United States v. Smith

66 M.J. 556, 2008 CCA LEXIS 144, 2008 WL 948260

Opinions

McClelland, Chief Judge:

Appellant was tried by general court-martial composed of members. Contrary to his pleas, Appellant was convicted of one specification of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 886; one specification of attempted failure to obey a lawful order, in violation of Article 80, UCMJ, 10 U.S.C. § 880; one specification of sodomy, in violation of Article 125, UCMJ, 10 U.S.C. § 925; one specification of extortion, in violation of Article 127, UCMJ, 10 U.S.C. § 927; and one specification of indecent assault, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The court sentenced Appellant to a dismissal, confinement for six months, and forfeiture of all pay and allowances. The Convening Authority approved the sentence as adjudged.

Before this Court, Appellant has assigned six errors:

I. The convictions for extortion, sodomy, and indecent assault must be reversed because the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of SR.

II. If the findings for extortion and indecent assault are set aside, then the sodomy conviction, which is based on private consensual non-commercial activity between adults of equal rank, is unconstitutional.

III. The extortion conviction must be overturned because the Government failed to prove that Appellant threatened SR with the intent to obtain sexual favors.

IV. The conviction for going from an appointed place of duty cannot stand because the Government failed to prove that Appellant knew that his duty assignment required him to remain in Chase Hall after 2200.

V. The evidence was factually insufficient to sustain the conviction for attempted violation of an order.

VI. The Convening Authority erred in summarily denying Appellant’s request to defer confinement.

We summarily reject the third and fourth assigned errors. The evidence, though circumstantial, is sufficient to support the convictions. We will discuss the other assigned errors. We find no error and affirm.

I

Appellant asserts that the military judge erred in limiting his cross-examination of the complaining witness concerning the extortion, sodomy, and indecent assault specifications of which he was found guilty. We will review the military judge’s decision de novo7 If error is found, we will reverse unless we find the error harmless beyond a reasonable doubt.

In May 2005, during the Coast Guard Academy’s summer program, Appellant, a Coast Guard Academy cadet, and SR, a female Academy classmate, were assigned to neighboring cutters in Norfolk, Virginia. Appellant communicated with SR, letting her know that he was hearing rumors about her. They discussed the rumors, and SR told Appellant the story underlying the rumors. (R. at 878, 1320.) SR testified that she told Appellant a part of but not the whole situation; she lied to him by omitting details that would have painted her in a bad light. (R. at 878, 901-02.) Appellant assured her that he would counteract the rumors. (R. at 878, 1320. )

On 19 October 2005, Appellant communicated with SR to the effect that the rumors were still being talked about. Again they discussed the rumors, and this time SR told Appellant the complete story of what had happened. (R. at 880, 921,1321.) Appellant testified to the effect that his source had indicated the story was different from what she had originally told him, and that when she told him the complete story, it was indeed “pretty substantially different.” (R. at 1321. ) SR testified that, at that point, she thought if she did not tell him the whole story, he would stop helping her. (R. at 922.) Her actions in the complete story, she admitted, violated cadet regulations and possibly the UCMJ, but she understood at the time of trial that she would not be prosecuted for them. (R. at 899.) Once she told Appellant the whole story, she testified, he responded that he needed motivation to continue helping her. (R. at 880-81.) Later that evening, Appellant and SR engaged in sexual conduct that became the subject of the extortion, indecent assault, and sodomy charges against Appellant. (R. at 881-92.) SR maintained that the reason she engaged in the conduct was because she “was scared to upset him because he had a big secret of mine.” (R. at 891.)

Early in the trial, a closed Article 39(a) session was held pursuant to Military Rule of Evidence (M.R.E.) 412 to address the details of the story underlying the rumors, on which the defense proposed to cross-examine SR. * * * [REDACTED]* * * The military judge ruled that SR could be cross-examined concerning the lie in May, but that the details, as described in this paragraph, were not to be brought out.⁸

Appellant contends that the military judge’s ruling was a “flagrant violation” of Appellant’s Sixth Amendment right of confrontation. In defense of the extortion, indecent assault, and sodomy charges, Appellant sought to convince the court members that SR was lying about her sexual encounter with Appellant, in particular falsely contending that it was not consensual, and that she was doing so to protect herself from discipline. This argument, he asserts, would have been much more persuasive had the members known that before 19 October, SR had been lying to Appellant * * *[REDACTED]* * *, and doing so to protect herself from discipline.

