Army Court of Criminal Appeals

United States v. Gene Williams

In 2013, in Williams Appellant was convicted by an "enlisted" panel of rape, four forcible sodomies, and five assaults. He was sentenced to 20 years, TF, RiR, and a DD. Allegations of aggravated sexual contact with a child and child sodomy were dismissed. He got a Hills remand from CAAF. After a second ACCA affirmance, CAAF set aside the rape conviction, three of the sodomies, and the sentence. One of the sodomies was affirmed as were the five A&B.

​In 2019, appellant was tried at a combined rehearing before a military judge at a general court-martial. The rehearing offenses consisted of the three specifications of forcible sodomy set aside by the CAAF, and two additional charges: one specification of aggravated sexual contact with a child and one specification of sodomy of a child under twelve. These two charges were the same charges dismissed without prejudice in appellant's first trial. One specification of rape, for which appellant was found guilty at his original trial, and which was set aside by the CAAF and authorized for rehearing, was dismissed by the government without prejudice. The two additional charges were preferred on 30 August 2018, and were received by the summary court-martial convening authority (SCMCA) on 12 September 2018. Contrary to his pleas, appellant was found guilty of the three specifications of forcible sodomy and one specification of child sodomy.' His sentence for these offenses, along with the resentencing for the five specifications of assault consummated by battery, was a dishonorable discharge, confinement for thirty-five years, total forfeitures of pay and allowances and reduction to E-1.

We are getting to the issue now. Of the "multiple assignments of error," the court finds that "the statute of limitations had expired for the child sodomy offense in the Specification of Additional Charge 11." On sentence reassessment, the court affirmed 19 years confinement.

On the issue. It was not raised at trial and the MJ "did not instruct Appellant of it as a possible defense." The court applies plain error and finds it to be "plain and obvious error not to apply [the SoL defense]." Working through the different statutes and rules applicable, the court concludes that

First, to understand how McPherson applies to the child sodomy offense under Article 125, UCMJ, of which appellant was convicted, we must determine the statute of limitations for this particular offense in this case. For this, we look to the version of Article 43, UCMJ, that was in effect at the time charges were received by the SCMCA. The Specification of Additional Charge II alleges the child sodomy of[ occurred between on or about 1 April 2009 and on or about 30 April 2009, in violation of Article 125, UCMJ. While appellant was initially charged at his first trial in 2011 with this offense, the prosecution dismissed this charge without prejudice. Appellant was again charged at his rehearing with this offense when the government re-preferred the child sodomy on 30 August 2018. The SCMCA received this charge on 12 September 2018. On 12 September 2018,  X was approximately 17 years old. The Article 43(b), UCMJ, in effect at this time was codified at 10 U.S.C. $ 843() (Supp. IV 2016).

​Although this version states child abuse offenses can be tried by court-martial during either the life of the child or within ten years of the offense being committed (whichever is longer), Congress failed to classify Article 125, UCMJ, as a child abuse offense. Because of this omission, the applicable period of limitations for appellant's Article 125, UCMJ, offense defaults to a five-year statute of limitations. See Article 43(b)(l ); United States v. McPherson, 81 M.J. 372,383 (C.A.A.F. 2021).

United States v. Aikanoff

In Aikanoff, an "enlisted" pane convicted Appellant of seven specs. of child sexual abuse. He was found NG of four child rapes, two sexual abuses of a child, and four attempted rapes of a child. They sentenced him to 20 years, TF, RiR, and a DD. Of the many issues raised, the court addresses several and affirms the findings and sentence.

1. Substitution of a panel member after evidence had been presented should have resulted in a mistrial.

Shortly after the government examined its last witness, one of the panel members fell ill and required immediate medical attention. After determining that the panel member would not be able to continue, and with the consent of both the government and the defense, the military judge excused the ill panel member for good cause under Rule for Courts-Martial (R.C.M.) 505(t).  
 
As the excusal dropped the panel below the mandated one-third enlisted representation, defense counsel moved for a mistrial. Following extensive argument by the parties, the military judge denied the motion for mistrial and instead proceeded to impanel a new member detailed by the convening authority following the procedures set forth in Article 29, UCMJ, and R.C.M. 505, 805, and 912B.

• R.C.M. 912B  and R.C.M. 505(c)(2)(B) permit detailing a new enlisted member if there are no alternates and the enlisted representation falls below the required one-third.
• R.C.M. 805(d) and UCMJ art. 29(f) require the new member hear the audio in open court (while not stated, with the other members absent) or a reading of any transcript.

For the most part, appellant either ignores or gives short shrift to both the applicable rules and the seminal CAAF case on point, United States v. Vazquez, 72 M.J. 13 (C.A.A.F. 2013), choosing instead to focus more broadly on the Confrontation Clause.

The Confrontation issue seems to focus on the new member not having seen the witnesses and so could not judge their demeanor. We frequently talk about demeanor as an important aspect of live witness testimony, for example, live versus telephone testimony. If ACCA is correct, then trials may now be conducted by phone because the ability to see the witness is no longer important.

• the confrontation right is not absolute, and
• the cross-examination right "does not guarantee "cross-examination that is effective in
  whatever way, and to whatever extent, the defense might wish."

However, given that the application of these procedures in this context has not previously been addressed by this Court, and that this Court harbors a presumption against waiver of the fullest expression of rights under the Confrontation Clause, see United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008), we will treat the failure to object as forfeiture and review for plain error.

If Vazquez and now ACCA are right, all future courts-martial may be conducted with the members on the telephone, or certainly with them on Zoom? Or should it matter, not clearly discussed in Aikanoff, who the witnesses were? For example, the alleged victim of a sexual assault or the witness who merely testified to a chain of custody?

