It’s Friday the 13th. Time to discuss the Army CCA’s 13th published opinion of 2013: United States v. Carrasquillo, No. 20110719, 72 M.J. 850 (A.Ct.Crim.App. Nov. 27, 2013) (link to slip op.).
Appellant, a Specialist (E-4), was deployed as a military policeman at Al Asad Airbase, Iraq, in early-2011, when he decided to rob an Iraqi businessman who kept a large sum of U.S. currency. With two accomplices, Appellant entered the businessman’s quarters and robbed him at gunpoint, taking over $380,000. However, a third possible accomplice, who was recruited to join the criminal enterprise but declined to participate, reported the plan to the command and Appellant and his accomplices were apprehended.
Appellant was questioned by a special agent with the Army Criminal Investigation Command, but invoked his right to remain silent and asked for an attorney. Appellant made no substantive statements to law enforcement. However, he did testify in his own defense at trial.
Appellant was tried by a general court-martial composed of members with enlisted representation. Contrary to his pleas of not guilty he was convicted of conspiracy to commit robbery with a firearm, conspiracy to commit burglary, robbery with a firearm, and burglary, in violation of Articles 81, 122, and 129, UCMJ. He was sentenced to a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances, reduction to the grade of E-1, a fine of $1,500, and an additional month of confinement if the fine was not paid. The convening authority disapproved the contingent confinement and the adjudged forfeitures, and otherwise approved the sentence as adjudged. Slip op. at 1.
The Government presented “a strong case with substantial corroborating evidence,” including the immunized testimony of one accomplice, the testimony of the victim (who “identified appellant with 80-90% certainty”), and the testimony of the soldier who reported the efforts to recruit him into the scheme. Slip op. at 3. “In response, the defense presented a consistent three-pronged theory throughout all phases of the trial”: it challenged the credibility of the Government witnesses, it asserted that CID wrongly accused Appellant under pressure to complete its investigation quickly, and it presented an alibi defense. Slip op. at 3-4. But the defense was unsuccessful.
On automatic appeal at the Army CCA, the Appellant raised numerous errors (some through counsel, others personally). But in its 17-page published opinion the Army CCA rejects these errors and instead addresses an error that the court specified itself: The fact that, “on three separate occasions during appellant’s trial, the panel heard evidence regarding appellant’s invocation of his rights during the interview with CID.” Slip op. at 4. Appellant’s multiple defense counsel (military and civilian) did not object to this evidence during the trial.
The CCA finds that “[t]he errors made in this case were plain and obvious.” Slip op. at 15. However, the court concludes that “the evidence overwhelmingly establishes appellant’s guilt, and the testimony concerning appellant’s invocation of his rights did not materially prejudice his substantial rights and was harmless beyond a reasonable doubt.” Slip op. at 17.
The three separate occasions during trial where Appellant’s invocation of his right to remain silent were referenced are discussed in the opinion and are reproduced after the jump.
The first occurred during the Defense direct examination of the agent who supervised the investigation of Appellant, and who testified that he “felt pressure to complete the investigation because it was high visibility and could potentially delay the redeployment of the entire unit.” Slip op. at 4. At one point the agent testified:
A: By 5 April, we had already attempted to conduct an interview of Specialist Carrasquillo, which he did not provide a statement. We [sic] had been released back to his unit, which was temporarily going to be assigned to 3-7 Infantry Battalion, and then he was ultimately assigned to the Base Command Group, Al Asad. At that time, he was considered a subject to the investigation and a photo lineup was prepared on that date.
Slip op. at 4 (emphasis in original).
The next references occurred during the Government’s cross examination of Appellant:
Q: Now, this is a pretty well prepared statement and you sound completely innocent. Why didn’t you just tell somebody this before hand?
A: CID questioned me in the beginning, when I told them what actually happened, they told me while [sic] I’m questioning you for robbery and I said I need to speak to a lawyer.
Q: So you didn’t give a statement. [sic]
A: They told me directly that you are being accused of robbery. They were asking – – the way they were questioning me was like I was guilty, right there. And I said I need to speak to a lawyer and that is what I did.
Later in the cross-examination, the government counsel persisted in exploring appellant’s decision to remain silent when questioned by CID.
Q: Did you tell anyone that you wanted to tell your side of the story?
Q: Who did you tell?
A: I told everybody.
Q: Did you tell CID?
A: Yes, I did? [sic]
Q: Then why do you not have a statement?
A: Because like I said, the way they were questioning me was like I was automatically guilty. I didn’t feel comfortable and I just asked for legal representation.
Q: So, you’re telling us that CID neglected to put that as part of their investigation?
A: That’s not what I am saying. What I am saying is, the way they were questioning me I was uncomfortable and I just asked for legal representation. If you ask a person did you do this, a simple yes or no answer. The way they were questioning me was, we know you did this. I didn’t feel comfortable being accused automatically and that is why I asked for legal representation.
Slip op. at 5-6.
