CAAF will hear oral argument in United States v. Solomon, No. 13-0025/MC, on Wednesday, March 20, 2013, at the U.S. Naval Academy, Annapolis, MD, as part of Project Outreach. The issues before the court are:

I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?

II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

“At trial, Appellant’s roommate, Lance Corporal [K], testified that on the morning of December 17, 2010, after falling asleep clothed in his barracks room bed, he woke up to find his pants and boxer shorts down by his ankles and Appellant lying in between his knees. LCpl K claimed Appellant rubbed his genitals against LCpl K’s, then jumped into his own bed where LCpl K confronted him. After taking Appellant’s cell phone, LCpl K claimed he saw three photographs of his own genitals on the phone. LCpl K then reported the incident to the barracks duty officer.” App. Br. at 3 (citations to record omitted).

The Appellant was previously tried for alleged sexual assaults on two other Marines, LCpls [B] and [R]. He was acquitted of those assaults, likely because “evidence at trial showed Appellant was arrested for driving under the influence at a location 45 minutes away from the place where he allegedly assaulted LCpls [B] and R at the very time that LCpls [B] and [R] claimed he assaulted them.” App. Br. at 4. Nevertheless, the military judge allowed the Government to present the testimony of LCpls [B] and [R] at this trial, finding their testimony admissible under both M.R.E. 404(b) and M.R.E. 413.

M.R.E. 404 is the general prohibition on admission of evidence of a person’s character for the purpose of proving that the person acted in conformity with their character on a particular occasion (i.e., propensity evidence). However, M.R.E. 404(b) explains that evidence of a person’s other actions is admissible for non-character purposes, such as to prove motive, knowledge, or plan. Additionally, M.R.E. 413 creates an exception to the general prohibition of M.R.E. 404 in that:

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

During closing argument, the Trial Counsel made statements vouching for the believability of LCpls [B] and [R], such as “they were believable,” “we should believe [them],” and “what they said was true.” App. Br. at 6. The Trial Counsel also characterized the defense theory of the case as “smoke and mirrors,” and said it was “absolutely, absolutely, absolutely ridiculous,” and also “absolutely preposterous.” Id.

The Appellant was convicted contrary to his pleas by a general court-martial composed of members with enlisted representation of abusive sexual contact, indecent conduct, drunk and disorderly conduct, and obstruction of justice in violation of Articles 120 and 134. He was also convicted pursuant to his pleas of violating a lawful order and wrongful use of a controlled substance in violation of Articles 92 and 112a. The convening authority approved the adjudged sentence of confinement for six years, reduction to pay grade E-1, total forfeitures and a dishonorable discharge.

The NMCCA reviewed the case for three assignments of error: the two questions before CAAF, and a third error in the failure to allege a terminal element in the drunk and disorderly and obstruction of justice charges. Applying Humphries, the CCA found error in the failure to allege the terminal element, and set aside these convictions. The CCA then reassessed the sentence and reduced the confinement from six years to four years. I’ve fallen behind on tracking this issue, but this might be the first instance of a CCA granting meaningful relief under Humphries.

The CCA found no error in admitting the prior allegations under M.R.E. 413 (while noting that if it was error under 413, the evidence could not be saved by 404(b), since the members were not instructed on the limited uses of evidence under 404(b)). Additionally, the CCA acknowledged that the trial counsel used “injudicious language,” but found that even assuming the argument was improper, it did not amount to plain and obvious error (as there was no objection from the defense). But a dissenting opinion by Judge Beal takes the opposite view (disclaimer: just last week I tried a case as co-counsel with the now-retired Judge Beal).

The Appellant’s brief to CAAF contains a two-part attack on the admission of the testimony of LCpls [B] and [R] about the other alleged assault:

The military judge here abused his discretion in admitting the alleged assaults against LCpls B and R because the evidence of the previous assaults could not reasonably support the finding that Appellant had committed the prior crimes. Moreover, the weak probative value of the evidence was substantially outweighed by prejudice and the other considerations delineated by this Court in Wright.

App. Br. at 9. The brief relies on the following three-factor test: “(1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under M.R.E. 401 and M.R.E. 402.” United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000). The first part of the attack is that the prior allegations were inadmissible because the contradictory proof (the DUI citation that created an alibi) was so strong as to be dispositive. The Appellant applies the same argument to any consideration of admissibility under M.R.E. 404(b). The second part of the attack is that there was no basis for admissibility under 404(b), and that the prior offenses “occurred a year and a half before Appellant’s trial for the assault on LCpl K.” App. Br. at 18. Considering the CCA’s analysis, it’s hard to understand why the Appellant’s brief discusses 404(b) at all.

On the second issue, the Appellant argues that the trial counsel “interjected his personal beliefs and opinions into the trial; he set up the case as a popularity contest and invited the members to draw the inference that the victims were telling the truth from the fact that the trial defense counsel did not explicitly ‘look at them and say’ they were lying; and he made disparaging comments about both Appellant’s theory of the case and his defense counsel.” App. Br. at 24. The Appellant also argues that, “The trial counsel misled the members.” App. Br. at 29. Finally, the Appellant notes the CCA’s finding of “injudicious language,” but its split on the question of prejudice, and argues that, “The trial counsel’s improper argument materially prejudiced Appellant’s substantial rights because the misconduct was severe, it was not addressed by the military judge save for a generic instruction, and the overall case against Appellant was weak.” App. Br. at 31.

