Thanks to reader tips, I can provide the following links to news reports of the court-martial conviction of Army Major Erik Burris, formerly the Chief of Justice for the 82nd Airborne Division.

WNCN (a North Carolina NBC affiliate) reports here that:

The court-martial of United States v. Major Erik J. Burris concluded after six days of proceedings. Burris, a former 82nd Airborne Division chief of justice, was found guilty two specifications of rape, forcible sodomy, four specifications of assault and disobeying an order from a superior commissioned officer.

The court-martial found Burris not guilty of four specifications of assault, two specifications of sexual assault, two specifications of forcible sodomy and two specifications of communicating a threat.

Burris pleaded not guilty to all charges.

He was sentenced to forfeiture of all pay and allowances, 20 years confinement and dismissal from the service.

The Fayetteville Observer (a daily newspaper) has this report, with no significant additional details. Additionally, there is this Associated Press report, also with no significant additional details.

I believe that our only prior coverage of this case was in this April 2014 post, where I noted this March 2014 report from Fox40 Sacremento that appears to include details from a press interview of Major Burris. There was also (briefly) some significant discussion of the results of the court-martial in this week’s TWIMJ post.

Thanks to all readers for the tips. I plan to update this post with any significant new developments.

Update 1: The official news release from the Fort Bragg Press Center is available here. It is identical to the WNCN report quoted above.

Update 2: Here is a rather unflattering (to the military justice system) Associated Press report about the case, with references to the Sinclair case.

Significant military justice event this week: A meeting of the Judicial Proceedings Panel will be held on Friday, January 30, 2015, at One Liberty Center, Suite 150, Conference Room, 875 North Randolph Street, Arlington VA 22203. Additional information is available here.

This week at SCOTUS: I’m not aware of any other military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, January 27, 2015, beginning at 9 a.m.:

United States v. Olson, No. 14-0166/AF (CAAFlog case page)

Issue: Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page)

Issues:
I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.
II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).

Case Links:
ACCA opinion (73 M.J. 859)
Blog post: The Army enforces Jencks
Blog post: The Army JAG certifies Jencks issue in Muwwakkil
Appellant’s (Government) brief
Appellee’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, Monday, January 26, 2015, at 2 p.m.:

United States v. Burke, No. 20120448

Issues:
I. United States v. Miranda requires that a suspect be read his rights when the suspect is interrogated while the subject’s freedom of action is deprived in any significant way. Here, Appellant’s commander ordered Appellant to report to the battalion headquarters to perform “special duty” where he was informed of his wife’s death, he was not dismissed by his superiors or otherwise free to leave, and then was interviewed by civilian law enforcement. Thus, when Appellant was questioned, his freedom of action was deprived in a significant way, and the military judge abused his discretion when [he] admitted Appellant’s statements to law enforcement absent Miranda warnings.
II. Servicemembers must be read their Article 31(b), UCMJ, rights when they are suspected of an offense and questioned by a party subject to the code or otherwise an agent of one subject to the code. Here, civilian law enforcement agents coordinated a suspect interview with appellant’s command, came onto the military installation, and conducted the interview in the battalion conference room, appellant’s appointed place of duty. In availing themselves of the benefits of using the military command and installation to conduct their suspect interview, the government cannot show that the subtle pressures of the military environment were not present, and thus, the military judge erred in ruling that article 31(b) rights warnings were not required prior to questioning.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. O’Connor, No. 38420, on Friday, January 30, 2015, at 10 a.m.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Here is a link to the new Navy JAG Instruction 5803.1E, “Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General.”  The revised Navy JAG PR instruction doesn’t look final, but appears to be final since it is now on the JAG/CNLSC instructions page, here. Since there is no summary of changes in the instruction, here is a rough comparison of 5803.1D and 5803.1E.  The Comment period on the proposed instruction ended July 1, 2013 with only one Comment submitted (from our own Zee), see here.  Oddly the plan for the rule was that it wouldn’t go final until April 2015, see here.

This is the third post in what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

In an article that focuses on the Coast Guard’s sexual harassment policies while discussing a topic that is broadly applicable to all of the military services, Coast Guard Lieutenant Commander Bryan R. Blackmore suggests that:

The sexual-violence continuum provides a clear, straightforward conceptual model in which service members can understand the nature of sexual violence and how sexual harassment and sexual assault fit within the overarching construct of sexual violence. Rather than solely focusing on sexual harassment as a discrimination issue, the Coast Guard should view sexual harassment as offensive conduct within a continuum of sexual violence. In particular, by viewing sexual harassment as part of a continuum of sexual violence, it provides a framework from which the service can view all behaviors that enable, or serve as a precursor, to sexual assault.

