At 9:30 a.m. today, CAAF will hear oral argument in United States v. Claxton, No. 17-0148/AF (CAAFlog case page).
The case involves the prosecution’s failure to disclose that two of its witnesses were also undercover informants for the Air Force Office of Special Investigations (AFOSI). The Air Force CCA found error but concluded that it was harmless beyond a reasonable doubt. One of the informants is identified (and was first discovered after his status was published by a newspaper in 2013), but the identity of the second is well-hidden. So well, in fact, that Claxton’s briefs are sealed. Fortunately, however, the courtroom won’t be:
No. 17-0148/AF. U.S. v. Stephan H. Claxton. CCA 38188. On consideration of Appellant’s motion to close the courtroom for oral argument and the response of the government not opposing said motion, it is ordered that said motion is hereby denied. All parties will refer to the second confidential informant as “CI2” if necessary to the presentation of counsel’s oral argument on the assigned issue. The Clerk is directed to seal Appellant’s reply brief.
These informants were cadets at the Air Force Academy and – as discussed in the 2013 newspaper account – AFOSI would:
threaten them with prosecution, then coerce them into helping OSI in exchange for promises of leniency they don’t always keep. OSI then uses informants to infiltrate insular cadet groups, sometimes encouraging them to break rules to do so. When finished with informants, OSI takes steps to hide their existence, directing cadets to delete emails and messages, misleading Air Force commanders and Congress, and withholding documents they are required to release under the Freedom of Information Act.
The story seems to have been dragged, kicking and screaming, into the light. Bravo to CAAF for keeping it there.
Argument Preview: Was hiding the fact that prosecution witnesses were Government informants harmless in United States v. Claxton, No. 17-0148/AF
CAAF will hear oral argument in the Air Force case of United States v. Claxton, No. 17-0148/AF (CAAFlog case page), on Tuesday, May 9, 2017, at 9:30 a.m. The case is a Hills trailer and also involves the prosecution’s failure to disclose that two of its witnesses were also undercover informants for the Air Force Office of Special Investigations (AFOSI). The Air Force CCA found error in both issues, but it concluded that both errors were harmless beyond a reasonable doubt. CAAF then granted review of two issues challenging both findings of harmlessness:
I. Whether the findings and sentence must be set aside in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).
II. Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.
Last week CAAF granted review in the following Air Force case:
No. 17-0148/AF. U.S. v. Stephan H. Claxton. CCA 38188. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE FINDINGS AND SENTENCE MUST BE SET ASIDE IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).
II. WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT AIR FORCE ACADEMY CADET E.T. WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.
Briefs will be filed under Rule 25.
We last noted this case (in the context of Issue II) in this post.
The AFCCA’s opinion is available here. The CCA found that the failure to disclose the cadet’s status as a confidential informant was a discovery violation:
We find that Appellant’s defense counsel should have been informed that former Cadet Thomas was an informant and should have received some portions of former Cadet Thomas’ AFOSI dossier in discovery . . . This information revealed by former Cadet Thomas about his work as an informant would have provided substantial ammunition for the Defense to use in their efforts to impeach him and undercut his credibility.
Slip op. at 10. The CCA concluded, however, that it was harmless beyond a reasonable doubt because “there is no reasonable possibility that the disclosure error contributed to the contested findings of guilty.” Slip op. at 12.
On the Hills issue the CCA concluded that the improper use of the charged offenses for propensity purposes was also harmless beyond a reasonable doubt based on the strength of the other evidence:
we find any error surrounding the admission of propensity evidence in this case to be harmless beyond a reasonable doubt as it applies to the charged offenses involving both Cadet MI and Ms. SW. Unlike the Hills case, where the evidence was weak and there was no eyewitness testimony, the evidence supporting the charges of which Appellant was convicted was extremely strong. The testimony of Cadet MI and Ms. SW was strong, consistent over time, and corroborated by a number of other witnesses, as addressed earlier. And perhaps most harmful of all were Appellant’s own admissions. Conversely, the evidence regarding the charges involving Ms. KA was weak. The fact that Appellant was acquitted of the charges involving Ms. KA further undercuts the idea that the instruction may have contributed to the findings of guilty.
Slip op. at 20-21.
CAAF orders a fact-finding hearing in a case involving the Air Force’s use of cadets as confidential informants
We’ve made a few mentions (in posts here and here) about the use of Air Force Adademy cadets as undercover informants for the Air Force Office of Special Investigations. On Monday, CAAF ordered a DuBay (post-trial fact-finding) hearing in a case that appears to involve one such informant:
No. 14-0409/AF. U.S. v. Stephan H. CLAXTON. CCA 38188. Review granted on the following issue:
WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT UNITED STATES AIR FORCE ACADEMY CADET ERIC THOMAS WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.
The decision of the United States Air Force Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the discovery matter underlying the granted issue. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.
The AFCCA’s opinion in the case is available here. The court did not discuss the informant issue.
Hereis a story from Jacksonville, NC. Apparently a V-22 squadron operations officer, Maj. Danny Cohlmeyer, down in New River is accused of doing naked fly-bys of local females. He’s charged in both local court nad a GCM scheduled to start next week. According to the Ft. Campbell docket, here, the trial starts Feb. 6 in front of an all officer panel, preceded by an Art. 39(a) session on Feb. 3rd.
An Air Force Art. 32 hearing is deciding the fate of a cadet charged with rape on USAFA gorunds. The Colorado Springs Gazette reports, here:
Thomas, Colangelo, Claxton and several other cadets were drinking and partying in Colorado Springs when Thomas said he noticed a woman, a former cadet, was extremely drunk.
None of the cadets knew where she lived, so they brought her back to the dorms, Thomas said. After placing her on a bed, Thomas said he and other cadets left the room.
A few minutes later, Colangelo said he asked Thomas why the door was locked.
Colangelo testified to Lt. Col. Rhonda Bershok — who presided over the hearing — that he and Cadet David Burns banged on the door.
Colangelo said when Claxton opened the door, he and his friends found the woman with her pants unzipped and her shirt pulled up.
Moments later, Claxton punched Burns in the face, yelling “I’m not a rapist. I’m not a rapist,” Thomas said.
The cadets reported the incident to their superiors that night.
The SGT Brent Burke court-martial in the killing of his wife and mother-in-law is scheduled to start next month. Coverage here from the Bowling Green Daily News. Our prior coverage of the facts and two prior civilian trials is here and here.