Sexual Assault At Coast Guard Academy, The Webster Smith Case Appendix 10 (Con't)

Appendix 9

Decision of United States Coast Guard Court of Criminal Appeals, With Appendixes

UNITED STATES COAST GUARD COURT OF

CRIMINAL APPEALS

Docket No. 1275

CGCMG 0224

UNITED STATES,

v.

WEBSTER M. SMITH, CADET (E1C), U.S. COAST GUARD,

Decided: 9 April 2008

[66 M.J. 556*]

* * *

[557]

BEFORE MCCLELLAND, TUCHER & LODGE, Appellate Military Judges

MCCLELLAND, Judge:

Appellant was tried by general court-martial  com- posed of members. Contrary to his pleas, Appellant was convicted of one specification of unauthorized absence, in

[* Petitioner notes that the opinion that appears in the official reporter includes several redactions.   The unredacted version  re- printed here was sealed by the court of criminal appeals but un- sealed, by order dated October 29, 2009, by the court of appeals. Also, footnotes 1-6 in the court's opinion, regarding counsel repre- senting the parties, have been omitted.]

violation of Article 86, Uniform Code of Military Justice (UCMJ); one specification of attempted failure to obey  a lawful order, in violation of Article 80, UCMJ; one speci- fication of sodomy, in violation of Article 125, UCMJ; one specification   of extortion, in  violation of Article  127, UCMJ; and one specification of indecent assault, in viola- tion of Article 134, UCMJ.  The court sentenced Appel- lant to a dismissal, confinement for six months, and for- feiture of all pay and allowances. The Convening Au- thority approved the sentence as adjudged.

Before this Court, Appellant has assigned six  er- rors:

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 activ- ity  between  adults of  equal  rank, is  unconstitu- tional.

III. The extortion conviction must be overturned   be- cause the Government failed to prove that Appel- lant 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 assign- ment 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 de- nying Appellant’s request to defer confinement.

We summarily reject the third and fourth assigned errors. The evidence, though circumstantial,  is  suffi- cient 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 wit- ness concerning  the extortion, sodomy,  and indecent assault  specifications  of which he was found guilty.  We will review the military judge’s decision  de novo.7 [558] If error is found, we will reverse unless we find the er- ror 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 as- signed to neighboring cutters in Norfolk, Virginia.  Ap- pellant  communicated with SR,  letting her know that he was hearing rumors about her.   They discussed the

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 find- ings and sentence, on the basis of the entire record, should  be ap- proved.       See   United  States  v.  Olean,   56   M.J.  594,  598-99 (C.G.Ct.Crim.App. 2001).

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 hap- pened.  (R. at 880, 921, 1321.)  Appellant testified to the effect that his source had indicated  the story was dif- ferent 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  testi- fied 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 Ap- pellant 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 extor- tion, indecent assault,  and sodomy charges against Ap- pellant. (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.          According  to Appellant, SR’s  story  in May was that  she had had a sexual encounter involving  oral sex with an enlisted  Coast Guard member, that it was not consensual, and that she felt guilty about it be- cause  it  was not with her  boyfriend.  (R.  at 101-02.) SR’s story in October, according to Appellant, was that the sexual encounter was in fact consensual and that it included intercourse  as well as oral sex.                (R.  at 102.) The  military   judge ruled  that  SR   could   be  cross- examined concerning the lie in May, but that the de- tails, 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 Amend- ment right of  confrontation.      In defense of the extor- tion,  indecent assault, and sodomy charges, Appellant  sought to convince the court members that SR  was ly- ing about her sexual encounter with Appellant, in par- ticular falsely contending that  it  was not consensual,  and that she was doing so to protect herself from disci- pline.        This   argument,   he  asserts,  would have  been much  more persuasive   had the members  known that before 19 October,  SR   had  been  lying  to  Appellant

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 ru- mors 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 as- signment of error.   We  seal portions of this opinion  in  the same spirit; likewise the dissent.

about her sexual encounter with an  enlisted man,  in particular falsely contending that it was not consensual, 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 be- havior 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 [559] 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 (1982)). “Favorable” is further in- terpreted 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.  “[T]rial  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  ear-

lier 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 (1986) (citation omit-

ted). The trial judge could properly restrict Appellant’s cross-examination  of SR on the basis of M.R.E.  412, ex- cluding,  as  he  did, the details of the May incident,

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 de- tails 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 ex- cluded.9    In both cases, the court held the exclusion was prejudicial error.

