CAAF decided the Army case of United States v. Ahern, 76 M.J. 194, No. 17-0032/AR (CAAFlog case page) (link to slip op.), on Thursday, April 20, 2017. The court finds that when the appellant’s civilian defense counsel (who is not named in the opinion) affirmatively stated that the defense had no objection to admission of appellant’s statements, that extinguished appellant’s right to complain on appeal about the admission of the statements.

Judge Ryan writes for a unanimous court.

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 Army CCA affirmed the findings and the sentence.

Ahern’s “convictions are all related to his sexual abuse of his stepdaughter.” Slip op. at 2. Pretext phone calls were conducted during the investigation of the offense, during which Ahern did not directly deny the allegations. He also did not deny the allegations in pretext text messages. The defense moved to admit the text messages while the prosecution moved to admit the phone calls, and the defense had no objection to admission of the phone calls:

[MJ]: Okay. Very well.
And if I believe according to the Court’s notes, those would be the government Motion in Limine to Admit the Pretext Telephone Calls, which has been marked as Appellate Exhibit VII. I received no defense response to that motion. Defense counsel, you are not contesting that motion.
Is that correct?

[CDC]: Correct, Your Honor.

(Brackets in original.) Later, the Government admitted the phone call into evidence, and the following exchange took place:

[ATC]: Your Honor, the government moves to admit Prosecution Exhibit 3 for identification into evidence.

MJ: Objections, defense?

[CDC]: No objections.

Slip op. at 3-4 (marks in original). Then, “during closing argument, trial counsel argued that [Ahern’s] failure to deny the accusations made in the text messages and phone calls was evidence of his guilt.” Slip op. at 4. The defense did not object, however on appeal Ahern asserted that the closing argument was prohibited by Mil. R. Evid. 304(a)(2). That Rule states:

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 Army CCA made a first-impression interpretation of the Rule in a decision discussed here, and concluded that the Rule is triggered when an accused is aware of the investigation (determined by an objective test). CAAF then granted review to decide:

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.

But in today’s opinion Judge Ryan doesn’t answer the granted issue because “Appellant’s affirmative statements that he had no objection to their admission also operate to extinguish his right to complain about their admission on appeal.” Slip op. at 9.

Judge Ryan explains that:

The right at issue in this case is contained within a Military Rule of Evidence, promulgated by the President pursuant to his authority to prescribe rules of evidence for courts-martial under Article 36, UCMJ, 10 U.S.C. § 836 (2012). . . . But the rule underlying Appellant’s claim also provides that his failure to object to the admission of the phone calls constitutes waiver of his right to complain that they were used in this fashion.

M.R.E. 304(f)(1) plainly states that claims arising under M.R.E. 304(a)(2) are waived absent an objection. . .

Slip op. at 6. Furthermore:

This is not a case where the rule uses the word “waiver” but actually means “forfeiture.” M.R.E. 304(f)(1) does not mention plain error review, and instead unambiguously provides that any claim arising under M.R.E. 304 is waived absent an objection.

Slip op. at 7 (citations omitted). Yet Judge Ryan – with a unanimous CAAF behind her – goes even further:

Even without M.R.E. 304(f)(1), Appellant’s statement that he had no objection constitutes waiver of his right to object to this Court regarding the admission and use of his pretrial statements.

Slip op. at 7-8.

An interesting twist to this case is that the Army CCA considered the issue to be forfeited rather than waived, meaning that it applied the plain error standard (reviewing the error but shifting the burden of showing prejudice to Ahern). Nevertheless, as discussed in my argument preview, the Army Appellate Government Division’s brief to CAAF argued that the issue was waived, while Ahern’s brief argued that forfeiture was the law of the case because the Army JAG didn’t certify an issue regarding waiver. Judge Ryan’s opinion, however, doesn’t address this subject beyond holding that “the ACCA’s application of forfeiture in the context of this case was error.” Slip op. at 8.

