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UNITED STATES, Appellee
v.
Webster M. SMITH, Cadet
U.S. Coast Guard, Appellant
No. 08-0719
Crim. App. No. 1275
United States Court of Appeals for the Armed Forces
November 10, 2009
March 29, 2010
STUCKY, J., delivered the judgment of the Court, in which RYAN,
J., joined. BAKER, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.
Counsel
For Appellant: Ronald C. Machen, Esq. (argued); Commander Necia
L. Chambliss, Will L. Crossley, Esq., and Daniel S. Volchok,
Esq. (on brief); Lieutenant Robert M. Pirone and Stuart F.
Delery, Esq.
For Appellee: Lieutenant Emily P. Reuter (argued); Commander
Stephen P. McCleary, Lieutenant Commander Brian K. Koshulsky,
and Lieutenant Alfred J. Thompson.
Military Judge: Brian M. Judge
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Smith, No. 08-0719/CG
2
Judge STUCKY delivered the judgment of the Court.
At trial, the military judge limited Appellant’s cross-examination
of Cadet Shelly Roddenbush, the Government’s only witness on his
three convictions related to sexual misconduct. We granted
review to decide whether Appellant was denied his right to
confront his accuser on those three specifications. We hold
that Appellant was not denied his right to confront his accuser,
and affirm.
I.
A general court-martial consisting of members convicted
Appellant, contrary to his pleas, of attempting to disobey an
order, going from his place of duty, sodomy, extortion, and
indecent assault. Articles 80, 86, 125, 127, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 925,
927, 934 (2006). The convening authority approved the sentence
the members adjudged: a dismissal, confinement for six months,
and forfeiture of all pay and allowances. The United States
Coast Guard Court of Criminal Appeals affirmed on April 9, 2008.
United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App.
2008). Appellant filed a motion for reconsideration which was
denied on May 14, 2008. Appellant petitioned this Court for
review on July 14, 2008.
United States v. Smith, No. 08-0719/CG
3
II.
As a preliminary matter, the Government contends that
Appellant’s petition for review was not timely filed, and that
therefore the grant of review should be dismissed as
improvidently granted. Article 67(b), UCMJ, 10 U.S.C. § 867(b)
(2006), provides that an accused has sixty days to petition this
Court for review from the earlier of “(1) the date on which the
accused is notified of the decision of the Court of Criminal
Appeals; or (2) the date on which a copy of the decision . . . ,
after being served on appellate counsel of record for the
accused . . . is deposited in the United States mails for
delivery by first class certified mail to the accused.” In
United States v. Rodriguez, we held that the sixty-day statutory
period for filing petitions for review was jurisdictional and
could not be waived. 67 M.J. 110, 116 (C.A.A.F. 2009).
Before filing a petition for review at this Court,
Appellant timely sought reconsideration of the CCA’s decision.
Until the CCA rendered a decision on the reconsideration
request, either by denying reconsideration or by granting
reconsideration and rendering a new decision, there was no CCA
decision for this Court to review. We hold that Appellant’s
sixty-day period for filing at this Court began on the date the
defense was formally notified, under the provisions of Article
67(b), UCMJ, of the CCA’s decision on reconsideration. The
United States v. Smith, No. 08-0719/CG
4
evidence of record does not support the Government’s contention
that the appeal was untimely filed.
III.
Appellant and Cadet SR were cadets at the United States
Coast Guard Academy. During the summer of 2005, Cadet SR and
Appellant were assigned to neighboring Coast Guard cutters in
Norfolk, Virginia. While there, Cadet SR committed an
indiscretion that could have jeopardized her ranking as a cadet
and threatened her Coast Guard career. Shortly thereafter,
Appellant sent her a text message saying that he hoped the
rumors he was hearing were not true. Cadet SR discussed the
situation with Appellant but lied about some of the details.
Appellant “said he’d try to squash rumors, and that it would be
okay.”
In October of that year, after both had returned to the
Academy, Appellant notified Cadet SR that the rumors were
persisting. She then truthfully disclosed the details of her
indiscretion. Appellant said he would continue to try to
suppress the rumors, but that he needed motivation to do so.
Appellant denied he was seeking sexual favors but suggested the
couple take a photograph of themselves naked together to build
“trust in one another.” After the photo, Appellant left but
returned to her room later that evening. On this occasion, he
United States v. Smith, No. 08-0719/CG
5
inserted his fingers in her vagina and placed his tongue on her
clitoris. Cadet SR then performed fellatio on him.
IV.
Appellant alleged that Cadet SR’s indiscretion involved
engaging in sex with an enlisted member and, pursuant to
Military Rule of Evidence (M.R.E.) 412(c)(1), Appellant moved to
admit evidence of this prior sexual conduct. That rule provides
that “[e]vidence offered to prove that any alleged victim
engaged in other sexual behavior” is not generally admissible.
M.R.E. 412(a)(1). However, “evidence the exclusion of which
would violate the constitutional rights of the accused” is
admissible. M.R.E. 412(b)(1)(C).
During a closed hearing conducted pursuant to M.R.E.
412(c)(2), Appellant testified that in May 2005 Cadet SR told
him that she had had nonconsensual sexual encounters with an
enlisted member, but that in October 2005 she admitted that
those sexual encounters had actually been consensual. Cadet SR
invoked her right against self-incrimination and did not testify
at the hearing. Appellant argued that he should be allowed to
question Cadet SR about the encounters for “the specific purpose
of establishing a pattern of lying about sexual events.”
The military judge sustained the Government’s objection to
the admission of this evidence, but allowed the “members [to] be
informed that [Cadet SR’s] secret was information that if
United States v. Smith, No. 08-0719/CG
6
revealed could have an adverse impact on her Coast Guard career,
including possibly disciplinary action under the UCMJ.” The CCA
affirmed this decision. Smith, 66 M.J. at 560-61. Appellant
asserts that the military judge erred in not admitting the
sexual nature of Cadet SR’s indiscretion, and requests that we
set aside his convictions for extortion, sodomy, and indecent
acts.
V.
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend.
VI. The right to confrontation includes the right of a military
accused to cross-examine adverse witnesses. See United States
v. Clayton, 67 M.J. 283, 287 (C.A.A.F. 2009). Uncovering and
presenting to court members “a witness’ motivation in testifying
is a proper and important function of the constitutionally
protected right of cross-examination.” Davis v. Alaska, 415
U.S. 308, 316 (1974) (citation omitted). “Through crossexamination,
an accused can ‘expose to the jury the facts from
which jurors . . . could appropriately draw inferences relating
to the reliability of the witness.’” United States v. Collier,
67 M.J. 347, 352 (C.A.A.F. 2009) (quoting Davis, 415 U.S. at
318).
United States v. Smith, No. 08-0719/CG
7
Typically, we review a military judge’s decision to admit
or exclude evidence for an abuse of discretion. See United
States v. Weston, 67 M.J. 390, 392 (C.A.A.F. 2009). We have
also applied the abuse of discretion standard to alleged
violations of the Sixth Amendment Confrontation Clause. United
States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006); United States
v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005).
Appellant has the burden under M.R.E. 412 of establishing
his entitlement to any exception to the prohibition on the
admission of evidence “offered to prove that any alleged victim
engaged in other sexual conduct.” United States v. Banker, 60
M.J. 216, 218, 223 (C.A.A.F. 2004) (citation omitted). To
establish that the excluded evidence “would violate the
constitutional rights of the accused,” M.R.E. 412(b)(1)(C), an
accused must demonstrate that the evidence is relevant,
material, and favorable to his defense, “and thus whether it is
‘necessary.’” Id. at 222 (quoting United States v. Williams, 37
M.J. 352, 361 (C.M.A. 1993)). The term “‘favorable’” as used in
both Supreme Court and military precedent is synonymous with
“‘vital.’” Id. (quoting United States v. Valenzuela-Bernal, 458
U.S. 858, 867 (1982); United States v. Dorsey, 16 M.J. 1, 8
(C.M.A. 1983)).
Appellant contends that his inability to cross-examine
Cadet SR about the nature of the secret affected his convictions
United States v. Smith, No. 08-0719/CG
8
for sodomy, extortion, and committing an indecent act. We
conclude that further cross-examination of Cadet SR was not
“constitutionally required.” Assuming arguendo that the exact
nature of the indiscretion -- that it involved consensual sexual
relations with an enlisted member -- was relevant, it was
neither material nor vital to Appellant’s defense.
