Sexual Assault At Coast Guard Academy, The Webster Smith Case Appendix 9 (continued)

TUCHER, Judge (concurring  in part and dissenting  in part):

I concur with the majority decision on Assignments II, IV, V, and VI.   I dissent from the decision  on Assignments I and III.

I agree with the majority opinion that admission of the  underlying details of SR’s   secret—namely,  her prior sexual encounter with an enlisted member—was subject to some limitation under Military Rule of Evidence  (M.R.E.)  412.         I  would  find, however, that the military judge abused his discretion when he prohibited  the defense  from  cross-examining SR   on  her  false statement to Appellant that the encounter was nonconsensual, since this evidence was highly probative of the defense theory that SR  engaged in a pattern  of fabrication to avoid discipline. As discussed  below, I believe that the military judge erred when  he decided the admissibility of this evidence based on his own credibili-

[564]ty determination  of the only two witnesses in- volved.   The military judge also erred in not consider- ing important factors that favored admission of the defense evidence,  including  that the Government made first use of evidence of SR’s secret in its case-in-chief to prove that she was extorted  and  coerced  into sexual relations with Appellant; that SR’s  credibility was a key element in an otherwise  uncorroborated case; and that the strength of the Government’s  case turned on the members finding the presence of subtle  psychological influences that overcame SR’s  will.   The excessive restrictions imposed on Appellant’s  Sixth  Amendment confrontation rights allowed SR  to testify through non- factual euphemisms   on  critical  issues  related to the Government’s  proof and  her own  credibility, and  al- lowed the Government to create a substantially different impression of her truthfulness than  what  the defense had  sought to show through the excluded  evidence.

It is  well-settled that “a primary interest secured by [the confrontation  clause of the Sixth  Amendment] is  the right  of  cross-examination.” Douglas v. Alabama, 380 U.S.  415, 418 (1965). “Cross-examination is the principal means by which the believability  of a wit ness and the truth of his testimony  are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). Moreover, “the ex- posure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.”  Id. at 316-17. In military courts-martial, the right to attack the partiality of a witness  is   primarily  secured under M.R.E.   608(c), which provides for  the admission of evidence  that shows bias, prejudice, or any  motive to misrepresent through cross-examination  of witnesses  or  extrinsic evidence.  See United States v. Hunter, 21 M.J. 240, 242

(C.M.A. 1986); United States v. Saferite, 59 M.J. 270 (C.A.A.F. 2004).

Although trial judges have broad discretion  to im- pose reasonable limits on cross-examination  to address concerns over  harassment,  prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally  relevant, this  discretion is not without boundaries. Where the accuracy and truth- fulness of the witness’ testimony are “key elements” in the Government’s  case, a trial court’s refusal to allow the defendant to cross-examine the witness regarding possible bias, motive, or prejudice is a  violation of his Sixth Amendment rights.  Davis, 415 U.S. at 317-18; see also Saferite, 59 M.J. at 273 (“Evidence of bias can be powerful impeachment.”);  United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006) (“When the military judge excludes  evidence of bias, the exclusion raises issues regarding an accused’s Sixth  Amendment right to confrontation.”);  United  States v. Bins,   43 M.J. 79, 84 (C.A.A.F.  1995) (“When the defense  offers this  evi- dence, it may deny confrontation rights to exclude it.”);

United States v. Foster, 986 F.2d 541, 543 (D.C. Cir. 1993) (“The more important  the witness to the government’s case, the more important the defendant’s right, derived from the Confrontation  Clause of the Sixth Amendment, to cross-examine the witness.”).

