CAAF will hear oral argument in the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (CAAFlog case page), on Tuesday, October 25, 2016, at 9:30 a.m. The case presents two issues involving precisely what kind of evidence of child molestation is admissible for propensity purposes under Mil. R. Evid. 414:

I. Whether the Air Force Court of Criminal Appeals committed legal error when it found that in order for conduct to constitute child molestation under Mil. R. Evid. 414, the conduct must have been an offense under the UCMJ, or federal or state law, at the time it was committed and, if offered under Mil. R. Evid. 414(d)(2)(a)-(c), that the conduct must meet the definition of an offense listed under the version of the applicable enumerated statute in effect on the day of trial.

II. Whether the Air Force Court of Criminal Appeals committed legal error when it found that the erroneous admission of two acts of indecent liberties committed by appellee on his child age daughter had a substantial influence on the members’ verdict requiring set aside of the findings and sentence.

Technical Sergeant (E-5) Fetrow was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of seven child molestation offenses. He was sentenced to confinement for 25 years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The charges all involved Fetrow’s two step-children (his wife’s children from a prior marriage). However, the prosecution also introduced evidence of uncharged contact involving Fetrow’s biological daughter under Mil. R. Evid. 414, which – like its federal counterpart, Fed. R. Evid. 414 – permits introduction of similar-crimes evidence in child molestation cases. The rule states:

In a court-martial proceeding in which an accused is charged with an act of child molestation, the military judge may admit evidence that the accused committed any other offense of child molestation. The evidence may be considered on any matter to which it is relevant.

Mil. R. Evid. 414(a). The rule limits the kinds of evidence that may be introduced, however, generally requiring that the evidence implicate a criminal statute prohibiting sexual contact with children. Mil. R. Evid. 414(d)(2) states, in part:

“Child molestation” means an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513), that involves:

(A) any conduct prohibited by Article 120 and committed with a child; . . .

Notably, in Executive Order 13,730 of May 20, 2016 (discussed here), the rule was expanded to also include reference to Article 120b – the new child-sex offense law enacted over four years ago. This rule change, however, occurred long after Fetrow’s trial.

The evidence involving Fetrow’s biological daughter alleged that: (1) when she was 3-4 years years old, Fetrow put her in a closet while he had sex with a woman; (2) sometime close to the first event, Fetrow touched her on the leg in a seductive manner; and (3) when she was 8-9 years old Fetrow exposed his genitals to her. Gov’t Br. at 5-6. The military judge admitted this evidence, concluding in part that it was evidence of an offense prohibited under Article 120b, and therefore was admissible under Mil. R. Evid. 414.

The Air Force Court of Criminal Appeals, however, disagreed, and reversed the findings and sentence. United States v. Fetrow, 75 M.J. 574 (A.F. Ct. Crim. App. Jan 21, 2016) (discussed here). The CCA read Mil. R. Evid. 414 as involving a two-part test:

(1) whether the conduct constitutes a punishable offense under the UCMJ, federal law, or state law when the conduct occurred; and

(2) whether the conduct is [at the time of trial] encompassed within one of the specific categories set forth in Mil. R. Evid. 414(d)(2).

75 M.J. at 582-583, slip op. at 13 (paragraphing added). The CCA then concluded that the first and third incidents are not encompassed within the 414(d)(2) categories because Article 120 requires a sexual touching of some kind, and no such touching was alleged. A footnote, however, noted that the then-pending expansion of the rule to include Article 120b could change the analysis.

The Judge Advocate General of the Air Force then certified the case to CAAF.

The Government’s primary argument is that the CCA improperly added a temporal limitation to the rule:

Under a plain reading of the rule, conduct constitutes “child molestation” under Mil. R. Evid. 414(d)(2)(A) if it meets the definition of a UCMJ offense, is prohibited by any version of Article 120, UCMJ, and if the conduct was committed with a child.

Gov’t Br. at 18 (emphasis added). The Government bases its argument in part on the contention that:

the fundamental premise behind Fed. R. Evid. 414 was not to introduce evidence that the accused violated a crime or a law. Rather, Congress created Fed. R. Evid. 414 out of a desire to allow for the admissibility of other acts by an accused that suggest a prurient sexual interest in children.

