Opinion Analysis: CAAF finds the CCA’s review indefensible in United States v. Swift, No. 16-0407/AR
CAAF decided the Army case of United States v. Swift, 76 M.J. 210, No. 16-0407/AR (CAAFlog case page), on Wednesday, April 26, 2017. Considering “the Government’s surprising assertion that the ACCA’s Article 66(c), UCMJ, review is defensible here,” CAAF finds that the CCA improperly based its review “solely by reference to uncharged conduct.” Slip op. at 11 (emphasis in original). Accordingly, CAAF remands the case for a new Article 66(c) review by the CCA. But the court also finds that any error in the admission of an uncorroborated confession was waived by both the failure to object and an affirmative statement that the defense had no objection.
Judge Ryan writes for a unanimous court.
CAAF granted review of three issues:
I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.
II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.
[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.
Specialist (E-4) Swift was twice convicted of two specifications of indecent acts with a child in violation of Article 134. The first conviction was reversed on appeal in 2012 because the Government failed to allege a terminal element (noted here). At a rehearing before a general court-martial composed of a military judge alone, Swift was again convicted and he was sentenced to confinement for 11 years, reduction to E-1, and a dishonorable discharge.
The charges against Swift alleged that he committed indecent acts with his daughter on two occasions: the first in 2003 and the second in 2007. Swift admitted to touchings during the charged time periods, but he asserted that both were inadvertent. The charges were based on Swift’s admissions, and alleged acts that Judge Ryan refers to as the “Hawaii Bedside Incident” and the “Texas ‘Old Flame’ Incident.” Slip op. at 3. But the prosecution also offered evidence of three other alleged (but uncharged) incidents under Mil. R. Evid. 404(b) and 414: the “Couch ‘Peeing’ Incident,” the “Hawaii Van Indicent,” and the “Texas Pool Incident.” Slip op. at 4-5. The military judge allowed this evidence “without ever actually ruling on whether [it was] admissible under M.R.E. 404(b) or 414.” Slip op. at 8.
On appeal, the Army CCA also “did not rule on whether the incidents of uncharged conduct were admissible under either M.R.E. 404(b) or 414. Instead, the ACCA facially treated them as if they were the charged conduct, concluded the findings of guilty were legally and factually sufficient, and affirmed.” Slip op. at 10. The CCA’s decision “affirmed the findings and sentence, albeit solely by reference to evidence of uncharged misconduct.” Slip op. at 9.
That, explains Judge Ryan, was wrong.