Evidence that SR  had  made a prior false  claim of sexual assault to Appellant  should have been admissible at trial because the central issue was whether SR consented during their sexual  encounter on 19 October 2005, and SR  was the only Government witness on the issue of consent.  The defense should  have been able to show that because SR  had falsely informed Appellant that her prohibited sexual encounter with an enlisted  member was non-consensual, members  could infer that

she had followed  a similar scheme in fabricating  a false  complaint of indecent assault against Appellant, where the motive underlying each statement was SR’s fear of being disciplined.   Here, the record of trial shows that SR relied on Appellant to contain rumors that were circulating over what prosecutors cryptically referred to as her “bad situation” or “secret.” (R. at 881, 901, 922- 23.) Both SR’s “bad situation”  and her encounter with Appellant in Chase Hall involved  a military nexus that, if disclosed, subjected SR  to discipline. Both incidents were  connected, in that the encounter in Chase Hall

apparently was meant to secure Appellant’s continued assistance in “suppressing” rumors regarding the earlier encounter.

[565] I find it  significant that  the Government  made  first use of evidence  of SR’s  secret during its case-in-chief.         Although the prosecution  was able  to present  evidence that SR  was coerced into unwanted sexual relations with Appellant by  the implied threat that he would reveal the facts of her “bad  situation,” the defense  was prohibited from showing that this same fear of disclosure weighed so heavily in SR’s mind that she relied on Appellant  to disseminate false information concerning  her secret. The anomalous result was that the members  heard  only  the Government’s  evidence on the question of SR’s motivation in submit- ting to Appellant’s  advances, while the defense was unable to complete the picture by showing the depths of her fear and the lengths she allegedly  had gone—and was prepared to go—to shield the facts of her misconduct.

I disagree that the cross-examination  allowed the defense was adequate to develop SR’s motive to testify falsely against  Appellant.       The sexual encounter  be- tween  SR  and Appellant   had many  outward  appear-

ances of being consensual.   The Government’s  case of indecent  assault was not strong and  turned on  the members finding  the existence of coercion that was sufficient to overcome the victim’s  will.  Resolving this is- sue  necessarily  required the  members to  carefully evaluate the potentially  subtle psychological pressure that resulted  from Appellant’s  veiled threat to reveal the truth  about SR’s  secret—a threat  that Appellant  denied making. Certainly, one explanation  for SR’s en- counter with Appellant was that she felt coerced into unwanted sexual relations.  Another entirely plausible explanation was that the encounter resulted from her own calculation that Appellant  needed additional  “motivation” to continue spreading false information  on her behalf.1 Both scenarios  would  account for the consider- able pressure SR  was under after Appellant informed her that rumors still were circulating  about her secret, but the latter would not necessarily describe extortion or an indecent  assault.2 Appellant  could not  develop this alternate  scenario at trial  because he was prohibited from adequately addressing  SR’s prior false statement.

In addition, the Government  offered no evidence of a fresh complaint and no other  evidence to support SR’s

1 The defense attempted to develop this alternate theory during cross-examination  of SR, but was hamstrung by its inability to speak directly to the facts of the prior false allegation.  (R. at 903.)

2 In fact, the Government, in apparent acknowledgment of the subtle psychological pressures at work, responsibly  determined that it would not charge Appellant with forcible  sodomy. In  its answer  and brief, the Government explained, “[a]s  a practical mat- ter, it would  be difficult to convict someone of forcible sodomy on these facts, however, that does not mean that the conduct was con- sensual.”  (Government Br. 7.)

account of the incident involving Appellant.

SR  was the Government’s  key witness against  Appellant—in fact, SR’s testimony was the only evidence supporting Appellant’s  conviction   on  extortion and indecent  assault. Moreover, her own testimony  on the question of consent  was far  from  conclusive.     For  example,  although SR testified that at one point during their en- counter she pushed  Appellant’s   head aside and told him, “Please don’t,” she also testified that they kissed each other and exchanged  back massages; that he told her, “You don’t have to if you don’t want to”; and that she thanked him for his support—presumably in reference to his assistance in defusing rumors regarding her secret. (R. at 885-86, 889-92, 914-17.) On the unusual facts of this case, it was essential that the defense  be given wide latitude to explore SR’s  credibility, and to fully develop any motive reasonably raised by the evidence that she would bring a false allegation of sexual assault against Appellant.      See  Moss,  63 M.J. at 236 (“rules of evidence should  be read to allow liberal ad- mission of bias-type evidence”).

