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).
• 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