In an unpublished opinion in the Marine Corps case of United States v. Brown, No. 201300181 (N-M.Ct.Crim.App. Jun. 30, 2014) (link to slip op.), the NMCCA reverses the appellant’s convictions for false official statement, assault consummated by battery, communicating a threat, and two specifications of wrongfully possessing firearms after having been convicted of a misdemeanor crime of domestic violence, finding that through the admission of improper character evidence “the Government effectively handed the members a canvas with the appellant painted as an abusive and aggressive individual prone to extreme responses to seemingly mild provocation.” Slip op. at 12. Senior Judge Ward writes for a unanimous three-judge panel.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for 15 years, reduction to E-1, total forfeitures for 12 months, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

The charges involved domestic disputes between the appellant and his wife:

At trial, the appellant faced charges for communicating a threat to EB [his wife] on 1 April 2012 and two specifications of assault and battery of EB on 10 June 2012; one specification for making a false official statement for his comment [to command representatives, claiming that he didn’t own a gun] following the IRO hearing; and four specifications of 18 U.S.C. § 922(g)(9) for wrongfully possessing two firearms and ammunition in the trunk of his car.

Slip op. at 4. However, at trial the wife’s responses to the trial counsel’s direct examination “were noncommittal or less than forthcoming,” and the CCA’s opinion casts her as a better witness for the Defense than for the Government. Slip op. at 6-7. Perhaps for this reason Judge Ward notes that “in light of several evidentiary challenges, the Government served notice to the defense of evidence it intended to offer at trial pursuant to MIL. R. EVID. 404(b).” Slip op. at 5. This evidence included prior domestic disturbance 911 calls and an encounter between the appellant and a Mr. G where the appellant allegedly pointed a pistol at Mr. G (who then refused to cooperate with military police in any investigation and the appellant was not charged with an offense in relation to this incident). The incident with Mr. G also included evidence of the appellant’s infidelity to his wife. Judge Ward explains:

During the pretrial motion hearing, the Government argued that the previous 911 calls and related police reports provided evidence of the appellant’s intent and plan to abuse his wife, and further defeated any accidental cause of EB’s injuries on 10 June 2012. The Government then posited that the incident involving Mr. G revealed the appellant’s knowledge of and intent to possess one of the firearms later recovered from his vehicle. This was due to the similarity between the pistol Mr. G described and the one later recovered from the appellant’s vehicle.

Ultimately, the military judge agreed, concluding that the brandishing of a firearm was relevant to show knowledge to rebut any claim of mistake or accident concerning the Lautenberg violations. Similarly, he concluded that the previous 911 calls were relevant to rebut any claim of mistake or accident on the charge of spousal battery. The military judge also concluded that this evidence was not substantially outweighed by the danger of unfair prejudice.

Slip op. at 5. If you’re scratching your head on this reasoning, you’re not alone. The CCA concludes that the military judge erred in admitting this evidence, and that he conducted an erroneous 403 balancing. But Judge Ward repeatedly puts the onus on the unidentified trial counsel for using this evidence for purely propensity purposes.

For the 911 calls, Judge Ward focuses on a call made on April 28. The appellant was not charged with any offense in relation to this call. The evidence included that:

On 28 April 2012, a neighbor called 911 and reported that he could hear “spousal abuse” coming from the appellant’s apartment, that he could hear a female voice “screaming and crying,” and that this was “not the first time [he’s] heard them fighting.”

Slip op. at 3. The wife also testified about this incident. Judge Ward finds that this evidence:

[O]nly provided a generalized picture of domestic disturbance that the Government later cast as proof of an ongoing pattern of spousal abuse at the hands of the appellant.

Slip op. at 8. A footnote adds that “the Government also called a forensic psychologist who testified to the ‘ongoing cycle of violence’ phenomenon in battered spouse cases, and that in her opinion the abuse to EB “seems to be increasing in terms of 911 calls and threats of violence.” Slip op. at 8 n.25. Judge Ward then concludes that:

[W]ith so little probative value, the risk of unfair prejudice rises where the Government painted the appellant as an abusive husband with increasingly broad brush strokes.

Slip op. at 9 (emphasis added).

For the testimony of Mr. G regarding the uncharged incident with the pistol:

The only issue in dispute was whether the appellant knew that the two pistols and ammunition were in the trunk of his car. But any limited inferential value of Mr. G’s testimony was quickly overwhelmed amidst details of a cheating husband and an aggressive provocateur threatening Mr. G with a presumably loaded pistol. The unfair prejudice arising from these unnecessary and inflammatory details far outweighed the similarity between this “9 or .45” and the .45 ACP later seized from the appellant’s car. Furthermore, the military judge’s overly expansive limiting instruction made matters worse.

Considering that the trial counsel highlighted the appellant’s provocative and belligerent response to Mr. G during both opening statement and closing argument, the risk of improper influence upon the members from this evidence is simply too great.

Slip op. at 10-11 (emphasis added). A footnote provides this excerpt from the trial counsel’s closing argument:

Trial counsel highlighted the aggressive nature of the appellant’s conduct arguing “and the [appellant] does not care for [Mr. G’s interruption], because he and Ms. [R] apparently need their alone time. So he comes out the front door and points a .45 at Mr. [G’s] chest. Not only does he point it at him, but Mr. [G] can hear it cocked. And Mr. [G] testified, he then told him, ‘Act tough now, act tough now.’”