CAAF ultimately affirms the judgment of the Army CCA. Slip op. at 9. But it’s hard to see this opinion as affirming the CCA’s interpretation of Mil. R. Evid. 304(a)(2). Rather, this is just another in a growing collection of CAAF opinions this term emphasizing the importance of trial-stage objections. See United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page); United States v. Gomez, 76 M.J. 76 (C.A.A.F. Jan. 30, 2017) (CAAFlog case page).

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

26 Responses to “Opinion Analysis: The issue was waived in United States v. Ahern, No. 17-0032/AR”

  1. JAE says:

    I didn’t think the issue was ever the admission of the statements, but rather their use in an impermissible way in closing.  How does waiver as to the admission extinguish an improper argument claim?  

  2. Zachary D Spilman says:

    Because the rule that makes the argument improper requires an objection.

  3. JAE says:

    I am making a different point.  The defense affirmatively waived their objection to the admissibility of the statement.  Got that part.  Maybe they did that because they (plausibly, it would seem) saw the statement as a denial, so they didn’t care if it came in.  However, they never said anything about this use of the statement in closing, so as to that the defense did not affirmatively waive anything.  This is why (I think) ACCA applied PE review.  In PE review land, you necessarily have to grapple with the question ACCA addressed but CAAF did not regarding the timing of the statement vis a vis the investigation.

  4. stewie says:

    I’m with you JAE. The statements come in just fine and they are affirmatively waived. How they are used though is a different matter. The use in argument was forfeited, not waived. I think ACCA used the right analysis.

  5. JAE says:

    Consider:  a two-minute statement by the accused to CID in the immediate wake of the crime, in which the accused simply invokes his Article 31 rights and refuses to make a statement.  The defense believes the video is exculpatory because the color of the accused’s shirt in on the video shows he did not commit the crime.  The government believes that the stripes on the accused’s shirt sleeve show that he DID commit the crime.  So, both sides want the video in, and it comes in in the government’s case, without objection.  Then, in closing, the trial counsel stands up and says, “He didn’t deny it, so he must be guilty.”  CAAF would say any challenge to that argument is waived??  That’s clearly wrong.  The purpose of 304(a)(2) is to ensure that evidence (even admitted evidence) is not used in a way that undermines both the spirit and letter of Article 31. 

  6. Zachary D Spilman says:

    Evidence can be – and often is – admitted for a limited purpose, JAE. Your striped-shirt analogy fails to consider this.

    Under Mil. R. Evid. 304(f)(1), the use-limitation of Mil. R. Evid. 304(a)(2) requires an objection at trial (before actually, but the military judge may allow it during). Here there was no objection, so the use-limitation isn’t available on appeal. 

    Furthermore, Judge Ryan makes it clear that even without this rule, CAAF finds the civilian defense counsel’s repeated disclaimer of any objection “constitutes waiver of [Ahern’s] right to object to this Court regarding the admission and use of his pretrial statements.” Slip op. at 7-8 (emphasis added). 

  7. JAE says:

    I saw and understood the “and use” language in the CAAF’s opinion.  That’s the part I disagree with.  Rather, I read 304(a)(2) to be further defining “admission,” which the rule just talked about at 304(a)(1)(C).  So, trial counsel cannot introduce a “failure to deny” as an “admission” under the rule, and the defense counsel can move pretrial to suppress a “failure to deny” type statement pursuant to MRE 304(f)(1).  I got all that.  I just don’t see how it follows from that that that when the defense does not so move, the defense has waived any and all use of that evidence, even if improper.  What if the trial counsel said something like “his failure to deny this offense meant he probably committed offenses 1-10, also”.  Waived?

  8. JAE says:

    Also in striped shirt example, I completely agree that evidence can be admitted for a limited purpose.  In my hypo, it was not.  It was simply admitted, without objection.  So, in that scenario, is any objection to the government’s “silence = guilt” argument also waived?