Bryan R. Blackmore, Sexual Assault Prevention: Reframing the Coast Guard Perspective to Address the Lowest Level of the Sexual Violence Continuum—Sexual Harassment, 221 Mil. L. Rev. 75, 105-106 (Fall 2014) (available here).

Seeing an “artificial distinction between sexual harassment and sexual assault” in Coast Guard policy, the author finds that “Coast Guard policy is drafted in a manner to view sexual harassment as discrimination and sexual assault as criminal conduct. This oversimplification of the nature of sexual harassment minimizes the fact that sexual harassment is also misconduct, and it can be criminal conduct as well.” Blackmore, supra, at 116.

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On Wednesday CAAF granted review in the Army case of United States v. Gould, No. 15-0129/AR, with the following issue:

WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION OF PRODUCTION OF CHILD PORNOGRAPHY WHERE THE IMAGES IN QUESTION DO NOT MEET THE DEFINITION OF CHILD PORNOGRAPHY.

Interestingly, CAAF ordered that no briefs will be filed. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of indecent liberty with a child and production of child pornography in violation of Articles 120 and 134. But in an unpublished opinion the Army CCA reversed the indecent liberty conviction, finding that “the government did not prove that the child, KO, was aware of the indecent act alleged sufficient to establish the offense of indecent liberty with a child as contemplated under Article 120(j), UCMJ.” United States v. Gould, No. 20120727, slip op. at 2 (A. Ct. Crim. App. Sept. 16, 2014) (link to slip op.). As for the child pornography conviction, the CCA concluded:

We do find the evidence legally and factually sufficient to support appellant’s conviction for production of child pornography. See generally Washington, 57 M.J. at 399. The military judge properly considered relevant factors when reviewing the totality of circumstances necessary to adjudge whether the four photographs at issue constitute a lascivious exhibition of the genitals or pubic area required to resolve whether the images constitute child pornography. See United States v. Blouin, 73 M.J. 694 (Army Ct. Crim. App. 2014). Our own review of the evidence independently convinces us of the sufficiency of the evidence in this regard and that each of the four photographs depicts KO as alleged. See id.

Slip op. at 2.

Of note, CAAF will hear oral argument in Blouin on February 10. CAAF now has five child pornography cases on its docket:

So the New York Times thinks that the Air Force Court of Criminal Appeals is “widely understood to be the Air Force’s dumping ground for JAG misfits” (as reported here). Well, the New York Times is wrong. The AFCCA is awesome.

Why is the AFCCA awesome? Because today the court published the following order in United States v. Solis on its website (link to order):

Having reviewed the briefs of the parties pertaining to the second allegation of error, the Court believes oral argument on this issue would be helpful. Specifically, the Court desires that the parties address the following issue:

I. WHETHER THE RESULTS OF SCIENTIFIC TESTING ADMITTED AS A BUSINESS RECORD UNDER MILITARY RULE OF EVIDENCE 803(6) FOR THE LIMITED PURPOSE OF CORROBORATING AN ACCUSED’S CONFESSION UNDER MILITARY RULE OF EVIDENCE 304(g) MUST COMPLY WITH THE CONFRONTATION CLAUSE REQUIREMENTS APPLICABLE TO EVIDENCE SUBMITTED ON THE SUBSTANTIVE ISSUE OF WRONGFUL INVOLVEMENT WITH DRUGS, AND, IF SO, WHETHER THE ADMISSION OF THE TEST RESULTS IN THIS CASE COMPLIED WITH THOSE REQUIREMENTS. WILLIAMS v. ILLINOIS, 132 S. Ct. 2221 (2012); BULLCOMING v. NEW MEXICO, 131 S. Ct. 2705 (2011); MELENDEZ-DIAZ v. WASHINGTON, 129 S. Ct. 2527 (2009); DAVIS v. WASHINGTON, 126 S. Ct. 2266 (2006); CRAWFORD v. WASHINGTON, 124 S. Ct. 1354 (2004); UNITED STATES v. TEARMAN, 72 M.J. 54 (C.A.A.F. 2013); UNITED STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F. 2010); UNITED STATES v. GRANT, 56 M.J. 410 (C.A.A.F. 2002); UNITED STATES v. KELLY, 45 M.J. 259 (C.A.A.F. 1996).

