CAAF decided the Air Force case of United States v. Barker, 77 M.J. 377, No. 17-0551/AF (CAAFlog case page) (link to slip op.), on Monday, May 21, 2018. Reviewing a written statement from a child pornography victim that was admitted during the sentencing phase of a court-martial under Rule for Courts-Martial 1001A – the President’s implementation of the Article 6b right of an alleged victim to be reasonably heard – CAAF concludes that the statement was not admissible under that rule because the victim did not actually participate in the proceeding (and perhaps didn’t even know about the appellant’s prosecution). Nevertheless, the court concludes that the erroneous admission of the statement was harmless because the appellant pleaded guilty and was sentenced by a military judge alone, the defense sentencing case was weak, and the prosecution’s sentencing case was otherwise strong. Accordingly CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Chief Judge Stucky, who dissents (because he would find the issue waived by the pretrial agreement).

Airman First Class (E-3) Barker pleaded guilty, pursuant to a pretrial agreement, to possession and viewing child pornography. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit in its entirety.

On appeal, the Air Force CCA considered the letters under two different rules: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. Nevertheless, the CCA concluded that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF then granted review of two issues challenging the CCA’s conclusion that the January statement was admissible and the improper consideration of the other statements was harmless:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Writing for the majority, Judge Ryan concludes that the January statement was not admissible as a statement of a crime victim under R.C.M. 1001A (and does not address whether it might have been admissible as evidence in aggravation under R.C.M. 1001(b)(4) because that issue was not before the court). But the majority concludes that the erroneous admission of the statement was harmless.

Chief Judge Stucky dissents – even though he agrees with the majority’s conclusions that the statement was improperly admitted under R.C.M. 1001A but was harmless – because he finds that a term of the pretrial agreement served to waive this issue and precludes Barker from raising it on appeal. Accordingly, Chief Judge Stucky would would vacate the grant of review as being improvidently granted.

R.C.M. 1001A states, in part:

(a) In general. A crime victim of an offense of which the accused has been found guilty has the right to be reasonably heard at a sentencing hearing relating to that offense. A victim under this rule is not considered a witness for purposes of Article 42(b). Trial counsel shall ensure the victim is aware of the opportunity to exercise that right. If the victim exercises the right to be reasonably heard, the victim shall be called by the court-martial. This right is independent of whether the victim testified during findings or is called to testify under R.C.M. 1001.

Judge Ryan’s analysis begins with the observation that the author of the January 2013 statement that the CCA found admissible under R.C.M. 1001A qualifies as a victim under this rule:

We have no doubt that KF is indeed the child in the “Vicky series,” and that she is a “victim” of child pornography for the purposes of R.C.M. 1001A.

Slip op. at 7. But that does not answer the separate question of when statements from a victim are admissible under R.C.M. 1001A:

Interpreting R.C.M. 1001A is a question of law, which we review de novo. United States v. Leahr, 73 M.J. 364, 369 (C.A.A.F. 2014) (citing United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008)). We conclude that the rights vindicated by R.C.M. 1001A are personal to the victim in each individual case. Therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, R.C.M. 1001A(a), the special victim’s counsel, id., or the victim’s representative, R.C.M. 1001A(d)–(e).

This Court reviews “a military judge’s decision to admit evidence for an abuse of discretion.” United States v. Humpherys, 57 M.J. 83, 90 (C.A.A.F. 2002) (citation omitted). A military judge abuses his discretion when he admits evidence based on an erroneous view of the law. United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013) (citing United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)). Assuming without deciding such victim impact statements are evidence, here, the military judge’s understanding of the law was erroneous, and thus, he abused his discretion.

Slip op. at 10 (emphasis added). A footnote adds that CAAF assumes that victim impact statements admitted under R.C.M. 1001A are not evidence because “determination of that issue is not necessary to resolution of this case,” and so the court “will decide it in United States v. Hamilton, 18-0135/AF, where the issue can be briefed.” Slip op. at 10 n.9. In United States v. Hamilton, 77 M.J. 579 (A.F. Ct. Crim. App. Dec. 20, 2017) (en banc) (discussed here), the Air Force CCA concluded that such statements are not evidence (similar to an accused’s unsworn statement, which also is not evidence). CAAF granted review of that determination earlier this year (noted here).