Testimony is material if it was “‘of consequence to the
determination of’ appellant’s guilt.” Dorsey, 16 M.J. at 6
(quoting M.R.E. 401). In determining whether evidence is of
consequence to the determination of Appellant’s guilt, we
“consider the importance of the issue for which the evidence was
offered in relation to the other issues in this case; the extent
to which this issue is in dispute; and the nature of other
evidence in the case pertaining to this issue.” Id. (citation
omitted). In this case, the evidence was offered on a
significant issue, the alleged victim’s credibility, which was
in dispute. Nevertheless, knowledge of the exact nature of her
indiscretion in relation to the other issues in the case was not
important. The military judge allowed Appellant to present a
fairly precise and plausible theory of bias, i.e., that she lied
to preserve a secret which “if revealed could have an adverse
impact on her Coast Guard career, including possibly
disciplinary action under the UCMJ.” While Cadet SR’s
credibility was in contention, it is unclear why the lurid
United States v. Smith, No. 08-0719/CG
9
nuances of her sexual past would have added much to Appellant’s
extant theory of fabrication.
Nor is cross-examining Cadet SR about her sexual past
“‘vital’” under Banker, 60 M.J. at 222 (quoting Valenzuela-
Bernal, 458 U.S. at 867; Dorsey, 16 M.J. at 8)). The “vital”
issue is not whether Cadet SR engaged in consensual sex with an
enlisted member or whether she lied to Appellant about it, but
rather whether she lied about an important issue that would
impeach her credibility. Cadet SR admitted that she had been in
a “situation” that could have jeopardized her career and her
ranking as a cadet; that the “situation” was in violation of
cadet regulations and possibly a violation of the UCMJ; and that
she initially lied to Appellant about the “situation.” All of
this was before the members. The military judge did not abuse
his discretion; he provided Appellant what he was due under the
Confrontation Clause: an opportunity to impeach the
complainant’s credibility.
Finally, Appellant argues that Cadet SR’s past indiscretion
and her lies about it gave her similar motive to lie about her
relationship with Appellant. We decline to embrace such a
broad, cumulative reading of M.R.E. 412 and its case law. Even
according to Appellant’s own theory, Cadet SR lied about her
sexual past to protect herself, not a relationship with another,
unlike United States v. Williams, 37 M.J. 352 (C.M.A. 1993), or
United States v. Smith, No. 08-0719/CG
10
Olden v. Kentucky, 488 U.S. 227 (1988). This is not a case like
Collier in which the appellant asserted she was framed for
larceny by her gay lover after the breakup of the relationship.
67 M.J. at 351. Nor does this case involve recent extramarital
sex or rejection and invective which might have caused the
victim to falsely claim rape, as in Dorsey, 16 M.J. at 6. To
the extent Appellant might have tried to introduce some
nonsexual aspects of his theory of bias via M.R.E. 608(c), he
failed to frame or raise this issue as such at trial.
VI.
The decision of the United States Coast Guard Court of
Criminal Appeals is affirmed.
United States v. Smith, No. 08-0719/CG
BAKER, Judge (concurring in the result):
I concur in the result. In my view, this case is governed
by United States v. Banker, 60 M.J. 216, 225 (C.A.A.F. 2004).
In Banker, we concluded that in the context of Military Rule of
Evidence (M.R.E.) 412, it is “within the judge’s discretion to
determine that such a cursory argument [does] not sufficiently
articulate how the testimony reasonably established a motive to
fabricate. . . . [It is] within the discretion of the military
judge to conclude that the offered testimony was not relevant.”
Id. at 225. The burden is on the appellant to prove why the
M.R.E. 412 prohibition should be lifted. Id.
Appellant’s theory of admission was that SR, having lied to
Appellant about her prior sexual misconduct with an enlisted
member of the Coast Guard, demonstrated a propensity to lie
about her sex life generally and in particular to make false
allegations to law enforcement authorities to conceal her own
sexual misconduct. Appellant argues that SR’s misconduct also
included engaging in consensual sexual activities with Appellant
in the Cadet barracks. Therefore, Appellant argues, he had a
constitutional right to cross-examine SR about her prior sexual
conduct, notwithstanding the general prohibition on such
examination enshrined in M.R.E. 412.
The problem for Appellant is that his theory of admission
is too far-fetched to pass constitutional and M.R.E. 403 muster.
United States v. Smith, No. 08-0719/CG
2
First, SR had no obligation to tell Appellant about her sexual
life and misconduct. It does not logically follow that someone
who would lie to protect her privacy from a probing acquaintance
would lie to the police and commit perjury. Second, it was SR
herself who reported her sexual contact with Appellant; this
cuts against Appellant’s theory that SR would lie to conceal her
own misconduct. Third, to support this theory of admission the
members needed to know that SR had “lied” to Appellant about her
sexual misconduct; they did not need to know the details of the
prior sexual conduct. This much the military judge permitted.
In my view, Appellant might have a different appellate case
if he had argued to this Court that members needed to know the
nature of “the secret” in order to assess beyond a reasonable
doubt whether SR might succumb to pressure to protect the
secret. This alternative theory was not the basis of
Appellant’s appeal before this Court. In any event, it should
be noted that the military judge rejected this theory at trial,
his conclusions of law stating:
While the importance of her secret would be relevant
in this fashion, I do not think that the members would
need to know the specifics. At the Article 39(a)
session, the Government offered a generic formulation
that would impress upon the members the seriousness of
the secret. In essence, the members could be informed
that the secret was information that if revealed could
have an adverse impact on her Coast Guard career,
including possibly disciplinary action under the UCMJ.
United States v. Smith, No. 08-0719/CG
3
Reasonable judges might disagree on whether additional detail
about “the secret” was needed for members to fairly assess
whether this Coast Guard cadet was coerced into sexual conduct
to safeguard that secret. But I am not persuaded that it was
plain error. The military judge informed the members that the
secret exposed the witness to criminal liability and violated
academy regulations. This is the very sort of balancing
military judges are supposed to conduct when they weigh an
accused’s rights and a victim’s privacy under M.R.E. 412.
United States v. Smith, No. 08-0719/CG
ERDMANN, Judge, with whom EFFRON, Chief Judge, joins
(concurring in part and dissenting in part):
While I concur with the majority opinion as to the
jurisdictional issue raised by the Government, I respectfully
dissent from the majority’s conclusion as to the granted issue.
In a case where credibility of the complainant was fundamental,
the military judge prevented the defense from presenting to the
panel an explanation of the circumstances that would have
provided a motive for the complainant to make a false allegation
of rape.
Background
Cadet Webster Smith was initially charged with twenty-two
specifications, the majority of which related to his sexual
relationships with female cadets at the United States Coast
Guard Academy. Eleven of those charges were dismissed before
trial. At a general court-martial composed of members, Smith
was found not guilty of six of the remaining charges. Contrary
to his pleas, the members found him guilty of absence without
leave, attempted failure to obey a lawful order, sodomy,
extortion, and indecent assault. The sodomy, extortion, and
indecent assault charges arose out of allegations made by SR, a
female cadet.
In this appeal, Smith asserts that the military judge erred
by preventing him from fully cross-examining SR as to her motive
United States v. Smith, No. 08-0719/CG
2
and credibility in violation of his Sixth Amendment right to
confrontation and the “constitutionally required” exception to
Military Rule of Evidence (M.R.E.) 412. M.R.E. 412(b)(1)(C).
At trial the defense filed a motion pursuant to M.R.E. 412
requesting permission to cross-examine SR about her alleged
statements to Smith concerning a prior sexual encounter she had
with an enlisted servicemember. The factual basis for the
motion was summarized by the military judge in his findings of
fact:
During the summer training program at the start
of their first class year, Cadet Smith and [SR] were
both assigned to patrol boats that moored at Station
Little Creek. Both lived in barracks rooms at the
Station. In May 2005, Cadet Smith approached [SR] to
inform her that he was hearing rumors from the
enlisted personnel assigned to the Station that she
had a sexual encounter with an enlisted member
assigned to the Station. [SR] told him that this was
true, but that it was not a consensual encounter.
Cadet Smith then informed the enlisted personnel who
were spreading the rumors that the conduct was not
consensual.