The Government argues that the evidence of the prior allegations “was properly admitted by the Military Judge because a preponderance of the evidence showed that the offenses were committed and the Appellant committed them, and because the evidence was both logically and legally relevant to the present charges.” Gov’t Br. at 10. But it concedes that if the evidence was not properly admitted under 413, then it cannot be saved by admissibility under 404(b). Gov’t Br. at 11. The Government’s argument is based on the principle that “413 establishes a broad range of evidence admissible for consideration on any relevant matter.” Gov’t Br. at 13. And the Government notes that there is a general presumption in favor of admission of evidence of prior sexual assaults, citing United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005).

On the issue of improper argument, the Government makes a bold move:

Under this Court’s case law, allegations of improper argument are tested for plain error when an appellant did not object at trial. But this Court should apply waiver instead, because the Rules for Court-Martial direct such practice…

Gov’t Br. at 23. It’s true that under R.C.M. 919(c), “failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection” (emphasis added). But CAAF has repeatedly refused to limit its review to this constraint, including just last month in its opinion in United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013). Notably, while Halpin was a split decision with two dissenting opinions, there is no consideration of the possibility that the defense counsel’s failure to object to the argument constituted waiver of any error. It’s also only fair to note that the Government brief in Solomon was filed before CAAF decided Halpin. But ultimately, the Government’s argument for waiver is likely futile.

The Government also argues the plain error test, correctly placing the burden on the Appellant to demonstrate the first three prongs (error; that is plain or obvious; and that materially prejudices a substantial right of the accused), and emphasizing the existence of the fourth prong (that the error seriously affect the fairness, integrity or public reputation of the proceedings) that is, so far, not part of military caselaw (see, for example, the last few paragraphs of my analysis of the Humphries opinion). Applying this test, the Government argues that the trial counsel’s argument was not improper.

The Government begins by characterizing the Trial Counsel’s statements as “not interjecting his own beliefs here. On the contrary, in all three instances Trial Counsel was describing the witnesses’ consistency and composure while testifying.” Gov’t Br. at 29. The Government also argues that the trial counsel was trying “to refocus the Members on the facts of the present case, and away from what he fairly characterized as a ‘smoke and mirrors’ conspiracy theory.” Gov’t Br. at 33. Ultimately, the Government argues that the Appellant was not prejudiced as “the Trial Counsel’s misconduct, assumed arguendo, was not severe, and the weight of the evidence supporting the conviction was strong.” Gov’t Br. at 37.

In a reply brief, the Appellant focuses the military judge’s findings of fact and conclusions of law in the pretrial litigation of the admissibility of the 413 evidence, and argues that the Government case was weak and depended on the admission of the 413 evidence. The reply brief also provides a list of the trial counsel’s arguments that the Appellant thinks improper:

  • If this is a conspiracy, then [defense counsel] should say it explicitly while [LCpls B and R are] in the room.
  • It’s absolutely, absolutely, absolutely ridiculous.
  • That’s what the defense counsel’s argument is. It’s absolutely ridiculous.
  • That’s just smoke and mirrors by defense counsel.
  • How likely is that? It’s absolutely ridiculous.
  • There are not that many conspiracies in the JFK assassination.
  • [LCpls B and R] stood up here and testified in front of you under oath and they were believable.
  • And we should believe [LCpls B and R] that that’s why they didn’t tell because they wanted it to go away.
  • Those nonverbals should have give [sic] you a clue as to what was going on and what was true. And what [LCpls B, R, and K] said was true.
  • I’m sure you got a good determination of [LCpl K]. Very truthful . . . .
  • [LCpl K] looked at each of you when he testified and he was honest.
  • You should believe [LCpl K’s] testimony.
  • NCIS made a decision that day. They decided not to take him in. And based upon the facts, that was a good decision.
  • The reason why we put [LCpls B and R] on is to show sexual propensity. Sexual propensity. The theory is that if a person commits a sexual offense, they will probably commit it again because the recidivism rate, the repeat offender rate is so high.
  • [LCpl K] testified to exactly what happened that night. He was believable.
  • You should believe [LCpl K].

Solomon comes to CAAF at a time when sexual misconduct prosecutions are creating deep divides in the military justice community and putting a dangerous spotlight on the notion of “wins” and “losses” in the military justice system. The Government’s efforts in this case to use evidence of allegations that were the subject of an acquittal, coupled with the trial counsel’s objectionable comments, reminds me of the warning quoted by CAAF in its 2005 opinion in United States v. Fletcher, 62 M.J. 175:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935). Similarly, “In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: ‘The United States wins its point whenever justice is done its citizens in the courts.'” Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).

CAAF may use this case to remind us that this is equally true for military trial counsel.

