be do- ing is being contacted for these cases.10 The military judge interpreted R.C.M. 1001A, as drafted, to give enough “leeway” to allow PE 8’s to be proffered by the Government (without any input from the victim or her advo- cate) because it was more probative under the M.R.E. 403 balancing test than the danger of unfair prejudice. The problem, of course, is that this approach ignores the requirement of Article 6b, UCMJ, that victims be contacted and have the choice to participate and be consulted in cases where they are victims. Article 6b(a)(2)−(5), UCMJ. It fur- ther ignores the fact that the R.C.M. 1001A process belongs to the victim, not to the trial counsel. R.C.M. 1001A(a). Un- der the rules devised by the President to effectuate congres- sional intent, see Article 36(a), UCMJ, 10 U.S.C. § 836(a) (2012); United States v. Smith, 13 C.M.A. 105, 118–19, 32 C.M.R. 105, 118−19 (1962), the crime victim has an inde-
United States v. Barker, 17-0551/AF (Feb. 27, 2018) (Government counsel asserting that victim impact statements admitted under R.C.M. 1001A are not evidence). Since determination of that issue is not necessary to resolution of this case, we will decide it in United States v. Hamilton, 18-0135/AF, where the issue can be briefed. 10 If true, this exposes both a conundrum, and a further prob-
lem exposed by the procedure whereby the statements were pro- cured and introduced: Article 6b, UCMJ, mandates certain rights for victims, yet it appears abundantly clear that the trial counsel in this case did not himself provide reasonable, accurate, and timely notice to KF of the trial or sentencing proceeding, nor was KF afforded a reasonable opportunity to confer with trial counsel. Because KF was not informed of the trial or the sentencing pro- ceeding, her right to be reasonably heard and her right not to be excluded from a proceeding, the fundamental underpinnings of Article 6b, UCMJ, were stymied.
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pendent “right to be reasonably heard at a sentencing hear- ing,” R.C.M. 1001A(a), though the military judge may permit the victim’s counsel to “deliver all or part of the victim’s un- sworn statement.” R.C.M. 1001A(e)(2). All of the procedures in R.C.M. 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel. Moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim im- pact “directly relating to or arising from the offense of which the accused has been found guilty.” R.C.M. 1001A(b)(2). In this case, trial counsel appears to have had no contact with KF, KF did not in fact participate in the proceedings, and there is no indication that KF was even aware of Appel- lant’s trial. Most importantly, the statements were not of- fered by either KF or her advocate as R.C.M. 1001A re- quires. Thus, the military judge abused his discretion in admitting these statements under R.C.M. 1001A. C. When there is error in the admission of sentencing evi- dence, the test for prejudice “is whether the error substan- tially influenced the adjudged sentence.” United States v. Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009) (citation omitted). When determining whether an error had a substantial influ- ence on a sentence, this Court considers the following four factors: “(1) the strength of the Government’s case; (2) the strength of the defense case; (3) the materiality of the evi- dence in question; and (4) the quality of the evidence in question.” United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017) (internal quotation marks omitted) (quoting United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)). An error is more likely to be prejudicial if the fact was not already obvi- ous from the other evidence presented at trial and would have provided new ammunition against an appellant. United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007). Here, the Government’s case was exceptionally strong, and Appellant’s guilt was laid out in vivid detail in the Stip- ulation of Fact. See generally Appendix A. The maximum sentence available in this case was a dishonorable discharge, confinement for twenty years, forfeiture of all pay and al- lowances, and reduction to the lowest enlisted grade, MCM pt. IV, para. 68b.e.(1). Appellant’s pretrial agreement had a sentence cap of four years, and he received only two and a half years, despite the admission of KF’s statements, and
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despite the weakness of Appellant’s sentencing case, which consisted of photographs of Appellant that show him in a positive light, awards received, character letters, and a per- sonal statement. Moreover, it is highly relevant when analyzing the effect of error on the sentence that the case was tried before a mili- tary judge, who is presumed to know the law. United States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008) (citation omit- ted); United States v. Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007).11 While the theme of the letters was on constant revictimization, that devastating facet of child pornography is itself settled law, Osborne v. Ohio, 495 U.S. 103, 111 (1990) (citation omitted) (recognizing that child pornography causes child victims continuing harm), and why child por- nography is both considered a continuing offense, Paroline, 134 S. Ct. at 1715, and has different rules than obscenity. New York v. Ferber, 458 U.S. 748, 759−61 (1982). As depicted in the stipulation of fact, the age of the vic- timized children and the manner in which they were sexual- ly assaulted, was particularly horrific. We are convinced it was that, rather than the heavily redacted and tenuously connected letters, that influenced the sentence. In other words, many of the themes and harms contained in the im- properly admitted letters are well known to the law, and thus are presumed to have been known by the military judge. III. Judgment The decision of the United States Air Force Court of Criminal Appeals is affirmed.
11 We thus presume that the military judge disregarded in- formation in the statements regarding the acts of other individu- als, such as stalking and harassing the victim, that did not direct- ly relate to or arise from Appellant’s convictions for the possession and viewing offense. Moreover, we note that the military judge specifically stated on the record that Appellant would “not be sen- tenced for anything related to the distribution of these images.”