M.R.E. 412 renders evidence inadmissible that is offered to prove a complainant engaged in sexual behavior other than that involved in the alleged offense. M.R.E. 412(a)(1). However, it excepts, among other things, “evidence the exclusion of which would violate the constitutional rights of the accused.” M.R.E. 412(b)(1)(C). An accused has the right to admission of such evidence if it is relevant, material, and favorable to his defense. United States v. Dorsey, 16 M.J. 1, 5 (C.M.A.1983) (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)). “Favorable” is further interpreted as “vital.” United States v. Banker, 60 M.J. 216, 222 (C.A.A.F. 2004).

Appellant was properly allowed to cross-examine SR concerning her May 2005 lie, pursuant to M.R.E. 608(b) and the Sixth Amendment. However, the right to confrontation is not absolute. “[TJrial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this Term, ‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citation omitted). The trial judge could properly restrict Appellant’s cross-examination of SR on the basis of M.R.E. 412, excluding, as he did, the details of the May incident, unless those details were relevant, material, and vital to his case. Dorsey, 16 M.J. at 5; Banker, 60 M.J. at 222.

Appellant cites United States v. Bahr, 33 M.J. 228 (C.M.A.1991), and United States v. Moss, 63 M.J. 233 (C.A.A.F.2006), in support of his argument that the details of the May incident were constitutionally required to be admitted. In each of these cases, evidence of a complainant’s motive to fabricate was proffered but excluded.⁹ In both cases, the court held the exclusion was prejudicial error.

In Bahr, the accused was charged with sexual offenses against his 14-year-old daughter. The defense offered the daughter’s diary, in which she expressed intense dislike of her mother, and proposed to cross-examine her on it to show that she hated her mother. The Court of Military Appeals agreed that this tended to show a motive to testify falsely against her father in order to hurt her mother. Admission of such evidence was required under M.R.E. 608(e) and the Sixth Amendment. 33 M.J. at 233. The defense further sought to cross-examine the child concerning prior false statements to her classmates about being raped by soldiers in Spain, which she had admitted to counsel were lies she had uttered to attract attention. Again, the court agreed that this line of cross-examination was admissible to show the prosecutrix had a second motive to testify falsely. Id. at 233-34.

The accused in Moss was charged with sexual offenses against his 14-year-old niece. The defense sought to show that the niece fabricated the allegations so as to cast herself as a victim to gain favorable treatment from her parents, by cross-examining her and her mother on her acts of misbehavior and the resulting punishments, and on the improvement in the relationship with her parents after she reported the allegations. 63 M.J. at 235. In this case, too, CAAF held the proposed cross-examination should have been allowed, citing M.R.E. 608(c) and the Sixth Amendment.¹⁰ Id. at 237.

The circumstances of these cases are different from those of our case. The girls’ claimed motives to fabricate, in order to retaliate against her mother and also to gain attention in the one case, and to divert attention from her own misdeeds in the other, were supported by direct evidence or evidence from an earlier parallel situation. In our case, the argument as to motivation is being made based on an earlier situation claimed to be parallel, but there is a significant difference between the two situations.

It is clear that SR wanted Appellant’s help in suppressing rumors concerning the May-2005 incident, and it is fair to argue that avoiding discipline was a factor motivating her to lie to Appellant about the details. The motive for SR to falsify the truth regarding the May incident can be directly linked to her concern for either UCMJ or administrative action against her * * *[REDACTED]* * *. There is no apparent similar motive to fabricate her story regarding the events on 19 October 2005. There is no evidence in the record, no suggestion, and no reason to believe that anyone knew about the 19 October conduct other than Appellant and SR, and thus no reason to believe a preemptive false report on her part would be useful to her. Since no one else knew about the events that took place in the cadet barracks that night, there was no reason for SR to be concerned -with either UCMJ or administrative action against her, and therefore no reason for her to falsify the information when she made her report¹¹ or when she testified at trial.

Appellant could have cross-examined her upon her motive for making that report, instead of relying solely on a claimed parallel with the May incident, but did not do so. Hence, there is no evidence at all of motive to fabricate, and the earlier situation is not parallel.

The military judge’s ruling allowed Appellant to attack SR’s credibility by means of showing a prior lie. It precluded Appellant from showing that the prior lie pertained to * * ^[REDACTED]* * *, but did not preclude Appellant from attempting to show, by other means, that SR had a motive to lie in her testimony against Appellant. Nor did it preclude Appellant from “portray[ing] the witness as the architect of a scheme of false allegations intended to cover up her own misconduct,” as the dissent complains. That the witness lied came into evidence (R. at 901), as did the fact that the lie pertained to her misconduct (R. at 899-901).

