Air Force Court of Criminal Appeals

12/3/2023

Stafford has three interesting issues: (1) is there court-martial personal jurisdiction, (2) unavailable discovery/evidence, and (3) use of acquitted conduct for Mil. R. Evid. 413 purposes.

Jurisdiction

On 19 February 2019, while Appellant’s civilian trial for the August 2018 alleged rape of HG was pending, Appellant reached the expiration of his then current enlistment. Appellant was also under investigation by the Air Force for the 2017 alleged assaults against SK.

The Mountain Home AFB legal office delayed Appellant’s separation by requesting he be placed on “administrative hold” because he was the “Subject of an Air Force Office of Special Investigations (AFOSI) investigation, with the possibility of a future court-martial.” [1] On 18 March 2019, the administrative hold was renewed on similar grounds.

On 21 and 22 March 2019, while the civilian trial was still pending, an administrative discharge board was convened and recommended Appellant be administratively discharged with an under other than honorable conditions (UOTHC) service characterization, the basis being the alleged rape of HG pending trial in civilian court. However, following the board, Air Force authorities took no further action to effectuate the administrative discharge, either before or after Appellant was acquitted of the alleged rape of HG in April 2019.

Instead, Appellant’s administrative hold was periodically renewed on the grounds that charges would likely be preferred against him as a result of the ongoing AFOSI investigation of SK’s allegations. On 30 October 2019, Appellant’s squadron commander preferred the five specifications alleging offenses involving SK. The preliminary hearing officer submitted his report to the special court-martial convening authority on 28 January 2020.

On 28 February 2020, the squadron commander preferred the four specifications alleging offenses involving CM. On 25 March 2020, the general court-martial convening authority referred the charges and specifications for trial by general court-martial.

Appellant was arraigned on 27 April 2020. Appellant did not challenge the court-martial’s jurisdiction over himself or the charged offenses prior to his appeal.

In a challenge for the first time on appeal

Appellant essentially contends the Government’s extension of his enlistment beyond 19 February 2019 for the “possibility of a future court-martial” was a subterfuge in order to administratively discharge him with a UOTHC service characterization. [2] Appellant contends it was only after the state court acquitted him of the alleged rape of HG that the Government began preparing in earnest to prosecute him. Appellant further suggests certain of the legal office’s administrative hold requests were untimely or otherwise deficient in some respect.

AFCCA concludes that there is little dispute about the ability to hold someone past their active duty service commitment for court-martial--it's "a longstanding feature of military law." Smith v. Vanderbush, 47 M.J. 56, 57–58 (C.A.A.F. 1997) see also United States v. Douse, 12 M.J. 473 (C.M.A. 1982): In re Grimley, 137 U.S. 147 (1890).

In Williams v. Weathersbee, 280 Fed. Appx. 684, 688 (10th Cir. 2008), they distinguished Smith v. Vanderbush because unlike Smith, Williams had "been affirmatively discharged; that is, his final pay had been calculated and a discharge certificate issued." That gets us part way to how AFCCA settled Stafford's issue.

The United States Court of Appeals for the Armed Forces (CAAF) “has identified three criteria to consider when determining whether a servicemember’s discharge has been finalized for jurisdictional purposes: (1) the delivery of a discharge certificate (a DD Form 214); (2) a ‘final accounting of pay’; and (3) the completion of the ‘clearing’ process that is required under service regulations.” However, this guidance is not binding when it goes “against reason or policy.” “[I]f one or more of these criteria have not been fully met, then the military trial judge must consider the totality of the circumstances in making a jurisdictional determination.”

The question can be quite nettlesome to figure out, but in Stafford the answer flowed from the absence of evidence that he had satisfied any of the three elements for discharge. Slip op. at 10.

[1] As an aside, some of us have been litigating the hold over action under R.C.M. 707 and Due Process as a speedy trial issue. The basic theme is that, while not listed in R.C.M. 305, the hold over is the functional equivalent of a restriction on liberty which starts the speedy trial clock.

