United States v. Martinez ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39903 (f rev)
________________________
UNITED STATES
Appellee
v.
Jesus MARTINEZ
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 31 May 2022 1
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Military Judge: Christopher M. Schumann; Andrew R. Norton (remand).
Sentence: Sentence adjudged on 30 August 2019 by GCM convened at
Fairchild Air Force Base, Washington. Sentence entered by military
judge on 18 October 2019 and reentered on 22 June 2021: Dishonorable
discharge, confinement for 6 years, forfeiture of all pay and allowances,
and reduction to E-1.
For Appellant: Major Jenna M. Arroyo, USAF (argued); Major Rodrigo
M. Caruço, USAF; Allison R. Weber, Esquire (argued).
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Alex B.
Coberly, USAF; Major Brian E. Flanagan, USAF; Major John P. Patera,
USAF (argued); Mary Ellen Payne, Esquire.
Before JOHNSON, KEY, and ANNEXSTAD, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Chief
Judge JOHNSON and Judge ANNEXSTAD joined.
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1 The court heard oral argument in this case on 10 December 2021.
United States v. Martinez, No. ACM 39903 (f rev)
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
KEY, Senior Judge:
A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of one specification of sexual assault and one
specification of attempted sexual assault, in violation of Articles 120 and 80,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 880.2 The court-
martial sentenced Appellant to a dishonorable discharge, confinement for six
years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
The convening authority has approved the sentence as adjudged.3
Appellant has raised 11 issues, one of which asserts an error in the post-
trial processing of Appellant’s court-martial: that the convening authority
erred by not taking action on Appellant’s sentence as required by Executive
Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60,
UCMJ, 10 U.S.C. § 860 (Manual for Courts-Martial, United States (2016 ed.)
(2016 MCM)). In an earlier opinion, this court agreed with Appellant and re-
manded his case to the Chief Trial Judge, Air Force Trial Judiciary, for correc-
tive action. See United States v. Martinez, No. ACM 39903, 2021 CCA LEXIS
250, at *7–8 (A.F. Ct. Crim. App. 21 May 2021) (unpub. op.). The convening
authority subsequently approved Appellant’s sentence, resulting in a new en-
try of judgment. With this error having been corrected, we now turn to Appel-
lant’s remaining ten issues, along with a supplemental issue raised subsequent
to our first opinion on this case.
2 References to the punitive articles of the Uniform Code of Military Justice (UCMJ)
are to the Manual for Courts-Martial, United States (2016 ed.). Unless otherwise spec-
ified, all other references to the UCMJ, the Military Rules of Evidence (Mil. R. Evid.),
and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2019 ed.).
3 On 31 March 2022, we issued an unpublished opinion in this case. United States v.
Martinez, No. ACM 39903 (f rev), 2022 CCA LEXIS 202 (A.F. Ct. Crim. App. 31 Mar.
2022) (unpub. op.). On 29 April 2022, Appellant moved for reconsideration of this de-
cision with respect to whether the military judge abused his discretion by failing to
recuse himself. On 2 May 2022, the Government moved for reconsideration with re-
spect to our decision to set aside of the finding of guilty as to the Specification of Charge
II, and suggested this court consider the case en banc. On 20 May 2022, we granted
both motions for reconsideration, but we denied the Government’s en banc suggestion
after a unanimous vote against such request. After reconsideration, we withdraw the
court’s 31 March 2022 opinion and substitute this opinion.
2
United States v. Martinez, No. ACM 39903 (f rev)
The assignments of error Appellant has raised through counsel are: (1) the
military judge should have recused himself from Appellant’s trial; (2) the mil-
itary judge failed to take appropriate action with respect to a witness who re-
fused to disclose contact information for another witness; (3) the military judge
erred in reconsidering an earlier ruling; (4) the evidence is legally and factually
insufficient to support Appellant’s attempted sexual assault conviction; (5) the
military judge should have granted a motion for a finding of not guilty with
respect to the attempted sexual assault specification; (6) the military judge
failed to instruct the members on the overt acts forming the basis for the at-
tempted sexual assault offense; (7) the record of trial is defective and incom-
plete; (8) Appellant’s record was not docketed with this court within 150 days
of his sentencing; and (9) the cumulative error doctrine requires relief. Appel-
lant personally raised a tenth issue pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982): (10) the military judge erred in a ruling under Mil. R.
Evid. 412 which prohibited the Defense from cross-examining a victim on a
particular matter.4
Regarding Appellant’s sixth assignment of error, we conclude the military
judge’s instructions with respect to the attempted sexual assault offense were
erroneous, and we dismiss this specification without prejudice. As a result, Ap-
pellant’s fourth and fifth assignments of error are moot, and we defer his eighth
assignment of error until the record is returned to this court for completion of
our review under Article 66(d), UCMJ, 10 U.S.C. § 866(d).
Appellant also personally raises as a supplemental eleventh issue his claim
that the Constitution guarantees him the right to a unanimous verdict, a right
not reflected in the current court-martial framework. We have carefully con-
sidered this issue as well as Appellant’s ninth assignment of error and find
neither warrants further discussion or relief. See United States v. Matias, 25
M.J. 356, 361 (C.M.A. 1987).5
4 We granted oral argument on the first two of Appellant’s assignments of error. We
further directed oral argument on two specific issues: whether we were permitted to
consider matters from another court-martial in assessing whether the military judge
should have recused himself; and whether the military judge erred in not ordering the
production of the witness whose contact information was not disclosed in Issue (2).
5 Appellant raises this claim under Ramos v. Louisiana, 140 S. Ct. 1390 (2020), along
with both the Fifth and Sixth Amendments. U.S. CONST. amend. V, VI. However, our
superior court has held “there is no Sixth Amendment right to trial by jury in courts-
martial.” United States v. Easton, 71 M.J. 168, 175 (C.A.A.F. 2012) (citations omitted);
see also United States v. McClain, 22 M.J. 124, 128 (C.M.A. 1986) (noting that “courts-
3
United States v. Martinez, No. ACM 39903 (f rev)
I. BACKGROUND
In August 2018, while stationed at Fairchild Air Force Base, Washington,
Appellant met Ms. KT—a civilian college student who lived about 90 minutes
away—through an online dating application. A few days after meeting Appel-
lant online, Ms. KT drove to Appellant’s off-base house and spent the weekend
with him, during which time the two embarked upon a fast-moving and sex-
ually intimate relationship. Ms. KT returned home Monday morning, and she
and Appellant made plans to see each other the following weekend, with Ms.
KT making the trip back to Appellant’s house that Friday evening. Appellant
and Ms. KT engaged in consensual sexual intercourse Sunday night, but at
some point after Ms. KT had fallen asleep, Appellant woke her up in order to
initiate further sexual conduct. Despite telling Appellant “no” and physically
trying to prevent his advances, Appellant penetrated Ms. KT’s vagina with his
penis until he ejaculated; he did not use a condom.
Ms. KT spent the following day with Appellant until early in the afternoon
when she drove back to her house. Before she left, the two went shopping for
an emergency contraceptive, which Appellant purchased for Ms. KT. After a
few days passed, she reported to civilian law enforcement that Appellant had
assaulted her, and military authorities were subsequently notified. In the en-
suing investigation, Air Force Office of Special Investigations agents inter-
viewed Ms. ES—Appellant’s then-wife who was seeking a divorce from Appel-
lant. Ms. ES disclosed that Appellant had attempted to sexually assault her in
the middle of July 2018, an offense which she had not previously reported.6
Appellant was charged with, and convicted of, sexually assaulting Ms. KT and
attempting to sexually assault Ms. ES. He was also charged with, but acquitted
of, committing abusive sexual contact on Ms. ES.
martial have never been considered subject to the jury-trial demands of the Constitu-
tion”). The United States Supreme Court similarly concluded neither the Fifth Amend-
ment nor the Sixth Amendment creates a right to a jury in a military trial in Ex parte
Quirin, 317 U.S. 1, 45 (1942). See also Whelchel v. McDonald, 340 U.S. 122, 127 (1950)
(“The right to trial by jury guaranteed by the Sixth Amendment is not applicable to
trials by courts-martial or military commissions. . . . The constitution of courts-martial
. . . is a matter appropriate for congressional action.”); Ex parte Milligan, 71 U.S. 2,
123 (1866); United States v. Anderson, No. ACM 39969, 2022 CCA LEXIS 181, at *56–
57 (A.F. Ct. Crim. App. 25 Mar. 2022) (unpub. op.) (concluding Ramos does not create
a requirement for unanimous court-martial verdicts).
6 Appellant and Ms. ES had divorced by the time of Appellant’s court-martial.
4
United States v. Martinez, No. ACM 39903 (f rev)
II. DISCUSSION
A. Military Judge Recusal
Appellant argues the military judge was biased against the lead trial de-
fense counsel, and the military judge should have therefore recused himself
from Appellant’s court-martial. Appellant argues as a second basis for relief
that the military judge should have recused himself based upon the appear-
ance of bias on the military judge’s part. As a remedy, Appellant asks us to set
aside the findings and sentence. In support of his argument, Appellant cites to
a number of events occurring both before and during his court-martial; we only
address the most significant events raised.
1. Additional Background
a. Motion for Recusal
Appellant’s court-martial began with a two-day-long motions hearing on
Thursday, 22 August 2019. The trial itself started Monday, 26 August 2019,
with Appellant being represented by a circuit defense counsel as lead counsel
along with a more junior area defense counsel. The military judge had previ-
ously issued a scheduling order in April 2019 which set a deadline of 22 July
2019 for filing motions.
On 15 July 2019—one week before that deadline and more than a month
before the motions hearing—the Defense asked the military judge via email for
permission to delay filing a motion “pertaining to charging defects” until trial,
because making the motion sooner “would simply allow the Government the
opportunity to correct the defects.” Alternatively, the Defense sought permis-
sion to file the motion ex parte. Less than ten minutes later, the military judge
sent a reply email to both parties in which he denied both the Defense’s request
to file the motion late and the request to file the motion ex parte. That same
day, the Defense submitted a written motion asking the military judge to re-
consider his ruling. The Defense argued the military judge’s scheduling order
was in conflict with the Rules for Courts-Martial insofar as the order set dead-
lines in advance of those found in the rules.7 The Government opposed recon-
sideration, and, on 20 July 2019, the military judge sent the parties an email
in which he said he had reconsidered his ruling on the Defense’s motion for
relief from the scheduling order deadline, and he was again denying the De-
fense’s motion as well as the proposed alternative relief of an ex parte filing.
7 Under R.C.M. 905(b)(2), a motion asserting a failure to state an offense may be re-
solved at any time during a court-martial. The Defense proposed serving their motion
on the Government “after arraignment or empanelment, and the court can recess for
however long is necessary to provide the trial counsel the opportunity to respond on
the merits.”
5
United States v. Martinez, No. ACM 39903 (f rev)
The next day, the Defense submitted a motion to dismiss the attempted
sexual assault charge under the theory that the charge’s specification failed to
state an offense. The tenor of the motion was that the specification did not
provide Appellant adequate notice because it did not explain either how Appel-
lant attempted to sexually assault Ms. ES or why he was unable to complete
the offense. The Defense implied in the motion that by being compelled to sub-
mit the motion earlier than required by the Rules for Courts-Martial, there
may be an appearance of the Defense “attempting to assist the Government
perfect their case.” The Government opposed this motion, arguing it had no
obligation to allege specific acts which “amount to an attempt.” Trial counsel
also added in their motion this line: “General gripes about the Government’s
charging in this case may be therapeutic to express in a motion, but they do
not give rise to the requested remedy. Had the Defense requested in a Bill of
Particulars this information, it would have been theirs.”8 Trial counsel did not
comment on the Defense’s claim regarding the timing of the motion.9
During the week of 12 August 2019—that is, the week before the motions
hearing—the Air Force’s circuit trial and defense counsel, along with all the
military trial judges, participated in the Air Force Circuit Advocacy Training
workshop at Joint Base Andrews, Maryland. During the workshop, the Chief
Trial Judge of the Air Force Trial Judiciary conducted a session with the circuit
defense counsel in which he asked the counsel for their feedback with respect
to the Air Force trial judges. Afterwards, the Chief Trial Judge held another
session with just the trial judges, all of whom are subordinate to, and in the
rating chain of, the Chief Trial Judge. In that session, the Chief Trial Judge
explained that one of the circuit defense counsel had raised a concern about a
military judge requiring defense counsel to disclose details of a particular mo-
tion earlier than required by the Manual for Courts-Martial. The military
judge detailed to Appellant’s court-martial participated in this session and con-
cluded that the defense counsel in question was the circuit defense counsel in
Appellant’s case, and that the motion being referenced was the one he had de-
nied a few weeks earlier. When the session concluded, the military judge ap-
proached the Chief Trial Judge and explained that the motion pertained to an
ongoing court-martial and that, as a result, he was “probably going to mention
it on the record.”
8 The Defense had submitted a request for a bill of particulars, but trial counsel con-
tended it did not specifically request information pertaining to the conduct underlying
the attempt specification.
9 The military judge later denied the motion after the motions hearing but before trial
on the merits began. He concluded that Appellant was on adequate notice of the offense
he was to defend against.