  9. stewie says:

    Not persuaded. ZS, if a use is improper it’s improper. Evidence comes in all of the time. This is evidence, that’s it. It was offered, and not objected to. HOW that evidence is used however is a different matter. ACCA determined that ultimately, even if it was improper, it was harmless. I’m fine with that analysis. I’m also fine with the idea that the DC forfeitted any objection by not objecting to the improper use.  JAE and ACCA are right IMO.

  10. N.S. Stewart says:

    On a not-to-interrupt-the-JAE/ZDS-exchange basis, I want to make sure I understand what MRE 304(a)(2) says. 
    In an informal counseling, SgtMaj A asks Cpl B, “Is it true that you are selling drugs in the barracks?” Cpl B – who is not selling drugs in the barracks – thinks she should be read her rights first, so she declines to respond. At the time of SgtMaj A’s question, Cpl B was not under investigation, confined, arrested, or in custody. The command begins an investigation. When formally questioned by NCIS, Cpl B remains silent again. Because drug use is the hot-button issue of the day, the CA refers to GCM against the Art 32 recommendation. SgtMaj A can now testify at trial that Cpl B failed to deny the allegation when asked.
    Because of MRE 304(a)(2), and if the defense errs by objecting neither to the admission nor to the use of SgtMaj A’s testimony, then the government can use SgtMaj A’s testimony as Cpl B’s admission of guilt?

  11. Zachary D Spilman says:

    You’re reading way too much into this decision, JAE.

    CAAF’s decision isn’t about whether a statement (or lack thereof) can be argued as inferring guilt (the CCA’s opinion was about that). 

    CAAF’s decision is about what happens when counsel affirmatively and repeatedly states that the defense has no objection to the unconditional admission of the statement (or lack thereof).

  12. stewie says:

    Repeatedly? “Unconditional admission?”
    I’m not tracking that DC stated they have no objection to the admission, except when it was offered for admission. Was it offered for admission multiple times?
    Isn’t almost all evidence that is admitted “unconditionally admitted?”

  13. JAE says:

    OK I guess we will have to agree to disagree.  It is pretty easy to think of examples of the improper use in argument of properly admitted evidence.  To me, that’s what this case was about, and CAAF just answered the wrong question. 

  14. Jolly Roger says:

    Your intuition that there would be a different result in the striped shirt example could be explained by the different rights at stake.  As the Ahern court points out in the beginning with the Girouard quote, what constitutes a waiver depends on the right at stake.  In your example, the right at stake is at a minimum a statutory Article 31 right, and probably is a constitutional Miranda right.  Placing the right on the hierarchy doesn’t always explain a difference in procedure, but sometimes it does.  It’s much easier to waive an objection to irrelevant evidence than it is to waive the right to a trial.
    A better example might put the right on the same plane as the right in Ahern, which was regulatory.  The trial counsel offers an out of court statement that is only admissible to show the effect on the listener and the DC waives any objection.  At argument, the trial counsel argues that it should be considered for its truth and DC remains silent.  Or a prior inconsistent statement admissible only for impeachment but argued for its truth.  Ahern might say it’s completely on the DC to limit that evidence.  But because a right of greater importance is at issue in your striped shirt example, Girouard/Olano might permit a result different from the one in Ahern.

  15. JAE says:

    I think I am making a more basic point here, which is:  What was affirmatively waived?  What was affirmatively waived in Ahern was any objection to the introduction of the statement.  What was NOT waived was any objection to an improper closing argument.  Now, the defense never objected to the improper argument, but they certainly didn’t affirmatively waive any such objection.   So, PE review should apply in the improper argument context, in my view. 

  16. stewie says:

    That’s how I see it. Evidence can be introduced and used for a proper reason, and an improper reason. There’s nothing to say that just because you affirmatively waive the former that means you are affirmatively waiving the latter or we’d NEVER get to a plain error analysis on any admitted evidence that wasn’t objected to.

  17. S.I.R. says:

    Yes, S.I.R.!!!
    (Stewie Is Right)

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

    There was also no objection to the TC’s improper argument.