The members eventually did hear SR  admit  that her secret involved  a violation  of Cadet Regulations (R. at 899), and  that she had misled Appellant  about the circumstances,  saying,  “Yes, I did lie to him” (R.  at 901). In addition, defense counsel argued in closing that SR  “admitted she lied to Cadet Smith.”  (R. at 1510.) This limited  impeachment allowed the defense was in- adequate  given  that a  general   attack on  a  witness’

credibility is not the same as a showing  of bias or mo-tive.          See  Davis, 415 U.S.  at 316-[566]17.                                                            

Here, the members never were able to place SR’s admission that she had  lied to Appellant in any factual  context,  be- cause they never  heard what the secret was or what she had lied about. The members only heard that SR

had lied to Appellant in the past, not why she would have lied in bringing allegations against Appellant.

More importantly, SR  was able to minimize her lie to  Appellant by testifying that she had  only omitted certain details from her account, saying, “I  just  didn’t tell him all that occurred,”  and also that she told him, “I’m not gonna ask you to lie for me.” (R. at 902-03.) Her testimony  on this point created a substantially dif- ferent impression of her credibility than what the defense  had tried to show—namely, that SR  had knowingly provided Appellant with false information, which he then  used to counter   a career-threatening rumor. See Olden v. Kentucky, 488 U.S. 227, 232 (1988) (defendant states a  violation  of Confrontation  Clause if  a “reasonable   jury  might have  received   a  significantly different impression of [the witness’]  credibility” had excluded  line of cross-examination  been allowed).   Establishing this point was essential, as the crux of Appellant’s  defense was that SR  had followed  a pattern  of fabrication  to avoid discipline that was revealed by like motives from a prior scheme. Given this record, where SR  was able to downplay her lie as a mere omission  of details,  and  the defense was not allowed to inform the members what SR  had lied about or the  lengths she was prepared to go to protect her career, the members may well have concluded that  the defense was engaged in  a  “speculative   and   baseless line of attack  on  the credibility of an apparently blameless witness.” Davis, 415 U.S. at 318.

The military judge issued his ruling under M.R.E.

412, which broadly  prohibits the introduction  of evidence of a victim’s past sexual behavior or sexual predisposition, unless the  evidence fits  into one of three

narrow exceptions.3        Appellant  moved to admit the facts  of SR’s  secret under M.R.E.  412(b)(1)(C), which provides an  exception  for “evidence  the exclusion  of which would violate the constitutional rights of the accused.”4 Evidence that is offered under an enumerated exception to M.R.E.  412 shall be admitted if the military judge determines that the evidence is relevant  and that the probative value outweighs the danger of unfair prejudice—i.e., prejudice to the privacy interests of the alleged victim.  See M.R.E.  412(c)(3); United States v. Sanchez, 44 M.J. 174, 178 (C.A.A.F. 1996). In addition, relevant evidence  that is  offered under the  constitutionally required exception must be admitted  if it is material and favorable  to the defense,  and  therefore is necessary.                      United States v. Banker, 60 M.J. 216,  222 (C.A.A.F. 2004).

3 M.R.E.  412 is modeled after Federal Rule of Evidence 412 and is intended to protect victims of sexual offenses from degrad- ing and embarrassing disclosure of intimate details of their private lives while preserving the constitutional rights of the accused to present a  defense. Appendix  22 at A22-36,  Manual  for Courts- Martial, United States (2005 ed.).

4 I agree with the majority that the trial defense team did not precisely address the admissibility of the evidence in terms of SR’s “motive” to fabricate.   Indeed, it appears that the defense objection has assumed greater clarity and focus on appeal.  The defense, however,  did argue at trial  that the evidence  implicated  Appellant’s confrontation  rights  to show the  witness’s “biases  and … credibility,” in that it revealed SR’s “pattern”  of claiming that prohibited consensual relations were coerced when disclosure could be damaging to her career.   (R. at 97-98.) By focusing  on SR’s  conscious decision to lie under similar circumstances in order to avoid punishment, the defense adequately raised the issue of SR’s mo- tive to fabricate allegations against Appellant.

