CAAFlog » September 2014 Term » United States v. McFadden

CAAF decided the Air Force case of United States v. McFadden, 74 M.J. 87, No. 12-0501/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 3, 2015. A sharply divided court finds that the military judge did not err in denying Appellant’s motion for a mistrial or in failing to sua sponte excuse a member for cause after the member equated Appellant’s invocation of her 31(b) right to remain silent to lying by omission. CAAF affirms Appellant’s convictions and the decision of the Air Force CCA.

Judge Stucky writes for the majority, joined by Judges Erdmann and Ryan. Judge Ohlson dissents, joined by Chief Judge Baker.

CAAF granted review of two issues in this case:

I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.

II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Appellant was tried in 2009 by a general court-martial composed of officer members. She pleaded guilty to one specification of unauthorized absence in violation of Article 86, and not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). The Air Force CCA affirmed in three separate opinions.

A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant testified in her own defense during the findings phase of her trial, asserting that she never formed the intent to remain away permanently. Yet during her testimony, Appellant acknowledged that during pretrial interrogations she invoked her right to remain silent when asked about her intent. Then the members were permitted to question Appellant (without first submitting their questions in writing to the military judge, as required by M.R.E. 614(b)). One member – named Major Cereste – questioned Appellant’s invocation of her right to remain silent, likening it to lying by omission:

Major Cereste, a court member, and Appellant then engaged in the following exchange:

Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission — so — exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that intent was to never come back.

Slip op. at 4-5 (quoting record) (emphasis added). Appellant’s counsel subsequently moved for a mistrial, but did not seek to voir dire or disqualify the member. The motion for a mistrial was denied, but the military judge instructed the panel (using language provided by the defense) that Appellant’s invocation of her right to remain silent was not lying by omission.

Judge Stucky’s majority opinion doesn’t explicitly state that the failure of the defense to challenge the member or make a more aggressive objection is the reason for the court’s decision in this case, but it comes pretty close. His opinion also highlights the discretionary nature of a military’s judge’s ability to do more than requested.

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

United States v. McFadden, No. 12-0501/AF (CAAFlog case page): Oral argument audio.

United States v. Katso, No. 14-5008/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. McFadden, No. 12-0501/AF (CAAFlog case page), on Tuesday, October 7, 2014, at 9:30 a.m. The case presents two issues related to a member’s questions to Appellant when Appellant testified in her own defense:

I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.

II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Appellant was tried in 2009 by a general court-martial composed of officer members. App. Br. at 1. She pleaded guilty to one specification of unauthorized absence in violation of Article 86. Id. She pleaded not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. Id. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). Id.

A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant gave a pretrial statement to law enforcement in which she refused to answer questions about where she planned to go after absenting herself and whether she planned to turn herself in to military authorities. These questions were redacted from a written version of her pretrial statement that was admitted into evidence. Appellant then took the stand to testify in her own defense during the findings phase of her trial, and she asserted that she never formed the intent to remain away permanently. The military judge questioned Appellant and asked her if she ever told the investigators that she intended to return, to which Appellant responded, “I don’t believe they ever asked.” Gov’t Br. at 7. After this exchange, on re-cross-examination, the trial counsel asked whether a specific person asked Appellant if she intended to return. The Defense objected to this question as “beyond the scope,” but the military judge permitted the question and Appellant answered that she “used [her] right to remain silent at the time.” Gov’t Br. at 8.

Then the members asked Appellant questions (seven members asked questions, though the total number of members is unclear from the briefs). Gov’t Br. at 17 n.8. One of these questions was:

Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, and Z, so you told her certain things. Have you also heard of lying by omission — so — exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that my intent was to never come back.

Gov’t Br. at 9 (emphasis added). The Defense did not object or challenge this member. But the Defense did move for a mistrial “based on the military judge’s, trial counsel’s, and [the member]’s questions to Appellant.” App. Br. at 6.

The motion for a mistrial was denied. Instead, the military judge instructed the panel that Appellant’s invocation of her right to remain silent was not lying by omission. The AFCCA considered the denial of the mistrial motion and affirmed, but CAAF remanded the case to the CCA with an order to consider the case in light of CAAF’s opinion in United States v. Nash, 71 M.J. 83 (C.A.A.F. Apr. 13, 2012) (CAAFlog case page). Nash was a Marine Corps case where a member was challenged after he asked a question that indicated bias. He wasn’t removed and the appellant was convicted, but the NMCCA found implied bias and set aside the findings. The Navy JAG certified Nash to CAAF challenging the CCA’s finding of implied bias, but CAAF found actual bias and affirmed the CCA’s decision setting aside the findings.

After CAAF decided Nash and remanded this case, the CCA considered the bias issue and affirmed, distinguishing the facts of this case from the facts of Nash. CAAF then granted review.

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I just noticed an update to CAAF’s daily journal (available here), showing that the court granted review of two issues in the Air Force case of United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.):

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL’S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

McFadden is one of the uncertified cases I discuss in my post about apparent bias in Air Force TJAG certifications. I’ve updated the post to reflect the grant.

In other docket news, Marine Sergeant Hutchins (full coverage here) has asked CAAF for a writ of mandamus.

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus and prohibtion was filed under Rule 27(a) on this date.

Notably, this isn’t docketed as a writ-appeal of a decision of the NMCCA, but is a direct appeal to CAAF. As discussed in this post, Sergeant Hutchins has objected to anyone who is subordinate to the Secretary of the Navy serving as military judge in his case.

So finds the Air Force CCA in United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (per curiam) (slip op. here). Airman McFadden testified in her own defense to the charge of desertion after pleading guilty to the lesser included offense of unauthorized absence. The issue for the members was whether she had the intent to remain away permanently amounting to desertion under Article 85, UCMJ. In Appellant’s testimony:

She denied that she ever formed the intent to remain away permanently during either of the charged absences. After the prosecution cross-examined her, the military judge asked the appellant if, after she was apprehended, she ever told two of the investigators assigned to her case that she was intending to come back. Her response was that they never asked her. Following up on the judge’s questions, the trial counsel asked her if a third investigator had inquired if she intended to return to base. After the trial defense counsel’s objection to the question as being “beyond the scope” was overruled, the appellant answered that she was asked such a question “but I used my right to remain silent at the time.” On re-direct examination she once again denied that she intended to remain away permanently.

After trial defense counsel’s re-direct examination, the court members asked the appellant questions. One exchange occurred as follows:

Q: . . . You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman [D] might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission – so – exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A: Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that my intent was to never come back.

McFadden, slip op. at 2-3 (emphasis added). Later, the defense requested a mistrial but the defense did not voir dire or challenge the member. The military judge denied the request for a mistrial and gave an instruction to the panel.

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