On or about 19 October 2005, Cadet Smith again
approached [SR]. He told her that he had remained in
contact with some of the enlisted personnel assigned
to Station Little Creek and that the rumors
surrounding her sexual encounter with the enlisted man
had continued. This time she told him that the
incident with the enlisted man had been a consensual
encounter and that the scope of the encounter had been
greater than she had previously described.
At the Article 32 hearing, [SR] merely stated
that she had confided a secret to Cadet Smith. In her
15 February 2006 statement, she merely stated that a
situation occurred which led to rumors. On both
occasions, she went on to state that on October 19th,
United States v. Smith, No. 08-0719/CG
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she was concerned enough that Cadet Smith would expose
this secret that she agreed to pose for a picture with
him in which both of them were nude, and later that
night allowed him to perform cunnilingus on her then
she performed fellatio on him.
In the defense motion, Smith argued that the evidence was
constitutionally required because “[t]he fact that the alleged
victim lied to Cadet Smith about her sexual activity and has
misled CGIS about that activity tends to show the alleged victim
as untruthful about her sexual conduct generally and
specifically has motive to lie about the specific sexual rumors
underlying the charge -- the very issue before the trier of
fact.”
The Government opposed the admission of the evidence
arguing that the substance of SR’s secret was not relevant,
material, or vital to Smith’s defense. In denying the motion
the military judge concluded that: while the evidence was
relevant, the members did not need to know the specifics, but
could be provided with a non-specific summary;1 although the
evidence could show that SR had a propensity to bring false
accusations against men with whom she had consensual sexual
encounters, the evidence was not strong since the source of the
allegation, Smith, was biased; there was a significant
1 The military judge found that “the members could be informed
that the secret was information that if revealed could have an
adverse impact on [SR’s] Coast Guard career, including possibly
disciplinary action under the UCMJ.”
United States v. Smith, No. 08-0719/CG
4
difference between SR making a false allegation to Smith and
making a false allegation to law enforcement authorities; and
the probative value of the evidence was outweighed by the danger
of unfair prejudice.
The United States Coast Guard Court of Criminal Appeals
affirmed the findings and sentence. United States v. Smith, 66
M.J. 556, 563 (C.G. Ct. Crim. App. 2008). We review a military
judge’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995). In doing so, we review findings of fact under the clearly
erroneous standard and conclusions of law under the de novo
standard. Id.
Discussion
The evidence at issue was proffered to attack SR’s
credibility by establishing that she had earlier made a false
allegation of a nonconsensual sexual encounter to protect her
Coast Guard career. Before addressing the M.R.E. 412 issue, it
is worth noting that there is some question as to whether M.R.E.
412 even applies to this type of evidence. The Drafters’
Analysis to M.R.E. 412 states “[e]vidence of past false
complaints of sexual offenses by an alleged victim of a sexual
offense is not within the scope of this Rule and is not
objectionable when otherwise admissible.” Manual for Courts-
Martial, United States, Analysis of the Military Rules of
United States v. Smith, No. 08-0719/CG
5
Evidence app. 22 at A22-36 (2008 ed.).2 However, given the
posture of this case on appeal, and assuming that M.R.E. 412
does apply, the evidence is clearly admissible under the M.R.E.
412 analysis.
1. Objections Under M.R.E. 412
“[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and
thereby ‘to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability
of the witness.’” Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986) (citing Davis v. Alaska, 415 U.S. 308, 318 (1974)).
“[E]xposure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected right
of cross-examination.” Id. at 678-79. “The question is whether
‘[a] reasonable jury might have received a significantly
different impression of [the witness’s] credibility had [defense
counsel] been permitted to pursue his proposed line of crossexamination.’”
United States v. Collier, 67 M.J. 347, 352
2 See also Fed. R. Evid. 412 advisory committee’s note on
proposed 1994 amendment (“Evidence offered to prove allegedly
false prior claims by the victim is not barred by Rule 412.
However, the evidence is subject to the requirements of Rule
404.”).
United States v. Smith, No. 08-0719/CG
6
(C.A.A.F. 2009) (brackets in original) (quoting Van Arsdall, 475
U.S. at 680).
“M.R.E. 412 was intended to protect victims of sexual
offenses from the degrading and embarrassing disclosure of
intimate details of their private lives while preserving the
constitutional rights of the accused to present a defense.”
United States v. Banker, 60 M.J. 216, 219 (C.A.A.F 2004). There
are, however, three exceptions to the exclusionary provisions of
M.R.E. 412. Smith relied on the third exception that requires
the admission of evidence “the exclusion of which would violate
the constitutional rights of the accused.” M.R.E. 412(b)(1)(C).
“This exception addresses an accused’s Sixth Amendment right of
confrontation and Fifth Amendment right to a fair trial.”
Banker, 60 M.J. at 221 (citations omitted) (emphasis added).
Banker requires that “where evidence is offered pursuant to this
exception, it is important for defense counsel to detail an
accused’s theory of relevance and constitutional necessity.” 60
M.J. at 221. Smith’s counsel did just that in this case.
2. Relevance and Materiality
In order to properly determine whether evidence is
admissible under the constitutionally required exception the
military judge must evaluate whether the proffered evidence is
relevant, material, and favorable to the defense. Id. at 222.
“[T]he relevancy portion of this test is the same as that
United States v. Smith, No. 08-0719/CG
7
employed for the other two exceptions of the rule,” which is
that “[e]vidence is relevant if it has ‘any tendency to make the
existence of any fact . . . more probable or less probable than
it would be without the evidence.’ M.R.E. 401.” Id. at 222.
The proffered evidence could have impacted SR’s credibility by
allowing the defense to provide a commonsense explanation for SR
to give false testimony. That is, when SR learned of the
investigation of Smith for alleged sexual offenses, she became
concerned that the investigation would produce allegations that
she had engaged in prohibited sexual activity3 with Smith in
their dormitory at the Coast Guard Academy, thereby jeopardizing
her own career. Thus, she fabricated the charges against Smith
to protect her career, as she had in the past for the same
reason. The military judge found that the evidence would be
relevant and I agree.
Having found the evidence relevant, the next step for the
military judge was to determine whether the evidence was
“material and favorable to the accused’s defense, and thus
whether it is ‘necessary’.” Id. at 222 (citing United States v.
Williams, 37 M.J. 352, 361 (C.M.A. 1993)).
3 Pursuant to Regulations for the Code of Cadets 4-5-05.a.3,
sexual conduct is prohibited on Coast Guard Academy
installations even if it is between consenting cadets. Cadets
found guilty of consensual sexual misconduct can be disenrolled.
Id. at 4-5-05.a.4.
United States v. Smith, No. 08-0719/CG
8
In determining whether evidence is material, the
military judge looks at “the importance of the issue
for which the evidence was offered in relation to the
other issues in this case; the extent to which this
issue is in dispute; and the nature of the other
evidence in the case pertaining to this issue.”
Id. (quoting United States v. Colon-Angueira, 16 M.J. 20, 26
(C.M.A. 1983)).
There can be no dispute that testing the credibility of a
witness through cross-examination is crucial to the right of
confrontation.
A more particular attack on the witness’ credibility
is effected by means of cross-examination directed
toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate
directly to issues or personalities in the case at
hand. The partiality of a witness is subject to
exploration at trial, and is “always relevant as
discrediting the witness and affecting the weight of
his testimony.” 3A J. Wigmore, Evidence § 940, p. 775
(Chadbourn rev. 1970). We have recognized that the
exposure of a witness’ motivation in testifying is a
proper and important function of the constitutionally
protected right of cross-examination.
Davis v. Alaska, 415 U.S. 308, 316 (1974) (citation omitted).
As in United States v. Dorsey, 16 M.J. 1, 7 (C.M.A. 1983),
this was a “he said -- she said” case and for the charges at
issue in this appeal,4 the critical question for the members was
the credibility of the sole prosecution witness. Evidence of a
motive to fabricate and that SR had alleged that an earlier
consensual sexual encounter was nonconsensual in an attempt to
4 Sodomy, extortion, and indecent assault.
United States v. Smith, No. 08-0719/CG
9
protect her career bears directly on SR’s credibility as to the
allegations she made against Smith. It may have shown that SR
had a propensity to lie about consensual sexual encounters when
her career was on the line. The materiality of this evidence is
not the “lurid nuances of the victim’s sexual past” as noted by
the majority, but rather the allegation that SR had previously
lied about a sexual encounter under similar circumstances.