6
United States v. Martinez, No. ACM 39903 (f rev)
After the workshop, but before the motions hearing, the military judge is-
sued a written ruling on the Defense’s reconsideration motion seeking relief
from the scheduling order. The military judge’s ruling denying the Defense
motion was largely rooted in the prohibition of using ex parte communications
for the purpose of gaining a tactical advantage over the other party. Because
the Government would be able to withdraw defective specifications and then
re-refer them to a new court-martial, the military judge reasoned that permit-
ting the Defense to untimely file their motion would have little practical impact
other than either delaying Appellant’s trial or subjecting Appellant to a second
court-martial. The military judge further rejected trial defense counsel’s con-
tention that they may “violate a potentially invalid modification of the [Rules
for Courts-Martial] by directly ignoring a now direct requirement from this
court to file the motion and serve all parties.” In doing so, the military judge
posited that it was a routine practice of military judges to set deadlines earlier
than those found in the Rules for Courts-Martial in order to promote efficiency
in the trial process. The military judge then noted that while he could not pre-
vent the Defense from raising a motion alleging a failure to state an offense
outside the time period specified in his scheduling order, he had “other poten-
tial remedies available,” such as “addressing the alleged conduct on the record
during trial” and holding counsel in contempt.
At the outset of the first day of motions, and apparently without advance
notice to the parties, the military judge explained on the record what had hap-
pened at the workshop. He characterized the episode as the Chief Trial Judge
“inform[ing] the group that a defense counsel had specifically complained that
a military judge had issued a scheduling order and provided an additional,
more specific order requiring the defense counsel to disclose the details of a
defense motion.” The military judge went on to state on the record that he
found “expressing dissatisfaction to the Chief Trial Judge regarding a specific
ruling issued by a military judge” was “problematic, to say the least,” as it “may
impact that military judge’s independent judicial decision-making process in
that case or future cases.” Discussing rulings by our court and our superior
court, the military judge said that “the process for expressing displeasure with
7
United States v. Martinez, No. ACM 39903 (f rev)
the military judge’s ruling” do not include “raising the complaint to that mili-
tary judge’s supervisor.”10 He also told the parties that “[e]xpressing dissatis-
faction with the military judge’s ruling in a specific case to that military judge’s
supervisor is strictly prohibited.”11
The military judge went on to explain that “[s]uch conduct could call into
question the military judge’s decision to reconsider or not reconsider a partic-
ular motion issue out of fear of reprisal from his judicial supervisor” or, alter-
natively, “that the military judge’s judicial independence is in question because
a decision on a motion issue has been influenced by a supervisory judge.” He
said doing so “places the military judge in an undesirable position of having
his impartiality called into question through no fault of his own because a coun-
sel disagrees with a judicial decision and chooses to raise that concern with the
military judge’s direct supervisor.” The military judge explained various op-
tions for counsel to address his rulings, ultimately advising them that “[c]on-
tacting the military judge’s supervisor to express dissatisfaction with an ad-
verse ruling in an ongoing case is not an appropriate remedy.”
After providing the foregoing guidance, the military judge described the
circuit defense counsel’s comments at the workshop as “an unfortunate misstep
on the part of counsel” but which were “immaterial on the merits of this case.”
He explained that at the time he learned of the comments, he had ruled and
already drafted—but not yet provided to counsel—his written ruling on the
scheduling-order matter. He noted the Chief Trial Judge had not sought to in-
fluence the court with respect to any rulings related to Appellant’s trial. He
told the parties he “ha[d] no concerns with his impartiality going forward and
[was] confident that his fairness cannot be reasonably questioned” and that he
“will not be improperly influence[d] by this particular matter.” The military
judge explained he raised the matter of the workshop out of his duty to ensure
10 The military judge cited United States v. Hutchinson, No. ACM 38503, 2015 CCA
LEXIS 269 (A.F. Ct. Crim. App. 29 Jun. 2015) (unpub. op.). That case, however, dealt
with government attorneys contacting a judge’s supervisor regarding the judge’s sched-
uling decisions and whether, by doing so, the attorneys’ conduct created the appear-
ance of unlawful command influence.
11 Although not entirely clear, the military judge seemed to derive this premise from
United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976), a case which dealt with claims that
The Judge Advocate General—not a defense counsel—improperly scrutinized a judge’s
sentencing decisions. In Ledbetter, the Court of Military Appeals held “official inquiries
. . . which question or seek justification for a judge’s decision” were barred “unless such
inquiries are made by an independent judicial commission established in strict accord-
ance” with a 1972 American Bar Association standard—a standard which no longer
appears to exist.
8
United States v. Martinez, No. ACM 39903 (f rev)
the fairness of Appellant’s trial as well as his concern for “absolute transpar-
ency with regard to an issue that has at least some potential to call into ques-
tion the impartiality” of the court. The military judge then asked the parties if
they had any questions or desired to challenge him, and circuit defense counsel
answered: “No questions and no challenges.”
The military judge proceeded to hear motions over the rest of the day and
the next day, Friday, 23 August 2019, including a defense motion to compel the
assistance of a computer analyst who could review data the Government had
extracted from Appellant’s cell phone. The Government had previously made
a hard drive containing the extracted data available to the Defense, but trial
defense counsel asserted they had no ability to access the contents of the drive,
much less review the data. At some point after the court recessed on Friday,
the military judge granted this motion and the analyst began his review. This
analysis continued over the weekend with the Defense periodically providing
newly discovered information to trial counsel.
On the morning of Monday, 26 August 2019, the military judge and the
parties discussed proposed voir dire questions, and about ten minutes before
the members were scheduled to be brought into the courtroom, trial defense
counsel provided the military judge with 13 affidavits from people who had
attended the advocacy workshop earlier in the month. In essence, the affidavits
suggested Appellant’s circuit defense counsel had not been referring to any
particular case during the meeting with the Chief Trial Judge and that the
comments were not so much a “complaint” as they were the catalyst for a dis-
cussion. Circuit defense counsel then asked to voir dire the military judge and
to call the Chief Trial Judge as a witness “to determine if there’s an attempt to
create bias of the military judge, if the trial judge is biased against defense
counsel, or if there’s been [an] attempt made to chill the role of defense counsel
in this case.”
The military judge agreed to answer defense questions, and during the en-
suing voir dire, he explained the Chief Trial Judge had never mentioned a par-
ticular counsel or a particular case, but he concluded the Chief Trial Judge was
referring to Appellant’s case and the detailed circuit trial counsel based upon
what the Chief Trial Judge had said about the issue. The military judge further
explained he felt obligated to disclose the fact the matter came up out of con-
cern for the possible perception that he might be reviewing his decisions based
upon comments made to his supervisor, even though the Chief Trial Judge had
not told him to do or not do anything with respect to the court-martial. The
military judge asserted he “will not be influenced by anybody” and that he
“hold[s] absolutely no animus towards any counsel, ever,” noting that he was
“retirement eligible” and “not going to be a general officer.”
9
United States v. Martinez, No. ACM 39903 (f rev)
The military judge did concede he might “get a little bit fired up when it
comes to issues” and perhaps had been “hypersensitive” about circuit defense
counsel’s comments at the workshop and added, “in the future, I would love
counsel, even in an academic setting, to not raise issues that are pending before
any court.” At one point, circuit defense counsel posed the following question:
Noting that we sit in the same building when we’re not on the
road, and we never discuss ongoing cases in ex parte fashion.
You’ve always had an open door to me. Our families have social-
ized at holiday parties. You’ve always invited me to sit down for
conversations about the Air Force, about officership, and been a
mentor to me in those things. Has any of that changed as a result
of this?
The military judge answered, “No, I hope not. I hope not from your perspec-
tive.” Circuit defense counsel then commented, “It hasn’t.”
After questioning the military judge for about 30 minutes, circuit defense
counsel made an oral motion for the military judge to recuse himself from the
court-martial. Circuit defense counsel essentially argued there was an appear-
ance of unfairness based upon the military judge’s concession of being “perhaps
hypersensitive” and having concluded counsel had “complained” at the work-
shop, although circuit defense counsel also said, “I want to put on the record,
based on the military judge’s responses, and based on the affidavits, there ap-
pears to be no actual bias in this case.”12 The military judge verbally denied
the motion, and the rest of the day was spent selecting court members. Once
that process was complete, the members were told to report back at 0830 hours
the following morning.
When the court convened the next day, Tuesday, 27 August 2019, the mil-
itary judge placed his written decision on the recusal motion on the record. His
ruling indicated he found that “no persuasive connection has been drawn be-
tween the military judge’s raising on the record the manner in which a pending
matter was addressed to the [Chief Trial Judge] and a reasonable inference of
partiality.”
b. Opening Statement Slides
At 0830 hours, after placing his recusal ruling on the record, the military
judge asked the parties if there were any other matters to take up before call-
ing the members for opening statements. At that point, trial counsel told the
military judge the Government had just received a copy of the slides that the
Defense intended to use in their opening, and said those slides contained
12 Circuit defense counsel did not renew his earlier request to have the Chief Trial
Judge called to testify.
10
United States v. Martinez, No. ACM 39903 (f rev)
“screen shots of things that are not in evidence” such as text messages between
[Ms. ES] and Appellant, which trial counsel asserted had not been previously
disclosed to the Government. The military judge turned to trial defense counsel
and said,
Once again, [five] minutes after the time I told the members to
be here that we would get started, I’m dealing with another last
minute issue. I’m just—I’m curious defense. What did you think
was going to happen when you presented these slides to the
[G]overnment this morning? What did you think the outcome
would be? . . . What did you think was going to happen? Did you
think that we were going to just roll right into the court members
or did you think that they might have a concern about some of
the content to [sic] this?
Trial defense counsel confirmed the text messages in the slides had been
discovered in their expert’s analysis over the weekend of the data the Govern-
ment had seized from Appellant’s phone, leading the military judge to ask,
Did we or did we not discuss two or three days ago when the
court granted your expert to allow you to gain access to that ex-
traction, that there might be some issues with regard to discov-
ery? For example, if you found anything in there that certainly
you intended to introduce at trial or use at trial, you had disclo-
sure obligations to the [G]overnment under the discovery rules
under [Rule for Courts-Martial (R.C.M.)] 701, right? It’s not a
one-way street. It’s not they have to provide you with everything
and then you get to come in seven [ ] minutes after we told the
members to be here and say, “Here’s some stuff that we found.
We’re just going to give it to you now.” Do you understand
that?[13]
13 During the motions hearing regarding the Defense’s motion to compel expert assis-
tance, circuit trial counsel argued that if the Defense found “something on the phone
that they wish to use, that will create additional discovery obligations” which could
result in a trial delay. The military judged asked the Defense, “Have you contemplated
the implications of what will likely happen through the course of the appointment of
an expert[?] You go beyond the scope of what the [G]overnment searched in that ex-
traction, what that means as far as your obligations under discovery and potentially
your obligations to provide information to the United States [G]overnment that comes
off of your client’s phone?” Trial defense counsel replied, “Absolutely. That has been
fully considered.” The military judge then said, “They’re going to want to look as deeply
as you want to look. Do you understand that?” Trial defense counsel responded affirm-
atively.
11
United States v. Martinez, No. ACM 39903 (f rev)
After more discussion of the matter, the military judge said,
All right. I’ve heard enough. Government, how much time do you
need? I’ll give you as much time as you need. I’m not going to
operate this trial on the fly and do things because they just keep
dropping in my lap. I haven’t—I haven’t offered recesses yet to
deal with these surprise issues but now we’re going to start do-
ing it because I’m just not going to deal with these on the fly.
The court reconvened shortly before noon, and the military judge said the
Defense had, in fact, complied with their discovery obligations regarding the
text messages. However, he concluded the Defense’s use of the text messages
in the opening slides “would amount to publishing an exhibit to the court mem-
bers before an evidentiary ruling can be provided,” and that he felt it would be
“improper” to show the members the messages “without any further instruc-
tion as to how the members can consider the specific messages.” As a result,
trial defense counsel removed the text messages from their slides and did not
reference them in the Defense’s opening statement.
c. Mil. R. Evid. 412 Ruling and Opening Statements
The preceding Friday, the military judge had heard arguments on a defense
motion to admit evidence under Mil. R. Evid. 412 related to Ms. KT, and he
provided the parties a written ruling on Saturday.14 One part of this motion
was the Defense’s request to be able to reference the specific number of times
Appellant and Ms. KT allegedly had sex during their relatively short relation-
ship, a number which we need not repeat here. The Defense’s theory, as we
understand it, was that Appellant and Ms. KT had rapidly escalated the inten-
sity and intimacy of their relationship and were frequently engaged in sexual
activity such that Appellant may have had a valid mistake of fact defense as
to Ms. KT’s consent during the assault. An alternative defense theory was that
Ms. KT was unnerved by the speed of the relationship—in which she and Ap-
pellant were discussing marriage by their second weekend together—and she
falsely claimed she had been assaulted in order to extricate herself from the
relationship.15 Trial counsel specifically objected to the admission of this evi-
dence, arguing that the number of times the two had sex was irrelevant and it
14 The pretrial motions and the transcript of the related hearing were sealed by the
military judge. This opinion contains discussion of sealed material only as necessary
for our analysis.
15 This theory also relied on the fact Ms. KT and Appellant bought an emergency con-
traceptive for Ms. KT to use before she returned home at the end of the second week-
end. The Defense sought to characterize this as a “pregnancy scare.” Ms. KT described
12
United States v. Martinez, No. ACM 39903 (f rev)
was being offered simply to paint Ms. KT as being promiscuous.16 Ms. KT’s
special victims’ counsel said he thought it was “completely fair” for the Defense
to “ask if it was multiple times or if it was more than one time,” but noted Ms.
KT did not agree with the number the Defense proposed.17 In his written rul-
ing, the military judge ruled that the Defense could present evidence regarding
the specific number of times the Defense alleged Appellant and Ms. KT had
sex because—according to the military judge—there had been no objection
from either trial counsel or the special victims’ counsel.18 The military judge
ruled the Defense could not present evidence either that Appellant and Ms. KT
talked about having sex before they met or that they had sexual intercourse
just a few hours after they did meet.