We further disagree with the dissent that her testimony “created a substantially different impression of her credibility than what the defense had tried to show — namely, that SR had knowingly provided Appellant with false information” for the purpose of using him to counter a career-threatening rumor, impliedly by disseminating the false information. She testified on direct examination that she “did not tell [Appellant] the whole situation,” but only “[a] little bit of it.” (R. at 878.) But she also admitted, under cross-examination, that she had lied to him, that the bits she had omitted painted her in a bad light. (R. at 901-02.) Appellant’s testimony reflected that her statements to him had been “substantially different.” (R. at 1321.) The military judge’s ruling prevented the members from judging for themselves whether her behavior should be characterized as a lie or something less, but it did not prevent Appellant’s defense counsel from arguing, as he did, that she admitted lying.¹² (R. at 1510.)

As noted above, an accused has the right to admission of evidence despite M.R.E. 412 if it is relevant, material, and vital to his defense. United States v. Dorsey, 16 M.J. 1, 5 (C.M.A.1983); United States v. Banker, 60 M.J. 216, 222 (C.A.A.F.2004). In this case, we find that the evidence sought to be admitted was no more than superficially relevant, was not material, and was not vital to his defense. We find no error in the military judge’s ruling against Appellant.¹³

II

Appellant asserts that if he prevails on the previous assignment, clearly necessitating reversal of the extortion and indecent assault convictions, the sodomy conviction must also be reversed because it would be unconstitutional under Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

In United States v. Marcum, 60 M.J. 198, 206 (C.A.A.F.2004), the court held that Lawrence applies to the military, but Article 125, the UCMJ’s punitive article on sodomy, is not facially unconstitutional. Rather, the court concluded “that its application must be addressed in context,” that is, is it constitutional as applied? Id. The court set forth three questions to be considered.

First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as-outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

Id. at 206-07 (citation omitted).

In the absence of the coercive element of extortion, Appellant’s conduct might be characterized as private, consensual sexual activity between adults. We may assume, as the court did in Marcum, that the conduct would be within the Lawrence liberty interest. Since Appellant and SR were both first-class cadets and not in the same chain of command, unlike the situation in Marcum, we may also assume that the conduct would not encompass behavior or factors identified as being outside the Lawrence analysis. However, in the language of United States v. Stirewalt, 60 M.J. 297, 304 (C.A.A.F.2004), Appellant’s conduct “squarely implicates the third prong of the framework.”

The Regulations for the Corps of Cadets includes an Article 4-5-05 entitled Sexual Misconduct. (Appellate Ex. XXIV.) Paragraph a.3 thereof prohibits sexual conduct on board military installations, which includes the Academy, even if between consenting cadets. We find that Appellant’s conduct, as he testified to it (R. at 1326-27), was outside any protected liberty interest recognized in Lawrence. See Stirewalt, 60 M.J. at 304 (liberty interest is considered “in light of the established ... regulations and the clear military interests of discipline and order that they reflect”). We note that a holding otherwise would apparently yield the anomalous result that the regulation would be enforceable as to all forms of sexual conduct except sodomy, as the Government pointed out at oral argument.¹⁴

The presence of the regulation readily distinguishes this case from those of the Army Court of Criminal Appeals opinions attached to Appellant’s brief, in which in-barracks consensual sodomy convictions were overturned. In one of them, the opinion specifies that there was no evidence of a barracks policy prohibiting the conduct. United States v. Meno, ARMY 20000733, at 4 (A.Ct.Crim.App. Jun. 22, 2005) (per curiam). In the other, a guilty plea case, the accused had not admitted any facts that would take the case out of the Lawrence liberty interest.¹⁵ United States v. Bullock, ARMY 20030534, at *5, 2006 WL 3490409 (A.Ct.Crim.App. Nov. 30, 2004). We are not aware of any court-martial appellate decision overturning a sodomy conviction based on Lawrence when there was a regulation aside from Article 125, UCMJ, prohibiting the behavior.¹⁶

Ill

Appellant was charged with violating an order prohibiting him from contact with cadets. He was convicted of an attempt to violate the order. He contends that the evidence was factually insufficient to support the conviction, in that his attempt to contact a cadet took place the day before the order was issued.