In  a detailed   ruling, the military  judge correctly determined  that evidence of a prior false claim of sexual assault was relevant  evidence of SR’s motive to make  a false claim of indecent assault against Appellant, stating, “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.)              

The military judge reasoned:

[I]f the members hear that [SR]  originally told Cadet Smith that a  sexual encounter with an- other man was non-consensual,   and then later admitted that it  in fact  was consensual,  then the members could … infer that the same thing is happening in this case. Id.

However, the military judge then went on to conclude that the evidence had “low” probative  value  be- cause:

[567] [T]he evidence proffered  that [SR]  made these  statements is not strong since it comes from the  accused,  who has an  obvious bias. [SR]’s  written  statement  and Article 32 testimony on this point is not clear.  She admitted at the Article 32 that she only partially confided in Cadet Smith in May and fully confided in him on October 19th; however, this is far from proof that she initially  claimed  that the  encounter was non-consensual.       In  fact,  it  is  consistent with the rest of Cadet Smith’s Article 39(a) testimony that on October  19th she told him the scope of the sexual  encounter had been greater  than she had previously described. Id.

I would find that the military judge erred when  he decided the probative value of motive  evidence based on his evaluation of the credibility of the only two witnesses involved. It is the members’ role to determine whether a  witness’ testimony is  credible  or  biased. Bins,  43 M.J. at 85. “In applying M.R.E.  412, the judge is  not asked to determine if the proffered  evidence is true; it is for the members to weigh the evidence and determine its  veracity.” Banker, 60 M.J. at 224.  Accordingly,  relevant  and  material evidence  of a  prior false allegation of sexual  assault is no less admissible merely because it  is  offered through the testimony of the criminal accused.

This   is  particularly so here, where SR—the only other witness to the conversation in issue—secured  her unavailability to testify  at  the motions hearing by invoking her rights  against  self- incrimination.5    (R. at 79.)  In  a credibility contest  be- tween Appellant  and SR,  it should have been up to the members to  resolve discrepancies in their respective accounts and decide whom to believe.

As a  second   basis for excluding the defense  evidence,  the  military  judge  concluded that SR’s  state-

5 Because SR refused to testify, the military judge based his findings on  Appellant’s   in-court  testimony, SR’s  prior  written statement, and the non-verbatim summary of her Article 32 testimony. Based  on my review of the complete record, I would find that there was at least a reasonable  probability that SR provided Appellant with a false account of her secret—namely that the en- counter was non-consensual—which  he then used to  counter  rumors on her behalf.  Appellant’s testimony concerning their initial conversation was partially corroborated in several key respects by SR’s trial testimony, including her admission that the conversation took place, that she had “lied” to Appellant by omitting details that presented her in a “bad light,” and that Appellant had assisted her by “squashing” rumors of her secret.  (R. at 878, 901-02.)

ment to Appellant was materially different from a  re- port that  she subsequently  provided to investigators. The military judge stated:

[E]ven if [SR] falsely told the accused in confi- dence   that  her  sexual  encounter   with  the enlisted man was non-consensual in an effort to suppress  rumors, this would have little value in proving that her  official  allegations  against Cadet Smith resulting in a public trial  are also false.

(Appellate Ex. CLIII at 3.)

The military judge then  concluded, “[T]he minimal probative value of this evidence is outweighed by dan- ger of unfair prejudice to [SR’s]  privacy interests and the potential danger of sidetracking  the member’s  [sic]  attention  to a collateral issue ….” Id.