13 APPENDIX A United States v. Barker, No. 17-0551/AF
Chief Judge STUCKY, dissenting.
I agree with Judge Ryan’s convincing analysis of the re- lationship between Rules for Courts-Martial 1001(b) and 1001A, as they apply to victim impact statements. But I see no need to reach the issue in this case. Appellant waived his objection to the admission of the victim impact statements and, therefore, was precluded from raising the issue before this Court. I would vacate the grant of review as being im- providently granted. Therefore, I respectfully dissent. I. Background
During Appellant’s preliminary hearing, held pursuant to Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (Supp. I 2013), the hearing officer accepted for consideration a document entitled “Updated Victim Im- pact Statement from ‘Vicky’ Series Victim—December 2011,” and made it part of his report. On February 29, 2016, both Appellant and a defense paralegal acknowledged receiving a copy of the report. On April 4, 2016, as part of a plea agreement, Appellant agreed to waive all waivable motions and plead guilty unconditionally to two specifications of the Charge. He did not condition his offer on an agreement that the trial counsel not submit victim impact statements or on Appellant’s ability to object to their admission on appeal. In exchange for Appellant’s guilty plea, the convening authority agreed to dismiss Specification 3 of the Charge and to cap the approved sentence. The prosecutor advised the defense before trial that the victim impact statements would indeed be introduced during sentencing. There is no evidence in the record that Appel- lant attempted to renegotiate or withdraw from the plea agreement. When Appellant was arraigned, the military judge ad- vised him that any motions for appropriate relief should be made at that time. Appellant made no motions and entered a plea of guilty in accord with his plea agreement. During the plea inquiry, the military judge discussed the terms of the plea agreement, specifically the provision to waive all waivable motions. United States v. Barker, No. 17-0551/AF Chief Judge STUCKY, dissenting
MJ: [The plea agreement] states that you will waive all motions which may be waived under the Rules for Court-Martial, including motions such as motions to suppress …. Captain Hinson, what motions would you have made if not for this provision in the pretrial agreement? DC: May I have a moment, Your Honor? MJ: You may. [Defense counsel conferred with the accused] DC: Your Honor, we discussed a few motions, but one in particular was the suppression potentially of the search warrant to come in his room and retrieve the electronics from his room that may have contained the images. And I discussed that with Airman Barker and he understands that by accepting this pretrial agreement that he has to waive any potential motions in this case. MJ: Okay. You mentioned you had multiple motions; what would have the other motions been? DC: I’ll just—I’ll just say that one motion, sir.
(Second set of brackets in original.) Thereafter, during an extensive colloquy with Appellant over the meaning and effect of the waive all waivable mo- tions provision in the plea agreement, Appellant agreed to give up his right to raise such motions in order to get the benefit of the terms of the plea agreement. Nevertheless, he objected during sentencing proceedings to the admission of the victim impact statements. During his lengthy justification for his objection, the de- fense counsel submitted to the court a document entitled “Guidance for Use of Victim Impact Statement.” The mili- tary judge overruled the objection and admitted the three statements purportedly made by the victim. II. Discussion
The majority rejects “the notion that a waive all waivable motions provision entered at pretrial provides the government carte blanche to introduce at sentencing information that does not conform to the rules, or to make
2 United States v. Barker, No. 17-0551/AF Chief Judge STUCKY, dissenting
arguments that are prohibited by the law.” United States v. Barker, __ M.J. __, __ n.6 (8 n.6) (C.A.A.F. 2018). I agree that such a provision does not entitle the prosecution to present all matters of any nature to the factfinder. Nor is Appellant waiving the right to object to evidence of which he has not been placed on notice. But victim impact statements are not of such a nature as to be generally inadmissible, and Appellant was clearly on notice that they would be presented. The waive all waivable motions provision would merely have permitted the prosecution to present the statements without the authentication normally required by the rules of evidence. In this case, the defense was well aware before trial of the existence of the victim impact statements. The prelimi- nary hearing officer provided both counsel and Appellant with copies, and the prosecutor advised that the statements would be introduced during sentencing. The defense counsel was less than candid with the military judge during their discussion of which motions the defense counsel had consid- ered raising. Not to tip his hand and give the prosecution an opportunity to withdraw from the plea agreement before Appellant had substantially complied with his obligations under the deal, the defense counsel failed to mention sup- pression of the victim impact statements as a possible mo- tion. But as the record clearly shows, the defense counsel was fully prepared to argue against consideration of the statements, going so far as to present the military judge with Appellate Exhibit IV to support his position. Under the circumstances of this case, the waive all waivable motions provision of Appellant’s plea agreement signifies his knowing and intelligent waiver of the issue, leaving no error to correct on appeal. United States v. Cam- pos, 67 M.J. 330, 332 (C.A.A.F. 2009); United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Although the Courts of Criminal Appeals have plenary authority to review cases despite an appellant’s waiver of all waivable motions and unconditional guilty plea, this Court does not. United States v. Chin, 75 M.J. 220, 222–23 (C.A.A.F. 2016). “Waiver at the trial level continues to preclude an appellant from raising the issue before either the CCA or this Court.” Id. at
3 United States v. Barker, No. 17-0551/AF Chief Judge STUCKY, dissenting
223. Therefore, this Court should vacate Appellant’s petition for grant of review.