CAAF will hear oral argument in the Air Force case of United States v. Condon, No.17-0392/AF (CAAFlog case page), at 9:30 a.m. today. The court granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members.

The specified issue addresses the fact that:

Prior to trial, the defense moved to suppress the statements contained in Pros. Ex. 6 (PE-6), Appellant’s videotaped AFOSI interrogation, and the motion was denied. (JA 75-81, 624-685.) During this interrogation, Appellant invoked his right to remain silent and requested counsel. (JA 524.) Subsequent to his decision to remain silent and to request counsel, he continued speaking to the law enforcement agents present (JA 524.) Based on how the events progressed and the agents’ responses to his questions, Appellant chose to continue the interrogation. (JA 524.)

App. Br. at 4. The video of the interrogation was played to the members in its entirety, including the invocation of rights (over defense objection).

All of the briefs in Condon were filed before CAAF’s decision in Bailey, and so they do not directly address the impact of CAAF’s decision, but Condon’s brief suggests that the case is similar to Bailey and headed for the same fate:

The requested instruction may not have been the best example of what the instruction should look like, but the defense proposed it based on what another military judge was using. Moreover, once the defense and military judge recognized and acknowledged the unavoidable confusion and ambiguity involving ‘impairment’ and ‘consent’ in a military court post-mandatory sexual assault training, to the point where the military judge began addressing it during voir dire, the military judge and the parties should have engaged in a process of crafting a better instruction. Certainly, there were elements of the military judge’s initial instruction to the members that could have been incorporated or crafted into an
acceptable instruction.

The standard instruction given by the military judge is parsimonious when it comes to defining incapacity due to alcohol—especially in a climate that includes heavy influences of SAPR training. The instruction allows for the wide range of definitions per the individual member. The court below considered the definition of “impairment” as sufficient “consistent with the normal sense of the work in common usage. (JA. 1-46, Slip op. at 23.) But therein lies the problem . . .

App Br. at 11-12. Condon’s brief then argues that:

This Court should view “incapable of consenting due to impairment” as a term of art, which people of ordinary intelligence are not expected to decipher. . .

App. Br. at 15. CAAF’s opinion in Bailey, however, holds precisely the opposite:

“Incapable” is not a technical legal or scientific term. The plain meaning of “incapable” is one that is generally—and correctly—understood as being unable to do something.

United States v. Bailey, 77 M.J. 11, 15 (C.A.A.F. 2017) (internal citation omitted).

The specified issue, however, presents more-fertile ground for Condon. Condon’s brief asserts that there is no “plausible reason, offered or existing, for admission of evidence that Appellant exercised his rights to silence and counsel. There is no fact at issue that is possibly resolved by the members knowing Appellant exercised his rights.” App. Br. at 26. The Air Force Government Appellate Division’s response invokes waiver mania:

Appellant waived this issue by failing to object to the evidence of Appellant’s request for counsel before the video of the interview was admitted into evidence. . . .

In this case, trial defense counsel did not object to the evidence of Appellant’s request for counsel before or immediately after Prosecution Exhibit 6 was admitted into evidence. Although Appellant filed a motion to suppress Appellant’s statements made after the invocation of right to counsel, the motion made no mention of excluding the request for counsel itself. . . . By the time trial defense counsel asked for portions of the video to be omitted, the objection was no longer timely. The time to ask for such redactions would have been before it was admitted into evidence, not the next day, and mere minutes before the Government published the exhibit to the members by playing it in open court.

Gov’t Div. Br. at 25-26 (emphasis added). The idea that a timely motion to suppress followed by a more-particularized objection before the evidence is shown to the members is waiver is a pretty radical expansion of the term, and it goes far beyond the rule applicable in the federal courts. See, for example, Fed. R. Crim. P. 12. The Government Division’s brief cites to CAAF’s decision in United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page), as supporting a finding of waiver in this case. But in Ahern the defense had no objection whatsoever to admission of the statement (the objection was to how the trial counsel argued it). The facts of Condon – where the defense moved to suppress the statement – are the opposite of Ahern.

But the Government Division doesn’t limit itself to the claim of waiver. It also argues that including the invocation of rights in the video shown to the members was not error because:

Mil. R. Evid. 301 should not be read as a per se ban on any mention of invocation of a suspect’s rights. Rather, there may be circumstances where such evidence is admissible, so long as it is not used as substantive evidence of an accused’s guilt. See United States v. Moran, 65 M.J. 178, 186 (C.A.A.F. 2007) (“A trial counsel’s statement implicating an accused’s assertion of his rights is not per se impermissible.”)

Gov’t Div. Br. at 31-32. And in this case, argues the Government Division:

the portions of the video involving the request for counsel were offered as “res gestae” that explained the entire sequence of events that occurred during the interview.

Gov’t Div. Br. at 34. This is an appealing argument, if only because if playing the video was harmless then Condon loses. See Art. 59(a). The Government Division’s brief also emphasizes that the military judge gave the members a limiting instruction prior to the playing of the video. Gov’t Div. Br. at 37-39. That gives the harmlessness argument a boost.

But a reply brief from Condon disputes the res gestae premise:

The statement here was not reasonably necessary to describe the events about which the witness had been examined; there was no testimony of the agent to be explained. . . . And, “it appears that any advantage to be obtained in this case in admitting such evidence was clearly outweighed by the confusion such testimony could cause in the minds of the members, and its significant potential for prejudice for the appellant.”

Reply Br. at 17 (quoting United States v. Ross, 7 M.J. 174, 76 (C.M.A. 1979)). The Mil. R. Evid. 403 factors justifying exclusion of relevant evidence are certainly a basis for a finding of prejudice in this case, and the Government Division’s res gestae (“things done”) argument for relevance is the weakest of probative values.

Accordingly, today’s oral argument will likely focus on what – if any – probative value existed in the video of Condon’s invocation of rights, whether that probative value was substantially outweighed by other considerations, and if it was harmless. Additionally, if CAAF gets that far, the parties will likely address whether the error is constitutional (requiring that it be harmless beyond a reasonable doubt to be excused) or non-constitutional (requiring mere harmlessness), because their briefs do not agree on the standard of review.

Case Links:
• AFCCA decision
• Blog post: CAAF grants review
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
Blog post: Argument preview

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