3. Balancing
Once the military judge has determined that the proffered
evidence is relevant and material, the military judge must
undertake the M.R.E. 412 balancing test to determine if the
evidence is favorable to the accused’s defense.5 Banker, 60 M.J.
at 222. The term favorable is synonymous with vital. Id.
“[W]hen balancing the probative value of the evidence against
the danger of unfair prejudice under M.R.E. 412, the military
judge must consider . . . factors such as confusion of the
issues, misleading the members, undue delay, waste of time,
5 Commentators have noted that the “constitutionally required”
exception may be unnecessary since once it is established that
the evidence is constitutionally required, there can be no
further limitation on its admission. See 1 Stephen A. Saltzburg
et al., Military Rules of Evidence Manual § 412.02[4], at 4-194
(6th ed. 2006) (“Any limitation on a constitutional right would
be disregarded whether or not such a Rule existed.”);
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 4:81, at 306 (3d ed. 2007) (“The exception is arguably
unnecessary because Fed. R. Evid. 412 is subordinate to the
Constitution anyway, but perhaps including it diminishes the
sense of conflict between the two legal standards.”).
United States v. Smith, No. 08-0719/CG
10
needless presentation of cumulative evidence, [and] also
prejudice to the victim’s legitimate privacy interests.” Id. at
223. The M.R.E. 412 balancing test weighs in Smith’s favor.
Under the circumstances of this case, any risk of confusion of
the issues, misleading the members, wasting time, or presenting
cumulative evidence was minimal and is outweighed by the high
probative value of this evidence.
In Dorsey the court found evidence favorable when it
“undermined the credibility of the sole prosecution witness who
directly testified to appellant’s guilt of the charged offense.”
Dorsey, 16 M.J. at 7. In a similar fashion, admission of a
prior false allegation of a nonconsensual sexual encounter could
have undermined the credibility of SR, the only witness who
testified against Smith on the extortion, sodomy, and indecent
assault charges.
While the evidence of SR’s earlier allegation of a false
nonconsensual sexual encounter and her subsequent admission that
the encounter was consensual would have impacted her privacy
interests, withholding this constitutionally required evidence
from the panel deprived Smith of his best opportunity to provide
a motive for SR’s allegations and to challenge her credibility.
The fact that the military judge allowed the panel to hear that
SR had a secret that, if revealed could have an adverse impact
on her Coast Guard career, including possibly disciplinary
United States v. Smith, No. 08-0719/CG
11
action under the UCMJ, was simply not sufficient. With this
limited information about SR’s secret, the members were left to
speculate whether the secret was a minor disciplinary infraction
or a more serious charge, but they had no idea that the
proffered evidence directly implicated SR’s motive and
credibility.6
In Collier this court found the military judge erred in
limiting cross-examination of the complaining witness for
possible bias. Collier, 67 M.J. at 349. There, the defendant
attempted to establish bias by presenting evidence of the
existence of a romantic relationship that ended badly between
the accused and the complaining witness. Id. at 351. The
military judge only allowed cross-examination as to the “breakup
of a friendship.” Id. at 351-52. This court found that there
was a qualitative difference between the two situations and if
the members had been shown evidence of the romantic relationship
they might have had a significantly different impression of the
accusing witness’ credibility. Id. at 352, 353. Similarly,
there is a qualitative difference between an undisclosed
6 Trial counsel illustrated the range of incidents that the
members could have speculated on when, at one point during his
argument on the motion, he stated that while the existence of
the secret was extremely relevant, the content of the secret was
not. Trial counsel argued, “[t]he extortion charge is that
there was a secret. It doesn’t matter if that secret was
whether she liked Smarties. It doesn’t matter if she had
committed some other felony . . . .”
United States v. Smith, No. 08-0719/CG
12
situation that “could have had an adverse impact on [SR’s] Coast
Guard career” and an allegation that SR had previously made a
false allegation of a nonconsensual sexual encounter to protect
her career.
While the military judge found that the evidence was not
strong because it came from Smith, who had an obvious bias, it
is well established that “[t]he weight and credibility of the .
. . witness are matters for the members alone to decide.”
United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (citing
United States v. Bins, 43 M.J. 79, 85 (C.A.A.F. 1995)). The
court in Banker noted that the role of the military judge is to
assure that the evidence meets the usual evidentiary standards.
Banker, 60 M.J. at 224 (citing United States v. Platero, 72 F.3d
806, 812 (10th Cir. 1995)). The court in Platero went on to
say, “when the Judge decides whether or not a defense is true or
false and decides that on the basis of the credibility of the
witnesses, the Judge is doing what the jury is supposed to do in
a serious criminal case covered by the Sixth Amendment.”
Platero, 72 F.3d at 812.
Smith had a commonsense explanation for SR’s claim that the
sexual activity was nonconsensual and the military judge’s
ruling prevented the members from considering this theory. The
alleged false accusation was close in time to the allegation
made against Smith, both allegations involved military members
United States v. Smith, No. 08-0719/CG
13
and both situations presented a motive for SR to lie about the
consensual nature of her sexual activities to protect her
career. Putting aside the fact that M.R.E. 412 may not even
apply to this type of evidence, I would conclude that the
evidence should have been admitted under M.R.E. 412. I would
further find that the error was not harmless beyond a reasonable
doubt as it essentially deprived Smith of his best defense and
“the excluded evidence may have tipped the credibility balance
in [Smith’s] favor.” Moss, 63 M.J. at 239.
I would reverse the decision of the United States Coast
Guard Court of Criminal Appeals and set aside the findings and
sentence for Additional Charge I, Specification 1 of Additional
Charge II, and Additional Charge III, and remand the case for
further proceedings, if any.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
John C. RIESBECK, Boatswain’s Mate Second Class
United States Coast Guard, Appellant
No. 17-0208
Crim. App. No. 1374
Argued October 25, 2017—January 23, 2018
Military Judge: Michael E. Tousley (trial); Gary E. Felicetti
(DuBay hearing)
For Appellant: John Smith, Esq. (argued); Lieutenant Phillip
A. Jones (on brief).
For Appellee: Lieutenant Commander Tereza Z. Ohley (argued);
Stephen P. McCleary, Esq. (on brief).
Judge RYAN delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
SPARKS, and Senior Judge ERDMANN, joined.
_______________
Judge RYAN delivered the opinion of the Court.
Following voir dire and challenges, the seven-member
panel that convicted and sentenced Appellant was composed
of five women, four of whom were victim advocates—persons
trained to provide support and counseling to victims of rape
and sexual assault—and two men. The military judge holding
a post-trial hearing on the composition of Appellant’s
panel1 concluded that:
Given the intense external pressures [regarding
sexual assault cases], and lack of any other explanation,
the most likely reason [for the selections
made by the various people involved in the pro-
1 After remand from this Court, United States v. Riesbeck, 74
M.J. 176 (C.A.A.F. 2014) (summary disposition), a hearing was
ordered in accordance with United States v. DuBay, 17 C.M.A.
147, 37 C.M.R. 411 (1967). United States v. Riesbeck, Dkt. No.
1374, Order for a DuBay Hr’g (C.G. Ct. Crim. App. Jan. 20, 2015).
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
2
cess] is conscious or unconscious decisions . . . that
it was very important to have a large number of
women on the court.”
As detailed more fully below, the member selection process
in this case utilized gender as an important selection
criterion. There is nothing in Article 25, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012),2 that
permits selecting members to maximize the presence of a
particular gender (or any other non-Article 25, UCMJ, criteria)
serving on a court-martial.3 See Article 25, UCMJ; United
States v. Smith, 27 M.J. 242, 250 (C.M.A. 1988) (rejecting
intentional selection of women panel members in sex offense
case with a female victim and male defendant); cf. United
States v. McClain, 22 M.J. 124, 131 (C.M.A. 1986).
Moreover, this case is readily distinguishable from both
the dicta in Smith, 27 M.J. at 249 (suggesting that race and
gender may be taken into account to create a panel more
representative of the accused’s race or gender), and United
States v. Lewis, 46 M.J. 338, 342 (C.A.A.F. 1997) (holding
that court stacking is not raised by a statistically anomalous
number of women alone). Any suggestion that the selections
in this case were made to promote inclusiveness, ensure a
representative panel, or for an otherwise benign purpose is
specious. See United States v. Riesbeck, Dkt. No. 1374, 2016
CCA LEXIS 744, at *6–7 (C.G. Ct. Crim. App. Nov. 30,
2 Article 25(d)(2), UCMJ, states when convening a courtmartial,
the convening authority “shall detail as members thereof
such members of the armed forces as, in his opinion, are best qualified
for the duty by reason of age, education, training, experiences,
length of service, and judicial temperament.”
