CAAF will hear oral argument in the Army case of United States v. Ahern, No. 17-0032/AR (CAAFlog case page), on Wednesday, March 1, 2017, after the oral argument in Erikson. The case presents a challenge to the Army CCA’s interpretation of Mil. R. Evid. 304(a)(2), which governs a person’s failure to deny an accusation of wrongdoing made while the person was under investigation. In an unpublished decision (previously discussed here) the CCA concluded that the rule is only triggered by an investigation when the accused is actually aware of the investigation. CAAF granted review to determine:

Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Lieutenant Colonel (O-5) Ahern was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of aggravated sexual assault of a child, aggravated sexual assault, assault consummated by a battery, indecent acts with a child, and child endangerment in violation of Articles 120, 128, and 134. The members sentenced Ahern to confinement for 17 years and six months and to a dismissal.

The charges alleged that Ahern sexually abused his step-daughter. After the girl made the allegations, law enforcement directed her to send a pretext text message to Ahern in an effort to elicit an incriminating statement. Ahern did not respond to the message. The defense admitted evidence of this exchange at trial. The girl’s mother also conducted a recorded pretext phone call with Ahern, again in an effort to elicit an incriminating statement. The mother confronted Ahern with the allegation during the call and he did not directly deny it. The prosecution admitted the call into evidence without objection from the defense. Then, in closing argument, the prosecution asserted that Ahern’s failure to deny the allegations in response to the text message and the phone call were evidence of his guilt. The defense did not object to the argument.

The CCA affirmed after concluding that it was not plain error for the prosecution to assert in closing argument that Ahern’s failures to deny the allegations during pretext communications facilitated by law enforcement were admissions by silence.

Mil. R. Evid. 304(a)(2) provides that:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

The granted issue questions the CCA’s interpretation of this rule, however the Army Appellate Government Division characterizes the defense actions at trial as waiver of any error:

Appellant waived any issue under Mil. R. Evid. 304 as to his admissions by silence when he failed to object before he submitted pleas. As to Appellant’s responses to his wife’s phone call, he did not file any motion to suppress the admission. What is more, Appellant declined to oppose the Government’s motion to admit the recording of the phone call, filed prior to arraignment. Then, Appellant failed to object to the admission of the recording when given the opportunity at trial. Finally, Appellant failed to object when the trial counsel argued that the panel should consider Appellant’s responses as evidence of his guilt. As to Appellant’s silence in the face of SS’ s text message, it was the defense who admitted this evidence, and there was similarly no objection to the trial counsel’s argument. Appellant’s decisions thus constituted waiver under Mil. R. Evid. 304(f)(1 ). Accordingly, the issue “is extinguished and may not be raised on appeal.” Gladue, 67 M.J. at 313.

Gov’t Div. Br. at 9-10 (citations to record omitted). Nevertheless, the Division defends the CCA’s interpretation as the only way to avoid an absurd result:

Here, a strictly literal interpretation of Mil. R. Evid. 304(a)(2) would lead to absurd results and expand the rule’s reach far beyond its purpose. As the Army Court noted, a literal reading would prevent the admission of evidence “once, somewhere in the world and even if unbeknownst to [the accused], an investigation into his wrongdoing has commenced.”

Gov’t Div. Br. at 13 (quoting CCA opinion).

Ahern argues that the Army CCA’s interpretation – requiring actual knowledge of the investigation – is what invites absurdity:

This Court would provide the Government with a temptingly powerful investigatory tool if it were to give its imprimatur to the actions taken here. Investigators could send a series of cooperating witnesses to make serial accusations against a defendant. If the defendant does not explicitly deny all of them, then it secures admissions by silence. At the extreme end of this, an investigator might intentionally send a cooperating witness to make serial allegations in the hopes that an exasperated defendant will simply stop answering text messages or hang up in the face of the repeated allegations. In such a case, the investigator would essentially manufacture a confession.

App. Br. at 13.

The Division also argues that even if the Army CCA’s interpretation of Mil. R. Evid. 304(a)(2) is wrong, it was harmless. This is an unusual argument because normally the trial stage error is analyzed for prejudice, however the Division asserts that CAAF should limit its review to the Army CCA’s holding:

this Court has not granted review of the trial proceedings. Congress’s statutory grant of jurisdiction permits this Court to limit its review to certain issues. UCMJ art. 67(c) (“action need be taken only with respect to issues specified in the grant of review.”). This Court granted review of the appellate proceedings, and only one aspect of the appellate proceedings, the Army Court’s interpretation of Mil. R. Evid. 304. This Court did not grant review of whether trial counsel’s argument was improper, it granted review of whether the Army Court’s review of that argument was improper. Given this narrow issue, the question under Article 59(a) is whether the specific error alleged was prejudicial to Appellant at the CCA.