Accordingly, it is by the Court on this 21st day of January 2015, ORDERED:

Oral argument is hereby directed to take place at 1205 hours on Friday Monday, the 23rd day of February 2015, at The George Washington University Law Center, located at 2000 H Street NW, Washington, DC 20052.

CAAF will hear oral argument in the certified interlocutory Army case of United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page), on Tuesday, January 27, 2014. The case involves a trial-stage ruling by a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation.

Production of such pre-trial statements by a witness is required by the Jencks Act, 18 U.S.C. § 3500, and the corollary Rule for Courts-Marital (RCM) 914, after the witness testifies on direct examination. In Muwwakkil, the Government called the alleged victim to testify at trial, but then was able to produce only part of the recording of her pretrial testimony because the rest was lost in what the military judge determined was not an intentional act but “was certainly negligent and may amount to gross negligence.” 73 M.J. 859, 861 (A. Ct. Crim. App. Aug. 26, 2014) (quoting record). Of approximately 2 hours and 15 minutes of testimony at the Article 32 investigation, only approximately 52 minutes was preserved. 73 M.J. at 861. The military judge then concluded that “the defense counsel does not have what he needs to adequately prepare for cross-examination of [the alleged victim],” and the judge felt that the only adequate remedy was to strike the testimony of the alleged victim. Id.

The Government promptly appealed. The Army CCA denied that appeal and affirmed the judge’s ruling in a published opinion, reasoning:

There is no evidence that the government destroyed the statement in “good faith” or was otherwise blameless in its destruction. See, e.g., Carrasco, 537 F.2d at 376; Lewis, 38 M.J. at 508 (citing Jarrie, 5 M.J. at 195). Beyond that, the government simply disagrees with the judge’s exercise of her discretion as to the proper remedy. Any disagreement any of us might have with the judge’s exercise of discretion under these circumstances is no basis for relief under Article 62. See Baker, 70 M.J. at 288 (“[T]he question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are ‘fairly supported by the record.’”) (citation omitted). Indeed the law demands that we respect and defend the reasoned exercise of a trial judge’s discretion in cases such as these and so we do here.

73 M.J. at 863. The Judge Advocate General of the Army then certified two issues to CAAF:

I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.

II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).

When I first noted the JAG’s certification (in this post), I thought that the second certified issue was particularly interesting because it seems to be an attempt to reach outside the normal abuse of discretion standard that CAAF employs in an interlocutory appeal. Instead of addressing the military judge’s ruling directly (the normal process), the issue challenges the decision of the Army CCA.

But the Government’s brief is even more interesting, as it uses the first issue to recast the entire case as a question of discovery rather than an application of RCM 914, and it opens with the novel assertion that:

The military judge was faced with a case dispositive motion in the middle of the government’s case in chief. The government counsel was granted less than 12 hours to evaluate the appellee’s citations to federal law, and respond in kind. Caveated [sic] as a motion to strike, and interpreted as a motion to suppress evidence, the government was essentially precluded from presenting the proper argument, which is spoliation of evidence.

Gov’t Br. at 7.

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CAAF will hear oral argument in the Air Force case of United States v. Olson, No. 14-0166/AF (CAAFlog case page), on Tuesday, January 27, 2014. The court granted review of a single issue relating to Appellant’s consent to the search of her off-base residence by Air Force investigators:

Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

Appellant was convicted contrary to her pleas of not guilty, by a special court-martial composed of officer members, of dereliction of duty, spoilage of personal property, wrongful possession of ketamine, and larceny, in violation of Articles 92, 109, 112a, and 121. She was sentenced to confinement for four months, forfeiture of $978.00 pay per month for 4 months, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one month of the adjudged forfeitures but otherwise approved the adjudged sentence.

In August 2011, Appellant’s military supervisor contacted Air Force investigators with suspicions related to Appellant’s civilian husband, who was allegedly involved in illegal drug activity. The supervisor “described Appellant as a bad troop and a ‘dirt bag’ and was concerned that her husband was a bad influence on her, but did not say he believed that Appellant herself was involved in illegal drug use.” Gov’t Br. at 2. The supervisor also communicated “his belief that Appellant’s husband was distributing drugs on base to other airmen.” Gov’t Br. at 2.

