CAAF will hear oral argument in the Marine Corps case of United States v. Norman, No. 14-0524/MC (CAAFlog case page), on Wednesday, January 14, 2015. The case presents CAAF with the following question about the quantum of evidence required to prove that certain conduct was of a nature to bring discredit upon the armed forces, in violation of Article 134:
Whether the conviction for child endangerment by culpable negligence is legally insufficient when the only testimony offered to prove its service discrediting nature was admitted in error.
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of a single specification of child endangerment by culpable negligence in violation of Article 134, charged only as service discrediting conduct. In the same trial Appellant was acquitted of four specifications of aggravated assault in violation of Article 128, UCMJ, and four additional specifications of child endangerment by design and/or by culpable negligence in violation of Article 134. The members sentenced Appellant to confinement for sixty days, reduction to E-1, and a dishonorable discharge.
The sole conviction for child endangerment related to burns suffered by Appellant’s infant child while Appellant was giving the child a bath. As charged in this case, this offense has four elements: (1) That the accused had a duty for the care of a certain child; (2) That the child was under the age of 16 years; (3) That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence; and (4) That, under the circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces. Manual for Courts-Martial, United States, pt. IV, ¶ 68a (2012). Without the final element that the conduct was discrediting to the service, Appellant’s conduct did not violate Article 134 of the UCMJ.
During trial, and over Defense objection, the Government presented the lay opinion of a Staff Sergeant military policeman to prove the discrediting nature of Appellant’s conduct. In response to a question from the trial counsel, the Staff Sergeant testified:
I would think somebody who did that would–anybody who would do that would bring discredit upon themselves, but especially a Marine, because of he high opinion that we are–I feel we are held to by the public, sir.
App. Br. at 6; Gov’t Br. at 6. This was the only evidence specifically offered to prove the discrediting element. But on review at the Navy-Marine Corps CCA, the Government conceded that this testimony was improperly admitted. Then, in its opinion affirming the findings and sentence, the CCA assumed such error but found it harmless, reasoning that “the members did not need the SNCO’s generic testimony to establish the terminal element; in fact, they required no testimony at all regarding this element.” United States v. Norman, No. 201300152, slip op. at 4 (N-M. Ct. Crim. App. Feb. 20, 2014).
CAAF then granted review, and the Government made a dramatic change in its position, asserting that admission of the Staff Sergeant’s lay opinion was not error:
Before the Court of Criminal Appeals, the United States stated that Staff Sergeant Moody’s opinion was admitted in error. (J.A. 55-56.) This was incorrect. The Court of Criminal Appeals’ decision assumed, but did not accept the misstatement, that Staff Sergeant Moody’s testimony was admitted in error. (J.A. 2.) The United States now corrects the Record and its position: there was no error in admitting Staff Sergeant Moody’s testimony.
Gov’t Br. at 15-16. Because of this, next week’s oral argument will likely begin with the question of what to do about the Government’s vacillating position.
The Government’s brief offers no explanation for its change of heart so late in this appeal. Rather, its brief asserts that “the testimony was helpful, provided additional evidence of service-discrediting nature, and was properly admissible,” and that CAAF “conducting its de novo legal sufficiency review, may also consider [the] testimony.” Gov’t Br. at 17.
Appellant addresses this argument in a reply brief, claiming that “the Government is now estopped from arguing before this Court that SSgt Moody’s lay opinion was admissible.” Reply Br. at 10. Appellant also maintains the position that the testimony was inadmissible as lay opinion under R.C.M. 701, because the Staff Sergeant “did not witness any member of the public lowering their opinion of the armed services as a result of the accident,” Reply Br. at 11-12, he was “no more qualified than the members” in resolving the issue, Reply Br. at 15, and because his opinion wasn’t actually lay testimony but rather “was based on his specialized knowledge as a Marine,” Reply Br. at 15.
We’ll have to wait for next week’s oral argument to learn how the Government will respond.
On the substantive issue before CAAF, the briefs of both parties cite repeatedly to CAAF’s decision in United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2011) (discussed here). In that case CAAF considered a published decision by the NMCCA that affirmed a conviction for possession of child pornography. But in its decision the NMCCA made the following observation:
The more substantive question is whether the possession of child pornography by a uniformed member of the Armed Forces is per se service discrediting. We find that it is, especially under the facts and circumstances of this case.
