Argument Preview: Was the sentencing evidence too attenuated from the crime in United States v. Gomez, No. 16-0336/CG
CAAF will hear oral argument in the Coast Guard case of United States v. Gomez, No. 16-0336/CG (CAAFlog case page), on Wednesday, October 26, 2016, at 9:30 a.m. The case presents a single issue regarding evidence introduced during the prosecution’s sentencing case:
Whether the military judge erred by permitting two complaining witnesses to testify on sentencing that appellant was responsible for their pregnancy complications with no evidence connecting his misconduct to the complications.
A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate (E-5) Gomez, contrary to his pleas of not guilty, of violations of Articles 92, 93, 107, 120, and 134, and sentenced him to confinement for eight years, reduction to E-1, and a dishonorable discharge.
The convictions included sexual misconduct involving subordinates, and the subordinates testified during the prosecution’s sentencing case. Two of those subordinates – Seamen MS and SW – testified that the stress of the court-martial caused them pregnancy complications: Seaman MS was carrying twins but only one survived; Seaman SW suffered from preeclampsia. Gomez’s defense counsel did not object to this sentencing testimony.
On appeal the Coast Guard CCA considered whether the pregnancy complications were too attenuated to be admissible in sentencing. It also considered whether the probative value of the testimony was substantially outweighed by the danger of unfair prejudice. The CCA applied the plain error test (because of the lack of objection), concluded that any error was not plain or obvious, and affirmed the sentence.
Gomez’s brief to CAAF makes three challenges to the testimony regarding pregnancy complications. First, the brief asserts that “the links between BM2 Gomez’s actions and the pregnancy complications are simply too tenuous to be appropriate evidence in aggravation.” App. Br. at 10. Next, the brief argues that testimony establishing the link was either improper opinion or hearsay. App. Br. at 10-13. Finally, the brief argues that the probative value of any link was substantially outweighed by the danger of unfair prejudice, because “the complaining witnesses claimed the [Gomez] was responsible for harms to innocent and defenseless unborn children.” App. Br. at 14.
An interesting question raised by Gomez’s brief is whether the hearsay exception for a statement made for medical diagnosis or treatment (Mil. R. Evid. 803(4)) applies to statements by a physician and repeated in-court by the patient. The brief does not consider this exception but merely asserts that “if SN S.W. and SN M.S. testified based on the out-of-court diagnoses of medical doctors rather than their own opinions, their testimony was hearsay.” App. Br. at 11-12.
The Government’s brief also does not discuss the hearsay exception, but the Government does not admit any error because it does not agree that the witnesses blamed Gomez for their pregnancy complications:
MS and SW did not state that Appellant caused their pregnancy complications. Rather, they explained how the stress that Appellant did cause impacted their lives. There is no question that Appellant’s crimes caused stress to his victims. . . . Neither stated that Appellant caused the pregnancy complication, but rather mentioned the pregnancies as examples of the negative impact on their lives of the stress Appellant caused them.
Gov’t Br. at 10-11. This seems like an awfully-fine parsing of their testimony.
Yet the real strength of the Government’s brief is based on the standard of review:
The United States does not concede that error occurred, but even assuming there was error, that error was not plain or obvious. An error is not plain or obvious if, in the context of the entire trial, the accused fails to show the military judge should be faulted for taking no action even without an objection. United States v. Burton, 67 M.J. 150, 153 (C.A.A.F.2009). The Supreme Court has found that an error is “plain” when it is “obvious” or “clear under current law.” United States v. Olano, 507 U.S. 725 (1993). “Put another way, an error is ‘plain’ if it is ‘so egregious and obvious’ that a trial judge and prosecutor would be ‘derelict’ in permitting it in a trial held today.” United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (citing United States v. Gore, 154 F.3d 34, 43 (2d Cir. 1998)).
Gov’t Br. at 14-15. CAAF has not explicitly adopted this dereliction standard quoted in the Government’s brief, but it was discussed in a dissenting opinion by Judge Stucky in United States v. Paige, 67 M.J. 442, 452 (C.A.A.F. 2009).
The link between Gomez’s offenses and the pregnancy complications suffered by MS and SW is at least somewhat attenuated. It is very likely, however, that the link would have been strengthened or the military judge would have provided clarifying instructions had there been an objection. The plain error test is something of a penalty for a party whose failure to object deprives the trial court of the opportunity to remedy the error. In the civil courts it is even applied against the Government. See, for example, United States v. Castillo, 386 F.3d 632, 637 (5th Cir.), cert. denied, 543 U.S. 1029 (2004) (applying plain error test to Government sentencing appeal).
While CAAF could simply affirm on the basis that the pregnancy-complications testimony was not too attenuated from Gomez’s crimes, I think it is more likely that this case will be decided by the way the court applies the plain error doctrine. As such, it could become an important plain error precedent.