In a trial on charges of extortion and coerced sex- ual relations, I do not agree that the defense intrudes in a collateral matter by making  an inquiry into facts that describe the victim’s  fear that her secret will  be  revealed. Proof of the secret’s  existence and the genu- ineness of SR’s fear of disclosure were key issues in the Government’s case against Appellant,  and the defense  had  a right to explore  them, subject to carefully  tailored restrictions respecting SR’s  privacy.6   Moreover,

6 The  military  judge  clearly  recognized the relevance of the content of the secret to the extortion and indecent assault offenses, observing,  “[I]f  the secret is about something  that is completely inconsequential,  it makes it less likely that [SR] would have been willing to do something  against her will.”  (R. at 112.)  Ultimately, however,  the  Government was able  to  prove both the existence and importance of the secret through the witness’s layering  on of additional conclusory statements.

by focusing on the confidential versus official nature of SR’s two statements, the military judge overlooked the greater significance of the defense proffer. The defense theory  was that SR’s ultimate motive in avoiding disci- pline was revealed in her expectation  that Appellant would place his reputation  on the line and communicate false information to counter rumors then in circulation about her secret.7    The defense argued that [568] this same motive was also present in her complaint against Appellant,  and it  seems  an artificial distinction to say that the  formality of the complaint process somehow altered SR’s overriding concern for protecting her ca- reer.  Compare United States v. Bahr, 33 M.J. 228, 233 (C.M.A. 1991) (error  to exclude  evidence  of witness’ prior false statements to classmates that she had been sexually assaulted;   evidence was admissible to  show witness’ motive to testify falsely against  accused in or- der to call attention to herself).

The majority largely sidesteps the problems with the M.R.E.  412 order and under its  Article 66(c), Uni- form Code of  Military  Justice (UCMJ), authority con- cludes that  the  instant   case   involves  non-parallel statements—an earlier  statement  to  Appellant where avoiding discipline  was a factor  in SR’s  motivation to lie, and a second statement to law enforcement investi-

7 There is no dispute that SR did not actively seek out Appel- lant to lie for her concerning her secret. However, after furnishing Appellant with an allegedly false account of her secret, SR appar- ently did nothing to discourage Appellant from using that informa- tion to counter rumors that were in circulation. In fact, SR’s ap- proval  of Appellant’s efforts to “help her” by suppressing rumors was reflected in her own trial testimony (R. at 901, 922-23, 926), and Appellant’s  threatened  withholding  of  that  assistance  ulti- mately formed the basis of the Government’s extortion charge.

 else knew about the encounter and SR had no reason to fear UCMJ  action.  The  majority emphatically   con- cludes that because SR  had no possible  motive to fabri- cate   her  allegations   against Appellant, the earlier statement was not relevant and therefore was inadmis- sible at trial.                   The flaw in the majority’s  argument is the implicit assumption  that no  circumstances  other than the actual disclosure  of the facts surrounding  the Chase Hall encounter could have provided  SR  with the motive to fabricate allegations of sexual assault. In my view, the timing, content, and circumstances  surround- ing SR’s  initial report to investigators all point to the making of an  intrinsically  unreliable statement,   and provide  sufficient grounds to question SR’s  motives in bringing her allegations against Appellant.

The record reveals that on 5 December 2005, Coast Guard   Investigative  Service  (CGIS)  agents inter- viewed Appellant—the other person  who knew of the Chase Hall  encounter—as part of a large-scale   probe into allegations  of his  sexual misconduct at  the Coast Guard Academy.  SR  was not interviewed by CGIS un- til almost two months later, on 9  February 2006,8  at which time she discussed her allegations against Appel- lant but specifically  refused to address the  details of her secret.      SR’s  self-censored  initial  report reveals that she had made the gators where  no such motive  existed because nobody understandable but nevertheless  calculated decision to limit the disclosure of information  that could be harmful to her career.9     Such a decision on

8 The record  does not disclose whether SR voluntarily came forward or was first approached by CGIS.

9 In  her signed statement to CGIS dated 15 February 2006, SR also indicated, “A situation occurred, that I do not which [sic]