70 M.J. at 164 (quoting United States v. Phillips, 69 M.J. 642, 645 (N-M. Ct. Crim. App. 2010)). Taking issue with the CCA’s use of the term “per se service discrediting,” CAAF unanimously held that:
The terminal element in a clause 1 or 2 Article 134 case is an element of the offense like any other. Conduct need not be violative of any other criminal statute to violate clause 1 or 2. United States v. Davis, 26 M.J. 445, 448 (C.M.A.1988). The terminal element must be proved beyond a reasonable doubt like any other element. Whether any given conduct violates clause 1 or 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; it cannot be conclusively presumed from any particular course of action.
70 M.J. at 165. See also 70 M.J. at 167 (Ryan, J., dissenting) (“I also agree that a conclusive presumption that the element of service discredit is met by the possession of child pornography itself would violate the Constitution.”). But the court split 3-2 on the issue of whether the Government must present evidence independent of the charged offense to prove a terminal element. Writing for the three-judge majority, Judge Stucky held that:
In general, the government is not required to present evidence that anyone witnessed or became aware of the conduct. Nor is the government required to specifically articulate how the conduct is service discrediting. Rather, the government’s obligation is to introduce sufficient evidence of the accused’s allegedly service discrediting conduct to support a conviction. . . .
Whether conduct is of a “nature” to bring discredit upon the armed forces is a question that depends on the facts and circumstances of the conduct, which includes facts regarding the setting as well as the extent to which Appellant’s conduct is known to others. The trier of fact must consider all the circumstances, but such facts— including the fact that the conduct may have been wholly private— do not mandate a particular result unless no rational trier of fact could conclude that the conduct was of a ” nature” to bring discredit upon the armed forces.
70 M.J. at 166. In a dissenting opinion Judge Ryan, joined by Judge Erdmann, noted:
Appellant was convicted under clause 2 of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), which criminalizes all conduct of a nature to bring discredit upon the armed forces. The Due Process Clause requires that the terminal elements of Article 134, UCMJ, be independently proven beyond a reasonable doubt. Relatedly, an appellate court may not affirm on a theory not presented to the trier of fact and adjudicated beyond a reasonable doubt. Therefore, to affirm Appellant’s conviction under this Court’s precedents, one would expect the record to establish that the Government presented a theory at trial explaining why Appellant’s conduct was service discrediting. But the Government presented no such theory, either through evidence or through argument. In fact, the record of trial contains no discussion whatsoever of whether and how Appellant’s conduct was service discrediting.
70 M.J. at 167 (marks and citations omitted) (emphasis in original).
The facts of Norman, absent the testimony of the Staff Sergeant, raise the very issue highlighted in Judge Ryan’s dissent in Phillips. Appellant’s brief explains:
SSgt Moody’s testimony constitutes the only independent evidence offered by the government to prove the terminal element. For example, the Government did not offer any evidence that this tragic accident actually drew the public’s attention. Nor did the Government offer the opinion of a reasonable member of the public that this type of behavior would lower the armed forces in his or her esteem. Worse, the Government did not even attempt to showcase which facts–already admitted into evidence- -satisfied the service discrediting element of the offense. (J.A. at 256-64; 285-87.) It simply stayed silent on this critical issue of proof during its closing argument.
App. Br. at 7. But Appellant’s brief goes even further, inviting CAAF to adopt Judge Ryan’s dissent from Phillips and require affirmative evidence to prove a terminal element:
This is not to say evidence cannot be used to support more than one element. Rather, it recognizes that the terminal element cannot be proven merely by the charged act itself.
App. Br. at 10 (emphasis added). Unfortunately, Appellant’s counsel doesn’t seem to be too confident about this position:
The Government must provide members independent evidence on which to decide whether an act is service discrediting. The quantum of evidence necessary to meet the standard may be significantly less in some types of cases due simply to the nature of the acts. For instance, suppose the Government proves that the accused intentionally sexually exploited an identified civilian victim by actively searching for child pornography while in the barracks. A reasonable finder of fact could certainly find that the conduct was a of a nature to bring discredit on the armed forces for the reasons discussed above. But in other offenses, particularly offenses where the scienter required is not an intentional act, the quantum of evidence required is significantly higher. This is because the potential for discredit to the armed forces is much lower. In those cases, one of two things will probably be required: 1) actual impact on the reputation of the armed forces; or 2) testimony that such behavior would lessen the witness’ opinion of the armed forces.
