CAAF decided the Coast Guard case of United States v. Gomez, 76 M.J. 76, No. 16-0336/CG (CAAFlog case page) (link to slip op.), on Monday, January 30, 2017. Reviewing for plain error because there was no objection at trial, CAAF denies relief for the prosecution’s sentencing presentation that included questionable testimony from two victims, affirming the opinion of the Coast Guard CCA and the sentence.

Judge Ohlson writes for the court. Judge Stucky concurs with a single-paragraph separate opinion.

Boatswain’s Mate Second Class (E-5) Gomez was convicted of numerous offenses, including of misconduct involving two female crew members who he supervised: SW and MS. The prosecution called the female crew members to testify during the sentencing phase of the court-martial, and they both testified about pregnancy complications suffered after the offenses occurred. Gomez’s defense counsel neither objected to their testimony nor cross-examined either of them. The maximum authorized punishment included confinement for 120 years and 4 months. The prosecution requested a sentence that included 20-30 years of confinement, the defense requested a sentence of no more than five years confinement, and the members sentenced Gomez to confinement for eight years, reduction to E-1, and a dishonorable discharge.

CAAF granted review to determine:

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.

This issue was reviewed for plain error – where Gomez “bears the burden of establishing the following three prongs: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right,” slip op. at 4 – because Gomez’s defense counsel did not object.

In today’s opinion Judge Ohlson concludes that Gomez is not entitled to any relief because he “has not established the prejudice prong for the testimony of SW, or the clear or obvious prong for the testimony of MS.” Slip op. at 4. The first conclusion is rather unremarkable, but the second conclusion invokes a possible new standard for plain error in military cases: that an “error is clear if “the trial judge and prosecutor [would be] derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” Slip op. at 8 (quoting United States v. Frady, 456 U.S. 152, 163 (1982)) (marks in original).

Judge Ohlson’s opinion for the court briefly considers whether the testimony of SW was error. But concluding “that whether [SW’s] testimony constituted clear or obvious error is a close question,” Judge Ohlson focuses instead on prejudice where three factors undercut Gomez’s claim:

First, the Government presented a strong sentencing case in aggravation. . . .

Second, SW never explicitly told the panel members how prematurely her baby was born, nor did she testify about whether the preeclampsia and premature birth resulted in any childbirth complications or led to any adverse health consequences for the baby. Based on the omission of these details, the evidence of the premature birth was not particularly aggravating. . . .

Third, the members’ ultimate sentencing decision indicates that they were not influenced by SW’s testimony about her pregnancy complications.

Slip op. at 6-7.

The question of error for the testimony of MS, however, is not so close:

We do not find a sufficient basis to fault the military judge for failing to intervene during MS’s presentencing testimony because MS’s testimony was patently ambiguous. When trial counsel asked MS whether the stress from the trial process affected her pregnancy, she responded:

It did, and I’m also getting help for that, um, it could be for, and, the stress from this case and I found out that early on that I was supposed to have twins and one didn’t make it. And with more stress from this case, I was worried for this baby that was living inside me, hopefully hoping that this stress didn’t make his heart rate go up, or hopefully I was protecting him, and every time I would always go to the doctor to see my blood pressure, always ask questions if my son was okay, because that’s my, that’s my baby.

Simply stated, even after analyzing this statement at length on the written page it is difficult to discern what MS was trying to convey; it would have been exponentially more difficult for the military judge to do so while listening to the testimony only once in the midst of the fast-moving presentencing process, particularly where the defense made no objection.

Slip op. at 8. But immediately preceding this analysis, Judge Ohlson outlines the following analytical framework:

Turning to the admission of MS’s testimony, we conclude that Appellant has not met his burden under the second prong of the plain error test. When examining this prong, we ask whether the error was so obvious “in the context of the entire trial” that “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) (quoting Maynard, 66 M.J. at 245); see also United States v. Frady, 456 U.S. 152, 163 (1982) (noting that error is clear if “the trial judge and prosecutor [would be] derelict in countenancing it, even absent the defendant’s timely assistance in detecting it”).