Slip op. at 11 n.34. Again, the appellant was not charged in connection with the encounter with Mr. G. Additionally, the opinion does not disclose whether the Defense objected to this and other quotes portions of the Government closing argument (that I think are plainly improper).

Judge Ward then turns to prejudice, noting that “the Government’s case overall was strong,” slip op. at 11, and that “the defense case, on the other hand, was not as strong,” slip op. at 12. But Judge Ward concludes:

[T]he Government effectively handed the members a canvas with the appellant painted as an abusive and aggressive individual prone to extreme responses to seemingly mild provocation. This evidence is exactly the type of “new ammunition” on a fact at trial that increases the risk of prejudicial error.

The role this evidence played at trial, particularly the incident with Mr. G, was significant. During closing argument, trial counsel mentioned both the 28 April 2012 911 call and Mr. G’s testimony. Regarding Mr. G, the trial counsel recounted the whole story, emphasizing that in order to secure his “alone time” with Ms. R, the appellant pointed and cocked a “.45” at Mr. G’s chest. In rebuttal argument, trial counsel reiterated the theme of ongoing violence in the marriage citing their forensic psychologist’s testimony describing a “cycle of violence.” The total effect was to paint a picture, reinforced by expert testimony, that the appellant had an abusive and violent nature, and thus more likely acted in conformity therewith.

This picture of an abusive and violent predisposition carried over into sentencing. In arguing for sentence, the assistant trial counsel alluded to the appellant’s unsavory nature and argued that five year’s confinement would send a message to other Marines:

that [sic] may like to dabble in some sort of lifestyle, you know, trying to be something that they’re not supposed to be, not a stand-up guy in a Marine [sic] and a father and a husband, but a punk running around with weapons loaded, acting foolish, doing things that sully our reputation, our uniform, and our standards.

The members then returned a sentence of fifteen year’s confinement – tripling the Government’s recommended sentence of five years.

Given the inflammatory nature of Mr. G’s testimony, the Government’s emphasis on the unnecessary and prejudicial details it offered, and the military judge’s erroneous limiting instruction, we conclude that the Government has not met its burden of establishing that the improperly admitted evidence did “did not have a substantial influence on the findings.” We also find the error materially prejudiced the sentence.

Slip op. at 13 (emphases in original) (footnotes omitted). The tripling of the sentence requested by the trial counsel is something not often seen.

In the grand scheme, this case has a lot of similarities to the Marine Corps case of United States v. Solomon, 72 M.J. 176 (C.A.A.F. May 8, 2013) (CAAFlog case page), about which I wrote:

I’ve seen plenty of counsel who were pretty proud of themselves because they convinced a judge to make a bad call, and it’s easy to fall victim to such short-sightedness during a trial. M.R.E. 413 is a powerful tool, but objectivity and perspective is important, particularly for a prosecutor. I know nothing about the trial participants and I haven’t seen the record, but having followed this case through the appellate process I get the feeling that the trial counsel saw this prosecution as a crusade, and the Appellant as a “bad dude who needed to go down.”

Because of the improper character evidence, the CCA reverses the findings and sentence in Brown and authorizes a rehearing. But Judge Ward then goes even further, analyzing the Article 107 specification separately and concluding that the evidence is legally insufficient leading to its dismissal with prejudice.

The appellant was briefly placed into pretrial confinement. After the IRO hearing, the appellant and two Gunnery Sergeants (E-7) were eating lunch and awaiting the completion of the IRO’s report. While eating lunch, the appellant stated words to the effect that he didn’t own a weapon. But there was some conflicting testimony over the nature of the conversation leading up to these statements, and Judge Ward focuses on this conflict to conclude:

While these conflicting accounts paint a confusing picture of what exactly was said, the two clearly had an official duty to keep custody of the appellant. But an informal conversation over sandwiches, one that GySgt T characterized as having nothing to do with his function as the legal officer, bore no bearing to any dialogue necessary to the appellant’s detention.

We therefore conclude that this statement lacked officiality within the meaning of Article 107, UCMJ.

Slip op. at 15. I think this is an incredibly narrow interpretation of the second prong of the Spicer test:

[A] statement may be official if the hearer is a military member “‘carrying out a military duty’ at the time the statement is made.

United States v. Spicer, 71 M.J. 470, 474-475 (C.A.A.F. 2013) (CAAFlog case page). This panel of the NMCCA seems to believe that the military member hearer must not only be conducting a military duty but also that the duty must relate to the falsity of the statement. Moreover, Judge Ward’s conclusion is based on legal sufficiency; he is practically baiting CAAF review.

Yet the Marine Corps has had a remarkably tough year (couple of years? half-decade?) when it comes to military justice. Even when the Government wins, the experience is bruising (e.g., United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page)). So it’s perhaps a toss-up whether the Government will take this case to CAAF.

2 Responses to “The Navy-Marine Corps CCA reverses for improper character evidence (and then makes an interesting interpretation of Article 107)”

  1. NavyDC says:

    USMC has had a tough run indeed: Salyer, Hornback, Judge Palmer fiasco, Heritage Briefs, Taliban urination, the federal judge who ripped apart the SJA office for not recalling the reservist before his EAOS, and now the Camp Pendleton searches.  Did I miss anything?

  2. Devildwglt says:

    I think I smell a class action suit against Judge Palmer and USMC