The Defense also made a motion to admit evidence under Mil. R. Evid. 412
regarding Ms. ES, Appellant’s ex-wife. The military judge’s ruling on that mo-
tion permitted trial defense counsel to admit evidence that Ms. ES and Appel-
lant had been in a sexual relationship for five years, but prohibited eliciting
“testimony regarding the frequency of intercourse or specific sexual acts.”
In the Defense’s opening statement, trial defense counsel began explaining
the origins of Appellant’s relationship with Ms. KT, telling the members, “They
immediately start moving from [an online dating application] to talking on text
message and things ramp up and intensify, intensify considerably very quickly.
They get to know each other with a deep, personal, intimate level and no topic
it as a precautionary measure following the assault, because Appellant had not worn
a condom.
16 Trial counsel’s written response to the Defense’s motion was more ambiguous on this
point; they wrote: “The Government has no objection to the admission of evidence that
[Appellant] and [Ms. KT] had consensual sex before the charged incident. That said,
detailed testimony as to the frequency of the pre-assault consensual sex or an implica-
tion that it formed the whole basis of the relationship quickly risks running afoul of
[Mil. R. Evid.] 412 and [Mil. R. Evid.] 403.” The written motion did not address the
specific number of times the two had sex that trial defense counsel alleged in their Mil.
R. Evid. 412 motion.
17 However, Ms. KT’s special victims’ counsel’s written response said Ms. KT “does not
object” to admission of evidence that she and Appellant had sex the specific number of
times alleged by the Defense.
18 In paragraph 27 of the military judge’s ruling, he wrote that “the Defense identified
the following matters for admission . . . (e) Between on or about 17 Aug and 27 Aug
2018 [Ms. KT] and [Appellant] had consensual sex approximately [X] times.” Immedi-
ately following the heading of “Admissible Without Objection,” paragraph 28 states the
information in paragraph 27(e) is admissible based on the absence of objection from
the Government and based on the information being “relevant to the issues of consent
or mistake of fact as to consent . . . and may be constitutionally required.”
13
United States v. Martinez, No. ACM 39903 (f rev)
is off conversation.” Trial counsel objected, saying, “[w]e have litigated this is-
sue,” and the military judge sustained the objection, telling the members to
disregard trial defense counsel’s “last statement.” Moments later, trial defense
counsel told the members about the first weekend Ms. KT spent with Appel-
lant: “They go out on the town, they’re drinking, they go to coffee shops, he
shows her Spokane, and they have consensual sex on multiple occasions the
first week.” Trial counsel objected again, saying, “We have litigated this issue.
Your ruling was clear.” As a result, the military judge excused the members
and convened an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session outside their
presence. This session was closed to spectators other than the parties, Ms. KT,
and Ms. KT’s special victims’ counsel.
In the session, trial counsel re-raised the first objection and said, “I don’t
know what exactly the defense counsel was trying to do. If he’s trying to pull
something over the [c]ourt; if he’s trying to infer something; if it’s bad faith; or
just bad lawyering.” Trial counsel further indicated the Government might
need to evaluate whether new members would be required if the Defense “con-
tinue[d] to flaunt” the military judge’s ruling. Trial counsel argued that by say-
ing “no topic is off conversation,” the Defense had violated the military judge’s
ruling regarding how soon Appellant and Ms. KT first had sex. Regarding the
second objection, trial counsel pointed to the military judge’s ruling prohibiting
evidence of Appellant’s and Ms. KT’s pre-meeting discussions about having
sex.19 This led the military judge to turn to the Defense and say,
Okay. Defense, so we had pretty extensive motions practice un-
der [Mil. R. Evid.] 412, I’ve given you an 11-page ruling that was
pretty detailed—I thought—with regards the left and rights,
with regards to what you could and couldn’t get into. I’m being
as patient as I can with these types of issues that keep sort of
popping up as if there’s no recollection of the discussions that
we’ve had in the past on these types of issues.
The military judge next incorrectly asserted the Defense had told the mem-
bers Appellant and Ms. KT had sex just a few hours after meeting and claimed
the Defense had also violated the ruling regarding Appellant and Ms. KT talk-
ing about having sex before they had met. He asked trial defense counsel, “Why
are you talking about that in light of the [c]ourt’s ruling on [Mil. R. Evid.] 412?”
Trial defense counsel denied he made either of those statements and argued
the opening statement had been consistent with the military judge’s ruling.
The military judge responded,
19 We presume trial counsel unintentionally reversed which part of the military judge’s
ruling pertained to which objection.
14
United States v. Martinez, No. ACM 39903 (f rev)
What are you implying there with regard to “all topics, nothing
was off-limits?” Do you mean baseball, weekends in the park?
What are you talking about when you say—what’s the implica-
tion that you’re trying to lead with the court members when you
say, before they met, they talked about all topics. Nothing was
off-limits. Because, you know, we are all adults here, right?
What was the implication of that? What are you trying to imply?
The Defense explained they were trying to show how quickly the relation-
ship between Appellant and Ms. KT formed, describing that as “an incredibly
crucial component to this case.” The military judge said,
I’m just trying to—I don’t want to believe that you’re just being
clever and that you’re going to scrape up against the line from
an implication standpoint, sort of “wink-wink, nod-nod,[ ] hey
members, they talked about everything. All topics were on the
table.[”] I’m hoping you’re not doing that. I really want to believe
that that’s not what’s going here. [sic] But I share the [G]overn-
ment’s concern because in a matter such as this, when I’ve al-
ready ruled on the issue, when counsel sort of try to push the
envelope on an issue that I’ve already ruled on to the point where
I’m concerned it’s going to leave an impression with the mem-
bers, that causes me concern because I’ve already ruled on it.
And now it’s—I don’t even need his objection because I’ve ruled
on something and somebody goes against that ruling, well I kind
of wonder what happened to the part where I ruled on it. Do
people not care what my rulings are if they’re going to sort of go
around them?
The military judge turned to the objection regarding the Defense’s state-
ment that Appellant and Ms. KT had sex on multiple occasions, and he stated
on the record that he would take a moment to read his written ruling. The
military judge paused and then announced, “Okay, listen. I’m going to overrule
the second objection.” This led trial counsel to say that the Government and
the Defense seemed to have “a fundamental misunderstanding” about the rul-
ing, and that trial counsel were not asking for the military judge to reconsider
his ruling, but that they would like to ask for “additional guidance or a supple-
mental ruling” regarding sexual conduct between Appellant and Ms. KT. In
explaining this “misunderstanding,” trial counsel pointed to the ruling regard-
ing Ms. ES in which the Defense was prohibited from eliciting the “frequency
of intercourse” between Ms. ES and Appellant.
The military judge then embarked on a lengthy explanation about how an
existing sexual relationship—but not necessarily specific details of the rela-
15
United States v. Martinez, No. ACM 39903 (f rev)
tionship—is relevant to the issue of mistake of fact as to consent. He acknowl-
edged his ruling did permit the Defense to elicit the number of times Appellant
and Ms. KT had sex and then—somewhat mid-stream—he said, “consider this
a reconsideration of the ruling to provide a little bit more clarity,” and “[t]o the
extent that is in-artfully drafted, consider it artfully drafted at this point for-
ward.” He then said that “no questions, no testimony, no statements regarding
frequency or any implication that Ms. [KT] is a promiscuous person sexually”
would be permitted. He said that although his ruling had permitted the De-
fense to elicit the number of times Appellant and Ms. KT had sex, he did not
intend to permit an “inference that frequency of sex mattered, if that makes
sense.”
Before concluding the Article 39(a), UCMJ, session, the military judge said
he was sustaining both of the Government’s objections, in spite of his earlier
ruling. However, when the members returned to the courtroom, the military
judge neglected to inform them what his ruling was on the second objection.
d. Examination of Witnesses
As discussed in greater detail below in Section II.B. of this opinion, infra,
Ms. KT declined the Defense’s requests for a pretrial interview. As a result,
trial defense counsel periodically indicated during trial that they were sur-
prised by portions of her testimony. At one point during her direct examina-
tion, trial counsel elicited that the morning after the assault, Appellant at-
tempted to initiate sexual conduct again, and Ms. KT told him “no.” Trial de-
fense counsel objected based on lack of notice and the military judge sustained
the objection. Despite having objected to this evidence, circuit defense counsel
elicited the exact same evidence during his cross-examination of Ms. KT and
obtained her agreement that when she told Appellant “no” on this occasion,
Appellant “just respected [her].” After five questions and answers on the topic,
trial counsel said, “Your Honor, I understood that the [G]overnment was pre-
cluded from asking these questions.” The following colloquy ensued in front of
the members:
MJ [military judge]: Yeah, I don’t understand. I sustained an
objection, didn’t I?
CDC [circuit defense counsel]: It was very important to the mem-
bers, Your Honor, so I think—
MJ: No it wasn’t. When I sustain an objection that means it’s not
before the members. That means I sustained the objection. It
means to disregard the question and the answer. Did I not sus-
tain an objection on that issue?
CDC: You . . . You—I agree. So, Your Honor,—understand. So
I’m asking about now as [sic] something I just learned about as
16
United States v. Martinez, No. ACM 39903 (f rev)
part of my expanded cross and having not had the opportunity
to interview this witness.
MJ: Well, this is no surprise because you heard it in the direct
examination and then you objected to it and I sustained the ob-
jection.
CDC: Yes. So I think it’s fair game to talk about it—and this is
by which [sic] I discovered it. I’m hearing her say it for the first
time. And so had I known about it before certainly would have
wanted to ask.
This led the military judge to move the discussion into an Article 39(a), UCMJ,
session outside the members’ presence at the end of which the military judge
called the members back in and told them he had overruled the objection. Trial
defense counsel then proceeded to ask Ms. KT about her telling Appellant “no”
that morning after the assault and how Appellant respected her wishes.
Appellant contrasts this reaction by the military judge with an objection
raised by the Defense during Ms. ES’s direct testimony after trial counsel
asked her if she had “made any additional allegations against [Appellant] to
try to get back at him for some reason.” Ms. ES answered, “No. I have not,” and
trial defense counsel objected. In the Article 39(a), UCMJ, session that fol-
lowed, trial defense counsel reminded the military judge that he had denied
the Defense’s pretrial motion to be allowed to elicit evidence that Ms. ES had
accused Appellant of other sexual offenses—most of which the Government
had not charged Appellant with. Regarding one offense the Government had
charged Appellant with, Ms. ES apparently admitted the sexual conduct in
question was, in fact, consensual, and the Government withdrew that specifi-
cation before trial. Thus, trial defense counsel argued, the Government had
violated the ruling—or at least created a situation wherein the only way the
Defense could rebut Ms. ES’s claim of not making any other allegations was to
cross-examine her on matters the military judge had disallowed. After a
lengthy discussion, the military judge overruled the Defense’s objection and
refused the Defense’s request for permission to question Ms. ES on the matter.
The military judge explained his ruling on the objection as being for Appel-
lant’s benefit, insofar as it would avoid suggesting to the members that Ms. ES
had, in fact, made other allegations against Appellant. Turning to trial counsel,
the military judge cautioned them to “tread lightly” and to “be more careful
than ever that you don’t ask certain trigger questions that trigger discussions
about things that this [c]ourt’s already ruled on. Okay?” When the members
returned to the courtroom, the military judge failed to tell them he had over-
ruled the Defense’s objection.
17
United States v. Martinez, No. ACM 39903 (f rev)
Appellant also highlights that, during the Defense’s cross-examination of
Ms. KT, the military judge interrupted the questioning when Ms. KT and trial
defense counsel began talking over each other. The military judge told trial
defense counsel to “stop it,” and that if it happened again he would convene an
Article 39(a), UCMJ, session and “do some other remedies.” The military judge
then told trial defense counsel, “If you need to count to five—whatever trick
you need to do to allow her to finish her answer, do it.”
During the direct examination of another witness, the Government offered
as an exhibit one page of phone records, a large portion of which had been re-
dacted. Circuit defense counsel objected, explaining that he wished to have the
option to question the witness about some of the obscured calls. After some
discussion, the military judge convened an Article 39(a), UCMJ, session. Cir-
cuit defense counsel attempted to explain why he thought some of the blacked-
out information was relevant, leading the military judge to apologize if it ap-
peared that he was “getting frustrated” because he did not understand the De-
fense’s argument as to the relevance. The following colloquy then occurred:
MJ: Okay. Do you have a copy of this prepared that’s un-re-
dacted?
CDC: Not prepared because—
MJ: When did you get this?
CDC: I’ve had that for weeks, Your Honor.
MJ: You’ve had that for weeks, and you don’t have a copy that’s
un-redacted?
CDC: Not printed with me.
MJ: Did you anticipate an objection when they gave this to you
weeks ago and you thought they might use it and you didn’t an-
ticipate an objection weeks ago? You just anticipated it right
now?
CDC: I’ve never seen it in that form before right now.
MJ: Hold on, you just told me you had this. Did you have this? I
asked you if you had this.
CDC: Oh, no. I’m seeing it for the first time a few minutes ago.
Sorry.
MJ: Okay. So you don’t have—you didn’t have the redacted ver-
sion of this? When did you get the redacted version of this?
CDC: It was as it arrived on my table today.
18
United States v. Martinez, No. ACM 39903 (f rev)
CTC [circuit trial counsel]: Your Honor—and I’m sorry to inter-
rupt the [D]efense—I will take responsibility for not ensuring
that this had been provided to the [D]efense. To the extent that
there was a notice issue, I will take responsibility for that, Your
Honor.