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

7 Responses to “Argument Preview: United States v. Solomon, No. 13-0025/MC”

  1. SgtDad says:

    Which, of course, begs a very important question: in light of a conclusive alibi, why was this even charged with purported assaults on L/Cpls B & R?

  2. Ed says:

    The reply brief and the govenment brief are reversed.

  3. Phil Cave says:

    Improper for prosecutor to impugn the Defense Counsel, particularly during rebuttal phase of argument.  (“Smoke and mirrors.”  “Red herring.”)  United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005).
    Cline v. United States, 395 F.2d 138, 141 (8th Cir. 1968) (improper for a prosecutor to accuse defense counsel of dishonesty.  Such statements are improper because a prosecutor’s comment “carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”
    United States v. Young, 470 U.S. 1, 18-19, (1985); Berger v. United States, 295 U.S. 78, 88 (1935) (prosecutors may not inject their own testimony nor cast aspersions upon the defendant through offhand comments, suggestions of conspiracy with defense counsel, nor personal attacks upon the integrity of defense counsel).
    McDonnell v. United States, 457 F.2d 1049, 1052-53 (8th Cir. 1972) (prosecutor deserved censure for admittedly describing defense counsel’s offer of proof as a “common trick”).

  4. stewie says:

    I would think though that there has to be SOME room for a prosecutor to address something that is fanciful or logically impossible or whatnot. 

  5. Phil Cave says:

    You may be right to some extent.  I haven’t updated my trial notebook on this issue for a couple of years.  I guess Solomon will give me the motivation to do that.  :-)  But I do object at trial to those sort of comments.

  6. Zachary Spilman says:

    Links corrected. Thanks Ed.

    I think that there is a big difference between a prosecutor who says “[the government witness] is truthful,” and a prosecutor who says “there is evidence supporting [the government witness’s] in-court testimony, such as the fact that the witness was (corroborated) (so confident about what he saw) (consistent with his prior statements) (etc., etc.).”

    “The Government” can discuss what the evidence shows, but it can’t use its color of authority to offer value judgments to the members. For instance, in this case the trial counsel talked about “smoke and mirrors.” Unless an illusionist testified, that’s a totally baseless value judgment.

    Of course, there’s a big gray area. I do think that a trial counsel can suggest conclusions from the evidence (i.e., “considering [the evidence], it’s reasonable to find [the conclusions]”). But that’s the conclusion to a line of reasoning, not the argument itself.

    The prosecutor has to be the honest broker. If the panel sees (or has reason to see) the defense counsel as the more objective advocate, there’s a big problem. That might mean an acquittal, but so what? Justice is not synonymous with convictions.

  7. k fischer says:

    It’s just like the Government to screw up a perfectly good wrongful use of ecstacy, disobeying a lawful order, and abusive sexual contact case with the admission of 413 evidence that should be inadmissible.  Or perhaps it was their aim to create an appellate issue and broaden the reach of 413.  
    But, take the case without the 413 evidence and lets say that Solomon got acquitted based on reasonable doubt.  You have a fresh complaint, and I’m assuming CID couldn’t do any forensics on the phone to see if pictures were deleted at 0300 on that fateful morning.  What comes in under sentencing?  That’s right!  The prior conviction from the summary court martial for wanking while watching female Marine’s sleep.  Suddenly, all those panel members who were voting for reasonable doubt are upset with him because he is a sicko and he gets hammered for 5 years for wrongful use of ecstacy.  That is if the facts of the summary court martial come in.
    Of course, what I don’t get is why the judge did not permit the masturbating while watching female Marine’s sleeping incident that occurred on the same day as the incident on Cpl B and R?  Solomon obviously had some sort of fetish with messing with sleeping persons if all these people are telling the truth.  
    Also, Solomon was caught wanking while watching female Marine’s sleeping after his DUI on August 15, 2009, so he allegedly touched Cpl B and R earlier that morning.  So, the Marines court martial him at a summary for the wanking incident that occurred after the DUI, but apparently he faced court martial in which he had a military defense counsel for the incident with Cpl B and R earlier that morning.  Am I reading that wrong?  Or did he face a summary court martial for both, but he plead guilty for one charge and and not guilty for the other for which he was acquitted.
    And, don’t get me started on Cpl K.  So, I wake up, go smoke a cigarette, then go back to bed and my male roommate is able to loosen my belt, unbuckle my jeans, pull down my jeans and boxers, snap three photos of my nekked torso, and I don’t wake up?  Then, I grab the phone and walk out to go tell the Staff Duty Officer, but decide I should turn around and grab my phone, at which point Solomon is able to wrest the phone away from me and delete all the pictures while I stand there helpless?  I might think that way if I am a Private and he is an NCO, but here we have an E3 vs. an E2.  When I was a PFC, I would have beat the living dog$&|t out of some E2 dude hyped up on X taking nekked photos of me and rubbing up on me.   I just don’t buy it.  Maybe the TC had some doubts, as well, and that’s why the TC pushed the 413 motion.
    Then, again, the young people get awfully frisky when they are on ecstacy……so, perhaps he is one of these people who just needs a pulse…..