Tuesday, November 05, 2013

Sexual Assault At Coast Guard Academy, The Webster Smith Case Appendix 10 (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 As- signments 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 Evi-  dence  (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 noncon- sensual, since this evidence was highly probative of the defense theory that SR  engaged in a pattern  of fabrica- tion to avoid discipline. As discussed  below, I believe that the military judge erred when  he decided the ad- missibility 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 de- fense 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  psychologi- cal influences that overcame SRs  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 differ- ent impression of her truthfulness than  what  the de- fense had  sought to show through the excluded  evi- dence.

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. Ala- bama, 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 re- petitive 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 con-frontation.”);  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 govern- ment’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 admissi-  ble 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 nonconsensual, 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 cir- culating 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 Appellants continued assistance in “suppressing” rumors regarding the ear-lier 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 infor- mation 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 un- able 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 miscon- duct.

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 suf- ficient 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  “mo- tivation” 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 prohib- ited from adequately addressing  SR’s prior false state- ment.

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 dur- ing 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  as- sault. Moreover, her own testimony  on the question of consent  was far  from  conclusive.     For  example,  al- though 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 refer- ence 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 evi- dence 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 de- fense  had tried to show—namely, that SR  had know- ingly 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) (defen- dant 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).   Es- tablishing this point was essential, as the crux of Appel- lant’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 evi- dence of a victim’s past sexual behavior or sexual pre-disposition, 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 ac- cused.”4 Evidence that is offered under an enumerated exception to M.R.E.  412 shall be admitted if the mili- tary 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  constitu- tionally required exception must be admitted  if it is ma- terial 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 objec- tion has assumed greater clarity and focus on appeal.  The defense, however,  did argue at trial  that the evidence  implicated  Appel- lant’s confrontation  rights  to show the  witness’s biases  and … credibility,” in that it revealed SR’s “pattern”  of claiming that pro- hibited consensual relations were coerced when disclosure could be damaging to her career.   (R. at 97-98.) By focusing  on SR’s  con- scious 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, stat- ing, “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 con-
clude 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 testi- mony 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) tes- timony 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 wit- nesses 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.  Ac- cordingly,  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  evi- dence,  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 testi- mony. 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  ru- mors 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  re- vealed. 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  tai- lored 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 unre- butted, potentially career-threatening  allegation of sexual miscon- duct in the hands of authorities. There also was the risk that Ap- pellant might decide to cooperate with authorities and make a pre- emptive 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 in- vestigation.  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  testi- mony 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 tes- timony that would inform  the members  that Appel- lant’s efforts to “squash”  and  “suppress” rumors spe- cifically meant spreading false information provided by SR,  on SRs behalf.11  The result was that the Govern- ment was allowed to portray SR  as an innocent victim of an extortionist plot, while the  defense was not al- lowed 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 in- terest in shielding her  alleged  false statements from inquiry was so important that it justified denying Ap- pellant the opportunity to pierce the veneer of the Gov- ernment’s conclusory assertions that were used to con- vict 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 indulg- ing 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 ques- tions 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 er- roneous  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 mailroom;  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 as- sault.  In  addition, the military judge could have closed the pro- ceeding 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  en- gaged 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  partici-  pated only out of fear that he would  not keep her se- cret.

Appellant presented his case upon  his own testi- mony, stating in substance that while he met SR  in the mailroom  on 19 October,  he never extorted sexual fa- vors from her and denied saying that he needed “moti-  vation”  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 in- tuitive sense given the lack of any evidence of a rela- tionship  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 be- lieve 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 consid- ered 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  fabri- cated  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 exclud- ing 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 evi- dence would  have revealed motive to provide false tes- timony 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 unauthor-  ized 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





M.R.E. 413 [sic] EVIDENCE CADET [SR]

The Defense has provided notice that it intends to introduce evidence  of specific instances  of sexual be- havior  involving then Cadet, now  Ensign  [SR].   
This alleged sexual behavior is the subject of the secret that Cadet Smith is charged with threatening to expose in Specification I of  Additional  Charge  II.The Govern- ment seeks to bar  the introduction of such evidence pursuant to M.R.E.  412.         At  the Article 39(a) session  held on 23 May 2006, Ensign [SR]  did  not testify be- cause she invoked her right under Article 31(b) to con- sult with an attorney. The accused testified as to the content of his conversations with Cadet [SR]  on this subject.   The Defense also submitted   a written state-  ment dated 15 February 2006 that Cadet [SR] provided to the Coast Guard Investigative Service.

[* Petitioner notes that by order dated October 29, 2009, the court of appeals unsealed this order.   Petitioner has nonetheless changed all uses of the accuser’s name to her initials.]



During the summer training program at the start of their  first class year, Cadet Smith and Cadet  [SR] were both assigned to patrol boats that moored at Sta- tion Little Creek. Both lived in barracks rooms at the Station.  In May 2005, Cadet Smith approached Cadet [SR] to inform her that he was hearing rumors from the enlisted personnel assigned to the Station that she had a sexual encounter with an enlisted member assigned to the Station. Cadet [SR] told him that this was true, but that it  was  not a  consensual   encounter.         
Cadet Smith then informed the enlisted  personnel who were spreading the rumors that the conduct was not consen- sual.

On or about 19 October 2005, Cadet Smith again approached Cadet  [SR].   He told her that he had re- mained in contact with some of the enlisted personnel assigned  to Station Little Creek  and that the rumors surrounding her  sexual encounter  with  the enlisted  man had continued.  This time she told him that the in- cident with the enlisted  man had been a consensual  en- counter and  that scope  of the encounter  had  been greater  than she had previously described.