In the end, the military judge overruled the Defense’s objection, telling trial
defense counsel that they could offer their own version of the call log into evi-
dence if they felt such was warranted.
e. Revisiting the Military Judge’s Mil. R. Evid. 412 Ruling
Once the Government rested, the military judge convened an Article 39(a),
UCMJ, session outside the presence of the members in order to hear several
matters the Defense wished to raise, the first of which the Defense asserted
was “just in an effort to protect the record for both the [G]overnment and the
[D]efense.” Trial defense counsel pointed to trial counsel’s “bad lawyering”
comment as accusing the Defense of providing Appellant with ineffective as-
sistance and asked the military judge for “a finding of fact that no such inef-
fective assistance of counsel happened” based upon the Defense’s adherence to
the military judge’s written ruling regarding Ms. KT.
In response, the military judge said he would “state a couple things for the
record, sort of unscripted and unprepared kind of off the top of [his] head.” The
military judge then described litigation as a “contentious” and “emotional” pro-
cess in which “things often get heated.” He noted that “[c]ounsel are sometimes
more well-behaved than old judges when it comes to keeping their cool” and
“that sometimes we all say things or do things that we would like to grab back
. . . particularly in the sort of heat of battle for lack of a better phrase.” The
military judge said courts and parties “tend to be . . . particularly sensitive”
about matters related to Mil. R. Evid. 412 and that he knows “it’s particularly
difficult for counsel, [three] or [four] days later in the trial to kind of remember
the left and rights of any particular given ruling.”
The military judge conceded his written ruling had contained
at least one finding of fact that made a specific reference to the
number of instances. . . . But the [c]ourt recognized that while it
wasn’t the intention of the court, one implication might be that
that might open the door to issues such as frequency, et cetera,
regarding prior sexual behavior, which was specifically not
something that the court was permitting to get into based on the
state of the law.
....
19
United States v. Martinez, No. ACM 39903 (f rev)
So certainly once the [c]ourt recognized the inclusion of that par-
ticular reference certainly did provide at least some indication
that at least discussing frequency or numbers, or however you
want to characterize it, was somewhat on the table, I think we
went through that, we clarified that, that frequency wasn’t on
the table, and we moved on from there.
Addressing trial counsel’s “bad lawyering” comment, the military judge de-
scribed it as “a momentary lapse of hyperbole, an emotion based on a conten-
tious issue” and not “a formal allegation against the defense of being ineffec-
tive.” The military judge went on to say he had not seen anything in the court-
martial “remotely close to ineffective assistance,” that he had “zero concerns
with the quality of the defense services that have been provided to [Appellant],”
and that trial defense counsel “very zealously” represented Appellant. He then
said, “[S]o that it’s clear for the record, regardless of any frustration or intem-
perate comments that may have come from any source in this courtroom, the
court is absolutely convinced that ineffective assistance of counsel is not a con-
cern.”
f. Closing Argument Slides
Just before giving the Government’s closing argument, while the members
were present in the courtroom, circuit trial counsel said he would mark a copy
of the slides he intended to use as an appellate exhibit, to which circuit defense
counsel said, “I have not seen them Your Honor, but if there is a printed copy,
I can give it a 30 second flip.” The military judge asked trial counsel if they had
a copy for the Defense, but trial counsel said they did not. It is unclear from
the record what happened next in the courtroom, but circuit defense counsel
announced “no objection,” and trial counsel proceeded with closing argument.
g. Motion for Mistrial
The members announced their verdict in the evening of 29 August 2019.
The next morning, the Defense asked the military judge to declare a mistrial
under R.C.M. 915. The Defense advanced two grounds: (1) inadequate notice
with respect to the specification alleging an attempted sexual assault on Ms.
ES (and relatedly, a perceived incongruity between a conviction for that offense
and an acquittal for abusive sexual contact arising out of the same conduct),
discussed in greater detail in Section II.D., infra; and (2) disparate treatment
of the parties by the military judge. With respect to the second ground, trial
defense counsel asserted there were “countless examples” of such disparate
treatment, but they specifically referred to three instances they believed sup-
ported their argument: (1) discovery related to opening and closing slides; (2)
objections to the Defense’s opening statement regarding the military judge’s
20
United States v. Martinez, No. ACM 39903 (f rev)
Mil. R. Evid. 412 ruling; and (3) selective enforcement of the military judge’s
scheduling order.
As to the Defense’s opening-statement slides, trial defense counsel said the
military judge had “admonished” the defense team “for ambushing the trial
counsel by surprise” and granted “a substantial three to four hour delay” in the
court-martial. Conversely, trial defense counsel argued that just before closing
argument, “trial counsel in live real time before the members went to start
argument and play his PowerPoint slides through the computer without
providing any notice to the defense counsel about what was in those slides and
. . . what it may have contained.” The Defense argued the military judge “did
not treat that act in the same way [towards the Government] that the [D]efense
absorbed admonishment” with respect to the Defense’s opening slides. Re-
sponding to this claim, the military judge drew a couple distinctions, noting
that the Defense’s slides contained matters which “were part of the discovery
issue” and that trial defense counsel said they had no objection to the Govern-
ment’s closing slides. The military judge also contended he “didn’t admonish
anybody in front of the members,” although he conceded he “might have given
[trial defense counsel] a little bit of a hard time.”
Regarding the military judge’s Mil. R. Evid. 412 ruling during the Defense’s
opening statement, trial defense counsel said trial counsel’s objections resulted
in “a considerable delay within the opening statement.” Moreover, trial defense
counsel argued, once the military judge realized the Defense had not, in fact,
violated his ruling, the military judge still “strictly cautioned defense counsel
from using surreptitious language that could connote the underlying prohib-
ited conduct from the [Mil. R. Evid.] 412 ruling.” Trial defense counsel then
pointed to the re-direct examination of Ms. ES in which trial counsel asked
about matters which the military judge had prohibited the parties from rais-
ing. Trial defense counsel said the military judge’s reaction “was in stark con-
trast to how it was dealt with just a couple of days earlier.”
With respect to the scheduling order, trial defense counsel argued trial
counsel filed nearly all of their motions late and submitted their proposed voir
dire questions on the first day of trial, none of which gave the military judge
“any concern.” Yet, when the Defense sought relief from the scheduling order,
trial defense counsel claimed the military judge told them to consider the order
“as a direct order from the court and from a superior commissioned officer to
not violate it.”20 The military judge said the reason he denied the Defense’s
request was because he did not want to “let one side create a strategic ad-
vantage over the other.” He continued:
20 We are unable to locate in the record any instance of the military judge saying this.
21
United States v. Martinez, No. ACM 39903 (f rev)
I mean, if we want to re-litigate that motion then the truth of
the matter is what you wanted to do was file a motion late be-
cause you mistakenly believed that they would be foreclosed
from fixing an offense that failed to state an offense. It didn’t[,]
but you believed they would be foreclosed from fixing that of-
fense and that you would therefore gain a tactical advantage. . . .
I don’t know where you all are getting this notion that you’re
being tactically disadvantaged by filing—by not being allowed to
file a motion at the last minute. . . . [T]here’s lots of things that
didn’t happen in this case that were not consistent with my
scheduling order from both sides because I didn’t enforce it the
way I probably should have and maybe I will better in the future.
But the denial was not based on preference. It was based on
what you wanted to do in your motion. In my firm belief that it
was going to be negative towards [Appellant] that he was going
to face[—]potentially face a second trial.
Although trial defense counsel did not specifically allege the military judge
was biased against the Defense, they did focus their argument on the claimed
disparate treatment of the parties. The military judge reframed their argu-
ment: “I believe what you’re essentially articulating is that the military judge
should recuse himself because of bias.” He said the court would recess and gave
the Defense an hour to brief the issue in writing, saying, “I think there’s factual
distinctions between the issues that you raised but in any event I’m not in-
clined to put myself in a position where I have to constantly defend myself
against allegations that I’m biased.” Trial defense counsel subsequently sub-
mitted a written motion for a mistrial in which they stated:
In isolation, no decision or ruling by the Court would ever come
close to requiring such mistrial, but the pervasive nature of such
rulings over a two week litigated trial, in context with the issue
put substantial doubt in the eyes of any reviewing authority or
member of the public watching this trial.
Citing R.C.M. 915, the Defense further argued that “[s]ubstantial disparate
treatment between the parties is evident throughout the entire recording [sic]
of trial,” that “no amount of curative instructions could cure the irreparable
harm of continued adverse ruling and admonishments to defense counsel in a
way that so starkly contrasts how the trial counsel was treated in open court,”
and “[t]his suggests bias in a way that for the integrity of the military justice
system, this case should be declared a mistrial.”
In his written ruling, the military judge found as an “essential finding[ ] of
fact” that he did not take any remedial action against the Government for their
late filings “[b]ecause the Defense never raised any objections to the Court’s
22
United States v. Martinez, No. ACM 39903 (f rev)
consideration of the Government [sic] late responses until today nor articu-
lated any prejudice because of the Government’s failures.” With respect to the
text messages the Defense wished to refer to in their opening statement slides,
the military judge found as fact that “[n]o negative action was taken by the
Court towards the Defense in response to this issue, other than addressing the
matter on the record,” and that he sustained the Government’s objection to the
slides “as it amounted to publishing exhibits to the members that were not yet
admitted into evidence.” The military judge ruled that he “remain[ed] uncon-
vinced that a reasonable person knowing all the circumstances—including the
various court rulings in this case that have been favorable to the Defense . . .
would harbor doubt as to the Court’s impartiality.” The judge continued,
[T]his [c]ourt has granted several requests for reconsideration,
has allowed for expanded argument on issues raised to include
multiple additional argument on the same issue, has not pre-
cluded the Defense from raising any matter despite timeliness
concerns, and has considered oral motions on potentially case or
offense dispositive issues raised without written filings or ac-
companying legal authority.
He concluded that while some matters “and the manner in which they are
raised” may “generate heated discussions,” the exchanges in Appellant’s trial
were not so “extraordinary” that they called for either recusal or a mistrial.
The military judge ruled that the Defense had not “identified any particular
ruling that indicated bias on the part of the Court,” or shown that trial defense
counsel were precluded from presenting any evidence or raising any objections
due to timeliness concerns. He also ruled the Defense had not identified any
examples of him doing something that could be perceived as assisting the Gov-
ernment “outside of citing anecdotal examples of interactions with counsel that
the Defense argues differed in tone between the Defense and the Government,
without acknowledging the context surrounding those various interactions.”
The military judge noted that “at no time during the course of this trial did [he]
make any statement expressing concern or frustration with counsel and the
manner in which they were presenting their case in front of the court mem-
bers.” He also pointed to his instruction to the members that they were to dis-
regard any comment or expression suggesting his opinion as to Appellant’s
guilt.
h. Clemency Submission Addressing Military Judge Bias
The Defense reiterated its complaint that the military judge demonstrated
both implied and actual bias in a clemency submission written by trial defense
counsel. In that submission, trial defense counsel contended that when the mil-
23
United States v. Martinez, No. ACM 39903 (f rev)
itary judge denied the Defense’s motion for recusal, “[t]here was an uncomfort-
able tension in the air, based on the language, tone, body language, and facial
expressions of the military judge. All in the room could observe it. Several in
the gallery commented on it after the trial.” Trial defense counsel argued the
Defense “lost” nearly every motion submitted to the military judge and “lost
objection after objection.” Trial defense counsel also reiterated that the De-
fense’s argument for recusal was based on public perception of the proceedings,
and the argument for mistrial was additionally based on a claim of the military
judge’s actual bias against the Defense.
i. Post-Trial Matters Presented for Our Consideration
Once this case was docketed with this court, Appellant again asserted the
military judge was personally biased against circuit defense counsel. In sup-
port of this contention, Appellant moved to attach a portion of a transcript from
another court-martial featuring the same military judge and circuit defense
counsel in which the military judge, inter alia, threatened circuit defense coun-
sel with contempt proceedings for not following the military judge’s directions.
Appellant argues we should overlook the fact that the prior proceeding was not
raised as evidence of bias at his court-martial under the theory that circuit
defense counsel was not responsible for post-trial processing in the prior case,
and—as a result—circuit defense counsel “would not have [had] access” to the
transcript of the prior case.
2. Law
a. Recusal of a Military Judge
“An accused has a constitutional right to an impartial judge.” United States
v. Wright, 52 M.J. 136, 140 (C.A.A.F. 1999) (first citing Ward v. Village of Mon-
roeville, 409 U.S. 57 (1972); and then citing Tumey v. Ohio, 273 U.S. 510(1927)). The validity of the court-martial system “depends on the impartiality
of military judges in fact and in appearance.” Hasan v. Gross, 71 M.J. 416, 419
(C.A.A.F. 2012). Under R.C.M. 902(a), “a military judge shall disqualify him-
self or herself in any proceeding in which that military judge’s impartiality
might reasonably be questioned.” Moreover, a military judge is required to dis-
qualify himself or herself if “the military judge has a personal bias or prejudice
concerning a party.” R.C.M. 902(b)(1). Military judges “should broadly construe
grounds for challenge but should not step down from a case unnecessarily.”
R.C.M. 902(d)(1), Discussion. A motion to disqualify a military judge “may be
raised at any time, and an earlier adverse ruling does not bar later considera-
tion of the same issue, as, for example, when additional evidence is discovered.”