The specification charges violation of a paragraph of a written order issued by the Commandant of Cadets on 7 December 2005, which is Prosecution Exhibit 4. It is styled as an amendment to a written order he had issued on 5 December 2005, which is Defense Exhibit F.¹⁷ The Commandant of Cadets issued the written order of 5 December at the time Appellant was removed from the barracks. (R. at 820, 1351.) Appellant’s acknowledgment of receipt is recorded on Defense Exhibit F at 0410 on “5 DEC 05.” The Commandant of Cadets issued the written order of 7 December after receiving legal advice (R. at 820), but the intent of the order had not changed (R. at 807). Appellant’s acknowledgment of receipt is recorded on Prosecution Exhibit 4 at 1600 on “DEC 05” (sic). This order was issued after the Commandant of Cadets had referred allegations of sexual assault against Appellant to Coast Guard Investigative Service (CGIS) for investigation.¹⁸ (R. at 814.)

The order of 7 December alleged to have been violated reads, ‘You are prohibited from any contact of any kind, directly or indirectly, through any source, or by any means, with Coast Guard Academy Cadets wherever they are located; to include text messages, emails, or phone calls.” (Prosecution Ex. 4.) This differs from the order of 5 December by the added words, “directly or indirectly, though any source, or by any means,” and “wherever they are located.”

The specification alleges violation of the order by, “on or about 16 December 2005, ... wrongfully sending an instant message to [KS], with the intention of having [KS] contact Cadet [KN, an Academy classmate of Appellant].”

KS and KN were close friends. (R. at 408, 423, 496, 555; Defense Ex. A.) KS testified that she received an instant message from Appellant in December 2005. (R. at 519.) The text of the instant message is found in Prosecution Exhibit 1 without any marker as to date of origin, and includes the words, “I need you to make sure that she knows that I hope that everything is physically and emotionally ok with her right now.” KS understood this to mean Appellant wanted her to relay a message to KN. (R. at 519.) She saved it to her computer desktop, intending to relay it to KN, but when she realized that she would be unable to do so before taking a trip, she emailed the text to herself. (R. at 519-20.) Prosecution Exhibit 1 is a printout of the email, dated 16 December 2005. KS testified that she had received the instant message a few — less than ten — days before that. (R. at 560-61.)

Appellant testified that he had sent an instant message to KS on 6 December 2005 (R. at 1333), before receiving information that he was not supposed to contact any cadets indirectly (R. at 1351), but none after receiving the order the next day prohibiting indirect contact with KN (R. at 1334).

Appellant argues that his testimony was certain as to the date he sent the message and KS’s testimony was uncertain, and therefore his version must be accepted. Apparently the members did not believe Appellant’s version and believed KS’s testimony that she had received the instant message a few (less than ten) days before 16 December. We are satisfied that the evidence supports the finding that Appellant sent the instant message after he received the 7 December order.¹⁹

IV

Appellant asserts error on the part of the Convening Authority in summarily denying his request for deferment of the sentence to confinement.

Shortly after the trial ended at 1856 hours on 28 June 2006, Appellant submitted a written request for a one-week deferment of the sentence of confinement. The Convening Authority memorialized his action on the request by writing on it, “Request Denied,” his signature, and the date, “06/28/06.” This was error, as such action must not only be in writing, R.C.M. 1101(c)(3), but also “must include the reasons upon which the action is based.” United States v. Sloan, 35 M.J. 4, 7 (C.M.A.1992). The Government concedes the error, but contends that Appellant is not entitled to relief. (Government Br. 14-15.)

Appellant claims prejudice in that he was “paraded in front of frenzied members of the media ... in what can only be described as a ... ‘perp walk.’ ”²⁰ (Appellant Br. 38.) The Government’s affidavits contradict Appellant’s version of events. This Court has extremely limited authority to resolve factual disputes that arise from post-trial submissions. United States v. Ginn, 47 M.J. 236, 238 (C.A.A.F.1997).

Nevertheless, assuming Appellant’s version of the facts, we agree with the Government that no relief is due. We find that the Convening Authority’s failure to state any reason for denying the deferment request, while error, was harmless. Appellant served the same amount of confinement he would have served if the deferment had been granted, albeit without a week of delay in its commencement. Assuming he suffered the humiliating and embarrassing experience he describes, we know of no precedent for relief, and we are not inclined to grant relief. See United States v. Sloan, 35 M.J. 4 (C.M.A. 1992); United States v. Brownd, 6 M.J. 338 (C.M.A.1979). Distasteful though it may be, we do not believe the criminal law has occasion to take cognizance of such an experience. In any event, there is no guarantee that a deferment of confinement would have avoided exposure to the media when he reported for confinement at the end of the deferment.

Decision

We have reviewed the record in accordance with Article 66, UCMJ, 10 U.S.C. § 866. Upon such review, the findings and sentence are determined to be correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed.