Appellant was then sent to meet with Air Force investigators. They met in a conference room and Appellant was not advised of her Article 31(b) right to remain silent. Appellant was questioned for approximately two hours, after which the investigators asked Appellant for consent to search her off-base residence in order to “make sure it was safe and there were no drugs.” App. Br. at 5. Appellant hesitated, but eventually gave consent (she claims that this was only after the investigators threatened to obtain a warrant, but the investigators denied making this threat). Acting on this consent investigators searched her off-base residence, where contraband was discovered and seized.

At trial Appellant moved to suppress the fruits of the search on the basis that her consent was involuntary. The military judge applied the six factor test from United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008), and concluded that Appellant voluntarily consented to the search. The Air Force CCA reviewed this ruling on appeal and affirmed the military judge. CAAF then granted review.

From just these facts, CAAF’s grant is puzzling. This case seems to present a rather mundane application of the six factors for determining voluntariness that were adopted by CAAF in Wallace, and the parties briefs are little more than an analysis of those non-exhaustive factors. But considering recent CAAF decisions involving Article 31(b) (our #3 military justice story of 2014), CAAF’s interest in this case likely goes well beyond the mere facts.

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This week at SCOTUS: The Court denied the cert petition in Daniel v. United States, No. 14-621. I’m not aware of any other military justice developments at the Supreme Court, where I am now tracking no cases.

This week at CAAF: The next scheduled oral argument at CAAF is on Tuesday, January 27, 2015.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 26, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 30, 2015.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This is the second post in what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

In an article published in the Air Force publication The Reporter (available here), retired Colonel James Young (who is currently the Senior Legal Advisor to CAAF’s Judge Stucky) offers ten recommendations to reform court-martial procedure. They are:

  1. Remove authority from the convening authority to select court members, approve the findings and sentence, grant clemency, and preside over vacation proceedings.
  2. Eliminate summary courts-martial and grant field grade officers authority to impose confinement for 30 days as a nonjudicial punishment under Article 15.
  3. Establish standing courts.
  4. Modify special courts-martial to judge alone trials.
  5. Except in capital cases, require sentencing by the military judge. The military judge should be required to impose any sentence agreed to by both the convening authority and the accused.
  6. Require the service Secretaries to establish a system for randomly selecting court members.
  7. Require all counsel to be qualified and certified under Article 27(b).
  8. Modify the military appellate court system by: (1) granting all accused convicted of an offense at a general or special court-martial the right to appeal to an appellate court; (2) eliminating the service Courts of Criminal Appeals; (3) changing the Court of Appeals for the Armed Forces from a discretionary appellate court sitting en banc to a court comprised of panels of three judges, operating in a manner similar to the U.S. circuit courts of appeals; and (4) removing restrictions from appeals to the Supreme Court.
  9. Require a verbatim record for every court-martial conviction.
  10. Consolidate the government appellate divisions so that when counsel purports to speak for the United States, it does so with one voice.

Each suggestion is accompanied by a brief discussion.

CAAF’s daily journal for January 15, 2015 (yesterday) shows a new grant:

No. 14-0685/AF. U.S. v. Wilber J. McIntosh, Jr. CCA 37977. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE WHICH STRONGLY CORROBORATED THE DEFENSE THEORY THAT THE ALLEGATIONS IN THIS CASE WERE FALSE.

Briefs will be filed under Rule 25.

The AFCCA heard oral argument in this case (audio available here). It considered and rejected the issue granted review by CAAF in an unpublished opinion available here. It also denied a petition for reconsideration en banc (order available here).

The daily journal also shows this order in the certified Air Force case of United States v. Bowser, No. 15-0289/AF (CAAFlog case page), our #10 military justice story of 2014:

No. 15-0289/AF. U.S., Appellant v. Roy A. Bowser, Appellee. CCA 2014-08. On consideration of the certificate for review and Appellant’s brief in support of the certified issues, dated January 5, 2015, under C.A.A.F. R. 15(a), and MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(2) adopted therein, we find they fail to address United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014), and United States v. Browers, 20 M.J. 356 (C.M.A. 1985) as possible controlling or adverse authority. Appellate courts can and should require re-briefing to address deficiencies. See Passmore v. Estell, 607 F.2d 662, 664 (5th Cir. 1979), cert. denied, 446 U.S. 937 (1980). Accordingly, it is ordered that, within 10 days of the date of this Order, Appellant will file an amended brief addressing the deficiency noted. No extensions of time will be granted.

