​Whether the military judge erred by excluding evidence under Mil. R. Evid. 412 and by preventing the defense from presenting evidence of participation and consent during the res gestae of the charged sexual assault. 

​It is worth clarifying that Appellant is challenging the exclusion of only two pieces of evidence: (A) evidence that Appellant and MC engaged in consensual kissing the day before the alleged sexual assault; and (B) evidence that Appellant was seen with hickey marks the day after the alleged assault. The motions judge excluded the consensual kissing evidence on the basis that it was substantially more prejudicial than probative under M.R.E. 403. The trial judge excluded the hickey evidence because Appellant failed to proffer evidence suggesting Appellant received the hickeys during the alleged assault. 

​As explained above in greater detail, during trial the Government objected when the defense attempted to elicit testimony about the hickeys, and the trial judge excused the panel to conduct an Article 39(a), UCMJ, session. Appellant sought to explain that the witness would testify as to having observed hickeys arising from the alleged sexual assault, which would constitute res gestae evidence. The trial judge asked the defense what evidence was before the court that the hickeys were from the night of the offense. Defense counsel ultimately stated that it “could move on from this” and “could possibly readdress it later.” However, defense counsel seemingly never returned to the matter, and the trial judge never affirmatively excluded the evidence. Under this circumstance, there was no ruling by the trial judge to be appealed, and hence nothing for this Court to review. See, e.g., United States v. Welch, 25 M.J. 23, 27 (C.M.A. 1987) (noting the military judge did not make a final ruling excluding evidence). 

In the scheme of impossible demands, the sex offender registry concept has more than its share. Much as there may be empathy for certain crimes and criminals, sex offenders remain pariahs as an incident to rape culture and believing women. While there’s empathy for murders, there’s nothing but hatred and damnation for anyone who’s saddled with the “sex offender” characterization, whether deserved or not. So in 2021, Attorney General Merrick Garland decided to add another impossibility to the mix, because who doesn’t hate sex offenders?

The lead plaintiff, identified as John Doe in court documents, enlisted in the Marines at 17. Six years later, according to the original complaint, he had “a consensual but inappropriate encounter” with a 16-year-old girl that “did not involve sexual intercourse.” Because the teenager was two years younger than California’s age of consent, that encounter resulted in criminal charges. Doe pleaded no contest to a misdemeanor count of sexual battery, which required him to register as a sex offender. He was sentenced to three years of probation.
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          “Since then,” the complaint says, “Mr. Doe has dedicated himself to making amends and becoming a model citizen. He expressed sincere remorse for his crime and voluntarily underwent psychological treatment. And equipped with a healthier perspective, he pursued higher education and has had a rewarding and productive career, became a loving husband and father, and became an active participant in his church. He has done everything one is supposed to do following a criminal conviction.”

And indeed, California recognized that Doe “paid his debt to society,” to the extent there was a debit owed, and was given an unconditional pardon in 2012 and has his records expunged. Problem solved? Not even close.

​The Court agrees with Plaintiffs that the practical effect of the Rule, in conjunction with 18 U.S.C. § 2250, has done exactly what is forbidden by the Constitution: “to declare an individual guilty or presumptively guilty of a crime.” Patterson, 432 U.S. at 210. In the Rule, the Government disavows any obligation or burden “to establish that a registration jurisdiction’s procedures would have allowed a sex offender to register or keep the registration current in conformity with SORNA” before prosecuting the individual for failure to do what it acknowledges is impossible. 86 F.R. at 69867. Doing so subverts the procedural safeguards deeply rooted in our history and constitutional framework.

Represented by PLF free of charge and joined by the Alliance for Constitutional Sex Offense Laws (ACSOL), John is challenging Congress’ unconstitutional delegation of authority to the Attorney General to issue SORNA requirements—a clear violation of the non-delegation doctrine and separation of powers.
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In 2019, the Supreme Court declined to reinvigorate the non-delegation doctrine in a case called Gundy v. United States. However, the Court avoided ruling on the constitutional issue, while several Justices mentioned in dissent that SORNA is ripe for a constitutional challenge. This case could present them with an opportunity to revisit that decision.

A military judge sitting as a general court-martial convicted Appellant, in accordance with his pleas and pursuant to a plea agreement, of three specifications of willfully disobeying a superior commissioned officer, one specification of wrongfully discharging a firearm under circumstances to endanger human life, one specification of communicating a threat, two specifications of assault consummated by a battery, and four specifications of domestic violence in violation of Articles 90, 114, 115, 128, and 128b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 914, 915, 928, 928b. After the military judge announced Appellant’s sentence, the convening authority withdrew and dismissed one specification of attempted murder in violation of Article 80, UCMJ, 10 U.S.C. § 880, and one specification of domestic violence in violation of Article 128b, UCMJ, as required by the plea agreement. The military judge sentenced Appellant to a dishonorable discharge, confinement for 84 months, reduction to the grade of E-1, and a reprimand. The convening authority approved the sentence in its entirety, but deferred Appellant’s reduction in grade until judgment was entered and waived Appellant’s automatic forfeitures for a period of six months.