[2] This reads like a 'basket discharge,' similar to what the Navy knows as (the illegal practice of) 'basket leave.' Anyway, the discharge procedure here seems to be irrelevant to whether the Appellant was properly held for investigation and possible prosecution for offenses unrelated to HG. The Appellant was not charged at court-martial with any offense against HG. (AFCCA found no abuse of discretion in admitting the testimony of HG under Mil. R. Evid. 413.) Had the Appellant been found not guilty of all of the court-martial charges, then an attempt to execute the delayed Admin Board action would be a matter for the corrections board in a petition to have the administrative discharge set aside and an honorable discharge assigned.

Lost evidence

While prosecuting the Appellant for the allegations involving HG, the state had proferred to the court various bits of information from CM that they considered to be admissible under the state's version of Mil. R. Evid. 404(b).

The trial judge described the prosecution’s “offer of proof” with respect to its I.R.E. 404(b) motion as consisting of: (1) “the State’s assertion of statements [CM] said to the prosecution in preparation for trial;” (2) an audio recording made by civilian police in September 2014 “where [CM] states the last non[-]consensual act occurred six months before September 2014;” and (3) summaries of text messages exchanged between Appellant and CM in June 2014 and September 2014. As described in the trial judge’s order, the text summaries from June 2014 include, inter alia, allegations by CM that Appellant had “forced [him]self” into her residence resulting in something “bad” happening, had “[v]iolently” raped United States v. Stafford, No. ACM 40131 (f rev) 17 her twice at some point in the past, and had “made [CM] bleed from [her] butt.” Appellant’s responses included, inter alia, “It’s been way more than a month. And I’d appreciate it if you stopped reminding me [o]f that. Trust me, I’ll never forget what I did to you.” As described by the trial judge, the September 2014 text exchanges included, inter alia, CM’s suggestion that Appellant tell his new girlfriend that he is “a rapist who uses canola oil to anally rape [CM] after breaking in[to] [CM’s] house.” The trial judge characterized these allegations as being “intermingled with ‘begging’ to have sex or cuddle or at least say goodbye before leaving town, allegations of infidelity, threats of withholding custody of the children, and regrets about a relationship passed.” The trial judge also cited a stipulation between the parties to the effect that CM had told the prosecution CM and Appellant continued to have consensual sex until January 2014, which the trial judge found to be contrary to earlier statements CM made to the police. In addition, the parties stipulated that CM had sent graphic sexual photos and a video to Appellant in January 2014, and another three graphic photos in April 2014. The trial judge also noted the prosecution had not offered sworn testimony from CM regarding the March 2014 incident in support of its motion.
. . .
During state court trial proceedings in June 2015, a civilian police detective testified that he extracted “thousands” of messages from CM’s phone. At another point in the proceedings, the prosecutor referred to approximately 16,000 text messages, instant messages, and emails having been downloaded from CM’s phone.

The state trial judge excluded testimony from CM.

The trial judge explained her ruling: Considering the audio recording, the description of photos and the video in the stipulation, the totality of the texts, and the unsworn statement relayed by [CM] during two interviews which were not under oath, the court determines [CM’s] statement to the police was not credible. Additionally, given the totality of the circumstances, the court does not find her unsworn statements to the prosecution any more credible. The trial judge did not find sufficient evidence existed from either CM’s statements or from the text messages “to support a conclusion by a reasonable jury that the March 5, 2014 non[-]consensual act is fact as described by [CM] . . . .”

At the court-martial, the defense made a discovery request for much of what is listed above. The answer (you guessed) was that no one (including Stafford's civilian defense counsel) had any of the requested information. The police and prosecutor had not retained the cell phone or other evidence from the 2015 trial, and the defense counsel had not retained it beyond 2018. The AFCCA found the defense motion for abatement was not an abuse of discretion.