Id.When considering a challenge based on the appearance of bias under
R.C.M. 902(a), we review the matter under an objective standard, “asking
24
United States v. Martinez, No. ACM 39903 (f rev)
whether a reasonable person knowing all the circumstances would conclude
that the military judge’s impartiality might reasonably be questioned.” United
States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015) (citing Hasan, 71 M.J. at
418). Once a military judge’s impartiality is challenged, we ask whether the
“court-martial’s legality, fairness, and impartiality were put into doubt by the
military judge’s actions,” taking the trial as a whole. United States v. Foster,
64 M.J. 331, 333 (C.A.A.F. 2007) (quoting United States v. Quintanilla, 56 M.J.
37, 78 (C.A.A.F. 2001)). Recusal in such cases “is intended to ‘promote public
confidence in the integrity of the judicial process.’” Hasan, 71 M.J. at 418 (quot-
ing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988)).
We recognize “a strong presumption that a judge is impartial,” as well as
the premise that “a party seeking to demonstrate bias must overcome a high
hurdle.” Quintanilla, 56 M.J. at 44 (citation omitted). When a military judge
disclaims partiality, such a disclaimer “carries great weight.” United States v.
Harvey, 67 M.J. 758, 764 (A.F. Ct. Crim. App. 2009) (citing Foster, 64 M.J. at
333) (additional citations omitted). Rulings and comments made by a judge “do
not constitute bias or partiality, ‘unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.’” Quintanilla, 56
M.J. at 44 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
We review a military judge’s decision on a recusal motion for abuse of dis-
cretion. United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (citation
omitted).21 Such a decision amounts to an abuse of discretion “if it is ‘arbitrary,
fanciful, clearly unreasonable or clearly erroneous,’ not if [the reviewing court]
merely would reach a different conclusion.” Sullivan, 74 M.J. at 453 (quoting
United States v. Brown, 72 M.J. 359, 362 (C.A.A.F. 2013)).
If we conclude a military judge has abused his or her discretion in denying
a recusal motion, we determine whether to reverse a conviction by reviewing
the factors established by the Supreme Court in Liljeberg. United States v.
Uribe, 80 M.J. 442, 449 (C.A.A.F. 2021) (citing United States v. Martinez, 70
M.J. 154, 159 (C.A.A.F. 2011)). These factors are: (1) what injustice was per-
sonally suffered by the appellant; (2) whether granting relief would foster more
careful examination of possible disqualification grounds and their prompt dis-
closure; and (3) whether the circumstances of the case at hand would “risk un-
dermining the public’s confidence in the military justice system” when viewed
through an objective lens. Id. (quoting Martinez, 70 M.J. at 159).
21 Our superior court, the United States Court of Appeals for the Armed Forces, has
specifically rejected the de novo standard for judicial recusal decisions. United States
v. Butcher, 56 M.J. 87, 90–91 (C.A.A.F. 2001).
25
United States v. Martinez, No. ACM 39903 (f rev)
b. Consideration of Matters Outside the Record
In conducting a review under Article 66, UCMJ, 10 U.S.C. § 866, military
Courts of Criminal Appeals are generally limited to considering the “entire rec-
ord,” which includes the record of trial, allied papers, and briefs and arguments
presented by appellate counsel addressing matters found in either the record
of trial or allied papers. United States v. Jessie, 79 M.J. 437, 440–41 (C.A.A.F.
2020). One exception to this rule covers matters submitted for the first time on
appeal regarding issues “raised by materials in the record but not fully resolv-
able by those materials.” Id. at 445.
3. Analysis
a. Post-Trial Matters Presented for Our Consideration
We begin our analysis by declining to consider the portion of the earlier
trial’s transcript submitted by Appellant as evidence of a claimed bias of the
military judge against circuit defense counsel. Appellant’s defense team thor-
oughly litigated the issue of the military judge’s participation in Appellant’s
court-martial from their pretrial recusal motion through their post-findings
mistrial motion and clemency submission. In the Defense’s initial recusal mo-
tion, trial defense counsel focused solely on the appearance of bias, specifically
stating, “there appears to be no actual bias in this case.” By the time of the
mistrial motion, trial defense counsel had broadened their argument to include
actual bias against the Defense, but even then, the claimed bias was towards
the Defense generally, not against circuit defense counsel himself.
We also find unavailing Appellant’s claim on appeal that circuit defense
counsel did not raise personal bias—as supported by portions of a transcript
from proceedings in the prior court-martial—because this counsel was not re-
sponsible for handling Appellant’s representation for that court-martial’s post-
trial processing. Whether or not circuit defense counsel possessed his own copy
of the transcript from those earlier proceedings, he was indisputably present
at those proceedings and therefore had personal knowledge of his interactions
with the military judge. We see nothing in the record indicating circuit defense
counsel intended to make a claim of personal bias, much less that he did not
raise the matter because he had tried to obtain and was somehow denied access
to a copy of the earlier proceedings. Given his statement disavowing any actual
bias on the military judge’s part, we think the more correct assessment is that
circuit defense counsel chose not to claim the military judge was personally
biased against him, and—by extension—elected not to support such a claim
with evidence derived from other courts-martial.
We acknowledge the matter of the appearance of the military judge’s fair-
ness was called into question by the Defense, but that argument was never
premised on the military judge’s interaction with circuit defense counsel in
26
United States v. Martinez, No. ACM 39903 (f rev)
other cases. Appellant may not raise this new theory for the first time on ap-
peal. See, e.g., United States v. Carpenter, 77 M.J. 285, 289 (C.A.A.F. 2018)
(noting that appellate review of a motion is limited to the motion submitted to
military judge at trial, not the motion which appellate counsel wished had been
submitted).22 By disavowing the claim of personal bias at trial, we conclude
Appellant not only failed to raise this argument, but that he has waived it for
purposes of appellate review. Although we have authority under Article 66,
UCMJ, 10 U.S.C. § 866, to pierce an appellant’s trial waiver in order to correct
a legal error, we decline to do so here. See United States v. Hardy, 77 M.J. 438,
443 (C.A.A.F. 2018). In any event, the fact this matter was not raised in the
record means Appellant may not now supplement the record with transcript
excerpts from unrelated proceedings under Jessie.
b. Recusal
On appeal, Appellant argues the military judge should have recused him-
self due to “actual bias and/or appearance of partiality” in order to “ensure
public confidence in the judicial process.” While many aspects of the interaction
between the military judge and trial defense counsel may be subject to valid
criticism, we conclude the record does not support a conclusion the military
judge abused his discretion in not recusing himself.
In their original recusal motion, trial defense counsel essentially dis-
claimed any actual bias on the military judge’s part. That, as explained above,
changed by the time the Defense moved for a mistrial, and Appellant’s actual-
bias argument is not entirely without basis. The record contains several in-
stances where the military judge was squarely confrontational with trial de-
fense counsel. One example was when the military judge admonished the De-
fense for disclosing text messages Monday morning that they discovered over
the weekend—when the military judge had only granted the Defense’s request
for expert assistance to look for the messages the preceding Friday. The mili-
tary judge’s language speaks to his frustration, as he chastised the Defense for
“another last minute issue,” asking them “[d]id we or did we not discuss” the
matter and “[w]hat did you think was going to happen?” while complaining
that issues “keep dropping in my lap.”
The military judge was also quick to lecture the Defense about following
his rulings, asking rhetorically at one point, “Do people not care what my rul-
ings are if they’re going to sort of go around them?” This question, of course,
22 Having carefully reviewed the record in this case, we see no indication the theory
Appellant now seeks to advance on appeal was apparent from the claims he made at
trial. See United States v. Toy, 65 M.J. 405, 409 (C.A.A.F. 2008) (concluding an alleged
error—while not raised at trial—was “apparent from the context” of an issue that was
raised, and was therefore arguably preserved for appeal).
27
United States v. Martinez, No. ACM 39903 (f rev)
came in the middle of a longer critique of the Defense which had been initially
spurred by the military judge’s erroneous recollection of his own written Mil.
R. Evid. 412 ruling. Rather than admit his error, the military judge suggested
the ruling was just “inartfully drafted,” sua sponte reconsidered the ruling “to
provide a little bit more clarity,” and sustained two of the Government’s objec-
tions to the Defense’s opening statement—even though that opening statement
fell within the bounds of the military judge’s original ruling. In the midst of
Ms. KT’s cross-examination, the military judge lectured the Defense on the
meaning of an objection being sustained and asked, “Did I not sustain an ob-
jection on that issue?” Yet, once an Article 39(a), UCMJ, session was convened
and emotions seemed to have calmed, the military judge ruled in the Defense’s
favor. During another Article 39(a), UCMJ, session, however, the military
judge essentially cross-examined trial defense counsel about why they did not
have an unredacted copy of phone records on hand—an interrogation that only
ended when trial counsel interjected and told the military judge they were to
blame for not having earlier provided the Defense with the document trial
counsel wished to admit.
Government counsel, on the other hand, largely escaped unscathed. For ex-
ample, when trial counsel suggested trial defense counsel had engaged in “bad
lawyering”—a comment flowing from trial counsel’s incorrect recollection of
the military judge’s written Mil. R. Evid. 412 ruling—the military judge char-
itably referred to the comment as “a momentary lapse of hyperbole, an emotion
based on a contentious issue.” When trial counsel defied the military judge’s
ruling prohibiting evidence of Ms. ES’s prior allegations of sexual assault, the
military judge not only allowed Ms. ES’s arguably false answer to stand, but
he simply told trial counsel to “tread lightly” and “be more careful than ever.”
We are nonetheless mindful that “judicial remarks during the course of a
trial that are critical or disapproving of, or even hostile to, counsel, the parties,
or their cases, ordinarily do not support a bias or partiality challenge.” Liteky,
510 U.S. at 555. The question is whether those remarks “reveal such a high
degree of favoritism or antagonism as to make fair judgment impossible.” Id.
We find the matter of the training workshop telling in this case. The military
judge’s lengthy and sharp on-the-record critique of circuit defense counsel,
punctuated by invocations of questionable—if not entirely inapplicable—legal
standards, seems far out of proportion to the scale of the perceived “misstep”
at issue. When the Defense re-raised the matter, the military judge conceded
he might have been “a little bit fired up” and “hypersensitive” about the events
at the workshop. This paints a picture not of a military judge who harbored a
bias against the Defense, but instead of one who was acting somewhat impul-
sively on occasion rather than in the calm, temperate manner judges aspire to.
Based upon our review of the record, we see scant support for the claim that
28
United States v. Martinez, No. ACM 39903 (f rev)
the military judge was actually biased against the Defense, and we will not
conclude the military judge erred in not recusing himself on that ground.
The closer question is whether or not there was an appearance of bias—
that is, whether the military judge’s impartiality might reasonably be ques-
tioned. In his ruling on the mistrial motion, the military judge claimed he had
not made any statement expressing concern or frustration with counsel nor
had he admonished them in front of the court members. Even if this statement
were accurate, this is not the standard for determining a judge’s impartiality.
The correct standard is “whether a reasonable person knowing all the circum-
stances” would question the military judge’s impartiality. Sullivan, 74 M.J. at
453 (emphasis added). Thus, we consider the military judge’s words and ac-
tions regardless of whether they occurred before the court members or even in
the courtroom at all. This is so because the appearance of fairness is tied to the
public’s confidence in our judicial system, a concern that reaches far beyond
the deliberation room in Appellant’s court-martial.
Considering all the circumstances present in this case, we conclude the mil-
itary judge did not abuse his discretion in not recusing himself, even under an
“appearance of bias” standard. We arrive at this conclusion based on the fact
that, notwithstanding caustic comments directed at trial defense counsel, the
military judge’s conduct raised more questions about his patience than his par-
tiality. For example, the military judge seemingly assumed the worst with re-
spect to the events of the workshop and decided to suggest on the record that
the circuit defense counsel had committed professional misconduct, rather
than discuss the matter in an off-the-record R.C.M. 802 conference and provide
more tailored commentary in open court. However, once the Defense re-raised
the issue with the military judge, his demeanor changed, and he admitted he
had perhaps been “hypersensitive” about the matter. Similarly, when trial
counsel objected during the Defense’s opening statement, the military judge
initially insinuated that trial defense counsel had intentionally flouted his rul-
ing. When he revisited the matter, the military judge commended trial defense
counsel for “very zealously” representing Appellant. That being said, the mili-
tary judge also minimized trial counsel’s “bad lawyering” comment as “a mo-
mentary lapse of hyperbole,” when it was trial counsel’s misreading of the mil-
itary judge’s written ruling and ensuing objection that gave rise to the lengthy
excusal of the members in the middle of the Defense’s opening statement in
the first place.
Other aspects of the military judge’s treatment of the Defense do give us
pause. For example, the military judge’s summary conclusion that trial defense
counsel were prohibited from showing text messages to the members during
the Defense’s opening statement was seemingly untethered to the basis of the
Government’s objection, even if within the military judge’s discretion. Notably,
29
United States v. Martinez, No. ACM 39903 (f rev)
the exchange over this issue—in which the military judge complained of “an-
other last minute issue”—occurred just after the military judge issued his rul-
ing on the Defense’s motion for his recusal. Later, when the Government elic-
ited Ms. ES’s arguably false claim that she had not made any other allegations
against Appellant—a matter which was the subject of a pretrial ruling adverse
to the Defense—the military judge not only did not rebuke trial counsel, but
he prohibited the Defense from challenging Ms. ES on that point. The military
judge said he based this conclusion on his view that such a challenge would
work to Appellant’s disadvantage. While one could chalk these instances up to
debatable decisions, one could also legitimately ask whether a reasonable per-
son might conclude the military judge’s impartiality could be questioned.