At  the Article  32  hearing, Cadet [SR]   merely stated that she had confided  a secret   to Cadet Smith. In her 15 February 2006 statement, she merely stated that a situation occurred which led to rumors.  On both occasions, she went on to  state that on October 19th, she was concerned enough that Cadet Smith would ex- pose this  secret that she agreed to pose for a picture with him in which both of them were nude, and later that night allowed him to perform cunnilingus  on her then she performed fellatio on him.



1.    Generally,  evidence that an alleged victim of a sexual offense  engaged in other sexual behavior or evi- dence  of the  alleged  victim’s sexual predisposition is not admissible. M.R.E. 412(a). There are three excep- tions to this general rule, but only one may be relevant  here: evidence of the sexual behavior of the victim is admissible if excluding the evidence would violate  the constitutional rights  of the accused.          M.R.E. 412(b)(1)(C). This   exception  protects the accuseds Sixth Amendment right to confront witnesses and Fifth Amendment  right  to a  fair  trial.       United  States v. Banker, 60 M.J. 216, 221 (2004). In other words, the ac-cused has a right to produce relevant  evidence that is material and favorable  to his defense.  Id.  Evidence is relevant if it tends  to make the existence of any fact more or less probable than it would be without the evi- dence.  M.R.E.  401. Assuming these requirements  are met, the accused must also demonstrate that the proba- tive value of the evidence outweighs  the danger of un- fair prejudice.              M.R.E.  412(c)(3).   In  this context, the unfair prejudice is, in part, to the privacy interests of the alleged victim. Banker, 60 M.J. at 223. M.R.E.  412 is a legislative recognition of the high value we as a so-
ciety place on keeping  our sexual behavior private.

2.    The Defense  offered several theories of why this evidence is admissible. First, the Defense wanted to introduce this evidence to impeach the credibility of Ensign  [SR]  when she  testifies.                                                  The general rule is that a witness’ credibility may be attacked in the form of an opinion  or by reputation concerning the witness’  character for truthfulness.  M.R.E. 608(a). Specific in- stances of conduct of witness may  be admitted,  at the discretion of the military judge, if probative of truth- fulness. I decline to exercise that discretion in this case


because I believe that, under these circumstances, the probative value of this  evidence  is  substantially out- weighed by the danger of unfair prejudice.  Then Cadet [SR]  was under no duty to be completely forthcoming  with Cadet Smith concerning her private life, particu- larly under these circumstances since her rumored  con- duct would  be in violation of Coast Guard regulations and could subject  her to disciplinary action or other ad- verse consequences. More important,  despite any limit- ing instruction, members might consider this evidence less for its tendency to prove Ensign [SR]s character for truthfulness than for its tendency to prove that she is a bad person.    Finally, conflicting testimony on this point from Ensign  [SR]  and Cadet Smith could easily sidetrack members from  testimony   regarding the charged offenses  which  the member’s  should  be focus- ing on.

3.    The  Defense also argued  that the members must know the substance of Cadet [SR]’s secret in or- der for them to  independently assess whether or not she would feel coerced into taking a nude  photograph  with Cadet Smith and later engaging in mutual oral sex in order to protect that secret. While the importance of her secret would be relevant  in this fashion, I do  not think that the members would need to know the specif- ics.      At  the Article 39(a) session, the Government of- fered a  generic  formulation that would impress upon the members the seriousness of the secret. In essence, the members could be informed that the secret was in- formation that if revealed could have an adverse impact on her Coast Guard career, including possibly discipli- nary action under the UCMJ.

4.    The final rationale  offered by the Defense  at the Article 39(a) hearing  is the most persuasive. The Defense  argued that if the members hear that Cadet


[SR] originally told Cadet Smith that a sexual encoun- ter  with  another  man  was non-consensual,  and then later admitted that it in fact was consensual, then the members could  use this  testimony to infer  that the same thing is happening in this case.   In  other words, the members could infer that Cadet [SR] has a propen-  sity  to bring false accusations against  men with whom she has had consensual sexual  encounters.  I agree that this theory would   be a valid reason for admitting this evidence under M.R.E.  412(b)(1)(C), but there are two problems with the Defense proffer. First, the evidence proffered  that Cadet [SR] made these statements is not strong since it comes from the accused, who  has an ob- vious bias. Cadet [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 that the scope of  the sexual encounter  had been greater  than she had previously described.   The probative value of this evidence is therefore low.

5.    More important, there is no evidence that Ca- det [SR]  made  an  official  complaint  against the un- named enlisted man.   Even if Cadet [SR]  told the ac- cused  in May that the  encounter was not consensual, the nature of this confidential statement is far different from the nature of her statements to law enforcement personnel  that she must have known  would result in a public  prosecution.    Cadet [SR]’s  alleged statement  to Cadet  Smith  was apparently  intended to keep more people from learning  about her sexual encounter with the enlisted  man.   It was not a  false complaint to law


enforcement.  In contrast, her statements made in this case were to law enforcement personal  and would cer- tainly lead to a public prosecution.  Consequently, even if Cadet [SR] falsely told the accused in confidence 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. I am convinced that the minimal probative value of  this  evidence  is  outweighed  by danger  of unfair prejudice to  Ensign  [SR]’s  privacy interests  and the potential danger  of  sidetracking the member’s atten- tion to a  collateral issue as  described in paragraph 2 above.

5.    For  the above reasons,  the Government’s  ob- jection that this evidence is inadmissible in accordance with M.R.E. 413 [sic] is SUSTAINED.

This order was effective on 26 May 2006.
Done at Washington,  DC,


Brian Judge
Captain, U.S. Coast Guard
Military Judge



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