The third references occurred during the Government case in rebuttal, on direct examination of the agent that questioned Appellant:
The trial counsel asked SA CH to describe the interview and how it was initiated. He then asked a series of questions regarding appellant’s invocation of his right to remain silent.
Q: And then you arrived at the interview room and you read him his rights, what happen [sic]?
A: During rights advisal, Specialist Carrasquillo refused to touch the rights advisal, he refused to initial any of the spots or sign the form. We actually had to get our Special Agent [J]T, our special agent in charge, to come in and explain to him the form and ask him to at least check the box that said he wanted a lawyer.
The trial counsel asked even more questions of SA CH regarding the procedure he used to administer the rights advisal, later asking the agent:
Q: So, did Carrasquillo waive his rights?
A: No, he did not.
Q: And did he tell you that he wanted to tell his story?
A: No, he did not. He stated he wanted a lawyer.
Slip op. at 6.
As discussed above, Appellant’s multiple defense counsel failed to object to any of this improper testimony about Appellant’s decision to remain silent. As also discussed above, the CCA finds that it was error for the military judge to permit this testimony, but that there was no meaningful prejudice to Appellant. In doing so, the CCA applies the plain error test with the burden shift that I have repeatedly argued is erroneous (such as in my opinion analysis of United States v. Clifton, 71 M.J. 489 (C.A.A.F. 2013)). The CCA explains:
Normally, when the government elicits evidence regarding appellant’s invocation of rights before the finder of fact, the test for prejudice is the constitutional standard of harmless beyond a reasonable doubt. However, in cases where there was no objection, we review for plain error. Appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused. Once appellant meets his burden of establishing plain error, the burden shifts to the Government to convince us that this constitutional error was harmless beyond a reasonable doubt.
Slip op. at 11 (marks and citations omitted). I believe that regardless of the nature of the error, in a plain error analysis the burden remains on the appellant who forfeited the objection by failing to raise it at the trial stage. This is in part because once an appellant “meets his burden of establishing plain error” by showing that “the error materially prejudiced a substantial right,” it is logically impossible for the Government to subsequently prove that the materially prejudicial error “was harmless beyond a reasonable doubt.”
In Carrasquillo the CCA analyzes each of the three references to Appellant’s silence separately, but repeatedly references what appears to be the Government position (I have not seen the Government’s brief) that Appellant invited this evidence by the theory of his defense. For example, the opinion includes this whopper:
The government argues that, similar to United States v. Gilley, the trial counsel in this case was allowed to provide testimony in “fair response” to appellant’s claims that he was somehow coerced into invoking his rights.
Slip op. at 14 (emphasis added). The Government coercing an accused into invoking his right to remain silent. That’s a new one.
The CCA keeps a straight face while rejecting this position, finding that “the record never establishes the appellant clearly intended to employ his rights invocation as part of the defense.” Slip op. at 13. The court discusses caselaw that addresses the Government’s right to ask about pretrial invocations when it is to impeach an accused’s assertion of a prior consistent exculpatory statement, and it notes the Supreme Court’s explanation that:
it goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.
Slip op. at 8 (quoting Doyle v. Ohio, 426 U.S. 610, 620 n.11 (1976)). But the CCA clearly explains that these are not the facts of this case:
In fact, when the appellant was asked if he was suggesting CID failed to include appellant’s explanation for the events surrounding the incident in their investigation, appellant clearly stated he was not making such an assertion.
Slip op. at 13. And military law is explicit on the irrelevance of pretrial silence:
A person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation.
Slip op. at 9 (quoting Mil. R. Evid. 304(h)(3)). Appellant testified that he remained silent because he was uncomfortable with the way he was being questioned. But his silence wouldn’t support an inference of guilt even if he remained silent out of spite, or for deceitful reasons, or masochistically. And while the CCA repeatedly chastises the military judge for failing to determine why this testimony was elicited by either side (and give appropriate instructions to the members), it’s hard to read the excerpted Government examinations as doing anything but inferring guilt from silence.
So the CCA finds plain and obvious error, but then denies Appellant relief on prejudice grounds:
Although there were three separate discussions of appellant’s decision to invoke his rights, we find none of the errors materially prejudiced the substantial rights of the appellant. Even when we consider the cumulative effect of the various violations, it does not outweigh the overwhelming evidence against appellant. Finally, we are satisfied beyond a reasonable doubt that the errors were harmless beyond a reasonable doubt.
Slip op. at 16. This is an interesting conclusion, as the court could have just assumed the error and focused on the strength of the Government’s case as overcoming any prejudice to get to the same result. But the court dedicates a lengthy published discussion to its determination of error and its rejection of the Government’s arguments that there was no error.
Perhaps the court sees errors like this as significant only when a case is decided in the margins. But the rights of an accused are most important when the Government’s case is strongest and the Defense leans heaviest on the presumption of the accused’s innocence and the prosecution’s burden of proof. Yet the Army CCA’s decision in this case seems to send the opposite message: The stronger the evidence of guilt, the weaker the rights of the accused.