Air Force Court of Criminal Appeals

United States v. Massey

Massey has two issues of interest: (1) admission of a witness’s deposition after the MJ finds the witness unavailable, and (2) multiplicity.

The MJA trial was held at Lakenheath, UK, on charges of wrongfully soliciting: the rape of a [two month old] child, the production of child pornography, and the distribution of child pornography. The events were communications over social media.

The events came to light because the victim/mother contacted the appellant's fiancee/spouse, which according to the deposition led to this exchange.

“Regarding the picture Appellant asked for on 24 July 2018, Ms. BM asked Ms. MN, “just to clarify[,] what did he mean by I still want a pick of your kid with his penis in your mouth[?]” Ms. MN replied, “he’s asked for stuff like that before.” Ms. BM asked, “Did you do it?” Ms. MN answered, “[n]ever” and added, “He wants to f[**]k his kids.” Ms. BM later informed Ms. MN that she had confronted Appellant and that “he confessed to it after about an hour of denial.”

Interestingly, the victim/mother had 

told the police officer who interviewed her at her house that she only listened to—and did not actively participate in—Appellant’s fantasies of sexual conduct with children. She admitted in her deposition that this was not true, as she had participated in those fantasies with Appellant and had even initiated such conversations on occasion. Ms. MN said she had lied to the officer because she did not want to get in trouble. Ms. MN testified she never alerted law enforcement about Appellant’s requests, saying: “I didn’t know I was allowed to since he was overseas and he had never physically touched my child.” She conceded that she approached Ms. BM not because she believed she was being asked to commit a crime, but because she believed Ms. BM should know what Appellant was doing behind her back.

The deposition became an issue because the victim/mother was located in California and didn't want to travel, which led to (redacted)

[T]he Government contacted Ms. MN, who was living in California, in an effort to secure her appearance at trial. Ms. MN sent an email to trial counsel which read in its entirety: “I talked it over with my husband and we don’t think it will be a good fit for us, having me alway [sic] for so long. I would love to help any way I can going forward. Thank you for everything.” The Government attempted to persuade Ms. MN to change her mind, but Ms. MN persisted in refusing to travel to the United Kingdom for the trial, even though her expenses would have been paid for by the Government. She further frustrated Government efforts to secure her presence by refusing to provide the passport information needed to arrange her international travel. The convening authority then ordered the oral deposition at Travis Air Force Base, California; Appellant, his counsel, and his expert consultant in forensic psychology were present for the video-recorded proceeding. Although Ms. MN agreed to the deposition, she told the parties she still had no intention of participating in Appellant’s court a position she maintained through the Government’s last contact with her about the matter. At trial, the Government made a motion to admit Ms. MN’s deposition in lieu of her in-person testimony. The Defense objected and asked the military judge to abate the proceedings. Alternatively, the Defense asked that the “entirety of the Defense cross-examination” be admitted. The military judge granted the Government’s motion, finding Ms. MN to be unavailable within the meaning of Mil. R. Evid. 804(a). He based this conclusion on the fact that he had no authority to compel civilian witnesses to travel outside the United States and that Ms. MN had steadfastly refused to voluntarily travel. He also concluded the Government had made good faith efforts to obtain her in-person appearance. He further ruled that because the deposition was recorded and transcribed verbatim, Ms. MN’s prior testimony was “undoubtedly reliable and [met] the criteria contemplated in [Mil. R. Evid.] 804(b).” The military judge also noted that Appellant, his counsel, and expert were present, and that the Defense cross-examined Ms. MN “for over an hour on the full scope of relevant topics.” 

Apparently, there was no motion to change venue, and the Appellant argues the military judge abused his discretion in finding Ms. MN “unavailable” under the theory that Ms. MN was willing to participate live at the Appellant’s court-martial, just not travel to the United Kingdom.

In finding no error, the court footnotes that "the discussion under R.C.M. 906(b)(11) indicates a change of the place of trial may be necessary “to obtain compulsory process over an essential witness.” We do not understand that statement to require a military judge to sua sponte order a change in venue, especially when the witness’s testimony has been otherwise preserved through a deposition. In the body of the opinion,

The court disagrees because that would require courts-martial to relocate as needed to meet the wishes of recalcitrant witnesses. This would turn the concept of “unavailability” on its head, as the Manual for Courts-Martial plainly contemplates witnesses coming to courts-martial—and not the other way around—by virtue of R.C.M. 703 which explains in detail how to procure the presence of witnesses.

Note, the deposition was video-recorded so the MJ could see and hear the witness testify, but was not able to ask questions.

CAAF may take this case to examine whether the criticality of a witness should be a significant factor in moving a trial and may construe the defense arguments at trial as the functional equivalent of asking for a change of venue. The defense had asked for the drastic remedy of a mistrial, and a lesser remedy would be a change of venue?

This brings to mind a British Army court-martial some of us witnessed in the courtroom at Andrews AFB, MD some years ago. The trial was "bifurcated" in that proceedings were held at Buford, UK, moved to Andrews to take the testimony of the sexual assault victim, and then moved back to Buford to do the remainder of the case. It was a members case and they traveled. He was found not guilty.

Signs of an expeditionary court-martial system. I was most amused by a picture of The Queen hanging behind the judge, in his wig and robe; bewigged civilian counsel, and watching people entering or leaving the courtroom who were required to bow or salute if in uniform. 

The Brigadier President of the panel, as is allowed publicly admonished the officer thus:

"Despite unanimously and overwhelming finding a sentence of not guilty we have been similarly united in our sense of corporate embarrassment by the conduct of the defendant. We as commissioned officers feel strongly that Lieutenant Colonel Tomkins behaviour even by his own account fell wholly and demonstrably short of what we would expect of an officer of his rank and experience."

On the multiplicity. The single events were charged separately.

This case presents a close call. On one hand, the Government has distinct and legitimate reasons for criminalizing sexual assault of a child, production of child pornography, and distribution of child pornography as separate offenses. Each offense targets a particular way in which children may be victimized, each with the real potential for severe and long-lasting consequences. On the other hand, arriving at three separate convictions in this case requires a meticulous parsing of Appellant’s singular statement: “I still want a pic of your kid with his penis in your mouth.”
. . . 
Based upon the absence of controlling precedent, we do not find the military judge abused his discretion. We are not persuaded, however, that allowing Appellant to stand convicted of three separate offenses is a just outcome. Appellant made a singular request to Ms. MN—that he wanted to see a picture of her son’s penis in her mouth. He provided no further direction on how Ms. MN should produce the picture or how she was to deliver it to him. 

The court then went on to discuss the inchoate offense of conspiracy and found by analogy, the charging decision here was flawed. In dismissing two of the specifications, the court opined that,

​There is little apparent reason why a singular request should be divisible by its component parts to multiply the number of charges against an accused in the case of solicitation when doing so would be impermissible had a conspiracy been instead alleged. This is especially true in the instant case where Appellant is charged with asking one person for one picture on one occasion.

With the merger, the court found the sentence, including 18 months confinement, appropriate and affirmed it.