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