In Bahr, the accused was charged with sexual of- fenses  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(c) 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 sol- diers 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 of- fenses  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 treat-

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

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 relation- ship with her parents after  she  reported  the allega- tions.  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 fabri- cate, 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 evi-[560]dence  from an earlier paral- lel situation.  In  our case, the argument as to motiva- tion is being made based on an earlier situation claimed to be parallel,  but there is  a  significant  difference be- tween the two situations.

It is clear that SR  wanted Appellant’s  help in sup- pressing 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

10 During the trial of this case, there was little mention of mo- tive 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. XIX 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.

May  incident  can be directly linked to her concern for either  UCMJ or administrative  action against  her for engaging in consensual sexual relations  with an enlisted  member.  There is no apparent similar motive to fabri- cate 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 Oc- tober 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 informa- tion 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 mo- tive to fabricate, and the earlier situation is not parallel.

The military judge’s ruling allowed Appellant to at- tack SR’s credibility by means of showing  a prior lie. It precluded Appellant  from showing that the prior  lie pertained to the nature  (consensual  or not) of a prior sexual encounter with someone  else, but did not pre- clude 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

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
of false allegations  intended to cover up her own mis- conduct,”  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 tes- timony “created  a substantially different impression  of her  credibility  than what the defense   had  tried  to show—namely, that SR had knowingly provided Appel- lant 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 mili- tary judge’s ruling prevented the members from judg- ing  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.)

12 The dissent propounds the theory that SR sought to have Appellant lie for her.  Both her testimony and Appellant’s testi- mony 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 ru- mors.  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.

J 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 [561] defense.  We find no error in the mili- tary judge’s ruling against Appellant.13

[66 M.J. 556*]

* * *

[557]

BEFORE MCCLELLAND, TUCHER & LODGE, Appellate Military Judges

MCCLELLAND, Judge:

Appellant was tried by general court-martial  com- posed of members. Contrary to his pleas, Appellant was convicted of one specification of unauthorized absence, in

[* Petitioner notes that the opinion that appears in the official reporter includes several redactions.   The unredacted version  re- printed here was sealed by the court of criminal appeals but un- sealed, by order dated October 29, 2009, by the court of appeals. Also, footnotes 1-6 in the court's opinion, regarding counsel repre- senting the parties, have been omitted.]

violation of Article 86, Uniform Code of Military Justice (UCMJ); one specification of attempted failure to obey  a lawful order, in violation of Article 80, UCMJ; one speci- fication of sodomy, in violation of Article 125, UCMJ; one specification   of extortion, in  violation of Article  127, UCMJ; and one specification of indecent assault, in viola- tion of Article 134, UCMJ.  The court sentenced Appel- lant to a dismissal, confinement for six months, and for- feiture of all pay and allowances. The Convening Au- thority approved the sentence as adjudged.

Before this Court, Appellant has assigned six  er- rors:

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 activ- ity  between  adults of  equal  rank, is  unconstitu- tional.

III. The extortion conviction must be overturned   be- cause the Government failed to prove that Appel- lant 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 assign- ment 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  suffi- cient 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 wit- ness concerning  the extortion, sodomy,  and indecent assault  specifications  of which he was found guilty.  We will review the military judge’s decision  de novo.7 [558] If error is found, we will reverse unless we find the er- ror 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 as- signed to neighboring cutters in Norfolk, Virginia.  Ap- pellant  communicated with SR,  letting her know that he was hearing rumors about her.   They discussed the

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 find- ings and sentence, on the basis of the entire record, should  be ap- proved.       See   United  States  v.  Olean,   56   M.J.  594,  598-99 (C.G.Ct.Crim.App. 2001).

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 hap- pened.  (R. at 880, 921, 1321.)  Appellant testified to the effect that his source had indicated  the story was dif- ferent 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  testi- fied 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 Ap- pellant 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 extor- tion, indecent assault,  and sodomy charges against Ap- pellant. (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.          According  to Appellant, SR’s  story  in May was that  she had had a sexual encounter involving  oral sex with an enlisted  Coast Guard member, that it was not consensual, and that she felt guilty about it be- cause  it  was not with her  boyfriend.  (R.  at 101-02.) SR’s story in October, according to Appellant, was that the sexual encounter was in fact consensual and that it included intercourse  as well as oral sex.                (R.  at 102.) The  military   judge ruled  that  SR   could   be  cross- examined concerning the lie in May, but that the de- tails, 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 Amend- ment right of  confrontation.      In defense of the extor- tion,  indecent assault, and sodomy charges, Appellant  sought to convince the court members that SR  was ly- ing about her sexual encounter with Appellant, in par- ticular falsely contending that  it  was not consensual,  and that she was doing so to protect herself from disci- pline.        This   argument,   he  asserts,  would have  been much  more persuasive   had the members  known that before 19 October,  SR   had  been  lying  to  Appellant