Contrary to Appellant’s argument, we do not place much stock in certain
events he points to on appeal, such as the Defense’s last-minute review of the
Government’s closing-argument slides. From our review of the record, trial de-
fense counsel offered to quickly review the slides on the spot, and they did so.
The Defense did not object or ask for an Article 39(a), UCMJ, session or seek
any other remedy, so we see nothing that would illuminate our analysis of the
military judge’s decision not to recuse himself. Similarly, the alleged “selective
enforcement” of the scheduling order is insufficiently supported by the record
before us. To the extent Appellant is trying to point to the Defense’s request to
file their failure to state an offense motion only after trial commenced, we con-
clude the military judge was on firm legal footing and well within his discretion
in denying that request.
While we may see indications of an annoyed or brusque military judge, we
see less to support the notion of actual deep-seated antagonism towards the
Defense. Reasonable observers could question whether this court-martial was
carried out in an exemplary fashion, but we conclude that—on balance—the
military judge’s conduct would not give rise to a reasonable person concluding
his impartiality might reasonably be questioned. His conduct did not rise to
the level that would undermine the court-martial’s legality and fairness, and
we therefore decline to find the military judge abused his discretion in not rec-
using himself.
Even if we had concluded the military judge should have recused himself
from Appellant’s court-martial, we would not grant Appellant relief based upon
our analysis of the Liljeberg factors. First, Appellant points to only a few ex-
amples of injustice he personally suffered. Trial defense counsel were denied
the ability to display text messages to the members during their opening state-
ment, even after satisfying their discovery obligations. The Defense’s opening
statement was also derailed for a period of time based upon trial counsel’s ob-
jection and the subsequent confusion over and discussion about the military
judge’s written ruling. Beyond these examples, however, Appellant argues less
30
United States v. Martinez, No. ACM 39903 (f rev)
that he was personally prejudiced by adverse rulings and more that his trial
might seem unfair to an outside observer. We may not endorse the tone of the
entire court-martial, but even caustic comments towards counsel are qualita-
tively different from incorrect adverse rulings with prejudicial impacts. Our
review of the record reveals comparatively few instances of the latter and no
indication that the errors we do find were the result of this particular military
judge’s service on Appellant’s court-martial.
Regarding the second Liljeberg factor, we see little indication that granting
relief in this case would result in other military judges more carefully examin-
ing their own possible grounds for disqualification. We make this assessment
based upon the fact that if the military judge here should have recused himself,
he should have done so under an appearance of bias standard. Given the highly
context-specific analysis that standard calls for, we are unconvinced that
granting relief under the unique facts presented here would provide other
judges with much useful guidance for assessing their own conduct in other
cases. Instead, we believe military judges will be mindful of our above analysis
and be vigilant for the appearance of bias even in the absence of Appellant
being granted relief.
Finally, under the third Liljeberg factor, we see little risk of undermining
the public’s confidence in the military justice system for many of the same rea-
sons we determine that a reasonable person is not likely to conclude the mili-
tary judge’s impartiality might reasonably be questioned. We think that while
the public may rightfully have high expectations for the military justice sys-
tem, the public must also recognize that it is an adversarial system comprised
of imperfect human beings—one in which counsel and military judges will in-
variably debate and disagree with each other. Demonstrations of impatience
or criticism by the military judge in this case are simply inadequate to give rise
to an objective risk of undermining the public’s confidence in the overall justice
system.
B. Ms. KT’s Refusal to Disclose Contact Information
On appeal, Appellant argues the military judge abused his discretion by
permitting Ms. KT to testify without first compelling her to either provide con-
tact information for her mother or, alternatively, answer questions in support
of the Defense’s motion to compel her mother’s production.
1. Additional Background
One of the Defense’s theories was that Ms. KT only alleged she had been
sexually assaulted after she talked to her mother. Specifically, the Defense al-
leged that Ms. KT spent the weekend as well as the morning and early after-
noon of Monday, 27 August 2018, with Appellant before driving back home.
Over the course of several hours, Ms. KT continued to exchange affectionate
31
United States v. Martinez, No. ACM 39903 (f rev)
text messages with Appellant and discussed her plan to spend time with Ap-
pellant the upcoming weekend. That night, Ms. KT texted Appellant—appar-
ently in response to an incoming phone call from him—stating that she was
talking to her mother. The following morning, Ms. KT texted Appellant that
she “just need[ed] time.” About three hours later, she texted him that she felt
“super disrespected.” This led to a response from Appellant in which he said,
inter alia, “I got carried away and I’m so sorry for what happened. . . . I regret
everything. This is the biggest mistake I’ve ever made. . . . It’ll take time to
heal and I know that. I don’t expect you to be over this right now.” Over the
following days, Ms. KT expressed her frustration with Appellant and the im-
pact his actions had on her, while Appellant made significant additional ad-
missions about the assault.
The Defense postulated that it was after Ms. KT’s Monday-night conversa-
tion with her mother that Ms. KT’s attitude towards Appellant shifted dramat-
ically. Ms. KT, however, refused to be interviewed by trial defense counsel prior
to trial. The Defense requested Ms. KT’s mother’s contact information in dis-
covery, but trial counsel maintained they did not have it. Upon receiving the
Defense’s request, the Government sought the contact information from Ms.
KT, but Ms. KT—through her special victims’ counsel—declined to provide it.
Government agents attempted to assist the Defense in this endeavor by provid-
ing possible phone numbers for Ms. KT’s mother, but none of the numbers was
valid. As a result, the Defense had little else other than the text message to
confirm or refute their understanding of when Ms. KT spoke with her mother.
On 21 August 2018—the day before the motions hearing began—the De-
fense made a motion to compel the production of Ms. KT’s mother via subpoena
and to abate of the proceedings until Ms. KT agreed to interview with the De-
fense.23 During the hearing on this motion, trial defense counsel indicated they
wished to call Ms. KT to testify. Circuit trial defense counsel also said he did
not intend “to call her to interview her,” and that perhaps the military judge
would “accept the proffer from her counsel that she won’t talk to [the Defense].”
He continued: “So I don’t know if the [c]ourt needs to hear from her saying she
won’t talk to me, but we have an issue in which—there some [sic] evidence in
conversation with her mother happens [sic] both very approximate [sic] in time
to the charged event.” After some discussion, the following colloquy occurred:
MJ: All right. But you don’t actually know what, if anything, she
discussed with her mother?
23 Nothing in the record indicates that the Defense requested the Government produce
Ms. KT’s mother for trial prior to making this motion.
32
United States v. Martinez, No. ACM 39903 (f rev)
CDC: I don’t. I haven’t spoken with mother and I haven’t spoken
with [Ms. KT].
MJ: And so you want to call [Ms. KT] to find out what she talked
about with her mother?
CDC: Yes.
MJ: And if she says on the stand, I never talked to my mother
that night. I was lying to him.
CDC: Yes. And instead we have an impeachable statement, but
it doesn’t help me with producing the mother. You’re right.
MJ: Sure. And it doesn’t help—I’m not here to help build im-
peachable statements either. I mean, if we don’t know what she’s
going to say, then we don’t know if she’s going to be helpful to
me in the analysis of whether or not you’ve met your burden of
production of mother. That’s really what it’s all about. But you
haven’t—I understand you haven’t spoken to [Ms. KT] and that’s
another discussion. But I understand that you want to talk to
someone to find out what that conversation was with mom but
you have no idea what they are [sic] she talked about.
CDC: Well—
MJ: You’re speculating that there was discussion post-alleged
assault that then led to [Ms. KT] taking some certain action—
breaking up with the accused, et cetera—and you believe that
mother may have said something to [Ms. KT] that caused her to
suddenly change her attitude towards the accused, but you don’t
know that for sure.
CDC: I have—well, I don’t know for sure, but I have a very good
faith basis to believe it because [Ms. KT’s father] says, mom
called me and told me that [Ms. KT]—something happened to
her, and that’s why you need to call her.
MJ: So the father said that the mother called him and said call
her because she just told me something happened.
CDC: Yes, Your Honor. So that’s my good faith basis, not just
that this content was discussed but when it was discussed, be-
cause of where [Ms. KT’s father]—what he says about the con-
versation and when he places it.
MJ: Okay. And you’re being told that the contact information
is—the family is not willing to provide you with the contact in-
formation?
33
United States v. Martinez, No. ACM 39903 (f rev)
CDC: Yes, Your Honor. . . .
....
MJ: Okay. So the relevance is essentially—the defense theory is
that it’s potential impeachment evidence. That’s the relevance of
[Ms. KT’s] mother because there’s at least some indication that
the alleged victim was in a certain positive frame of mind—how-
ever you want to characterize it—with the accused. Post-offense,
she spoke to her mother then immediately thereafter, things
turned. And the theory being is that something that mom said
to her or implied to her caused her to change and then ultimately
report an offense?
CDC: Yes, sir.
Before moving on to the next motion, the military judge asked, “Anything
further on [Ms. KT’s] mother?” Trial defense counsel answered, “In terms of
argument or evidence, Your Honor?” The military judge replied,
Just argument. I mean I think I’ve got the gist of the relevance.
I think you do have a bit of a problem in that you don’t know
what she’s going to say. So relevance, in the traditional sense,
I’m not sure 100 percent that you’ve established relevance be-
cause you don’t know what she’s going to say. I get that that’s
not your fault, but ultimately it is [a] factor to consider in the
analysis. But I do believe you’ve raised a valid theory as to why
she might be relevant on the issue of motive, bias, impeachment,
et cetera. So I’ll consider all that, but ultimately I see this as a
witness production issue [ ] so I’ll analyze that through that par-
ticular lens.
Although the Defense conceded the military judge had no authority to com-
pel Ms. KT to submit to a pretrial interview, trial defense counsel argued the
proceedings should be abated until Ms. KT agreed to a defense interview due,
in part, to the fact Ms. KT had been interviewed by trial counsel. The military
judge declined to abate the proceedings on this ground, finding there was no
indication the Government had done anything to impede the Defense’s access
to Ms. KT. The military judge did direct trial counsel to continue to encourage
Ms. KT to interview with the Defense, and he said he would consider such
remedies as allowing the Defense some period of time after her direct testi-
mony to prepare for cross-examination as well as greater latitude in that cross-
examination.
The military judge further ruled he would not order the production of Ms.
KT’s mother, whom he treated as an unavailable witness. He invoked the
standard for production of an unavailable witness under R.C.M. 703(b)(3),
34
United States v. Martinez, No. ACM 39903 (f rev)
which relates to witnesses deemed unavailable under the meaning of Mil. R.
Evid. 804(a). Under this standard, a military judge shall grant relief when the
testimony of an unavailable witness “is of such central importance to an issue
that it is essential to a fair trial, and . . . there is no adequate substitute for
such testimony.” R.C.M. 703(b)(3). The military judge said Ms. KT’s mother’s
testimony was “being raised under an impeachment theory, and only to the
extent that it would provide [Ms. KT] with a motive to fabricate or be some
evidence of bias.” He concluded the Defense had not met the R.C.M. 703(b)(3)
“central importance” standard, “even assuming [Ms. KT] did discuss the al-
leged assault with her mother and then changed her tone towards [Appellant]
after that conversation.” He based this conclusion on the fact that in the text
messages, Appellant was “apologizing for his conduct in a manner that could
constitute consciousness of guilt;” that Ms. KT’s mother’s testimony would only
be relevant for impeachment if Ms. KT denied speaking to her mother; and
that Ms. KT’s mother’s testimony was unnecessary to establish motive or bias,
because the Defense already had the text message. The military judge ex-
plained: “The timing of the text message reference to a conversation with her
mother provides the [D]efense with the opportunity to explore this issue on
cross-examination . . . to demonstrate on the part of [Ms. KT] a possible bias or
motive to fabricate.” The military judge also concluded the Defense had failed
to meet their burden “to provide the witness[’]s name, contact information and
a synopsis of her expected testimony” under R.C.M. 703(c)(2)(B)(i).24
Just before opening statements, the military judge returned to the issue of
Ms. KT refusing to interview with the Defense and asked trial defense counsel
for their “proposed remedies.” The Defense suggested a recess for Ms. KT to
reconsider submitting to an interview; that the military judge personally en-
courage her to be interviewed; being afforded “expanded cross,” to include ask-
ing Ms. KT about her refusal to interview with the Defense and her “refusal to
provide access to other witnesses in this case to include her mother;” and the
military judge giving an instruction to the members on the matter.25 The mili-
tary judge said he would permit “a reasonable inquiry on cross examination
into the fact that [Ms. KT] declined to submit to a pretrial interview and that
she did not wish for her mother to meet with [the D]efense for an interview.”
He further said he would entertain a request for a 30-minute recess after Ms.
24 The military judge further said: “Defense has provided no legal authority, nor could
the court find any legal authority to support the proposition that the [D]efense is enti-
tled to the relief requested when they are unable to discover through their own reason-
able efforts information sufficient to meet their burden under [R.C.M.] 703 when there
is no evidence of government interference.”
25 The Defense indicated a draft instruction would be prepared at a later point in time.
35
United States v. Martinez, No. ACM 39903 (f rev)
KT’s direct testimony to permit the Defense to prepare for her cross-examina-
tion.
In the Defense’s opening statement, trial defense counsel told the members
the events regarding Ms. KT “turn[ed] from a misunderstanding to a criminal
investigation” once Ms. KT talked to her mother after she returned home from
visiting Appellant. Trial defense counsel said that it was after the call when
“the tone changes” and “[i]t’s no longer a mistake. Now it’s an accusation.” He
told the members they would not be hearing from Ms. KT’s mother.