Gov’t. Br. at 22. The Government also asserts that even if admission of the evidence was error, it was harmless because “the government’s case was strong,” Gov’t Br. at 35, and because the uncharged acts were “alternatively admissible under Mil. R. Evid. 404(b) to show a common plan or motive on the part of [Fetrow] to sexually abuse and groom his young daughters,” Gov’t Br. at 38 n.9. However, the brief “acknowledges that the government did not present this theory to the military judge at trial.” Id.

Fetrow’s brief responds that the CCA’s decision didn’t add a temporal limitation but rather merely read the rule as defining what kind of conduct is admissible by cross-reference to specific criminal statutes:

The AFCCA’s conclusion that the cross-referenced statutes in MRE 414(d)(2) were the versions of the statutes in effect on the day of trial is based on the reasonable premise that MRE 414 is the “[c]ongressional and executive’s current determinations of what criminal conduct is potentially relevant for propensity to commit an offense of child molestation . . . .” JA 8. This conclusion does not add a “temporal limitation” on when conduct must have occurred. The AFCCA simply notes that the text of the rule itself cross-references certain statutes and concludes the rule refers to those statutes not superseded by the political branches.

App. Br. at 20. Fetrow’s brief also makes the obvious point that:

If the “plain language” interpretation the government advances is correct, there would be no need for the President to add new language because the offenses located in the superseded version of Article 120 in effect from 1 October 2007 through 27 June 2012 would already cover such conduct. Although the government addresses—in a footnote—that the President recently amended MRE 414(d)(2)(A), it fails to explain why such an amendment was necessary if its proposed argument is, indeed, the “plain meaning” of the statute. See Gov’t Br. at 13, n.3.

App. Br. at 17-18.

Fetrow’s also suggests that the certification of this case merely “demonstrates the government’s policy disagreements with the version of the rule in effect during TSgt Fetrow’s trial.” App. Br. at 18.

In a reply brief the Government tries to explain away the recent addition of Article 120b to the rule as a redundancy that isn’t unique:

Within the definition of “child molestation,” Mil. R. Evid. 414(d)(2)(B) includes “any conduct prohibit by 18 U.S.C. chapter 109A and committed with a child.” Like the 1 October 2007 to 27 June 2012 version of Article 120, UCMJ, 18 U.S.C. Chapter 109A criminalizes sexual offenses committed against adults, as well as offenses committed only against children. See 18 U.S.C. §§ 2241(c), 2243(a), 2244(a)(3), 2244(a)(5). Despite this fact, Mil. R. Evid. 414 still includes the language “and committed with a child” in subsection (d)(2)(B). Accordingly, any argument that the same phrase within Mil. R. Evid. 414(d)(2)(A) would limit a reading of the rule to the current version of Article 120, UCMJ is unconvincing.

Likewise, other redundancies within Mil. R. Evid. 414 are fatal to Appellee’s argument regarding the recent addition of Article 120b, UCMJ to Mil. R. Evid. 414(d)(2)(A).

Reply Br. at 5. This argument, however, is awfully strained, since the words and committed with a child are necessary to limit those Title 18 offenses to only ones involving children. Without such a limitation the definition of child molestation in the rule would seemingly include Title 18 offenses committed upon adults.

The Government clearly faces an uphill battle at CAAF, and it’s one made immensely more difficult by the President’s tardy amendment of Mil. R. Evid. 414. Article 120b was enacted way back in 2011 as part of the National Defense Authorization Act for Fiscal Year 2012 (discussed here). President Obama signed that bill on December 31, 2011, however he didn’t amend Mil. R. Evid. 414 to address the new law until May 20, 2016 – a whopping 1,602 days later.

The Government’s primary argument boils down to an assertion that the President’s failure to act is meaningless and the rule somehow evolved on its own when the law changed (with the recent amendment merely tidying up the books).

I’d be very surprised if CAAF agrees.

Case Links:
AFCCA’s opinion (75 M.J. 574)
Blog post: A significant Mil. R. Evid. 414 decision
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview

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