Slip op. at 7-8 (emphasis added). I noted this dereliction standard in my argument preview, as the Coast Guard Appellate Government Division included it in its brief. I wrote then that CAAF has not explicitly adopted this standard. While Judge Ohlson’s citation to this standard in this case is also not an explicit adoption, it’s the closest thing to it.

But a few paragraphs later Judge Ohlson applies a different standard without invoking dereliction:

[B]ecause MS’s testimony was subject to two plausible interpretations—one of which renders the testimony admissible—we cannot conclude that the military judge clearly or obviously erred in admitting it. See United States v. Holman, 840 F.3d 347, 355 (7th Cir. 2016) (holding that “any ambiguity with respect to the district court’s statements is debatable at most and thus does not rise to level of plain error”); United States v. Etienne, 772 F.3d 907, 916 (1st Cir. 2014) (refusing on plain error review to permit appellant “to gain any benefit from his choice not to clarify the ambiguity” in witness’s testimony); United States v. Rose, 587 F.3d 695, 701 (5th Cir. 2009) (discerning no clear error where evidence was ambiguous).

Slip op. at 9. This latter analysis is more aligned with the typical review when an appellant’s counsel fails to object.

Judge Stucky’s short concurring opinion explains that because Gomez “failed to establish prejudice—the third prong of the plain error standard—from the admission of the testimony at issue, [he] see[s] no reason to examine the other two prongs—whether there was error that was clear or obvious.” Con. op. at 1. Considering that the majority never got to the prejudice prong for the testimony of MS, and Judge Stucky provides no further explanation, one can only speculate as to precisely why Judge Stucky found no prejudice.

Just as with CAAF’s opinion last week in McClour (CAAFlog case page) – this case serves as another reminder of the importance of objections at trial.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

11 Responses to “Opinion Analysis: Invoking the dereliction standard for plain error, CAAF denies relief in United States v. Gomez, No. 16-0336/CG”

  1. Ed says:

    My observation as pointed out by others including Mr. Gittins is the unnecessary hesitancy of DC in numerous cases to object and make a record. Your job is not to get promoted but to defend your client.

  2. stewie says:

    So you think DC don’t make objections not out of inexperience, or distraction, or lack of knowledge, or even misguided tactical reasons…but because they think they won’t get promoted if they do?
     
    Really?

  3. charlie gittins says:

    I believe it is out of a misguided sense not to interrupt the prosecutor’s argument that I remember being taught at Justice School.  When I was still on active duty I was restrained by that admonition and would ask for a 39a at the end of the G argument and make the objection outside of the hearing of the members.  Sometimes that worked.  Sometimes not — the judge would chide me for failing to contemporaneously objecting and overrule the objection.  So, I started objecting in front of the members and interrupting argument.  And it could be pretty obnoxious when the TC was arguing his personal feelings, vouching for witnesses, calling the accused a liar, etc.   I pretty much hit my stride as a civilian DC and never worried about it — just do your job right and I won’t have to interrupt you. . . . .
     

  4. Tami a/k/a Princess Leia says:

    Sometimes it’s due to inexperience.  Being afraid of not making the right objection, and/or being overruled in front of a panel, then perhaps you think you lose credibility.  Sometimes it might be strategic choice to not object, because on cross examination you can make them look silly for blaming your client for all their woes.  I had such a case once, the complainant’s mother intended to testify that the alleged rape caused all kinds of medical problems, including a rash on her stomach.  Fortunately client was acquitted, so we didn’t need to go down that road.  I will have to read the opinion.

  5. stewie says:

    Spent a long time on defense in various capacities and never once felt like an objection would result in me not getting promoted…all my errors, which I’m sure were legion, were based on inexperience, ignorance, or tactical decisions. One near error was based on hearing the gov say some goofy things during a closing, jotting down a few notes to reply, and in mid-jot almost missing a pretty clear bit of error but for my co-counsel nudging me because I was preoccupied.