When Ms. KT took the stand, her testimony ran counter to the Defense’s
theory about the timing of her call with her mother. Ms. KT testified on direct
that she first talked to her mother and disclosed the assault as she drove home
from Appellant’s house and not at some later point, as the Defense had posited
during their opening statement. On cross-examination, Ms. KT further testi-
fied she had lied to Appellant when she texted him that she was talking to her
mother, and she was actually talking to a friend of hers at the time. She ex-
plained she felt Appellant was less likely to question her choosing to talk to
her mother instead of him, versus than if she was merely talking to a friend.
Ms. KT also conceded she hid her mother’s contact information from the De-
fense and asked her father to do the same. Trial defense counsel did not ask
Ms. KT to provide that contact information while she was on the stand, nor did
they ask the military judge to direct Ms. KT to disclose it.
After the Government rested, the Defense moved to strike Ms. KT’s testi-
mony or, alternatively, to dismiss the specification alleging Appellant had sex-
ually assaulted her. The Defense said their alternate request was rooted in an
alleged violation of Brady v. Maryland, 373 U.S. 83 (1963). The Defense ac-
cused the Government of not revealing that Ms. KT had lied to Appellant in
her text message when she said she was talking to her mother. The Defense
also argued that even if the Government was unaware Ms. KT had lied to Ap-
pellant about whom she was talking to, the Defense was blindsided by this
testimony, resulting in undue prejudice to Appellant because the theory the
Defense advanced to the members in the opening statement had been squarely
undermined. The Defense also suggested Ms. KT had been able to modify her
testimony after hearing the Defense explain their theory during the motions
hearing.
In discussing the matter with the military judge, trial defense counsel con-
ceded they did not know whether or not trial counsel were aware that Ms. KT
was not actually talking to her mother when she texted Appellant that she
was. Trial counsel said they did not recall asking Ms. KT about the text mes-
sage and were “not tracking that [they] even talked with her about that mes-
sage, let alone knew that there was some dishonesty there.” The military judge
found there had been no violation of Brady, saying, “I don’t believe the
36
United States v. Martinez, No. ACM 39903 (f rev)
[G]overnment specifically knew that the witness was going to say that[,] she
may have just never been asked by anyone,” and that there was no evidence
the Government withheld or failed to turn over any evidence.
The military judge reminded the Defense that he had no authority to com-
pel Ms. KT to submit to a pretrial interview and that Appellant’s constitutional
confrontation rights were satisfied by virtue of Ms. KT testifying. He then said
that the Defense had approached their opening statement “with eyes wide
open”—that is, they knew they had not been able to interview Ms. KT or her
mother to confirm the two of them actually had a conversation at the time the
Defense believed they had. Although the military judge said he recognized Ms.
KT had undermined the Defense’s theory, such did not warrant striking her
testimony—especially in light of the fact he had granted trial defense counsel
additional time after the direct examination to prepare their cross-examina-
tion.
In the Defense’s closing argument, trial defense counsel told the members:
Reasons for reporting. We hear for the first time, she talked to
her mom on the way home . . . she was trying to figure out what
to do . . . . And she talks to her dad and there is an important
intervening step that I hope you picked up her dad does not hear
what happens. Dad gets a text from a mysterious, unheard from
mother. And what it says is you need to talk to your daughter.
And so this first version what happens, this first version of what
she says, he never got to hear. The Government did not present
it to you.
At this point, trial counsel said, “Objection, Your Honor, it is improper argu-
ment.” The military judge sustained the objection and told the members to re-
call his instruction that they “are to consider the evidence that is properly be-
fore [them] when considering whether or not the Government has met their
burden in this case.” Trial defense counsel then continued, “And what you
heard from [Ms. KT] is that she hid her. Among other things hid in this inves-
tigation, she hid her.”
2. Law
a. Discovery
Under Article 46(a), UCMJ, “the trial counsel, the defense counsel, and the
court-marital shall have equal opportunity to obtain witnesses and other evi-
dence” pursuant to rules prescribed by the President. 10 U.S.C. § 846(a). One
of those rules, R.C.M. 701(e), provides that each party shall have “equal oppor-
tunity to interview witnesses.” Even in the absence of a defense request, trial
counsel must disclose “the existence of evidence known to trial counsel” which
tends to be exculpatory, be evidence in mitigation or extenuation, or
37
United States v. Martinez, No. ACM 39903 (f rev)
“[a]dversely affect the credibility of any prosecution witness or evidence.”
R.C.M. 701(a)(6). Trial counsel has the “duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including
the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).
“[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87. “Evidence is favorable if it is exculpatory, substantive
evidence or evidence capable of impeaching the [G]overnment’s case.” United
States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012) (citations omitted). Im-
peachment evidence “may make the difference between conviction and acquit-
tal.” United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence is material
“when there is a reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different.” Smith v. Cain, 565
U.S. 73, 75 (2012) (quoting Cone v. Bell, 556 U.S. 449, 470 (2009)).
b. Production
An accused has the due process right under the Sixth Amendment26 to com-
pulsory process to obtain and present witnesses to establish a defense. Wash-
ington v. Texas, 388 U.S. 14, 18–19 (1967). Under the rules promulgated by the
President, “[e]ach party is entitled to the production of any witness whose tes-
timony on a matter in issue on the merits or on an interlocutory question would
be relevant and necessary.” R.C.M. 703(b)(1). This includes “the benefit of com-
pulsory process.” R.C.M. 703(a). An accused’s right to compel the production of
witnesses for trial is not unfettered; rather, the right is tied to “consideration
of relevancy and materiality of the expected testimony.” United States v. Car-
penter, 1 M.J. 384, 385 (C.M.A. 1976) (citations omitted).
Under R.C.M. 703(c)(2)(A) and (B), the Defense is required to submit a writ-
ten request for the production of witnesses to trial counsel, and that request
“shall include the name, telephone number, if known, and address or location
of the witness such that the witness can be found upon the exercise of due
diligence” along with “a synopsis of the expected testimony sufficient to show
its relevance and necessity.” Trial counsel then arranges for the production of
such witnesses unless trial counsel contends production is not required—a con-
tention the defense may challenge before a military judge. R.C.M. 703(c)(2)(D).
If the military judge grants a defense motion to produce a witness, trial
counsel shall produce the witness. Id. The presence of civilian witnesses may
be obtained by subpoena issued by trial counsel. R.C.M. 703(g)(3). When a sub-
poenaed witness neglects or refuses to appear, the military judge may issue a
26 U.S. CONST. amend. VI.
38
United States v. Martinez, No. ACM 39903 (f rev)
warrant of attachment to compel that witness’s attendance at a court-martial.
R.C.M. 703(g)(3)(H).
In the event a witness is deemed “unavailable,” the standard for relief is
not simply that the witness’s testimony is relevant and necessary, but that it
“is of such central importance to an issue that it is essential to a fair trial, and
. . . there is no adequate substitute for such testimony.” R.C.M. 703(b)(3). The
term “unavailable” is given the meaning found in Mil. R. Evid. 804(a). Under
that rule, a witness is unavailable if he or she “is absent from the trial or hear-
ing and the statement’s proponent has not been able, by process or other rea-
sonable means, to procure” the witness’s attendance. Mil. R. Evid. 804(a)(5).
Upon a showing that a witness both meets the “central importance” standard
and is unavailable, “the military judge shall grant a continuance or other relief
in order to attempt to secure the witness’[s] presence or shall abate the pro-
ceedings . . . .” R.C.M. 703(b)(3). Unavailability is determined by asking
“whether the witness is not present in court in spite of good-faith efforts by the
Government to locate and present the witness.” United States v. Cabrera-Frat-
tini, 65 M.J. 241, 245 (C.A.A.F. 2007) (quoting United States v. Cokeley, 22 M.J.
225, 228 (C.M.A. 1986)). Government effort to produce a witness is a prerequi-
site to finding a witness to be unavailable. Id. (citing Barber v. Page, 390 U.S.
719, 724–25 (1968)).
We review a military judge’s rulings on discovery and production matters,
as well as a military judge’s selection of remedies for violations, for an abuse
of discretion. United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015) (cita-
tions omitted) (reviewing military judge’s ruling finding discovery violations);
United States v. Breeding, 44 M.J. 345, 349 (C.A.A.F. 1996) (citation omitted)
(reviewing military judge’s denial of request for production of witnesses);
Cokeley, 22 M.J. at 229 (citation omitted) (reviewing military judge’s determi-
nation of witness availability). “The abuse of discretion standard calls for more
than a mere difference of opinion.” United States v. Wicks, 73 M.J. 93, 98
(C.A.A.F. 2014) (internal quotation marks and citation omitted). An abuse of
discretion only occurs “when [the military judge’s] findings of fact are clearly
erroneous, the court’s decision is influenced by an erroneous view of the law,
or the military judge’s decision on the issue at hand is outside the range of
choices reasonably arising from the applicable facts and the law.” United
States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008) (citations omitted).
A military judge’s denial of a witness request will not amount to an abuse
of discretion unless we have “a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon a weigh-
ing of the relevant factors.” United States v. Houser, 36 M.J. 392, 397 (C.M.A.
1993) (internal quotation marks and citations omitted). In the context of wit-
ness-production issues, the factors to be considered in determining whether a
39
United States v. Martinez, No. ACM 39903 (f rev)
witness is necessary include: “the issues involved in the case and the im-
portance of the requested witness to those issues; . . . whether the witness’s
testimony would be merely cumulative; and the availability of alternatives to
the personal appearance of the witness.” United States v. McElhaney, 54 M.J.
120, 127 (C.A.A.F. 2002) (citations omitted). The timeliness of the defense’s
request may also be considered. Id. (citations omitted).
If an appellant is entitled to the production of a witness, the erroneous de-
nial of such production will not require relief if we are convinced the error was
harmless beyond a reasonable doubt. United States v. Shelton, 62 M.J. 1, 3
(C.A.A.F. 2005) (citing United States v. Powell, 49 M.J. 220, 225 (C.A.A.F.
1998)).
3. Analysis
a. Compelling Ms. KT to Answer Questions
The thrust of Appellant’s argument on appeal is that Ms. KT improperly
withheld her mother’s contact information from the Defense and that the mil-
itary judge erred in allowing her to testify without first disclosing that infor-
mation. Appellant also argues that although Ms. KT was not a party to the
court-martial, she “should be viewed as a party, or at the very least, a quasi-
party, to the proceeding” based upon the rights afforded to crime victims—and
she was therefore bound by discovery rules.
Analysis of Appellant’s allegation of error is complicated by the fact that
Appellant does not precisely identify what the error was or who committed it.
In his pleadings before this court, Appellant framed this assignment of error
as the military judge erring by “failing to compel [Ms. KT] to answer relevant
questions to remedy her obstruction of access to witnesses and evidence.” Yet,
at no point during Appellant’s court-martial did the Defense ask the military
judge to compel Ms. KT to answer any particular questions. When Ms. KT tes-
tified during the trial, she admitted she had withheld information from the
Defense and that she had urged her father to do the same. But Ms. KT did not
refuse to answer any questions put to her, nor did the Defense ask the military
judge to compel her to answer any.
During the earlier motions hearing, the Defense sought two forms of relief
regarding Ms. KT via written motion: (1) to abate the proceedings on the spec-
ification related to Ms. KT until Ms. KT agreed to be interviewed by the De-
fense, and (2) to order the Government to subpoena Ms. KT’s mother for trial.
As to the first form of relief, the Defense’s argument was that Ms. KT had
agreed to be interviewed by the Government while declining to be interviewed
by the Defense, thereby depriving the Defense of the equal opportunity to in-
terview witnesses. Despite conceding the military judge had no authority to
40
United States v. Martinez, No. ACM 39903 (f rev)
compel such an interview, the Defense asked him to abate the proceedings un-
til she submitted to an interview. The motion did not, however, seek to require
Ms. KT to divulge her mother’s contact information or any other particular
matter, nor did it indicate any particular topics the Defense wished to ask Ms.
KT about in the interview.
With respect to the production of Ms. KT’s mother, trial defense counsel
asked to call Ms. KT to testify on the motion so that they could ask her about
the substance of her phone call with her mother. Trial defense counsel did not,
however, specifically indicate what information they intended to elicit from Ms.
KT, much less whether they wished to ask her for the contact information while
she was on the stand. The military judge declined to receive evidence on the
motion, short-circuiting the Defense’s effort to question Ms. KT at all, so we
can only speculate about what specific questions trial defense counsel might
have wanted to ask Ms. KT. The military judge did, however, expressly state
the Defense would be permitted to cross-examine Ms. KT during the findings
portion of the trial about the fact she did not want her mother to be interviewed
by the Defense.
At the close of the Government’s case—when the Defense asked the mili-
tary judge to either strike Ms. KT’s testimony or dismiss the sexual assault
specification pertaining to Ms. KT—the Defense did not argue that Ms. KT had
refused to answer any particular question or that the military judge should
have compelled her to provide any information. Instead, the Defense’s argu-
ments were: (1) that the Government failed to disclose that Ms. KT lied to Ap-
pellant when she told him via text that she was talking to her mother, when
in fact she was talking to a friend; and (2) that Ms. KT’s refusal to be inter-
viewed resulted in a “trial by ambush.”
We are somewhat stymied by Appellant’s claim that the military judge
abused his discretion by not compelling Ms. KT to “answer relevant questions,”
because she never refused to answer any questions, and the Defense never
asked the military judge to compel her to do so. During oral arguments in this
case, Appellant asserted his claim of Ms. KT not being compelled to answer
relevant questions should be read as an allegation the military judge erred by
not allowing the Defense to call Ms. KT to the stand for the purposes of the
motion.
