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:
This writ petition is interesting because of what it doesn't say and for what it suggests might be something for Congress to consider.
We may remember several cases involving Mil. R. Evid. 513 where something went awry in the process of retrieving the materials for an in-camera review. See, e.g., here, and here.
While not explicit, it appears the military judge was being a little creative to avoid inadvertent spillage with the equivalent of a "special master" to filter the records. To do that he created an order to have what AFCCA characterizes as a "taint team" to obtain and review the subject records before they are provided to him. Unfortunately, that creativity exceeded what is allowed under the current rules. So,
For the reasons set forth below, we grant the petition in part. We vacate the military judge’s 27 September 2023 written order and oral supplement to that order to release Petitioner’s “mental health diagnosis and treatment records” maintained by the 31st Operational Medical Readiness Squadron Mental Health Flight (31 OMRS/MHF) located at Aviano Air Base, Italy, to Ms. CM, a civilian medical law attorney, and subsequently to Major (Maj) AW, a military medical law attorney (both of whom were assigned to JACC), for review and identification of releasable treatment and diagnosis information, and review and redaction of “any and all matters subject to privilege under [Mil. R. Evid.] 513.”
AFCCA focuses on the missteps and resolves the case on authority issue alone, and sends the case back.
Petitioner asserts that, in issuing the order to produce certain of her mental health records, the military judge erred in three general respects: (1) failing to hold a hearing as required by Mil. R. Evid. 513; (2) failing to apply the process and procedures as required by R.C.M. 703(g)(3) (arguing the Petitioner’s mental health records physically maintained by the 31 OMRS/MHF were not “within the possession, custody, or control of military authorities” within the meaning of R.C.M. 701(a)(2)); and (3) issuing an order outside the scope of the military judge’s authority.
On issue two, AFCCA has already opined that (unless there is some evidence that the 31 OMRS/MHF is not a military authority) such records likely are within... See, e.g., In re KS, et. al., 2023 CCA LEXIS 406 *9, citing In re HVZ.
Issue one of course has legs.
Having determined interpretation and application of Mil. R. Evid. 513(e)(3) was necessary—as evidenced by his order—the military judge did not address the four prerequisites for in camera review of qualifying mental health records in accordance with Mil. R. Evid. 513(e)(3)(A)–(D). Cf. In re AL, Misc. Dkt. No. 2022-12, 2022 CCA LEXIS 702, at *21 (A.F. Ct. Crim. App. 7 Dec. 2022) (order) (granting Article 6b, UCMJ, petition on Mil. R. Evid. 513 grounds where the military judge ordered production of entirety of AL’s Family Advocacy Program mental health records over AL’s claims of privilege without adhering Mil. R. Evid. 513(e) procedural safeguards)). Furthermore, even if the military judge had considered those prerequisites, Mil. R. Evid. 513(e)(3) authorizes only one person to complete in camera review: the military judge.
Issue three is where Congress might want to consider a "special master" rule for disclosure of Mil. R. Evid. 513 material. For example, if an MTF has a dedicated legal advisor, could not the records be filtered by that legal advisor before surrender to the military judge? MTF legal advisors are well-informed and experienced in protecting HIPAA material, credentialing materials, quality assurance information, etc. Plus they have legal training and would be better positioned to understand issues of relevance and discovery. That way the reviewed information is contained within the MTF bubble and less likely to be accidentally exposed.
Just a thought.
Here's the link to the CAAF litigation in HVZ and BM.
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.
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.
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.  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.
United States v. Cabuhut,
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.