Judge LODGE concurs.

7 . The Court of Appeals for the Armed Forces has stated that it employs an abuse-of-discretion standard when reviewing claims that a military judge’s evidentiary ruling violated the Sixth Amendment right of confrontation. United States v. Moss, 63 M.J. 233, 236 (C.A.A.F.2006); United States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005). These cases, as well as others preceding them, found error in the trial court’s ruling, weakening the claim that they represent holdings as to the standard of review to be applied. In any event, we choose to review this issue de novo under our Article 66, UCMJ, responsibility to determine whether the findings and sentence, on the basis of the entire record, should be approved. See United States v. Olean, 56 M.J. 594, 598-99 (C.G.Ct.Crim.App.2001).

8 . It is undisputed that the details fall within Military Rule of Evidence (M.R.E.) 412’s exclusion. Moreover, SR, a newly-commissioned Coast Guard officer at the time of trial, testified that she was still concerned about the story because "I’m afraid of rumors when I go from unit to unit.” (R. at 877.) It is for this reason that we continue to treat the details as specified in M.R.E. 412(c), keeping them nonpublic, although M.R.E. 412 addresses itself to admission of evidence, implying that it applies at trials, and does not mention appellate proceedings. Portions of the briefs were sealed, and we held a closed hearing for oral argument on this assignment of error. We seal portions of this opinion in the same spirit; likewise the dissent.

9 . M.R.E. 412 was not implicated in these cases.

10 . During the trial of this case, there was little mention of motive as a basis for admission of the disputed evidence. M.R.E. 608(c) was not cited. In the defense’s Notice Pursuant to M.R.E. 412, the argument referred to credibility generally, and went on to argue that the evidence at issue "tends to show the alleged victim as untruthful about her sexual conduct generally and specifically has motive to lie about the specific sexual rumors underlying the charge.” (Appellate Ex. XDC at 3 (citing United States v. Dorsey, 16 M.J. 1 (C.M.A.1983)).) However, the “motive to lie” point was not developed. In the context of this case, this omission makes no difference to our analysis.

11 . SR provided a signed statement dated 15 February 2006 to the Coast Guard Investigative Service containing the allegations against Appellant. (Appellate Ex. XVII, Enclosure 13; Appellate Ex. XXI at 1.)

12 . The dissent propounds the theory that SR sought to have Appellant lie for her. Both her testimony and Appellant’s testimony imply that he volunteered to help her suppress the rumors, without her asking. (R. at 878, 1320.) She also testified that on 19 October, she said to him, "I’m not gonna ask you to lie for me.” (R. at 903.) As the dissent notes, there is nothing to indicate just what she hoped for or expected him to do to "squash” or suppress rumors. On the evidence, it would be fair argument to say that she sought to have him lie for her, but the defense did not actually make that argument at trial.

13 . The military judge did not explicitly find that the evidence was relevant, but did say, "I agree that this theory would be a valid reason for admitting this evidence under M.R.E. 412(b)(1)(C).” (Appellate Ex. CLIII at 3.) He went on to find that "the minimal probative value of this evidence is outweighed by danger of unfair prejudice to [SRj’s privacy interests [per M.R.E. 412(c)(3)] and the potential danger of sidetracking the [members’] attention to a collateral issue [per M.R.E. 403].” Id.

14 . We have found no authority suggesting that military regulation of sexual conduct generally may be unconstitutional.

15 . Appellant’s clemency request to the Convening Authority, dated 22 August 2006, attached another Army Court of Criminal Appeals opinion and cited a Navy Court of Criminal Appeals opinion, each of which involved a guilty plea with no indication or admission by the accused of additional factors taking the case out of the Lawrence liberty interest.

16 . Under the circumstances of this case, even if Appellant were found not guilty of extortion and even if there were no regulation, it is not clear that the conduct would be within the Lawrence liberty interest. We do not reach that question.

17 . Defense Exhibit F was admitted (R. at 818), although it is not listed in the index as an exhibit admitted into evidence and is found in the record with exhibits that were not admitted.

18 . Appellant was acquitted of several charges growing out of that investigation.

19 . We reject Appellant’s suggestion that the 7 December amendment came about because the Commandant of Cadets learned Appellant had sent the instant message the previous day. (Appellant Br. 35.) There is no evidence and no reason to suspect that anyone other than Appellant and KS knew about the instant message at the time.

20 . Appellant claims that his affidavit is corroborated by, and the Government’s affidavits conflict with, media reports. We decline to accept media statements as evidence or take judicial notice of them.