Judge Ryan’s majority opinion concludes:

All of the procedures in R.C.M. 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel. Moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact “directly relating to or arising from the offense of which the accused has been found guilty.” R.C.M. 1001A(b)(2)

In this case, trial counsel appears to have had no contact with KF, KF did not in fact participate in the proceedings, and there is no indication that KF was even aware of Appellant’s trial. Most importantly, the statements were not offered by either KF or her advocate as R.C.M. 1001A requires. Thus, the military judge abused his discretion in admitting these statements under R.C.M. 1001A.

Slip op. at 12.

Nevertheless, the erroneous consideration of the statement was harmless in part because “the Government’s case was exceptionally strong, and Appellant’s guilt was laid out in vivid detail in the Stipulation of Fact.” Slip op. at 12. That stipulation is provided as an appendix to the majority opinion, and it is both graphic and damning. The majority also observes that Barker beat the deal: his pretrial agreement had a confinement cap of four years, but the military judge sentenced him to only 30 months. Slip op. at 12.

Chief Judge Stucky’s dissent does not disagree with Judge Ryan’s majority analysis and conclusions. Rather, it expresses full agreement, beginning:

I agree with Judge Ryan’s convincing analysis of the relationship between Rules for Courts-Martial 1001(b) and 1001A, as they apply to victim impact statements.

Diss. op. at 1. But Chief Judge Stucky dissents because he:

see[s] no need to reach the issue in this case. Appellant waived his objection to the admission of the victim impact statements and, therefore, was precluded from raising the issue before this Court. I would vacate the grant of review as being improvidently granted.

Diss. op. at 1. Chief Judge Stucky finds waiver in the fact that “as part of a plea agreement, Appellant agreed to waive all waivable motions and plead guilty unconditionally.” Diss op. at 1. But, the Chief Judge explains,

during an extensive colloquy with Appellant over the meaning and effect of the waive all waivable motions provision in the plea agreement, Appellant agreed to give up his right to raise such motions in order to get the benefit of the terms of the plea agreement. Nevertheless, he objected during sentencing proceedings to the admission of the victim impact statements.

Diss. op. at 2. Chief Judge Stucky seems to see gamesmanship – if not chicanery – in this sequence of events:

In this case, the defense was well aware before trial of the existence of the victim impact statements. The preliminary hearing officer provided both counsel and Appellant with copies, and the prosecutor advised that the statements would be introduced during sentencing. The defense counsel was less than candid with the military judge during their discussion of which motions the defense counsel had considered raising. Not to tip his hand and give the prosecution an opportunity to withdraw from the plea agreement before Appellant had substantially complied with his obligations under the deal, the defense counsel failed to mention suppression of the victim impact statements as a possible motion. But as the record clearly shows, the defense counsel was fully prepared to argue against consideration of the statements, going so far as to present the military judge with Appellate Exhibit IV to support his position.

Under the circumstances of this case, the waive all waivable motions provision of Appellant’s plea agreement signifies his knowing and intelligent waiver of the issue, leaving no error to correct on appeal.

Diss. op. at 3 (citations omitted). Absent such a “less than candid” performance, however, it’s hard to see how such a waiver provision is valid when the parties do not actually abide by it during the trial. Rather, it seems like the prosecution waived the waiver by not asserting it when the defense objected.

Judge Ryan’s majority opinion addresses the waiver issue in a lengthy footnote, explaining:

While the pretrial agreement in this case included a “waive all motions which may be waived” provision, our decision turns on the impropriety of the introduction of statements absent compliance with the R.C.M. 1001A, in the face of defense objection on that basis among others. We reject the notion that a waive all waivable motions provision entered at pretrial provides the government carte blanche to introduce at sentencing information that does not conform to the rules, or to make arguments that are prohibited by the law. Cf. United States v. Mooney, 77 M.J. 252, 254−55 (C.A.A.F. 2018) (holding that a waive all waivable motions clause did not apply to the convening authority’s subsequent action: “because this issue did not arise until post-trial, there was no motion to be made during the court-martial.)” We decline to adopt a reading of a waive all waivable motions provision in a pretrial agreement that either shields the government from the requirements of R.C.M. 1001A or restricts the accused ex ante from objecting to any and all future infirmities unrelated to the plea. Cf. Class v. United States, 138 S. Ct. 798, 805 (2018) (“A valid guilty plea also renders irrelevant—and thereby prevents the defendant from appealing—the constitutionality of caserelated government conduct that takes place before the plea is entered”; “a valid guilty plea relinquishes any claim that would contradict the ‘admissions necessarily made upon entry of a voluntary plea of guilty.’ ”) (emphasis added) (citation omitted); United States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) ( “[a]n unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings”). Of course, the government remains free to negotiate pretrial specific provisions related to sentencing, such as stipulations of expected testimony, waiver of foundational requirements, etc. But see R.C.M. 705(c)(1)(B) (proscribing the enforcement of terms in a pretrial agreement that would deprive an accused of certain rights, including “the right to complete sentencing proceedings”); Manual for Courts-Martial, United States, Analysis of the Rules for Courts-Martial app. 21 at A21―40 (2012 ed.) (MCM) (“Subsection (1)(B) lists certain matters which cannot be bargained away. This is because to give up these matters would leave no substantial means to ensure judicially that . . . the sentencing proceedings met acceptable standards.” (emphasis added) (citations omitted)).