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 ru- mors 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 as- signment of error.   We  seal portions of this opinion  in  the same spirit; likewise the dissent.

about her sexual encounter with an  enlisted man,  in particular falsely contending that it was not consensual, 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 be- havior 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 [559] 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 (1982)). “Favorable” is further in- terpreted 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.  “[T]rial  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  ear-

lier 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 (1986) (citation omit-

ted). The trial judge could properly restrict Appellant’s cross-examination  of SR on the basis of M.R.E.  412, ex- cluding,  as  he  did, the details of the May incident,

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 de- tails 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 ex- cluded.9    In both cases, the court held the exclusion was prejudicial error.

In Bahr, the accused was charged with sexual of- fenses  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(c) 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 sol- diers 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 of- fenses  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 treat-

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

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 relation- ship with her parents after  she  reported  the allega- tions.  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 fabri- cate, 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 evi-[560]dence  from an earlier paral- lel situation.  In  our case, the argument as to motiva- tion is being made based on an earlier situation claimed to be parallel,  but there is  a  significant  difference be- tween the two situations.

It is clear that SR  wanted Appellant’s  help in sup- pressing 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

10 During the trial of this case, there was little mention of mo- tive 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. XIX 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.

May  incident  can be directly linked to her concern for either  UCMJ or administrative  action against  her for engaging in consensual sexual relations  with an enlisted  member.  There is no apparent similar motive to fabri- cate 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 Oc- tober 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 informa- tion 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 mo- tive to fabricate, and the earlier situation is not parallel.

The military judge’s ruling allowed Appellant to at- tack SR’s credibility by means of showing  a prior lie. It precluded Appellant  from showing that the prior  lie pertained to the nature  (consensual  or not) of a prior sexual encounter with someone  else, but did not pre- clude 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

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
of false allegations  intended to cover up her own mis- conduct,”  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 tes- timony “created  a substantially different impression  of her  credibility  than what the defense   had  tried  to show—namely, that SR had knowingly provided Appel- lant 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 mili- tary judge’s ruling prevented the members from judg- ing  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.)

12 The dissent propounds the theory that SR sought to have Appellant lie for her.  Both her testimony and Appellant’s testi- mony 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 ru- mors.  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.

J 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 [561] 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 (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.

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 [SR]’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.

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 en- compass 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 lan- guage of United States v. Stirewalt, 60 M.J. 297, 304 (C.A.A.F.  2004), Appellant’s   conduct “squarely impli- cates the third prong of the framework.”

The Regulations for the Corps of Cadets includes an Article 4-5-05 entitled Sexual Misconduct.  (Appel- late 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 estab-

lished … 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 pol- icy 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 ac- cused  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 (A.Ct.Crim.App. Nov. 30,  [562] 2004).     

We are not aware of any court-martial  appellate decision overturn- ing a sodomy  conviction  based on Lawrence when there was a regulation  aside from Article 125, UCMJ, prohibiting the behavior.16

14 We have found no authority suggesting that military regu- lation 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 opin- ion, each of which involved a guilty plea with no indication or ad- mission 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 regu-

Appellant  was charged with violating an order pro- hibiting  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 or- der of 5 December at the time Appellant was removed from the barracks.   (R. at 820, 1351.)   Appellant’s ac- knowledgment of receipt is  recorded on Defense  Ex-  hibit 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   ac- knowledgment  of receipt  is  recorded on Prosecution  Exhibit 4 at 1600 on “DEC 05” (sic). This  order was is- sued after the Commandant of Cadets had referred al- legations  of sexual assault against Appellant  to Coast

lation, it is not clear that the conduct would  be within the Law- rence 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. 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.

Guard Investigative Service (CGIS) for investigation.18(R at 814.)

The order of 7 December alleged to have been vio- lated  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  dif- fers 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

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

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 mes- sage to KS on 6 December 2005 (R. at 1333), before re- ceiving information that he was not supposed to contact any cadets  indirectly (R. at 1351), but none after re- ceiving the order the next day prohibiting  indirect  con- tact 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.  [563] 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.

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.

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 re-lief. (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 Appel- lant’s version of events.  This  Court has extremely lim- ited 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 de- lay 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.

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.

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.  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 ap- proved.  Accordingly,  the findings of guilty and the sentence, as approved below, are affirmed.

Judge LODGE concurs.