SR’s  part following   a considerable opportunity  for re- flection necessarily calls into question the completeness and  reliability   of   her   contemporaneous   allegations against Appellant. Given the visibility of this dragnet investigation,  the four-month delay between the Chase Hall encounter  and SR’s initial report, and her selective and continued withholding  of facts that did not reflect favorably  on her, it certainly was possible that SR  fab- ricated or embellished details of her allegation against Appellant  as a  preemptive strike  to avoid  discipline,  based on her fear or expectation that the true facts of their encounter, if not already known by investigators, likely  would be  discovered.10                                                          Accord-[569]ingly,  the two statements were “parallel” not because anyone else knew the facts, but because of the illegality of the en- counters and SR’s fear that the true facts  could  be dis- covered.   Whether or not SR  actually formed the mo- tive to  fabricate allegations  against Appellant was an

to discuss, which led to rumors (which were grossly exaggerated).” (Appellate Ex. XVII, Enclosure 13 at 1; Appellate Ex. XXI at 2.) SR’s clear attempt to downplay the rumors while at the same time refusing to address them indicates, in my mind at least, a concern for UCMJ or administrative action, if not a desire to deflect official interest in her own behavior.

10 Given  the  ongoing  CGIS  investigation, there  certainly would  have been risks to SR in not stepping forward at all.  SR likely  had no way of knowing if Appellant  had already  reported their encounter to CGIS agents, leaving the possibility of an unrebutted, potentially career-threatening  allegation of sexual misconduct in the hands of authorities. There also was the risk that Appellant might decide to cooperate with authorities and make a preemptive disclosure at a future time.  The argument that the record completely  foreclosed  the possibility  of fabrication  by  SR would make more sense if SR had made a prompt  and complete report of her allegations against Appellant at a time prior to the CGIS investigation.  That did not happen in this case

issue that that the members should have  decided at trial.

Faced with a recalcitrant key witness who refused to testify at the motions hearing, the Government   ob- tained  a windfall through the erroneous  application of M.R.E.  412.  

At  trial,  SR  provided  conclusory  testimony regarding her “bad  situation” and Appellant’s  prior  role in  “squashing”  career-threatening  rumors, for the purpose of showing that she  was coerced into unwanted  sexual relations after  Appellant  impliedly threatened to reveal the truth  about her secret.                                       

On cross-examination, the defense was prohibited  from ad- dressing the facts of SR’s  “bad situation” or “secret,”  and similarly was prohibited from eliciting factual testimony that would inform  the members  that Appellant’s efforts to “squash”  and  “suppress” rumors specifically meant spreading false information provided by SR,  on SR’s behalf.11  The result was that the Government was allowed to portray SR  as an innocent victim of an extortionist plot, while the  defense was not allowed to portray the witness  as the architect  of a scheme   of  false allegations  intended to cover up her own misconduct.   I cannot agree that SR’s  privacy interest in shielding her  alleged  false statements from inquiry was so important that it justified denying Appellant the opportunity to pierce the veneer of the Government’s conclusory assertions that were used to convict him.  I disagree with the notion that M.R.E.  412 was  intended  to allow the Government to prove the corpus delicti of the offenses  through  a witness indulging in euphemisms of doubtful legal sufficiency, particu-

11 The record of trial is devoid of any facts that would have explained to the members what these words actually meant.

larly when they obscure facts that raise serious questions concerning her own credibility.12

When a  constitutional  violation is  shown, a  case must be reversed unless the error is harmless beyond a reasonable  doubt.  United States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005). In deciding whether  or not the erroneous  exclusion  of evidence  is  harmless, the court must consider  “the importance  of the witness’ testi-

mony in the prosecution’s  case, whether the testimony was  cumulative, the presence or absence  of evidence corroborating  or  contradicting  the testimony of the witness  on   materials points,  the  extent  of  cross- examination otherwise permitted,   and … the strength of the prosecution’s  case.”           United States v. Moss, 63 M.J. 233, 238 (C.A.A.F. 2006) (quoting Bahr, 33 M.J. 228 at 234 (quoting Delaware v. Van Arsdall, 465 U.S.  673, 684 (1986))). At trial, SR  testified that on 19 October 2005, she had discussed  her secret with Appellant in the mail room;  that Appellant  had responded by indicat-

ing he needed “motivation”   to keep “helping  her” by

continuing to suppress rumors  that were circulating about her; that she had replied  by asking whether by “motivation”   he  meant sex—a suggestion she says

