United States v. Eslinger

70 M.J. 193, 2011 CAAF LEXIS 582
CourtCourt of Appeals for the Armed Forces
DecidedJuly 8, 2011
Docket10-0537 & 11-5002/AR
StatusPublished
Cited by51 cases

This text of 70 M.J. 193 (United States v. Eslinger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eslinger, 70 M.J. 193, 2011 CAAF LEXIS 582 (Ark. 2011).

Opinions

Judge BAKER delivered the opinion of the Court.

A general court-martial composed of officer and enlisted members convicted Appel-lanVCross-Appellee (Appellant), contrary to his pleas, of three specifications of possession of child pornography, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). The adjudged and approved sentence included confinement for three years, reduction to pay grade E-l, forfeiture of all pay and allowances, and a bad-conduct discharge.

On review, the United States Army Court of Criminal Appeals affirmed.1

We granted review of the following issue: WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PERMITTING THE GOVERNMENT TO OFFER EVIDENCE IN THE FORM OF OPINION TESTIMONY FROM SENIOR OFFICER AND NCO WITNESSES WITH NO PERSONAL KNOWLEDGE OF APPELLANT’S DUTY PERFORMANCE TO OPINE THAT HE SHOULD BE SEPARATED FROM THE ARMY AND SPECIAL FORCES.

In addition, the Government certified the following issue:

WHETHER THE RESTRICTIONS UNDER R.C.M. 1001(b)(5) APPLY TO REBUTTAL EVIDENCE SUBMITTED UNDER R.C.M. 1001(d) AND WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE COMMIT[T]ED PLAIN AND OBVIOUS ERROR WHEN HE PERMITTED INTRODUCTION OF GOVERNMENT REBUTTAL TESTIMONY TO DEFENSE “RETENTION EVIDENCE” WHEN THERE WAS NO DEFENSE OBJECTION.

In our view the legal questions at the root of these issues were addressed in United States v. Griggs, 61 M.J. 402 (C.A.A.F.2005). Thus the question presented here is how the Griggs analysis applies to these facts. For the reasons stated below we conclude that if any errors with regard to a lack of foundation for lay opinions were clear and obvious, they did not substantially influence the adjudged sentence.

BACKGROUND

Appellant was a Special Forces medic who had served in the Army for eighteen years. In March 2006, Appellant had been living with his girlfriend Loren R. Masden for two years. She and Appellant exchanged various [196]*196computer passwords as a sign of trust. On March 4, 2006, while Appellant was at “Pinon Canyon training site in Trinidad,” Masden logged onto Appellant’s laptop and discovered images of child pornography on the computer. She immediately called her sister, who came to Masden and Appellant’s home and also saw the images. Masden testified that her sister saw a digital fingerprint indicating that the pictures were downloaded on February 14, 2006, a time at which Appellant had been in North Carolina for training. Masden was upset and went to stay at her sister’s, returning a few days later to pack her things. On March 8, 2006, she reported the images to law enforcement.

Appellant testified that at the time the images were downloaded, he was in training and occasionally did not have possession of his laptop or remote storage drives, and that some of the images may have been downloaded unintentionally while intending to download- adult pornography and other materials from a file-sharing website. There were over 1,700 pornographic images found on Appellant’s computer that depicted children. These images included various forms of child pornography including anal, oral, and vaginal penetration of children under the age of two.

The members found Appellant guilty of the charged offenses. At sentencing Appellant introduced testimony from three mitigation witnesses, each of whom basically testified that in his opinion, Appellant should be retained in the armed forces. Master Sergeant (MSG) Willie D. Gibbons, a member of 3d Battalion, 10th Special Forces Group, stated among other things, “I’ve already packed his bags ... I would take him on my team in a minute,” and “Just like an alcoholic ... I think, you know, something needs to be done.... Past that, I think he needs to stay in the service.” Captain Timothy J. Coff-man, the battalion physician assistant, stated, “He is my best medic” and “I think we should rehabilitate him.... I mean, he’s a great soldier. He has a great service record as far as military activities.” Sergeant First Class Shawn Dishman, a member of Appellant’s company, whose testimony was admitted through a stipulation of expected testimony stated:

I definitely think that there is a place for [Appellant] in the Army and within the 10th Special Forces. I truly believe that Special Forces is the only place for SFC Eslinger.
I would be proud to serve with him in the future despite this conviction.... [I] would welcome him to my team any day.

In rebuttal to Appellant’s mitigation evidence, the Government introduced testimony from five witnesses. Major (MAJ) Isaac J. Peltier, the acting battalion commander of 3rd Battalion, 10th Special Forces Group, Appellant’s battalion, stated:

It is my opinion that, clearly [Appellant] should not deploy to combat with this organization. ... And for that matter, he should not return to this — the 3rd Battalion. And I’ll go a step further in my opinion, based on his pattern of misconduct, he shouldn’t even be in the Army.

Sergeant Major (SGM) Jason M. Krider, Appellant’s battalion command sergeant major (CSM), testified, “There is no place in our ranks for Sergeant Eslinger.” MSG Timothy D. Stensgaard, one of the two team sergeants of the tactical support detachment in the 10th Special Forces Group testified, “As a leader in the United States Army, I don’t feel that based on his prior incidences and this conviction how he [sic] could remain in the U.S. Army and effectively serve.” Colonel (COL) Kenneth E. Tovo, group commander of the 10th Special Forces Group, testified:

Sergeant Eslinger’s got a good reputation as a soldier, particularly a combat soldier, in the Group. However_ [Y]ou just listed four fairly significant instances of ill-discipline, and frankly, that’s more chances than we allow a guy.... I just find that ... his ill-discipline is incompatible with continued service, certainly within the 10th Group.

CSM Charles M. Sekelsky, the group command sergeant major, testified, “I think he’s embarrassed the regiment and the United [197]*197States Army for his actions.”2 In addition, on cross-examination defense counsel elicited agreement from the sergeant major that Appellant was an exceptional medic and an exceptional team member when deployed in a combat zone. Defense counsel specifically asked CSM Sekelsky, “If you could put him in a can and take him to Iraq and only open him up in Iraq, you’d prefer to do it that way, wouldn’t you?” To which he responded, “Yes.”

With two exceptions, defense counsel did not object to the testimony of these witnesses. Following SGM Krider’s testimony the military judge asked, “Any issues with the sergeant major’s testimony?” Defense counsel, citing Rule for Courts-Martial (R.C.M.) 1001(b)(5), responded with a request that the military judge instruct the members to disregard the testimony because the offenses of which Appellant was found guilty formed the principal basis for SGM Krider’s opinion. Following an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session to discuss the matter, the military judge instructed the members to disregard SGM Kri-der’s testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
70 M.J. 193, 2011 CAAF LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eslinger-armfor-2011.