3 This Court granted Appellant’s petition on the following issues:
I. Whether members of Appellant’s court-martial
were properly selected.
II. Whether Appellant was deprived of a fair trial, or the
appearance of a fair trial, where a majority of the panel
members were former victim advocates and the military
judge denied a challenge for cause against one of them.
This Court need not reach Issue II in light of the resolution of
Issue I.
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
3
2016).
Where selection of members on an impermissible basis is
raised by the evidence, the government needs to present affirmative
evidence of benign intent beyond a reasonable
doubt, United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F.
1998) (citing Lewis, 46 M.J. at 340−41; Smith, 27 M.J. at
249). If not, the ready inference and legal consequence is
that the improper selection was made to affect the result, a
form of unlawful command influence. Article 37, UCMJ, 10
U.S.C. § 837 (2012); United States v. Hilow, 32 M.J. 439,
441−42 (C.M.A. 1991). In this case, the Government presented
no evidence of benign intent at the DuBay hearing,
and we hold that those involved in the selection process believed
court stacking based on gender would influence the
result of Appellant’s court-martial. Further, the Government
has not established that the error was harmless beyond a
reasonable doubt. United States v. Bartlett, 66 M.J. 426, 430
(C.A.A.F. 2008). The decision of the United States Coast
Guard Court of Criminal Appeals (CGCCA) is reversed.
I. Facts and Procedural History
The underlying facts leading to the charges in this sexual
assault case are not directly relevant to the issues before
us.4 We focus instead on the panel selected and the events
surrounding the selection of members to sit on Appellant’s
court-martial panel.
A. Initial Procedural History
Appellant chose to be tried by a panel including enlisted
members. Ten members were ultimately detailed to sit as
Appellant’s court-martial panel. Seven of these members
were women. Thus, although the court-martial panel for this
case was selected from a roster of officers that was only
twenty percent female and a pool of enlisted personnel that
was only thirteen percent female, the panel selected for Ap-
4 A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one specification
of making a false official statement, one specification of
rape by force, and one specification of communicating indecent
language in violation of Articles 107, 120, and 134, UCMJ, 10
U.S.C. §§ 907, 920, 934 (2012).
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
4
pellant’s court-martial was seventy percent female. Five of
the women were victim advocates. Following voir dire and
Appellant’s challenges, the panel consisted of seven members,
five of whom were women. Four of those women were
victim advocates.5 Subsequently, having obtained the convening
authority’s member-selection materials, Appellant
argued, based on those materials, that there was no “conceivable,
rational or logical reason” for seven of ten members
to be women, five of whom were victim advocates, and
moved to strike the female members as improperly selected
on the basis of gender. The military judge denied the motion
as untimely while blithely asserting the issues could be
worked out on appeal rather than actually investigating the
allegation.6 Appellant was convicted and sentenced to three
months of confinement, a reduction to E-2, and a badconduct
discharge.
On his initial appeal to the CGCCA, Appellant asserted,
inter alia, that he was deprived of his right to a fair trial by
an impartial panel as a result of improper member selection.
United States v. Riesbeck, Dkt. No. 1374, 2014 CCA LEXIS
946, at *2 (C.G. Ct. Crim. App. Aug. 5, 2014) (unpublished).
Though he had raised the issue at trial, the CGCCA held
that Appellant waived his objection to improper member selection
and affirmed the findings and sentence. Id. at *10–
11, *18.
This Court concluded that the objection to member selec-
5 The military judge denied the challenge for cause against
LCDR KO, another one of the women, who had experience counseling
a victim of sexual assault. Appellant exercised his peremptory
challenge against her.
6 The fact that this case with these facts is returned to us for a
second time, rather than attended to at trial, at the DuBay hearing,
or by the CGCCA, is a stain on the military justice system.
The duty to protect servicemembers against unlawful command
influence is not ours alone: “Military judges must continue to fulfill
their essential role as the ‘sentinel’ of the military justice system
in identifying and addressing instances of unlawful command
influence. Moreover, judges on the service Courts of Criminal Appeals
must also appropriately address unlawful command influence
whenever they encounter it in specific cases.” United States
v. Boyce, 76 M.J. 242, 253 n.9 (C.A.A.F. 2017) (citations omitted).
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
5
tion was not waived, relying on Rule for Courts-Martial
(R.C.M.) 912(b)(3), which provides an exception to the requirement
that a timely motion be made where an objection
is based on an allegation that the convening authority selected
members for reasons other than those listed in Article
25, UCMJ. Riesbeck, 74 M.J. at 176; see also R.C.M.
502(a)(1). We also noted that improper member selection can
constitute unlawful command influence, which cannot be
waived. Riesbeck, 74 M.J. at 176; United States v. Baldwin,
54 M.J. 308, 310 n.2 (C.A.A.F. 2001). We vacated the
CGCCA decision, granted the issue: “Was Appellant deprived
of a fair trial by an impartial panel?,” and remanded
the case for further proceedings. Riesbeck, 74 M.J. at 176.
On remand, the CGCCA ordered a post-trial hearing in
accordance with DuBay, 17 C.M.A. 411, 37 C.M.R. 411, to
receive testimony and evidence regarding the composition of
Appellant’s court-martial panel. United States v. Riesbeck,
Dkt. No. 1374, Order for a DuBay Hr’g (C. G. Ct. Crim. App.
Jan. 20, 2015).
B. Findings of the DuBay Military Judge
The detailed factual background and intricacies behind
the member selection process in this case (among other
things) are set forth in detail in Appendix A (DuBay Hearing:
Final Findings of Fact) and discussed at some length in
the CGCCA’s opinion. Riesbeck, 2016 CCA LEXIS 744, at *3,
*8−13. Rather than marching through extraneous details,
we focus on the discrete findings salient to the decisional issues
in this case, all of which are supported by the record.
At the time of Appellant’s court-martial, “senior Coast
Guard and Department of Defense leadership faced intense
external pressure to do more about preventing and responding
to sexual assaults.” Coast Guard “policies and initiatives”
emerged as a result of this external pressure, including
“a combat-like campaign in the ‘righteous’ cause of
fighting sexual assault.” “Selection of the court members in
this case occurred within this overall environment.”
The process of selecting the members for Appellant’s
court-martial included four different individuals: VADM
Brown, RADM Colvin, RADM Ryan, and ADM Zukunft. The
digests provided to the first three included the Article 25,
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
6
UCMJ, criteria along with rosters which listed, among other
information, the full names and gender of each
servicemember eligible to be placed on the panel.7 They were
advised to select individuals using the roster and the Article
25, UCMJ, criteria. Roster information, “such as gender,
that did not explicitly align with Article 25 was, at least,
given co-equal status with Article 25.”
VADM Brown, the Coast Guard Pacific Area & Defense
Forces West (PACAREA) commander, was “aware that the
bulk of pending cases involved sexual assaults and consciously
or unconsciously desired to have a significant number
of women on the panel.” VADM Brown chose ten officers,
six of whom were women, for the convening order in this
case. Women made up twenty percent of the roster of eligible
officers used by VADM Brown. No identified selection criteria
distinguished the chosen women. His “general practice of
seeking a range of ranks on a court-martial panel should not
have resulted in a court composed of 60% women.” All ten
names selected appeared on the initial convening order.
After Appellant requested enlisted representation, the
then acting convening authority,8 RADM Colvin, selected
ten enlisted members for the panel—four of these members
were women.9 He knew one of the female selectees fairly
well. The most obvious explanation for why he “selected
three additional women is some desire to have a significant
number of women on the panel—perhaps while thinking of
obtaining a good mix.” RADM Colvin’s past practice “had
been to seek a ‘mix of educational backgrounds’ while paying
7 PACAREA used a multi-step process “not apparent from the
Digest.” (Emphasis omitted.) The convening authority selects
members from the roster, in accordance with a digest provided by
the SJA, and rank orders them. The legal staff then contacts selected
members to determine availability. If unavailable, the name
is removed from the draft convening order and the next highest
ranked person goes on the draft convening order. The draft order
then goes to the convening authority for final approval.
8 The question of whether RADM Colvin had the authority to
act as the convening authority is not before us.
