CAAF will hear oral argument in the Army case of United States v. Clark, No. 19-0411/AR (CAAFlog case page), on Tuesday, February 11, 2020, at 9:30 a.m. The court granted review of three issues involving R.C.M. 914 (the military version of the Jencks Act, 18 U.S.C. § 3500) and pretrial statements made by military law enforcement agents:

I. Did the military judge err in applying R.C.M. 914?

II. If the military judge erred, under what standard should this Court assess prejudice?

III. Was there prejudice under the applicable standard of review?

Sergeant (E-5) Clark was convicted by a general court-martial composed of members with enlisted representation of making a false official statement, rape of a child, and sexual assault of a child, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge.

Suspecting Clark of sexually molesting his daughter, military investigators interrogated him over the course of two days. Clark waived his rights, made damaging admissions, and ultimately gave a confession. Both days of interrogation were video recorded, however the agents failed to preserve the recording of part of the second interrogation (during which Clark made his fullest confession). The defense moved to abate the proceedings under R.C.M. 703(f)(2), Manual for Courts-Martial (2016 ed.) (moved to 703(e)(2) in the 2019 ed.), on the basis that the lost video was essential evidence of the circumstances under which the confession was obtained (and potentially manipulated by the investigators). But the military judge denied the motion, concluding that testimony about the interrogation was an adequate substitute for the recording.

Then, during trial, when the agents testified about the interrogations, the prosecution introduced evidence about the agents’ own statements during the period of the interrogations where the video was lost. That allowed the defense to make a R.C.M. 914 objection to the testimony of the agents, setting the stage for the issues now pending CAAF’s review.

R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), which requires production of the prior statements of a witness that are related to the subject matter of the witness’ testimony. CAAF last considered the rule in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), and it unanimously affirmed a trial-stage ruling that struck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. The military judge in Clark, however, held that R.C.M. 914 does not apply to the agents’ questions to Clark during the interrogation.

Clark raised the military judge’s ruling as error on appeal. A three-judge panel of the Army CCA suggested that the military judge was wrong and that R.C.M. 914 does apply to the agents’ questions. Nevertheless, the CCA concluded that any error was harmless because of the strength of the other evidence, including the portions of the interrogations where the video was preserved. In so ruling, the CCA distinguished CAAF’s opinion in Muwwakkil (where the court held that R.C.M. 914 does not require a prejudice analysis to warrant relief) on the basis that Muwwakkil involved an interlocutory review while Clark involves an ordinary (post-conviction) appeal for which Article 59 requires a showing of prejudice.

The three granted issues question the CCA’s decision broadly, asking whether there was error, how to review any error, and if the error was prejudicial. Clark’s brief concedes that CAAF’s review is narrow and that the court should test for prejudice, but argues that his conviction should nevertheless be reversed.

Clark’s brief acknowledges that CAAF’s reviewed the R.C.M. 914 issue in Muwwakkil for an abuse of discretion, which is a deferential standard of review. Historically, “an abuse of discretion occurs when we determine that the military judge’s findings of fact are clearly erroneous or that he misapprehended the law.” United States v. Richards, 76 M.J. 365, 369 (C.A.A.F. 2017) (CAAFlog case page) (quoting United States v. Clayton, 68 M.J. 419, 423 (C.A.A.F. 2010)). But recently CAAF applied a third requirement: the military judge’s decision must also be “outside the range of choices reasonably arising from the applicable facts and the law.” United States v. Criswell, 78 M.J. 136, 141 (C.A.A.F. 2018) (CAAFlog case page) (quoting United States v. Irizarry, 72 M.J. 100, 103 (C.A.A.F. 2013) (CAAFlog case page)). Accordingly, CAAF hasn’t reviewed such errors holistically, but rather “focus[es] on Appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts.” Criswell, 78 M.J. at 141.

Focusing on the a misapprehension of the law, Clark’s brief asserts that the military judge was wrong when he held that the agents’ questions to Clark were not statements within the meaning of R.C.M. 914. R.C.M. 914(f) defines a statement as:

(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a recording or a transcription thereof; or

(3) A statement, however taken or recorded, or a transcription thereof, made by the witness to a federal grand jury.