Appellee’s brief, currently due on January 26, 2015, will instead be filed within 10 days of the filing of Appellant’s amended brief. Any reply brief by Appellant will be filed within 5 days of the filing of Appellee’s brief.

Wow.

Notably, this order comes exactly one day before the one year anniversary of CAAF’s January 16, 2014, order that rejected the Government’s initial brief in United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014) (CAAFlog case page).

The Air Force CCA has issued a published en banc decision in the interlocutory case of United States v. Wright, __ M.J. __, No. 2014-10 (A.F. Ct. Crim. App. Jan. 13, 2015) (link to slip op.).

The opinion appears to be jointly authored by Senior Judge Hecker and Judge Weber.

We’ve covered the Wright case sporadically (I summarized our past coverage in this post). It is a sexual assault case that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims.

The CCA’s opinion provides additional facts that I haven’t seen in print anywhere else:

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The 2015 meeting of the Code Committee will occur on Tuesday, March 3, 2015, at 10:00 a.m., at CAAF (notice here). As with the past two years (discussed here (2014) and here (2013)), I plan to attend and post notes.

CAAF’s annual Continuing Legal Education and Training Program is scheduled for May 19-20, 2015, at Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington, DC (notice here). Last year’s program was fantastic.

As I noted in my write-up on the number four story in our top ten list for 2014, the NMCCA recently set aside another sentence in a case from Parris Island, based on the military judge’s PME to law student interns. The accused in United States v. Arnold, No. 201200382 (N-M.C.C.A. Dec. 23 2014) was convicted, pursuant to his pleas, of larceny, providing false information to a police officer, driving with a suspended license, stealing a license plate, counterfeiting currency, and altering a base decal, all in violation of Articles 121 and 134, UCMJ.

The appellant was sentenced to 12 months confinement, forfeiture of $950.00 pay per month for 12 months, reduction to E-1 and a bad conduct discharge. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of 30 days pursuant to a pretrial agreement. This sentencing occurred approximately four weeks prior to the military judge’s PME to Marine law students at Parris Island. In his original assignment of error, the appellant alleged the military judge was disqualified because he showed an inflexible attitude about sentencing and allowed his perceptions about the expectations of the Commandant of the Marine Corps and Congress to enter his deliberations. The NMCCA affirmed the findings and sentence as approved; however, the case was remanded by CAAF following its decision in United States v. Kish.

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CAAF decided the Army case of United States v. Piren, __ M.J. __, No. 14-0453/AR (CAAFlog case page) (link to slip op.), on Thursday, January 15, 2015. The court finds that the military judge did not abuse her discretion when she overruled the Defense objection to the scope of the Government’s cross-examination of Appellant, or when she denied the Defense motion to suppress the results of a DNA analysis, affirming the decision of the Army CCA and Appellant’s conviction.

Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.

II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of abusive sexual contact in violation of Article 120. He was acquitted of a specification of aggravated sexual assault in connection with the same incident. He was sentenced to confinement for 12 months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed without issuing a written opinion.

After the sexual assault allegation was made against Appellant, Appellant made statements to a sexual assault nurse examiner named Lieutenant Colonel (LTC) Alumbaugh who did not advise him of his right to remain silent. Appellant also consented to a forensic sexual assault examination that included taking samples for DNA analysis. The Government did not oppose a defense motion to suppress the un-warned statements to LTC Alumbaugh, but it did oppose a defense motion to suppress the results of the DNA analysis. The military judge suppressed the statements but admitted the DNA results. However, despite the suppression, the statements were still available for the purpose of impeachment by contradiction. See M.R.E. 304(b)(1) (2012), replaced by M.R.E. 304(e)(1) (2013).

Appellant then testified in his own defense, deliberately avoiding any testimony about his statements to LTC Alumbaugh. But on cross-examination the prosecution questioned Appellant about the statements he made to LTC Alumbaugh. The prosecution then recalled LTC Alumbaugh to impeach Appellant’s testimony about those same statements. Specifically, she denied that Appellant told her four thing about the sexual encounter at issue that Appellant testified (on cross-examination) that he did tell her.

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