9 The roster of eligible enlisted used by RADM Colvin was only
thirteen percent female.
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
7
particular attention to length of service.” However, no criteria
other than gender distinguished the chosen women.
Several of the members selected by RADM Colvin were
subsequently deemed unavailable, and the SJA requested
that RADM Ryan select an additional eight enlisted
members for Appellant’s court-martial panel. Despite
drawing from the same roster as RADM Colvin, which was
thirteen percent female, three of the eight members selected
by RADM Ryan were women. RADM Ryan then
intentionally rank-ordered the three women selected as her
first, second, and fourth choices out of the eight enlisted
members although she “did not know any of the enlisted
members selected.” The “most obvious explanation for this
amendment to the court being 37.5% female is some desire,
either conscious or unconscious, to have a significant
number of women on the panel.”
ADM Zukunft took command of PACAREA and the SJA
presented ADM Zukunft with various amendments to the
convening order which essentially ratified the selections of
RADM Ryan and VADM Brown, after accounting for personnel
deemed unavailable. At the end of this complex selection
process, the enlisted portion of the panel detailed to Appellant’s
court-martial was seventy-five percent female and
the officer portion was sixty-seven percent female.
The digest provided to ADM Zukunft did not contain
gender information, so it is unlikely that ADM Zukunft himself
was aware of the gender composition of the panel. Nor
did the digest contain a description of the Article 25, UCMJ,
selection criteria. Moreover, ADM Zukunft’s stipulated testimony
revealed that he was not aware of the requirements
of Article 25, UCMJ, and believed that member selection
was not a best qualified process, but did look for diversity
when selecting members.
The SJA was “aware of the high percentage of females on
the panel but ha[d] no discussions with any of the [convening
authorities] about it.” While the DuBay military judge
determined that there was no coordinated action between
VADM Brown, RADM Colvin, RADM Ryan, and ADM
Zukunft to maximize the number of women selected, he also
found that it was “no coincidence that every relevant deciUnited
States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
8
sion [made] by [VADM Brown, RADM Colvin, and RADM
Ryan] resulted in an unusually large number of females being
selected [to sit on the panel] and/or being highly ranked
for future selection.”
Based on the foregoing information, the DuBay military
judge concluded that “[g]iven the intense external pressures,
and lack of any other explanation, the most likely reason for
the selections made by [VADM Brown, RADM Colvin, and
RADM Ryan] were conscious or unconscious decisions . . .
that it was very important to have a large number of women
on the court.” At each phase of member selection, the parties
could not identify any other subgroup that was over represented
to the extent of women. The military judge also found
at each step that no selection criteria had been identified
which could explain the selection of so many women, or “distinguish[]”
the members selected on any basis other than
gender.
The DuBay military judge’s ultimate conclusion was that
ADM Zukunft himself did not make any gender-based decisions,
but rather implemented previous decisions by others:
“Absent personal knowledge of the listed members, which he
does not appear to have, [he] could not have ‘packed’ the
court with women even if he desired to do so.”
C. The Second Appeal
Following the DuBay hearing, Appellant raised several
assignments of error at the CGCCA. Riesbeck, 2016 CCA
LEXIS 744. Appellant asserted, inter alia, that the convening
authority disregarded the member selection factors present
in Article 25(d)(2), UCMJ, and selected a panel with a
disproportionate number of women. Id. at *3.
The CGCCA again affirmed the findings and the sentence.
Id. at *24. As relevant to the granted issue, the
CGCCA concluded that there was no evidence that the convening
authorities or their subordinates were “motivated by
the intent to achieve a particular result as to findings or
sentence.” Id. at *10. In addition, the CGCCA, relying on
Lewis, 46 M.J. 338, held that Appellant failed to raise sufficient
evidence of court stacking because “court stacking is
not raised by an anomalous number of women on a single
court-martial panel, in the absence of evidence of a pattern
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
9
or of improper motive or other impropriety.” Id. at *14. In
addition, the CGCCA concluded that detailing members
based on gender fosters “inclusiveness of ‘all segments of the
military community’ ” and is benign. Id. at *14−15 (quoting
United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004)).
II. Discussion
We disagree with the legal conclusions of both the
CGCCA and the DuBay hearing military judge. As a threshold
matter, gender is not an Article 25, UCMJ, factor, and
selection on the basis of gender is generally prohibited. United
States v. Gooch, 69 M.J. 353, 358 (C.A.A.F. 2011) (citing
Dowty, 60 M.J. at 170–71); Lewis, 46 M.J. at 341; United
States v. Witham, 44 M.J. 664, 666 (N-M. Crim. Ct. App.
1996) (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127
(1994)). To the extent there is an exception to provide for a
good faith effort to ensure a “representative” or “inclusive”
panel, Smith, 27 M.J. at 249, the DuBay military judge
found no such “benign” motive, and it is clear from his findings
of fact that it is pure sophistry to pretend that such a
motive exists in this case.
As we stated long ago, even reasonable doubt concerning
the use of improper panel selection criteria will not be tolerated
in the military justice system. United States v. Greene,
20 C.M.A. 232, 238–39, 43 C.M.R. 72, 78−79 (1970). Based
on the facts as found at the DuBay hearing, Appellant has
raised the issue of improper member selection on the basis of
gender. The Government has failed to prove at all, let alone
beyond a reasonable doubt, that the improper member selection
process was not motivated by gender-based court stacking.
Additionally, the Government has not met its burden of
convincing this Court beyond a reasonable doubt that Appellant
received a fair trial from an impartial panel, free from
the effects of unlawful command influence. United States v.
Lewis, 63 M.J. 405, 414−15 (C.A.A.F. 2006).
A. Member Selection and Article 25, UCMJ
This Court reviews the selection of court-martial members
for error de novo. Bartlett, 66 M.J. at 427 (citations
omitted). Based on the military judge’s findings of fact from
the DuBay hearing, which, as the CGCCA noted, Riesbeck,
2016 CCA LEXIS 744, at *24, are supported by the record,
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
10
we are convinced that the member selection in this case was
based in no small part on gender, which is error. Dowty, 60
M.J. at 171; Lewis, 46 M.J. at 341.
Courts-martial are not subject to the jury trial requirements
of the Sixth Amendment, and, therefore, military
members are not afforded a trial in front of a representative
cross section of the military community. McClain, 22 M.J. at
128. Indeed, in the military justice system, the commanding
officer refers the charges to a court-martial that he or she
has convened, by selecting members and detailing them to
it. Articles 22 and 23, UCMJ, 10 U.S.C. §§ 822, 823 (2012);
R.C.M. 501−503. “Under these circumstances, it is incumbent
upon this Court to scrutinize carefully any deviations
from the protections designed to provide an accused
servicemember with a properly constituted panel.” Upshaw,
49 M.J. at 116 (Effron, J., dissenting). In part, it is for this
reason that that even reasonable doubt concerning the use of
impermissible selection criteria for members cannot be tolerated.
United States v. Bertie, 50 M.J. 489, 493 (C.A.A.F.
1999) (citing Greene, 20 C.M.A. at 238, 43 C.M.R. at 78).
A military defendant has a right both to “members who
are fair and impartial.” United States v. Kirkland, 53 M.J.
22, 24 (C.A.A.F. 2000) (internal quotation marks omitted)
(quoting United States v. Roland, 50 M.J. 66, 68 (C.A.A.F.
1999)), and the appearance of an impartial panel, United
States v. Ward, 74 M.J. 225, 228−29 (C.A.A.F. 2015). In
large measure, Article 25, UCMJ, seeks to effectuate that
end, McClain, 22 M.J. at 128−29, and represents Congress’s
criteria for panel members sitting on a court-martial. A convening
authority has significant discretion when selecting
panel members based on the factors outlined in Article
25(d)(2), UCMJ. United States v. Smith, 37 M.J. 773, 776
(A.C.M.R. 1993) (citing United States v. Crawford, 15 C.M.A.
31, 35 C.M.R. 3 (1964)). However, this discretion “is not unfettered,
particularly when the convening authority reaches
beyond the statutory criteria in making his selection.” Id.
(emphasis added). That is what happened in this case.
Neither race nor gender is included among Article 25,
UCMJ, factors, and, to be sure, there are minefields of constitutional
proportion aplenty lurking to upset selections
based on gender (or race). Cf. J.E.B., 511 U.S. at 130−31
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
11
(Equal Protection Clause prohibits the use of peremptory
challenge against jury member based on gender); Batson v.