That definition is not particularly helpful here, since it uses the word statement in the definition of the word statement. Unfortunately, the definition in 18 U.S.C. § 3500 has the same flaw. But Clark’s brief argues that the military judge’s ruling:

rests on the idea that “statement” has some esoteric meaning in R.C.M. 914. Specifically, the military judge found that “the purpose” for which the CID agents “were in an interrogation room with the accused” was “to [e]licit statements of the accused,” and therefore the “substance” of the lost recording was “the statements of the accused.” (JA 115-16). Appellant recognizes that the topic of the recorded conversation was appellant’s conduct, but maintains that the recording also contained the statements of the CID agents who induced appellant to change his account of his conduct.

App. Br. at 11 (emphasis in original). The Government Division’s brief revels just how esoteric the military judge’s approach was at trial, with the following excerpt from the discussion of the issue:

During a mid-trial Article 39(a) session, the military judge and defense counsel shared the following exchange:

MJ: How does military law define a statement? Think for example, the definition of a hearsay statement. Is a question considered hearsay?

DC: No, your Honor.

MJ: So are questions, in the realm of questioning, considered statements?

(JA 95). The military judge framed the issue, “What I am looking for is authority to suggest that when an agent is taking a statement, he is making a statement.” (JA 96). The military judge explained that he “spent considerable time looking for a case — a case — wherein the agent taking the statement not making the statement, was considered to be making a statement.” (JA 97).

Gov’t Div. Br. at 10-11. Seizing on that, the Government Division argues:

Because the questions contained on the missing disc were merely interrogatories designed to get something of evidentiary value – appellant’s statement in response – they are not statements for the purposes of hearsay or Rule 914.

Gov’t Div. Br. at 17-18.

A reply brief from Clark concedes that “questions are not ordinarily statements” but “counters that hours of interrogation ordinarily contain many statements.” Reply Br. at 3.

Assuming that the military judge’s ruling was erroneous – as the Army CCA did – Clark seems to face an uphill battle to show prejudice. His brief concedes that relief in this case – unlike in Muwwakkil – depends on the existence of prejudice. App. Br. at 16. In the ordinary case prejudice exists where there is “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” United States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019) (CAAFlog case page) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)). But Clark also argues that a violation of R.C.M. 914 might be constitutional error (because it results in denial of the Sixth Amendment right to confrontation), meaning that prejudice exists unless the error is “harmless beyond a reasonable doubt.” Tovarchavez, 78 M.J. at 460 (quoting Chapman v. California, 386 U.S. 18, 87 (1967)).

The Government Division bristles at the claim that the constitutional standard might apply:

The only constitutional protections hinted at by appellant are “the right to present a defense” and “the right to be confronted by one’s accusers.” (Appellant’s Br. 15, 19). Appellant did not cast his objection in constitutional terms at court-martial (or before the Army Court), so he has forfeited this claim. See United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (finding forfeiture rather than waiver where trial defense counsel objects based on the Military Rules of Evidence but not the Sixth Amendment). . . .

. . .

Appellant’s newfound constitutional claim notwithstanding, the Army Court noted that trial defense counsel conducted a “robust cross-examination of the SAs concerning their interview techniques” even without the benefit of Disc 4. (JA 9). There is no reasonable possibility the absence of additional cross-examination material from Disc 4 would have contributed to appellant’s conviction.

Any error here violates Rule for Courts-Martial 914, not the Constitution. Therefore, the proper standard for prejudice lies in Article 59(a): Whether an error violates appellant’s substantial rights.

Gov’t Div. Br. at 25-27. The Government Division’s claim of forfeiture is somewhat counter-intuitive, however, since CAAF’s decision in Tovarchavez makes it clear that even forfeited constitutional errors are tested under the ordinary standard for prejudice involving constitution errors.

Nevertheless, the facts look bad for Clark. The Government Division’s brief highlights that “the panel watched video of appellant admitting that he had four sexual encounters with AC over a fourteen day period,” Gov’t Div. Br. at 28, and that “at trial, appellant testified at length about these interviews,” Gov’t Div. Br. at 30. Furthermore:

Appellant said that he told CID the things that he did because “it’s something that’s been burdening,” and he agreed what he said was the truth. (Pros. Ex. 3 at 16:56:20). Appellant said that nobody coerced him into making a statement. (Pros. Ex. 3 at 16:56:50).

Gov’t Div. Br. at 30-31. Clark’s briefs, however, suggest (though do not explicitly asserts) that his confessions were false:

what was lost included statements by the CID interrogators engaged in their sausage-making process. These recorded statements were related to the subject matter of the government agents’ testimony, and they were material to the defense’s ability to challenge or dispute the weight deserved by appellant’s statements as induced by the government agents’ statements.

App. Br. at 10 (emphasis in original).

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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