  19. stewie says:

    True, your highness, thus the PE examination by ACCA which I think is the correct standard.

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

    It appears CAAF’s point is that in order to argue about improper argument of appellant’s silence, you first have to make a motion against admissibility of his silence under MRE 304.  Lack of motion = waiver of the issue.  And since in this case, there was no motion, and defense counsel said “no objection,” waiver applies, and thus no issue of error to consider, in either admissibility or argument.

  21. JAE says:

    When did the defendant affirmatively waive any objection to the argument?  What if, for example, he did not consider the statement to be an “admission” at all, and, as a result, maybe thought the statement helped his case (or at least didn’t hurt it)? There would have been no moment for him to move to suppress under 304, and the “silence = guilt” claim by the government would have raised its head for the first time in closing.  Granted, he didn’t object then either, but that’s PE review, not waiver.  

  22. Zachary D Spilman says:

    Let me try to explain it with a hypothetical, JAE.

    The trial counsel’s actual argument was (probably) along the lines of:

    Listen to what the accused said and didn’t say. He didn’t deny the allegations. 

    This argument is fundamentally no different from a hypothetical argument along the lines of:

    Listen to how the accused told his story. His words were voluntary.

    Had the trial counsel made the voluntariness argument – the defense not having objected to involuntariness under Mil. R. Evid. 304(a)(1) – then there would have been no problem. After all, the voluntariness of a statement is a matter for the members. See Benchbook ¶ 4-1.

    Instead, the trial counsel made the content argument – the defense not having objected to content under Mil. R. Evid. 304(a)(2) – and content (determining what the evidence means) is certainly a matter for the members.

    CAAF’s decision puts an objection under Mil. R. Evid. 304(a)(2) onto the same footing as one under 304(a)(1).

  23. stewie says:

    Fine argument IF the DC explicitly makes that argument which then invites the TC to respond.
    There’s no evidence that actually happened, and if it did, then CAAF should have explicitly said that was why it was affirmatively waived.
    If DC does not make that argument at all, that in no way opens the door for TC to make that argument.
    I’ll say it again, evidence comes in all of the time. Just because DC does not object to evidence coming in, does not mean the TC is free to argue that evidence in any way he wants.
    I think it’s a bad facts make bad law situation.

  24. k fischer says:


    Third, the same conversa-tions that the Government argued were evidence of guilt were argued by Appellant to be evidence of his innocence. Id. at *24–25, 2016 WL 4488148, at *9.

    Sounds like if the Defense was arguing that the pretext calls was evidence of innocence, then perhaps their strategy was to allow it in.  And, if they are arguing that it is evidence of innocence, then certainly the Government could argue that it is evidence of consciousness of guilt.
    Plus, the rule was designed to protect accused from improper negative inferences from silence, but waiver was possible under the rule itself.  So, why wouldn’t CAAF find waiver?  And, why wouldn’t the Government argue consciousness of guilt if the Defense waived it’s objection. 

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

    This was an unusual case in that the mom was accused of colluding with appellant to falsely accuse her daughter of being a liar.  Initially the mom didn’t report, which would have gotten her in trouble as an “educator” who apparently had a duty (aside from being the mom) to report sexual abuse.  Then when the biological dad threatened to report the abuse, mom and appellant went to a criminal defense attorney to get advice about dealing with “false allegations.”  Mom subsequently filed for divorce based on adultery, based on appellant having sex with his stepdaughter.  So at that point, the mom and victim engaged in multiple pretext phone calls and texts to get him to admit.  It’s in this context that ACCA and CAAF decided this case.  ACCA also addressed “invited error.”
    Under different circumstances this may have been a different decision.

  26. stewie says:

    Tami/kf, all the more reasons for CAAF to be a lot more explicit about the facts in this case, and that this decision was tied to those facts. Because right now, it looks like an overarching rule, and that’s what some of us think is way off-base.