12 Certainly there  were  less  burdensome remedies available to the military judge that could have protected the legitimate pri- vacy interests of the victim in this case.  The military judge could have fashioned  an order restricting the defense from probing the intimate and personal details of the secret, focusing instead on the nature of the encounter  and the alleged false claim of sexual assault.  In  addition, the military judge could have closed the proceeding during testimony on the May 2005 incident to protect the victim from  undue  embarrassment  or humiliation.  The military judge also could have provided instructions to the members limit- ing the improper use of the evidence.

made him bristle; that Appellant later appeared in her room in Chase Hall on three  separate occasions, where they posed  together  nude for a  photograph   and  engaged in sexual activity; that the sexual  encounter had in  her  mind  provided   the  “motivation” Appellant needed to continue to suppress her secret;  and that al- though she never told Appellant to stop, she  participated only out of fear that he would  not keep her secret.

Appellant presented his case upon  his own testimony, stating in substance that while he met SR  in the mail room  on 19 October,  he never extorted sexual favors from her and denied saying that he needed “motivation”  to continue suppressing rumors about SR’s  se- [570]cret. Appellant testified that they discussed get- ting together  to pose  for a  nude  photograph   in  her room; that after arriving in her room that evening,  he took  two digital photographs of them together,  which he kept for safekeeping;  and that he subsequently   re- turned to her room on two additional occasions to ex- change massages  and perform consensual oral sodomy. Appellant admitted that SR was “tense” and “stressed” but claimed that the entire sexual encounter with SR  was consensual.  (R. at 1325.)

The difficulty  accepting Appellant’s   account of a consensual encounter with SR is that it makes little intuitive sense given the lack of any evidence of a relationship  or any rational explanation for its spontaneous nature. In short, Appellant’s testimony is remarkable in its failure to explain SR’s actions in the absence of at least some undue influence.    In  this  failure, however, lies the major flaw in the military judge’s M.R.E.  412 order.           Appellant’s   account of an  almost spontaneous consensual encounter with SR  would  be difficult to believe unless the members were informed  of SR’s prior

false claim and were able to understand the depths of her concern for protecting her career.  Only if informed of SR’s  prior scheme would the members  have considered the possibility that her encounter with Appellant in October 2005 resulted not so much from  coercion, but rather from her own calculation that she needed to en- sure  his  continued  cooperation  in  keeping  her  prior misconduct secret. Only then would the members have considered  the possibility that SR  might have  fabricated  a false claim of sexual assault against Appellant as a  preemptive strike, out of fear that the encounter would  be discovered through  an ongoing investigation.  The erroneous M.R.E.  412 order deprived Appellant of his  best defense  to the charges  involving SR.      

See United States v. Gray, 40 M.J. 77, 80 (C.M.A. 1994) (military judge committed reversible error by excluding evidence  of  victim’s past sexual behavior  under M.R.E.  412; case came down to a credibility contest be- tween witnesses, and  the  excluded  evidence  “could have made [the accused’s] otherwise  incredible  expla- nation believable”); see also United States v. Williams,

37 M.J. 352, 360 (C.M.A.  1993) (accused’s constitutional right to present  evidence of victim’s extramarital affair improperly  excluded under M.R.E.  412; excluded evidence would  have revealed motive to provide false testimony in order to protect affair, victim was key wit- ness in government’s  case, and  evidence of guilt was not overwhelming).

Here, the Government  offered no other  evidence to support SR’s testimony that her sexual encounter with Appellant, which had many outward indicators  of being consensual,  actually  resulted from coercion.                                                            

The ad- mission of evidence that SR  had furnished Appellant with false information  which he then used to counter  a career-threatening rumor may well have cast doubt on

the veracity of SR’s  testimony,  and tipped the balance in favor of Appellant’s version of events. Accordingly, I would find that the error in excluding this evidence was not harmless beyond  a reasonable doubt.

I would affirm the findings of guilty to sodomy, at- tempted failure to obey  a lawful order, and unauthorized absence. I would set aside the findings  of guilty to extortion and indecent  assault, and the sentence,  and return the case to the Convening  Authority for a  re- hearing.

For the Court,

Jane R. Lee

Clerk of the Court