Slip op. at 8 n.6 (emphases in original). Chief Judge Stucky responds:

The majority rejects “the notion that a waive all waivable motions provision entered at pretrial provides the government carte blanche to introduce at sentencing information that does not conform to the rules, or to make arguments that are prohibited by the law.” United States v. Barker, __ M.J. __, __ n.6 (8 n.6) (C.A.A.F. 2018). I agree that such a provision does not entitle the prosecution to present all matters of any nature to the factfinder. Nor is Appellant waiving the right to object to evidence of which he has not been placed on notice. But victim impact statements are not of such a nature as to be generally inadmissible, and Appellant was clearly on notice that they would be presented. The waive all waivable motions provision would merely have permitted the prosecution to present the statements without the authentication normally required by the rules of evidence.

Diss. op. at 2-3.

Waiver, of course, is a big issue this term – see the #3 Military Justice Story of 2017 and United States v. Burris, No.17-0605/AR (CAAFlog case page) – but this case wasn’t litigated as a waiver case. Rather, the Air Force Appellate Government Division did not assert that waiver applied, and the CCA found that the defense preserved any error by objecting. 76 M.J. at 751 n.5.

Case Links:
• AFCCA decision (76 M.J. 748)
• Blog post: The Air Force CCA addresses the limits of victim-impact statements
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

6 Responses to “Opinion Analysis: Because the R.C.M. 1001A process belongs to the victim, not to the trial counsel, and the victim did not participate, the victim-impact statement was improperly admitted in United States v. Barker”

  1. stewie says:

    Seriously Judge Stucky. so your argument is that if an accused puts “waive all waivable motions” then the prosecutions can literally take a dump on the rules, do whatever they want, present whatever evidence they want (completely unrelated uncharged misconduct for example) and the defense can’t object or do anything about it?
    An objection and a motion are not the same thing…they are certainly related, but they aren’t the same thing.

  2. Tami a/k/a Princess Leia says:

    I don’t see how a “waive all waivable motions” clause applies to the sentencing proceedings.  Completely separate from the providence inquiry.  The bargain is for a sentence cap, not a specific sentence.

  3. Alfonso Decimo says:

    I think CAAF is wrong that R.C.M. 1001A makes this victim impact statement inadmissible. The whole point of the victim impact statements gathered by NCMEC is to avoid the burden on these victims to participate in every related trial. I don’t know, but I think the victim signs a blanket consent statement that should apply to all future prosecutions. I haven’t read the whole opinion, but if that was present, then I think CAAF has done a disservice to the system with some bad precedent. As for the “waive all waivable motions,” issue, that seems correct, but if we want to wear both a belt and suspenders, maybe the trial guide should include a query, “are you certain you don’t want to enter a conditional plea?” BTW, one consequence of moving the prosecutorial authority away from the military commanders (if that ever happens) would be the end of the providence inquiry and the introduction of the Alford plea into MILJUS.

  4. Nathan Freeburg says:

    Yeah I don’t get Stucky’s argument.  It’s a waive all waivable motions clause not a waive all objections clause.  (I mean I would consider such a clause for a really good quantum…). I once agreed as part of an OTPG to stipulate to an unrelated witness (alleging very serious uncharged misconduct)…but I sure as heck argued in my sentencing argument that her testimony was irrelevant.  I don’t think that was gamesmanship.  Just my job.

  5. Zachary D Spilman says:

    Not inadmissibleAlfonso Decimo; just not admissible under R.C.M. 1001A. 

    But still admissible as evidence in aggravation under R.C.M. 1001(b)(4). Probably. 

  6. Alfonso Decimo says:

    Zack – Thanks; that’s my fault for poor speed-reading. – Alex