CAAFlog » September 2015 Term » United States v. Bess

CAAF decided the Navy case of United States v. Bess, 75 M.J. 70, No. 15-0372/NA (CAAFlog case page) (link to slip op.), on Wednesday, January 6, 2016. The court finds that the military judge abused his discretion when he provided additional evidence to the members during deliberations without allowing the appellant an opportunity to challenge the reliability of that evidence. The court reverses the appellant’s convictions of attempting to commit indecent acts and committing indecent acts, and the decision of the Navy-Marine Corps CCA, and authorizes a rehearing.

Judge Stucky writes for a unanimous court.

CAAF specified the following issue for review in this case:

Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

The appellant was tried by a general court-martial composed of members with enlisted representation. He was convicted contrary to his pleas of not guilty of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80 and 120. The members sentenced the appellant to confinement for two years and a dishonorable discharge.

The appellant was a Navy x-ray technician and the alleged indecent acts involved instructing female patients to be completely naked for x-ray examinations. The appellant was tried on various charges (including allegations of physical contact) involving seven alleged victims, and he was convicted of one offense for six of those seven. However, the appellant’s identity as the x-ray technician for the alleged victims was a hotly contested issue in the trial.

After the close of evidence and during deliberations the members asked the military judge for additional evidence including muster reports (attendance records) that could be used to determine whether the appellant was the x-ray technician on duty at the time of each alleged indecent act. Article 46(a) of the UCMJ provides explicit statutory authorization for the court-martial to obtain evidence on its own initiative. Considering the members’ request, the military judge conducted a hearing outside the presence of the members, heard testimony about the muster reports, and concluded that they were admissible as business records. However, the military judge denied a defense request to examine the witnesses before the members or to give additional closing argument, and instead “handed the reports to the panel with no explanation, stating only that they had ‘been admitted into evidence.'” Slip op. at 3. Soon afterward the members returned with their findings.

Judge Stucky finds no fault with the judge’s ruling admitting the muster reports. However, he concludes that “giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process.” Slip op. at 7.

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Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Bess, No. 15-0372/NA (CAAFlog case page): Oral argument audio

United States v. Gifford, No. 15-0426/AR (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Navy case of United States v. Bess, No. 15-0372/NA (CAAFlog case page), on Tuesday, November 17, 2015, at 9:30 a.m. The court specified an issue involving the unusual procedural ability of court-martial members to request evidence:

Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

The appellant was tried by a general court-martial composed of members with enlisted representation. He was convicted contrary to his pleas of not guilty of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80 and 120. The members sentenced the appellant to confinement for two years and a dishonorable discharge.

The appellant was a Navy x-ray technician and the indecent acts at issue in his case involved the appellant instructing female patients to be completely naked for x-ray examinations. The appellant was tried on various charges (including allegations of physical contact) involving seven alleged victims, and he was convicted of one offense for six of those seven. The alleged victims identified the appellant during their in-court testimony, however the appellant’s identity as the x-ray technician for the alleged victims was a hotly contested issue in the trial in part because the appellant’s actions were not immediately reported.

The appellant testified in his own defense. During cross-examination by the prosecution, the appellant was asked “if he was aware the Hospital’s ‘muster reports’ showed he was at work for some of the dates in question.” App. Br. at 9. The appellant answered “that he had no idea what the muster reports said.” App. Br. at 9. The prosecution did not offer the muster reports into evidence. Afterward, in closing argument, the appellant’s defense counsel “commented on Trial Counsel’s decision not to seek admission of the muster reports.” Gov’t Br. at 23.

The members began their deliberations but stopped after about an hour to ask the military judge for additional evidence, specifically:

Will we be allowed to view statements from NCIS investigations? Will we be allowed to see the muster reports? Will we be allowed to see any counseling chits? Or any other documents used throughout the proceedings or are the exhibits we currently have all that we can view?

App. Br. at 9. After some consideration, the military judge provided the members with the muster reports, over defense objection. The military judge also denied the defense the opportunity to call additional witnesses to challenge the accuracy of the muster reports, and the military judge denied a defense request to give a new closing argument. Soon afterward, the members returned with their findings.

Article 46(a) of the UCMJ provides explicit statutory authorization for the court-martial to obtain evidence on its own initiative:

Opportunity to Obtain Witnesses and Other Evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

This power is not at issue in Bess. Rather, the issue is what procedural safeguards must accompany it.

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