Gov’t Div. Br. at 16-17 (emphasis in original). Even if CAAF limits its review to the CCA’s decision and does not look to the effect of the evidence and argument at trial, prejudice arises from a conviction contrary to fact or law and it’s awfully hard to see how the improper use of Ahern’s failure to deny the accusation could be prejudicial at trial but harmless on appeal.

A reply brief from Ahern uses the Appellate Government Division’s waiver argument against it:

In the lower court, the Government did not assert waiver of the issue, it claimed only that the use of Appellant’s silence was proper because Appellant did not “know he was under investigation.” (Appendix 1 at 43-46.) The lower court examined the issue, agreed with the Government, and held that there was no plain error. (JA at 7.) In doing so, it necessarily held that the issue was forfeited rather than waived as there would have been no need to look for plain error had the issue been waived. . . .

Not only did the Government fail to raise the issue of waiver in the first place, it also failed to appeal the issue or cross-certify it.

Reply Br. at 2-3.

Case Links:
ACCA opinion
• Blog post: The Army CCA interprets Mil. R. Evid. 304(a)(2)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

13 Responses to “Argument Preview: Determining when the failure to deny an allegation is evidence of the truth of the allegation in United States v. Ahern, No. 17-0032/AR”

  1. Wannabe Kenobi says:

    So…. should we assume the defense wanted these statements/arguments introduced and therefore waived this issue, or should we assume the defense was sound asleep at counsel table?

  2. stewie says:

    Well they had to be awake to introduce them…

  3. RY says:

    A few thoughts – this was one segment of a conversation; defense may have wanted the conversation in general and not necessarily this part.  Moreover, we talk about it like it’s clearly a statement.  This is about the lack of a statement, however, admission by silence.  I don’t think TC provides notice of inferences to be drawn from what an accused did not say; in fact, 304(d) seems to focus on notice for what was actually said, not what wasn’t said.  Waiver to me, is more challenging to argue here when the issue is based on what he didn’t say, and that didn’t come out until argument (after instructions).   All that aside, a good defense counsel should have been mindful of it.

  4. Alex Absurdo says:

    Just to add a little spice to any discussion of what counsel (on both sides) should or shouldn’t have been doing, note that the record indicates the following happened in a 39(a) session… yes, in a case of this magnitude:

    MJ: What part of the witness examination are we in, government?TC: Direct, sir.MJ: Can you lead on direct?TC: No, sir.MJ: How many times have I sustained a leading objection?TC: Several, sir. It won’t happen again, sir.MJ: Are you [Assistant Trial Counsel] prepared to take over the direct examination of this witness?ATC: If necessary, sir.TC: Your honor, I—I absolutely will not lead this witness again. I will be very, extraordinarily cautious.

  5. Wannabe Kenobi says:


  6. Lieber says:

    One of the interesting side effects of our system (at least in the Army) is that U.S. v. SPC Snuffy is likely to get better courtroom advocacy (on both sides) then U.S. v. LTC Snuffy.

  7. stewie says:

    Not sure what you are saying Lieber because in my experience, LTC Snuffy is more likely to have CDC than SPC Snuffy (because he can afford it).

  8. Lieber says:

    I should have clarified that I meant when it comes to military counsel.  You’re right that LTC Snuffy is more likely to hire a CDC (who may or may not be good).

  9. k fischer says:

    I’ve always found that Officers particularly O5 and above get the SDC who typically has some pretty decent litigation chops.  And, Stewie, are you inferring that CDC on average is likely to provide better courtroom advocacy than your average TDS counsel?

  10. Lieber says:

    k fischer, you’re right that they get detailed someone senior (and ditto for the government side)…with exceptions the more senior folks have little or none recent courtroom experience.  It’s also a small pool to pick from.

  11. Lieber says:

    Eh, delete all that.  It’s all too variable to make any blanket assertions.  I should have left it at I’m not flabbergasted that any particular case could have courtroom issues as seen in that 39(a).

  12. stewie says:

    Depends on the CDC. Some are great, awesome, amazing…some are…not so much. IMO you get a much wider range of possibilities with CDC than with TDS. I believe with TDS you get a pretty strong moderate level of assistance. Competent to very good. Probably not enough experience to reach great but the experts at DCAP are pretty darn good so all in all not bad.
    But yes a great CDC is going to beat a very good TDS counsel most of the time, the problem is, did you get a great CDC or did you get a CDC who just retired and only had 2-3 years of crim law during their career?
    And yes Lieber, I think you are right to delete…I have never noticed any pattern among TDS counsel based on the rank of their accused and the skill of their advocacy.

  13. Wahoowa says:

    I’ve found that LTC is more likely to know who to request as detailed counsel, even if he doesn’t get a CDC. Often, he’ll know some JAG Corps O-6 who’s been around the block and knows a smart and aggressive TDS attorney somewhere.