  6. Zachary D Spilman says:

    There is still – sadly and wrongly – the sense among judge advocates that it is somehow unprofessional to object to closing argument. I think CAAF is in the process of beating that nonsense into a pulp. 

    The timing of the objection depends on the circumstances (interrupt the argument, wait for a 39(a), object in advance because you know what’s coming… I’ve done them all), but the objection must be made. 

  7. Ed says:

    Stewie
    I never said there weren’t variety of reasons  why DC do not make proper objections. There have just been too many recent instances of appeals going down the tubes due to plain error issues. Inexperience, distraction lack of knowledge should be the exception rather than a common occurrence. Either you play the A game during trial or you shouldn’t be there.

  8. stewie says:

    No, you only listed one, and one that I’ve never seen and doesn’t even make any sense in the heat of a closing argument. No one is thinking, I wonder if I won’t get promoted if I make this objection. They may be daydreaming, they may be ignorant, poorly trained (although I know the training DC get and it is far from poor), being tactical, or just plain not good attorneys.
     
    But they aren’t thinking about promotion.

  9. Ed says:

      Stewie  “Nisi credideritis vere reale” If you believe its real its real. Keep on believing what you want.

  10. stewie says:

    I appreciate it Ed. I was worried you weren’t going to let me believe of my own volition, so it’s good to know you are!

  11. k fischer says:

    I remember a case at Benning where the alleged victim met my client on Plentyoffish.com, then testified he raped her at a party.  He got convicted of it, inter alia, and on sentencing the SVP put her up to talk about the aggravation how she had to stay at home with her daughter who was afraid that “the bad man would hurt her momma again.”
     
    Now, the truth that the Government kept hidden under MRE 412 was that this terrified woman within a month of being raped, met another Soldier on Plentyoffish.com, then proceeded to meet him behind the China Wok where they conceived the child with whom she was pregnant at the time of her testimony in the other Soldier’s Ford Explorer.  She then went to this poor schlep’s commander and demanded that she be given Tricare benefits because this other Soldier was the baby daddy.  When asked if she had sexual intercourse within the previous six months, she answered under oath, “No.”  The reason she wasn’t lying was because she didn’t have sexual intercourse, she was raped.  ACCA found that it was error for the MJ to exclude that testimony to impeach her credibility, but the evidence of guilt was so overwhelming that it was harmless beyond a reasonable doubt.
     
    So, when she was up there talking all this BS about never leaving her daughters side, I really, really, really wanted to get up there and ask, “So, who was watching your kid when you were banging that Soldier you met a month after this rape on Plentyoffish in his Ford Explorer outside the China Wok on post?”  But, I didn’t because I didn’t think it would sit well with the panel, or the judge.
     
    But, to echo Mr. Gitten’s point, there is a tendency to not go after the alleged victim once the accused is convicted.  So, she can pretty much blame every ill in her life on that moment.  No different than a 70 year old with degenerative disk disease saying the minimal impact car wreck caused him to have back surgery that a doctor recommended five years prior to the accident, or the malingering young man who is in traction, but is filmed playing Lacrosse for his college. 
     
    How about a woman or man who goes out and gets blackout drunk hundreds of times and has sex, then accuses the last person who has sex with them of rape because they were “Too drunk to have sex.”  When they get up on the stand and talk about how traumatized they are, even though there was no physical injury, what defense attorney is going to cross them about their previous sexual history.  It’s not like they lost their virginity.  It just seems so disingenuous when he or she gets up there and talks about the effects the crime has had on them.  But, we don’t want to be victim blamers, so that is a trial strategy we employ.  Of course, in a residual doubt case, I wonder if the panel would revolt on the government and give low confinement if they thought he or she was up there lying on sentencing.  Oh wait, we don’t have to worry about that because we don’t get to cross them on their unsworn.  Good.  Problem solved.