I write separately because while I agree with the majority's result, I do not share the majority's view that this is, at heart, a case only about Article 29, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 829 (2006), including whether it is facially valid -- it is. Rather, like the Court of Criminal Appeals, I believe this case is about whether or not, in the particular circumstances of this court-martial, Appellee received a fair trial. While I believe Appellee ultimately received a fair trial for reasons described below, we need not be in the position of speculating as to what may or may not have been in Appellee's interest or whether he did or did not waive the issue. That is because Rule for Courts-Martial (R.C.M.) 915 provides a mechanism for addressing such issues where grounds for a mistrial may exist. The difference in legal view between the majority and this concurrence is over whether grounds for a mistrial may have existed where five of the six Government witnesses, including the victim, had already testified before two out of a total of six members were added to return to quorum. In the circumstances of this case, I believe the military judge abused his discretion in not applying R.C.M. 915.

Baker, C.J. and Stucky, J. concurring in Vazquez. The majority in Vazquez concludes,

​"While a case could exist where Article 29(b), UCMJ, would be unconstitutional as applied, Appellee has not met the burden of showing that it is his case."

None of the judges who decided Vazquez are now on the court.

​2. Failure to admit "predisposition" evidence under Mil. R. Evid. 412 prejudiced Appellant's claim that the victim was sufficiently educated to make a "fabricated" allegation.

Here the MJ was right on the facts. The alleged victim had only been exposed to two photo images. The theory can be valid but you'd need a lot more evidence than two photographs to be persuasive.

​Although the court finds the MJ did err in how he got to that result. The truth, believability, or witness credibility are not part of the Mil. R. Evid. 412 balance test. That's been clear since Banker (C.A.A.F. 2004).

While the ACCA is clearly right here, they do not suggest that a child could not be sufficiently educated "beyond her years" in how to fabricate what becomes a sexual assault allegation. 

United States v. Dow

In Dow, an "officer" panel convicted him of two specifications of possessing CP. The MJ sentenced him to "14" months, RiR, and DD.  The court sets aside one of the convictions and upon sentence reassessment approves six months, RiR, and a DD. A Pyrrhic victory case, as it's likely he's served the 14 months?

For Specification 1 of Charge IV, we do not know which of the charged images formed the basis for the panel's variant guilty finding, and we grant relief. For Specification 3 of Charge IV, we do know which charged image formed the basis for the panel's variant guilty finding, yet based on the impermissible scope of matters that the military judge considered in reaching a sentence, we grant relief. 

The court approaches the case like a United States v. Walters issue with a variance in the findings.

The factual controversy in this case is not whether the images themselves are unlawful; each file on Prosecution Exhibits 14 and 16 inarguably contain [CP]. The fundamental question was-and remains-whether appellant knowingly and consciously possessed them. Must we only be certain beyond a reasonable doubt that appellant unlawfully possessed [CP]? Or, in this case involving variant findings,[n.4] must we also be certain of which specific images the court-martial convicted him of possessing? 

[n.4 ​This is not a general verdict case, for the panel found appellant not guilty in part.

The court interprets and applies United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010) and United States v. Wilson, 67 M.J. 423 (C.A.A.F. 2009). The court concludes that the expert witness testimony did not sufficiently identify each image in each specification for the court to know which image(s) led to a guilty finding and which led to a not guilty finding--at least as to the first charge. 

In Specification 1 of Charge IV, appellant was charged with possessing "at least nine" images of [CP] on his Samsung phone. In Specification 3 of Charge IV, he was charged with possessing "at least seven" images on his ZTE phone. The government's digital forensic examination (DFE) expert testified at trial that eight of the nine charged images from the Samsung phone were accessible to appellant, but one of the images was not. Though each image was uniquely numbered on Prosecution Exhibit 14, the expert did not specify which of them were accessible.

The expert testified that one of seven charged images from the ZTE device was in a downloads folder, where appellant could have saved it from an internet search; however, he was unable to determine whether the remaining six images were accessible. As with Prosecution Exhibit 14, each image was uniquely numbered on Prosecution Exhibit 1. While the expert did not refer to its file number in describing its accessibility, he did testify that the downloaded image was a "collage file" from that exhibit. There was only one collage file among the images charged in Specification 3 of Charge IV. 
 
The court-martial found appellant guilty by exceptions and substitutions. Of Specification 1 of Charge IV, the panel found him guilty of possessing at least eight images instead of nine. Of Specification 3 of Charge IV, the panel found him guilty of possessing at least one image instead of seven.

As the court points out, most of the Walters issue cases have involved findings that exccpt out the "divers occassions" language. The court focuses on United States v. Ross to conclude that where there are mixed findings regarding the number of images then the court cannot conduct an Art. 66 review.

While a curous case, it may say more about charging decisions and the practice of prosecuting CP cases, and I think, a note to MJs.

Some may find it hard to rationalize setting aside these serious charges over a one of nine discrepancy. I wonder if the result would have been the same had the prosecution charged possessing 'one or more' or 'some amount' of CP images rather than the higher specific number? Would that be more akin to a general verdict? The number of images could still be an issue on sentencing? True, in some states for SOR purposes the number and type of images may affect the type and level of registration.

I wonder if the result would have been the same if the prosecution had been more precise, more detailed, in presenting the experts testimony?

The court also makes a point of how the MJ may have helped clarify the result here. The MJ recognized a problem when the first worksheet was presented. He then issued a new worksheet. But, I think, the court concludes the worksheet could have been made better--essentially saying the MJ could have asked for special findings for each image from the members as to G/NG?

Judge Arguelles dissented on resolution of Charge I.

Cheers, Phil Cave