For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3.
. . . 
Appellant must prove the Government has no rational basis for treating a military accused differently from a civilian federal defendant. See Paulk, 66 M.J. at 643. It is well established, however, that the Constitution applies to a military accused differently in many contexts than it does to a civilian defendant. See Easton, 71 M.J. at 175–76. We determine that Congress possessed a rational basis when it passed Clause 3, specifically, the promotion of good order and discipline by allowing military prosecution of federal crimes not necessarily enumerated in the UCMJ. We further conclude Congress possessed a rational basis for making Clause 3 offenses subject to the military court-martial system and not requiring the military provide a military accused the exact same rights as a federal civilian defendant. We also note that Appellant pleaded guilty to the Clause 3 offenses.

What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws.

Two specifications of sexual assault of a child were preferred against Appellant. These specifications related to victims Ms. Bravo and Ms. Lima. An additional charge also alleged a violation of Article 120b, UCMJ, but related to Ms. Sigma, Appellant’s high school girlfriend. All charges and specifications were alleged to have occurred before 1 January 2019.
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Before trial, Ms. Sigma notified the Government that she no longer wanted to participate in the trial as a witness. The defense was then advised of the Government’s intent to use information regarding Ms. Sigma as propensity evidence under Mil. R. Evid. 414 as it related to the Article 120b specifications involving Ms. Bravo and Ms. Lima. The Government then withdrew and dismissed the charge related to Ms. Sigma. 

argued that the motion to exclude was supported by Kentucky state law and a Naval Criminal Investigation Service interview of Ms. Sigma. Appellant’s position was that Kentucky law did not criminalize his relationship with Ms. Sigma because the age difference between them was within the range protected by Kentucky law and, therefore, the sexual relationship did not amount to an offense.

​The military judge, in ruling on the defense’s Mil. R. Evid. 414 motion, found the issue of whether sexual relations with Ms. Sigma occurred before or after Appellant enlisted in the Marine Corps to be relevant only as to jurisdiction, noting in his ruling that “…whether or not the uncharged misconduct…occurred before or after the accused’s enlistment…would only resolve the…jurisdictional issue of whether the accused could be tried for his alleged misconduct at a court-martial.” We disagree. The military judge’s bundling of events relating to Ms. Sigma under a general concept of “sexual assault of a child” led to legal errors in his Mil. R. Evid. 414 and Mil. R. Evid. 403 analysis. 

The Supreme Court found that a trial court did not need to make a finding by a preponderance of the evidence that the acts occurred in order to admit such evidence. Instead, this type of evidence should be admitted if there is sufficient evidence such that the jury could conclude, based on a preponderance of the evidence, that the defendant committed the similar act. Put differently, the trial court only needs to assess whether there is enough evidence for a reasonable jury to reach the conclusion under a preponderance standard.

The military judge’s ruling indicates his view that “[t]he [Appellant’s] admissions, corroborated by Ms. K.W. and statements of [Ms. Sigma]…is a primary source for both the uncharged misconduct as well as the charged offenses [pertaining to the other victims].” This is notable in that Appellant denied any post-enlistment sexual relations with Ms. Sigma, K.W. clarified that the statements in question were about Ms. Bravo not Ms. Sigma and Ms. Sigma never testified in this case. Having reviewed all the evidence in this case, even in light of the holding in Huddleston, we have doubts that a jury could have reasonably found by a preponderance of the evidence that Appellant had sexual relations with Ms. Sigma, at some time after his enlistment. However, we need not resolve the Mil. R. Evid. 401 and 402 issue at this stage because in addition to the three-part test established by Mil. R. Evid. 414, the military judge must also conduct a Mil. R. Evid. 403 balancing analysis. We find that the military judge abused his discretion in applying the Mil. R. Evid. 403 balancing test, and thus do not need to reach the issue of relevance under Mil. R. Evid. 104(b).
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Thanks to GMJR for the alert on this pending rules change.

1. The Defendant has been charged with an offence of causing death by careless driving on the 26th of August 2022.

2. She was, at the relevant time, a serving airman with the United States Air Force (‘USAF’) based at RAF Lakenheath.

3. She was driving in her vehicle after a PT instruction session at the base to her home address located some 30 minutes (22 miles) away from the RAF base.

​4. En route, her vehicle was involved in a collision with a motor bike. 

primary [] to jurisdiction as regards offences ‘arising out of any act or omission done in the performance of official duty’ lies with the sending state[,]

[A] certificate issued by or on behalf of the appropriate authority of the sending country, stating that the alleged offence, if committed by him, arose out of and in the course of his duty as a member of that force or component, as the case may be, shall in any such proceedings as aforesaid be sufficient evidence of that fact unless the contrary is proved. 

We thank Brigadier (Ret) Paphiti at ​Aspals for bringing this case to our attention.