Here, the quantum of evidence required to prove the terminal element is very high.
App. Br. at 17. This hedging makes a real mess out of an otherwise clear argument. Rather than focus on the language of Judge Stucky’s majority opinion in Phillips about the “facts and circumstances of the conduct,” 70 M.J. at 166, assert that these are factors that are distinct from the conduct itself, and suggest clarification to explain that the Government must make some case to prove service discrediting conduct beyond the underlying act, the Appellant’s brief meekly suggests that more evidence is only required in some cases – cases like his.
The Government’s position is far more straightforward:
The trier of fact determines whether conduct is service-discrediting. Phillips, 70 M.J. at 165. The factfinder determines whether the Clause 2 terminal element is met based on all the facts and circumstances. Phillips, 70 M.J. at 165-66. The focus of Clause 2 is on the “nature” of the conduct——whether it would “tend” to bring discredit on the armed forces, if it were known. Id. (citing United States v. Saunders, 59 M.J. 1, 11 (C.A.A.F. 2003)).
Nothing requires the prosecution to tell the factfinder “how” to find the conduct service discrediting. Id. Rather, as with any other element of any other prosecution, the Government need only introduce evidence of service discrediting conduct sufficient to support a conviction. Id.
Gov’t Br. at 9-10. The Government also highlights facts exclusive of the Staff Sergeant’s testimony that it asserts underscore the discrediting nature of Appellant’s conduct:
Here, TBN was airlifted to be given medical treatment at a civilian hospital. (J.A. 154.) There, TBN spent fifty days under the care of civilian doctors and support staff. (J.A. 155.) Because of the nature of TBN’s injuries, a civilian pediatrician investigated the case for child abuse. (J.A. 222-25.) Moreover, TBN’s extensive scarring——on his scalp, back, arms, and legs——were visible to any that encountered him, including all the civilians caring for TBN, and any other members of the public. (J.A. 211-12.)
These facts alone are sufficient to establish acts that tend to bring discredit to the military services due to Appellant’s acts.
Gov’t Br. at 13. Additionally:
Appellant was a sergeant, expected to set an example in both his behavior and performance. See Marine Corps Manual at 1-29, ¶ 1300(1)(b) (1996). Yet, Appellant’s reckless neglect for his son, resulting in severe burns, indicates that he was not capable of bathing and supervising his own child without catastrophic results. These aggravating circumstances alone were sufficient to satisfy the terminal element.
Gov’t Br. at 14. For sure, the Government’s argument is stronger for its simplicity.
Appellant’s brief ends with an assertion of instructional error that feels very out of place:
The military judge defined “service discrediting conduct” as “conduct which tends to harm the reputation of the service or lower it in pubic esteem.” (J.A. at 255.) But he did not instruct the members panel on how it should execute its duty to make this unique determination. Due to this lack of specific instructions, this Court cannot be convinced the members did not improperly rely on Sgt Moody’s inappropriate testimony.
App. Br. at 22. There’s no indication that Appellant requested additional instructions at trial, and the granted issue questions the legal sufficiency of the evidence. It’s hard to see what Appellant hopes to gain by asserting that the judge didn’t give an instruction that wasn’t requested at trial and CAAF doesn’t expect to review.
Nearly two years ago, in United States v. Goings, CAAF deliberately avoided the issue before the court now, noting:
To the extent we should revisit the question whether a more exacting standard of proof should be required to support the terminal elements of Article 134, UCMJ, we leave that issue for a case in which it is properly raised and briefed.
72 M.J. 202, 206 n.5 (C.A.A.F. 2013) (CAAFlog case page). CAAF now has a case where the issue of the standard of proof that should be required for a terminal element to an Article 134 offense is properly raised and briefed. But if the court is going to require a more exacting standard of proof, it’s going to need a workable standard for trial judges to employ when addressing the wide variety of misconduct chargeable under the Article 134.
Perhaps Appellant’s counsel will present one during next week’s oral argument.