Defense failed to articulate the “necessity” of much of the evidence.
The MJ found that certain items met the threshold for production, but the Defense failed to demonstrate communications contained on Appellant’s and CM’s respective phones were “of such central importance as to be essential to a fair trial.”
The MJ noted the civilian police report, possessed by the parties, had some of the text communications attached. The MJ found the preponderance of the evidence did not indicate the existence of “additional text messages directly pertaining to the charged or uncharged offenses.”
The MJ further noted the messages attached to the report and in the possession of the parties “include[d] discussions of infidelity, distrust, and child custody,” and the preponderance of the evidence did not demonstrate the phones contained additional “noncumulative evidence of bias or motive.”
The MJ further observed that the text summaries referenced in the state trial judge’s I.R.E. 404(b) ruling described the content of the texts in the possession of the parties, and a “preponderance of the evidence does not establish that additional texts would be non-cumulative with the [police] report.”
The MJ noted the Defense was evidently in possession of the photos and videos referenced in the state trial judge’s ruling, and the suggestion that additional non-cumulative images or videos existed at some point was “entirely speculative.”
The MJ concluded the missing police audio recording of CM and additional communications, images, or videos contained on the phones were not “of central importance to [CM’s] credibility or [ ] any other aspect of the charged specifications,” and their absence “will not deprive [Appellant] of a fair trial.”
The MJ found the preponderance of the evidence did not demonstrate there were not adequate substitutes for the missing evidence. With regard to the audio recording of CM, the Defense possessed the state trial judge’s ruling that described what CM had said. With regard to the data from the phones, the military judge found the Defense had not demonstrated how the information in and attached to the police report, “combined with available witness testimony, are inadequate to demonstrate any aspect of the relationship between [Appellant] and [CM] at the time of the alleged assaults.”
the MJ found the Defense could not have prevented the loss of the audio recording or data from CM’s phone; however, a preponderance of the evidence indicated Appellant could have prevented the loss of his phone because, more likely than not, the Mountain Home police provided him the opportunity to claim his phone before disposal. [3]

[3] The opinion does not describe the basis for this speculation. otherwise there would be no need for the "more likely than not" phrasing. Further, the MJ does not address why the prosecutors made no effort to get the evidence themselves and preserve it--they were after all holding Stafford for court-martial for charges involving CM. Once again the blame is put on the accused for a (all too common) government failure. Could not the MJ have speculated that the government avoided getting that information becaue they'd be in "possession" and the Brady and other discovery rules kick in?

Acquitted conduct

The defense objected to testimony from HG offered under Mil. R. Evid. 413.

The Defense moved in limine to exclude this evidence from Appellant’s court-martial. The Defense argued that allowing evidence of an alleged sexual assault charged in a separate proceeding which resulted in acquittal would “create a dangerous loophole” in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice under Mil. R. Evid. 403.

The AFCCA found no abuse of discretion. There is an intriguing sentence at p. 32 when addressing the Appellant's claim that United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013), was helpful to the Appellant.

In contrast to Solomon, in the instant case, the military judge was not presented with evidence tending to provide the Appellant with an alibi or other defense for the alleged sexual assault of HG.

Solomon said (there's got to be a pun here somewhere),

In this case, the military judge clearly abused his discretion in admitting evidence under M.R.E. 413. The problem is not that an incident for which an accused has been previously acquitted may never be admitted under M.R.E. 413; rather, the problem is that the military judge altogether failed to mention or reconcile Appellant's important alibi evidence and gave little or no weight to the fact of the prior acquittal.

Query 1. Why does it ever matter that there has been a prior acquittal in state court? The generally accepted view is that an acquittal is not proof of innocence. It is conceivable the state jury in State v. Stafford would have found guilt if they had been charged with "by a preponderance" as the legal standard for guilt rather than BRD.

Perhaps the answer is that it does matter and that the proper course lies in change to the Rule to require "clear and convincing" evidence in cases where there has been a prior acquittal? For example (in use in federal courts),

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.

See Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (defining clear and convincing evidence).

Query 2. Is AFCCA adding or suggesting a new defense requirement that they establish their defense to a 413 accusation on admissibility at the hearing? In reality, that's not what they are saying, but defense counsel may want to consider the potential mini-trial in advance of the merits. How might the defense go about that?

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