CAAFlog » October 2016 Term » United States v. Ahern

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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Erikson, No. 16-0705/AR (CAAFlog case page): Oral argument audio.

United States v. Ahern, No. 17-0032/AR (CAAFlog case page): Oral argument audio.

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.

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Before the holiday CAAF granted review of an Army case involving interpretation of Mil. R. Evid. 304(a)(2):

No. 17-0032/AR. U.S. v. Sean M. Ahern. CCA 20130822. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

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.

Briefs will be filed under Rule 25.

The 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.

I discussed the Army CCA’s decision in Ahern in this post, and noted that the CCA made a first-impression interpretation of the Rule to conclude that:

Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].

Slip op. at 11.

In an unpublished decision in United States v. Ahern, No. 20130822 (A. Ct. Crim. App. Aug. 24, 2016) (link to slip op.), a three-judge panel of the Army CCA interprets Mil. R. Evid. 304(a)(2) which 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.

At issue is the trial counsel’s closing argument that the appellant’s failure to deny sexual abuse of his step-daughter during a pretext phone call with the child’s mother was “because he is guilty.” This issue sparked a lot of discussion when I noted the CCA’s oral argument of the case in this TWIMJ post.

The CCA ultimately affirms the appellant’s child sex assault (and similar offense) convictions because the child’s mother “testified that appellant had repeatedly admitted to having sex with [the child],” the child herself gave “detailed testimony about his misconduct,” the appellant was not silent but rather called the mother’s allegations crazy, and “the same conversations that government counsel argued were evidence of guilt [] were argued by appellant as evidence of his innocence.” Slip op. at 3.

But before reaching that conclusion the CCA makes a first-impression interpretation of Mil. R. Evid. 304(a)(2) and concludes that:

Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].

Slip op. at 11.

The CCA’s analysis is reproduced after the break.

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