Opinion Analysis: Invoking the dereliction standard for plain error, CAAF denies relief in United States v. Gomez, No. 16-0336/CG
CAAF decided the Coast Guard case of United States v. Gomez, __ M.J. __, No. 16-0336/CG (CAAFlog case page) (link to slip op.), on Monday, January 30, 2017. Reviewing for plain error because there was no objection at trial, CAAF denies relief for the prosecution’s sentencing presentation that included questionable testimony from two victims, affirming the opinion of the Coast Guard CCA and the sentence.
Judge Ohlson writes for the court. Judge Stucky concurs with a single-paragraph separate opinion.
Boatswain’s Mate Second Class (E-5) Gomez was convicted of numerous offenses, including of misconduct involving two female crew members who he supervised: SW and MS. The prosecution called the female crew members to testify during the sentencing phase of the court-martial, and they both testified about pregnancy complications suffered after the offenses occurred. Gomez’s defense counsel neither objected to their testimony nor cross-examined either of them. The maximum authorized punishment included confinement for 120 years and 4 months. The prosecution requested a sentence that included 20-30 years of confinement, the defense requested a sentence of no more than five years confinement, and the members sentenced Gomez to confinement for eight years, reduction to E-1, and a dishonorable discharge.
CAAF granted review to determine:
Whether the military judge erred by permitting two complaining witnesses to testify on sentencing that appellant was responsible for their pregnancy complications with no evidence connecting his misconduct to the complications.
This issue was reviewed for plain error – where Gomez “bears the burden of establishing the following three prongs: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right,” slip op. at 4 – because Gomez’s defense counsel did not object.
In today’s opinion Judge Ohlson concludes that Gomez is not entitled to any relief because he “has not established the prejudice prong for the testimony of SW, or the clear or obvious prong for the testimony of MS.” Slip op. at 4. The first conclusion is rather unremarkable, but the second conclusion invokes a possible new standard for plain error in military cases: that an “error is clear if “the trial judge and prosecutor [would be] derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” Slip op. at 8 (quoting United States v. Frady, 456 U.S. 152, 163 (1982)) (marks in original).