Kentucky, 476 U.S. 79, 85−86 (1986) (Equal Protection
Clause prohibits the use of peremptory challenge against
jury member based on race); Lewis, 46 M.J. at 341. Because
the military justice system works differently, and members
are selected by the convening authority, we have permitted
a convening authority to depart from the factors present in
Article 25, UCMJ, in one limited circumstance: when seeking
in good faith to make the panel more representative of
the accused’s race or gender. Thus, in Crawford, the convening
authority had intentionally selected a black
servicemember to serve as a court member where the accused
was black, reasoning that “[i]f deliberately to include
qualified persons is discrimination, it is discrimination in
favor of, not against, an accused.” 15 C.M.A. at 41, 35 C.M.R.
at 13.
As we noted decades later, if an accused was black and a
“convening authority had intentionally selected black officers
as members of the court-martial panel, Crawford’s holding
would apply.” Smith, 27 M.J. at 249. “Moreover, if appellant
were a female whose case has been referred for trial
and the convening authority had appointed female members,
the rationale of Crawford would apply.” Id. It is in this context
that we concluded that Article 25, UCMJ, does not preclude
a commander from taking gender into account if he or
she “[was] seeking in good faith to assure that the courtmartial
panel is representative of the military population.”
Smith, 27 M.J. at 249 (citing Crawford, 15 C.M.A. 40–41, 35
C.M.R. at 12−13).
Against this backdrop, the absurdity of the suggestion
that the panel composition in this case was an appropriate
attempt at “inclusiveness,” or “representativeness” is readily
apparent. First, Appellant is neither a woman nor a victim
advocate. Rather, he is a male, accused of rape. Second, as a
matter of common sense, seventy percent is not statistically
or otherwise “representative,” of a population comprising
less than twenty percent of the total pool of potential panel
members. Third, the findings of the military judge make
clear that the severe discrepancy between the percentage of
available female panel members and the final makeup of
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
12
Appellant’s panel was not reflective of a good-faith attempt
to either comply with the dictates of Article 25, UCMJ, or
create a more representative or an inclusive panel. Rather, it
was riddled with intentional efforts to maximize the number
of women on the panel because VADM Brown, RADM Colvin,
and RADM Ryan thought it was “very important” to
have a “large number of women” on the panel in this sexual
assault case.
We thus reject the CGCCA’s suggestion that the issue of
improper member selection in this case was supported by a
statistical anomaly alone. Riesbeck, 2016 CCA LEXIS 744,
at *14−15. It is true that bare statistical evidence showing
over selection of a particular group, without other supporting
facts, is generally not sufficient to raise the issue of court
stacking. United States v. White, 48 M.J. 251, 255 (C.A.A.F.
1998). But this case presents facts far in excess of a statistical
anomaly, and the CGCCA erroneously applied Lewis to
find that Appellant failed to raise the issue of improper selection
criteria. Riesbeck, 2016 CCA LEXIS 744, at *14−15.
This case is readily distinguishable from Lewis. In Lewis,
we held that the appellant failed to raise the issue of court
stacking where the convening authority selected five men
and four women to appellant’s court-martial panel. 46 M.J.
at 341–42. “[N]o one could explain why so many women were
detailed to appellant’s [court-martial],” Id. at 342, but the
appellant in Lewis was unable to even show that the government
intentionally selected women to serve on the panels.
Id. In other words, in Lewis, there was no evidence that
an improper selection criteria was used to create the anomalous
panel, rather, the evidence was that all efforts were to
comply with Article 25, UCMJ. In stark contrast, the record
in this case is replete with evidence that the inclusion of a
high percentage of women was the result of intentional
choices by the first three convening authorities, and the apparently
untutored acquiescence of the fourth.10 It is the ev-
10 We summarily jettison the red herring upon which the
DuBay military judge appeared to rest his final conclusion, that
ADM Zukunft was ignorant of the gender composition of the final
convening order so that he could not engage in court stacking. As
our cases on court stacking make clear, the actual ignorance of the
convening authority does not insulate him or her from the errors
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
13
idence that an improper selection criterion was actually
used that raises the court stacking issue.
Here, the DuBay military judge found that at each phase
of panel selection, despite “no coordinated action,” VADM
Brown, RADM Colvin, and RADM Ryan “conscious[ly] or
unconscious[ly]” decided to select a disproportionate number
of women to serve on Appellant’s panel. The DuBay military
judge found that no other discernible group was over represented
to this extent and no other selection criteria were
identified that could explain the selection. This factual determination
is not clearly erroneous, and distinguishes the
case at bar from Lewis.
Despite no “coordinated action” between VADM Brown,
RADM Colvin, and RADM Ryan, the findings of the DuBay
military judge make clear that: (1) VADM Brown, RADM
Colvin, and RADM Ryan all acted in an atmosphere of external
pressure regarding sexual assault cases; (2) all considered
gender as a factor when selecting members for Appellant’s
court-martial panel; (3) all selected groups which
significantly overrepresented women; (4) that the most likely
explanation for their selections were “decisions” that it
was “very important to have a large number of women on
the court” (emphasis added); (5) that no other Article 25,
UCMJ, criteria distinguished the women selected; (6) that at
least two of the individuals with input into the process deviated
from their ordinary criteria in making the selections for
this case; (7) that with the exception of one woman and one
convening authority, those who selected women for considor
misconduct of his or her subordinates, which are errors affecting
the court-martial selection process and court stacking nonetheless.
Lewis, 46 M.J. at 341 (“[D]eliberate stacking of the pool of
potential court members by a subordinate for the convening authority
is a form of unlawful command influence.” (citing Hilow,
32 M.J. at 440)); see also Upshaw, 49 M.J. at 113 (“Court stacking
may occur if a subordinate stacks the list of nominees presented to
the convening authority.” (citing Hilow, 32 M.J. at 440)). As such,
ADM Zukunft’s ignorance of the number of women present on the
panel does not purge the error from the panel selection process,
particularly where he was neither aware that the recommendations
given to him were not based on Article 25, UCMJ, nor independently
cognizant of what Article 25, UCMJ, required.
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
14
eration for the panel did not know the women selected.
Moreover, unlike other cases, the DuBay hearing did not include
any findings that any of the individuals involved made
their selections based on Article 25, UCMJ, criteria, but rather
that the final convening authority didn’t even know the
Article 25, UCMJ, criteria.
These findings are not clearly erroneous, and directly
conflict with the notion that women were selected for Appellant’s
court-martial panel either inadvertently or to ensure
that Appellant received a representative panel. Crawford, 15
C.M.A. 40–41, 35 C.M.R. at 12−13. In sum, a selection process
geared to ensure a “large number” of women were
placed on the panel in this case does not fall into the limited
“representativeness” exception to Article 25, UCMJ, created
by Crawford and Smith, constitutes improper member selection,
and was error. We emphasize that our conclusion does
not rest on bare statistical evidence of the overrepresentation
of women on the court-martial panel, cf. White, 48 M.J.
at 255, but rather on the improper purpose behind the
member selection.
B. Court Stacking and Unlawful Command Influence
While the government is absolutely prohibited from assigning
members to—or excluding members from—a courtmartial
panel in order to “achieve a particular result as to
findings or sentence” (court stacking), Lewis, 46 M.J. at 341
(internal quotation marks omitted) (quoting Smith, 27 M.J.
at 250), not all improper member selection constitutes court
stacking. This Court applies a case-specific analysis when
deciding issues of improper member selection. Bartlett, 66
M.J. at 430 (citing Hilow, 32 M.J. at 440−42; McClain, 22
M.J. at 132). But even reasonable doubt concerning the use
of improper panel selection criteria will not be tolerated in
the military justice system. Greene, 20 C.M.A. at 238, 43
C.M.R. at 78. Where improper selection criteria have been
used to select members for a court-martial panel, “[s]uch
doubt must be resolved in favor of the accused.” Id. at 238,
43 C.M.R. at 78 (citation omitted).
Court stacking is “a form of unlawful command influence,”
and has the improper motive of seeking to affect the
findings or sentence by including or excluding classes of inUnited
States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
15
dividuals on bases other than those prescribed by statute.
