CAAFlog » October 2016 Term » United States v. Erikson

CAAF decided the Army case of United States v. Erikson, __ M.J. __, No. 16-0705/AR (CAAFlog case page) (link to slip op.), on Tuesday, May 9, 2017. CAAF finds that it was not error for the military judge to exclude evidence that the alleged victim made a prior allegation of sexual assault against a different person because the prior allegation was not proven to be false. Accordingly, the court affirms the summary decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of three issues, all of which were personally asserted by the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Issues II and III are resolved with a footnote to CAAF’s opinion in United States v. Ortiz, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page).

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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. Erikson, No. 16-0705/AR (CAAFlog case page), on Wednesday, March 1, 2017, at 9:30 a.m. The court will review a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Specialist (E-4) Erikson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of sexual assault and one specification of adultery in violation of Articles 120 and 134. The members sentenced Erikson to confinement for three years, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one of the sexual assault specifications and approved the adjudge sentence. The Army CCA summarily affirmed.

In advance of trial Erikson’s defense counsel sought a ruling on the admissibility of the alleged victim’s prior allegation. The defense theory was that at the time of both the prior allegation and the allegation against Erikson the alleged victim was in a failing relationship and the allegation was made to “attempt[] to avoid or resolve conflicts by making false accusations.” App. Br. at 5 (quoting record). “The defense [also] claimed that SPC BG [the alleged victim] knew she would receive favorable treatment each time she reported the sexual incidents, which gave her a motive to fabricate each report.” Gov’t Div. Br. at 9. The other alleged perpetrator was acquitted of the allegation at a summary court-martial.

The military judge denied Erikson’s motion to admit evidence of the other allegation, concluding that “the ‘defense failed to establish any similarity of the assault involved with [the other alleged offender] in May 2013 to the facts of this case which allegedly occurred in 2014’ and that it would lead to a trial within a trial and the probative value would be substantially outweighed.” App. Br. at 6 (quoting record). The military judge based his ruling in part on Mil. R. Evid. 412, which is the military’s rape shield statue.

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On Wednesday CAAF granted review in an Army case that questions whether it was error for the military judge to prohibit the defense from introducing evidence that the alleged victim previously made a false accusation of sexual assault:

No. 16-0705/AR. U.S. v. Sean R. Erikson. CCA 20150130. 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 issues:

I. WHETHER THE MILITARY JUDGE ERRED IN EXCLUDING EVIDENCE THAT THE VICTIM PREVIOUSLY MADE A FALSE ACCUSATION OF SEXUAL CONTACT AGAINST ANOTHER SOLDIER.

II. CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE NOT STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

III. EVEN IF CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, THEIR SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

Briefs will be filed under Rule 25 on issue I only.

(emphasis added). No opinion is available on the Army CCA’s website (indicating that the court summarily affirmed the findings and sentence).

Erikson is also a Dalmazzi (CAAFlog case page) trailer – one of two granted on Wednesday that brings the total to 16 trailer cases.

CAAF also granted review of another McClour (CAAFlog case page) trailer on Wednesday, bringing the total to 6 trailer cases.