Upshaw, 49 M.J. at 113 (internal quotation marks omitted)
(quoting Lewis, 46 M.J. at 341). Once the issue of improper
member selection has been raised, as it has been in this
case, the burden shifts to the government to demonstrate
beyond a reasonable doubt that improper selection methods
were not used, or, that the motive behind the use of the selection
criteria was benign. Id; Roland, 50 M.J. at 69;
McClain, 22 M.J. at 132; Greene, 20 C.M.A. at 239, 43
C.M.R. at 79. The government can rebut a claim of court
stacking by showing administrative error, Upshaw, 49 M.J.
at 112−13 (court-stacking not raised where government
showed and defense conceded that exclusion of technical
sergeants from the panel was a mistake in the absence of
evidence to the contrary), or by showing that, in fact, the
convening authority included or excluded a certain group
from panel membership in an attempt to comply with Article
25, UCMJ. United States v. Nixon, 33 M.J. 433, 434−35
(C.M.A. 1991) (holding that explicit testimony regarding
compliance with Article 25, UCMJ, criteria and determination
of CCA that the convening authority did comply overrode
appearance of a stacked panel).
The government cannot always meet that high burden.
McClain, 22 M.J. at 132; Greene, 20 C.M.A. at 239, 43
C.M.R. at 79. Sometimes the facts clearly establish an improper
motive based on testimony that the purpose of the
improper selection was to create a panel more disposed to
“adjudge heavier sentences,” McClain, 22 M.J. 130−31, or to
select members with the unique “experience” required to
understand the testimony of the victim, Smith, 27 M.J. at
249−50. Those easy cases are clear instances of court stacking.
Other times, as in this case, there is no outright admission,
but the government has not, and likely cannot, establish
a benign purpose for the improper selection criteria. The
DuBay hearing findings of fact contains not a single explanation,
let alone a “benign” explanation, for the intentional
selection of so many women in this sex offense case, other
than that the various convening authorities believed it was
“very important” to place a large number of women on the
panel. The Government has failed to show beyond a reasonUnited
States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
16
able doubt that there was a benign explanation to rebut the
allegation of improper member selection.
Contrary to the CGCCA’s view, the absence of direct evidence
in the form of testimony of malintent and impure motive
does not mean that there is no evidence that the convening
authorities or their subordinates were motivated by the
intent to “achieve a particular result as to findings or sentence.”
Id. at 250 (internal quotation marks omitted) (quoting
McClain, 22 M.J. at 132). Rather, as in other instances
of asserted unlawful command influence, where the government
fails to meet its burden to rebut the allegation, as a
matter of law Appellant has, therefore, established unlawful
command influence—in this case, that the purpose for the
improper selection criteria was the unlawful one of seeking
to affect the findings or sentence. United States v. Gerlich,
45 M.J. 309, 310 (C.A.A.F. 1996); cf. United States v.
Biagase, 50 M.J. 143, 150–52 (C.A.A.F. 1999).
And here that legal consequence and inference is fully
supported by the record. The salient facts paint a clear picture
of court stacking based on gender in an atmosphere of
external pressure to achieve specific results in sexual assault
cases. Against that backdrop, purposefully selecting a
panel that is seventy percent female, most of whom are victim
advocates, from a roster of officers that was only twenty
percent female and a pool of enlisted that was only thirteen
percent female, smacks of a panel that was “hand-picked” by
or for the Government. United States v. Hedges, 11 C.M.A.
642, 642, 29 C.M.R. 458, 459 (1960); Cf. Dowty, 60 M.J. at
171 (“[A] desire for representativeness cannot be a subterfuge
to pack the panel.” (citation omitted)). While we are
loath to subscribe to the notion that women are more inclined
to reach a finding of guilty in a rape case than men,11
the facts of this case raise the specter that those tasked with
choosing Appellant’s court-martial panel hoped to select
members predisposed to “understand the testimony” of sex-
11 Although there is nothing wrong with placing either women
or victim advocates on panels deciding cases involving sexual assault,
when the majority of panel members in a sexual assault
case are both, it gives the panel the distinct appearance of being
“hand-picked” by and for the government.
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Opinion of the Court
17
ual assault victims, Smith, 27 M.J. at 250, in accordance
with this misguided view.
C. Prejudice
In Bartlett, we established three broad categories of review
to guide appellate analysis of prejudice in cases involving
the misapplication of Article 25(d), UCMJ. 66 M.J. at
430. When the error derives from court stacking and unlawful
command influence, as it does in this case, this Court has
placed the burden on the Government to prove that the error
was harmless beyond a reasonable doubt. Id. (citing Hilow,
32 M.J. at 442; McClain, 22 M.J. at 132).
Unlawful command influence is “the mortal enemy of
military justice.” United States v. Thomas, 22 M.J. 388, 393
(C.M.A. 1986). “No person subject to this chapter may attempt
to coerce or, by any unauthorized means, influence
the action of a court-martial. . . .” Article 37(a), UCMJ. We
are particularly unforgiving in the context of court member
selection, as where manipulation of the member selection
process is “fostered or perpetuated by military authorities
through ignorance or deceit, it substantially undermines the
public’s confidence in the integrity of the court-martial proceedings.”
Hilow, 32 M.J. at 443 (citations omitted).
In order to prevail on the issue of prejudice, the Government
must convince this Court, beyond a reasonable doubt,
that Appellant received a fair trial, free from the effects of
unlawful command influence. Lewis, 63 M.J. at 414−15. In
the improper member selection context, any “doubt must be
resolved in favor of the accused.” Greene, 20 C.M.A. at 238,
43 C.M.R. at 78; cf. Hilow, 32 M.J. at 432−43 (finding a lack
of prejudice where appellant ultimately pleaded guilty). In
this case, the Government has not met the burden to show,
beyond a reasonable doubt, that Appellant received a fair
trial from an impartial panel. Lewis, 63 M.J. at 413; Ward,
74 M.J. at 229 (citing Kirkland, 53 M.J. at 25).
The very panel that tried, convicted, and sentenced Appellant
was the same panel “hand-picked” by those charged
with selecting Appellant’s court-martial panel. Cf. Hilow, 32
M.J. at 443. The Government’s case was weak, primarily
based on the testimony of SN S, the putative victim, who
was unable to remember many of the events surrounding
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Opinion of the Court
18
the crime due to alcohol use and whose testimony was controverted
by other witnesses at trial. The Government’s case
was so weak, in fact, that the Article 32 Investigating Officer
recommended the dismissal of the Article 120, UCMJ,
charges against Appellant. In addition, the military judge
failed to conduct even a rudimentary investigation into Appellant’s
claims of improper member selection, completely
abdicating his responsibility to cleanse Appellant’s courtmartial
of the unlawful command influence. United States v.
Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998) (“[t]he military
judge is the last sentinel protecting an accused from unlawful
command influence”); United States v. Gore, 60 M.J. 178,
187−88 (C.A.A.F. 2004). And the CCA, rather than correct
the obvious error, did not embrace its proper and frankly
necessary role in the context of member selection and unlawful
command influence, but rather rationalized the error
away as a benign effort to seek inclusiveness.
The Government, set on arguing that there was no error,
hasn’t even claimed to meet its burden to show the error was
harmless. Yet the error in this case is both so obvious and so
egregious that it adversely affected not only Appellant’s
right to a fair trial by an impartial panel, but also the essential
fairness and integrity of the military justice system. Article
25, UCMJ; Article 37, UCMJ; see McClain, 22 M.J. at
132. We thus decline to authorize a rehearing, and order
that the charges and specifications be dismissed with prejudice.
Article 67(d), UCMJ, 10 U.S.C. § 867(d) (2012); Lewis,
63 M.J. at 416. Due to the patent and intolerable efforts to
manipulate the member selection process, contra every requirement
of the law, Article 37, UCMJ; Smith, 27 M.J. at
250−51; McClain, 22 M.J. at 132, the failures of the military
judge, the DuBay military judge, and the CGCCA, to investigate,
recognize, or ameliorate the clear court stacking in
this case, and the actual prejudice to the Appellant of being
tried by a panel cherry-picked for the Government, dismissal
with prejudice is the only remedy that can “eradicate the unlawful
command influence and ensure the public perception
of fairness in the military justice system.” Lewis, 63 M.J. at
416.
III. Decision
The decision of the United States Coast Guard Court of
United States v. Riesbeck, No. 17-0208/CG
Opinion of the Court
19
Criminal Appeals is reversed. The charges and specifications
are dismissed with prejudice. The record of trial is returned to
the Judge Advocate General of the Coast Guard.