Had the military judge simply permitted the Defense to present evidence
on this motion by way of Ms. KT’s testimony, we would actually know what
questions Ms. KT did or did not answer, and we would have clearer under-
standing of the relevance of Ms. KT’s mother’s testimony. Instead, the military
judge decided the motion based upon the proffers of counsel, even though the
better practice is to permit counsel to call witnesses and present actual evi-
41
United States v. Martinez, No. ACM 39903 (f rev)
dence. See, e.g., United States v. Stubbs, 23 M.J. 188, 195 (C.M.A. 1987). Nev-
ertheless, it is not necessarily an abuse of discretion to accept undisputed rep-
resentations of counsel for purposes of deciding motions. See, e.g., United
States v. Vanderwier, 25 M.J. 263, 266 n.3 (C.M.A. 1987). In the end, the only
indication we have as to what exactly trial defense counsel wished to ask Ms.
KT about—besides her declining to interview with the Defense—is trial de-
fense counsel’s ambiguous statement that they “have an issue” regarding “evi-
dence in conversation with her mother happens [sic] both very approximate
[sic] in time to the charged event.” This statement is far too vague for us to
determine what questions the Defense wanted to put to Ms. KT, and we see no
basis for concluding the military judge abused his discretion by denying the
Defense the ability to call her as a witness on the motion.
b. Ms. KT’s Refusal to Submit to Pretrial Interview
At trial and on appeal, Appellant has correctly conceded Ms. KT was under
no obligation to submit to a pretrial interview. See United States v. Morris, 24
M.J. 93, 95 (C.M.A. 1987). Similarly, in the absence of evidence that trial coun-
sel was involved in Ms. KT’s refusal to be interviewed by the Defense, there is
no basis for finding an Article 46, UCMJ, violation. Id.; see also United States
v. Killebrew, 9 M.J. 154, 160 (C.M.A. 1980) (citations omitted) (noting that a
witness may refuse to answer defense questions as long as the Government did
not induce the refusal). “No party may unreasonably impede the access of an-
other party to a witness or evidence.” R.C.M. 701(e) (emphasis added). How-
ever, Ms. KT was a not a “party.” See R.C.M. 103(17) (defining “party” as the
accused, defense counsel, trial counsel, and agents acting on their behalf).27 We
reach the same conclusion regarding her special victims’ counsel who repre-
sented not the Government, but Ms. KT herself. And given that Appellant has
not alleged—and there is no evidence to support—that the Government pos-
sessed and failed to turn over the information Appellant sought, there has been
no Brady violation.
c. Ms. KT’s Withholding of Her Mother’s Contact Information
As a result of the foregoing, we are left with a situation in which Ms. KT, a
civilian victim, sought to prevent the Defense’s access to a witness—her
mother. Because the Defense did not seek to compel Ms. KT to provide her
mother’s contact information, the question becomes whether the military judge
erred by not sua sponte compelling Ms. KT to disclose it. We conclude he did
not. While military judges are not potted plants, they must remain impartial,
27 Appellant asks us to consider Ms. KT to be a party or a “quasi-party” based upon the
fact crime victims have been afforded certain rights with respect to courts-martial.
Appellant cites no authority for this proposition, and we are aware of none. We decline
to extend the definition of “party” beyond that found in R.C.M. 103(17).
42
United States v. Martinez, No. ACM 39903 (f rev)
and we see no error—plain or otherwise—in a military judge refraining from
seeking discovery for one party’s benefit when that party has not requested the
military judge’s help in securing it in the first place.
d. Denial of the Defense’s Motion to Produce Ms. KT’s Mother
In spite of Appellant framing this issue as one in which Ms. KT should have
been compelled to provide her mother’s contact information, the more pertinent
question seems to be whether the military judge erred in not ordering produc-
tion of Ms. KT’s mother for trial pursuant to the Defense’s motion. We asked
the parties to provide oral argument on this point.
We conclude that the military judge’s ruling was erroneous insofar as he
determined Ms. KT’s mother was unavailable under Mil. R. Evid. 804(a). Un-
der that rule, a witness is “unavailable” when she either refuses to testify about
the subject matter despite an order from the military judge to do so; or when
she is absent and her presence cannot be procured by process or other reason-
able means. In this case, the military judge never ordered Ms. KT’s mother to
testify, nor did he direct the Government to explore any means at all to secure
her presence. Despite having the ready ability to require trial counsel to seek
Ms. KT’s mother’s presence at trial, the military judge simply found that Ms.
KT’s mother was unavailable without providing any explanation for how he
reached that conclusion. Ms. KT’s desire that her mother not testify is inade-
quate to establish her mother’s actual unavailability; even if Ms. KT’s mother
was reluctant to testify—which, of course, there is no direct evidence so indi-
cating—the standard for unavailability would be that she refused to testify af-
ter being ordered to do so, she was not amenable to process, or her presence
could not be procured by other reasonable means.
Because the military judge erred in finding Ms. KT’s mother “unavailable,”
he thereby applied the wrong standard for deciding whether to order her pro-
duction. Under R.C.M. 703(b)(1), Appellant had the right to the production of
any witness whose testimony on a matter in issue would be relevant and nec-
essary. Once a witness was deemed unavailable, however, Appellant was only
entitled to relief upon meeting the heightened standard of demonstrating the
witness’s testimony was “of such central importance to an issue that it [was]
essential to a fair trial.” The military judge determined Appellant had not met
this higher standard and was, therefore, entitled to no relief. By incorrectly
finding Ms. KT’s mother unavailable, the military judge applied the wrong
standard to analyzing the question of whether he should order Ms. KT’s
mother’s production. That is, instead of correctly deciding Appellant’s motion
to order the production of Ms. KT’s mother, the military judge erroneously an-
alyzed whether Appellant was entitled to relief based upon Ms. KT’s mother’s
purported unavailability.
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United States v. Martinez, No. ACM 39903 (f rev)
In employing the incorrect standard regarding a witness who had not actu-
ally been shown to be “unavailable,” the military judge abused his discretion
insofar as his analysis was predicated on an erroneous view of the law. This
does not end our inquiry, as we next ask whether Appellant was entitled to Ms.
KT’s mother’s production. Answering that question is difficult, as the military
judge hobbled the Defense’s attempt to demonstrate the relevancy of her testi-
mony when he declined to permit the Defense to call Ms. KT to testify about
her conversation with her mother. Instead, the military judge largely decided
the production motion not upon evidence, but upon the proffers of counsel—
proffers which were vague in light of the fact the Defense had never been able
to talk to either Ms. KT or—because of Ms. KT’s efforts—Ms. KT’s mother.
For the purposes of this appeal, we will assume, without deciding, that Ms.
KT’s mother’s testimony would have been relevant and necessary on the mer-
its, and Appellant was therefore entitled to have her produced. As a result, the
issue becomes whether the military judge’s denial of her production was harm-
less beyond a reasonable doubt. We conclude that it was. Whatever Ms. KT’s
mother might have said about influencing her daughter with regards to Ms.
KT’s report of sexual assault, Appellant’s text messages largely corroborate
Ms. KT’s testimony that Appellant in fact assaulted her. In those messages,
Appellant said he “got carried away,” that he was “so sorry for what happened,”
that he “regret[ted] everything,” and that it was “the biggest mistake [he had]
ever made.” Two days later, he texted Ms. KT saying he had had time to think
about “what [he] did,” that he “regret[s] it so much,” that he would “never do
that again,” and that he “respect[s her] boundaries.” He wrote: “I wish it never
happened. I wish I would have never did that.” Any ambiguity in those texts is
removed by other texts in which Appellant responds to a question from Ms. KT
asking him why he did “that”—he replied, “I think that in that moment I
wanted to have sex with you again. And when it was happening it felt really
good;” “I wasn’t listening in that point of time and I was being selfish as to how
you felt. I should have stopped and listened to you;” and, “It’s your body and
you have the right to say no.”
Based upon Ms. KT’s testimony about the assault and Appellant’s own
words in the following days, we conclude the denial of Ms. KT’s mother’s pro-
duction was harmless beyond a reasonable doubt. See United States v. Hall, 58
M.J. 90, 94–95 (C.A.A.F. 2003).
C. Reconsideration of the Mil. R. Evid. 412 Ruling
As discussed above in Section II.A.1.c., supra, the military judge sua sponte
reconsidered his ruling under Mil. R. Evid. 412 regarding Appellant’s and Ms.
KT’s relationship in the midst of the Defense’s opening statement. Appellant
asserts this reconsideration was erroneous, and he argues that he was preju-
diced by the reconsideration insofar as it occurred while trial defense counsel
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United States v. Martinez, No. ACM 39903 (f rev)
was delivering the Defense’s opening statement, thereby “disturbing the flow
of information and impact” of that presentation. Appellant theorizes that “[t]he
members were more than likely left wondering what had happened and what
the Defense did wrong” to result in trial counsel’s objection and the ensuing
30-minute delay—in part because the military judge did not explain anything
to them about trial counsel’s objection or the delay when they returned to the
courtroom. The Government contends this is “pure speculation” and that the
military judge’s as-reconsidered ruling was more appropriate than his original
ruling. We note that trial defense counsel neither requested any particular in-
struction nor sought any other relief as a result of the ruling’s reconsideration.
Appellant does not argue that the military judge’s reconsidered ruling on
the Mil. R. Evid. 412 motion was incorrect. Instead, he argues the military
judge erred in deciding to reconsider the original ruling.
1. Law
Under R.C.M. 905(f), the military judge may reconsider any ruling—other
than one amounting to a finding of not guilty—either upon the request of a
party or sua sponte. Military judges must be sensitive to the possibility that
reconsidering an earlier ruling favorable to the defense may unduly prejudice
an accused or otherwise raise the question of whether a mistrial is appropriate.
See United States v. Cofield, 11 M.J. 422, 431 n.14 (C.M.A. 1981). We review a
military judge’s decision to reconsider a ruling for abuse of discretion. See, e.g.,
United States v. Newhouse, No. ACM 38019 (recon), 2014 CCA LEXIS 660, at
*10 (A.F. Ct. Crim. App. 4 Sep. 2014) (unpub. op.) (“The fact that a ruling upon
reconsideration differs from an initial ruling does not necessarily compel a
finding that either was an abuse of discretion.”).
2. Analysis
Although the military judge’s handling of this matter left a great deal to be
desired, he had the inherent authority to reconsider his original ruling at any
point during Appellant’s court-martial. Because Appellant does not argue the
military judge’s as-reconsidered ruling on the Mil. R. Evid. 412 issue was erro-
neous, our focus is on whether the military judge abused his discretion in elect-
ing to reconsider the motion or whether he unfairly prejudiced Appellant in
doing so. We conclude he did neither.
At the point of trial counsel’s objection, trial defense counsel had just told
the members that Appellant and Ms. KT had “consensual sex on multiple oc-
casions the first week.” The military judge’s written ruling originally permitted
the parties to elicit evidence as to a specific number of times Appellant and Ms.
KT engaged in sexual intercourse, but his reconsidered ruling barred any evi-
dence “regarding frequency.” Because trial defense counsel did not actually
comment on the specific number of instances of sex prior to the objection, the
45
United States v. Martinez, No. ACM 39903 (f rev)
military judge’s reconsidered ruling did not create the situation wherein the
Defense promised to present evidence of a fact they would no longer be permit-
ted to prove. Instead, the Defense’s case was prospectively limited to a degree,
although Appellant does not argue that his defense was prejudiced in any sub-
stantive way by the new ruling. Thus, we do not see any indication Appellant’s
presentation of his overall case was impacted by the substance of the reconsid-
ered ruling, and we perceive no unfair prejudice from there being a reconsid-
eration at all. That conclusion is further bolstered by the fact that the military
judge never told the members that he had, in fact, sustained the Government’s
objection to the “multiple occasions” comment, which meant the members were
never told to disregard or otherwise minimize trial defense counsel’s comment.
We agree that the extended break during the Defense’s opening statement
likely left the members wondering what was going on, but that is generally
true of all Article 39(a), UCMJ, sessions during which members are directed to
leave the courtroom. As is typically done, the military judge in this case told
the members in his initial instructions that there would be hearings outside of
their presence, and he asked for their patience and understanding when those
hearings occurred. This tells us the members were generally aware they would
be asked to leave to the courtroom on occasion in order for the military judge
to resolve matters. Appellant has provided no evidence the members drew any
conclusion adverse to his case based on this particular session, and we will not
infer they did, especially in light of the fact that not only did this occur very
early in the trial, but the military judge never informed the members he had
ruled adversely to the Defense. Plainly, a better approach would have to been
to accurately establish the parameters of the allowable evidence prior to open-
ing statements so that the parties had a degree of clarity on how to frame their
respective cases, but we see no unfair prejudice to Appellant under the facts
presented here. Thus, Appellant is entitled to no relief on this ground.
D. Military Judge’s Instructions on Attempted Sexual Assault
On appeal, Appellant argues the military judge erred when he declined the
Defense’s request to specify in his instructions to the members which overt acts
the Government needed to prove in order to establish Appellant had attempted
to sexually assault Ms. ES as alleged in the Specification of Charge II. Alt-
hough we disagree with Appellant’s argument as he frames it, we conclude the
military judge’s instructions were incorrect and that Appellant’s conviction on
this specification cannot stand.
1. Additional Background
In July 2018, Ms. ES and Appellant had been together about five years and
married for the last two of those years. The marriage, however, was not going
46
United States v. Martinez, No. ACM 39903 (f rev)
well, and the two had talked about divorcing. Ms. ES was also making arrange-
ments to fly to her parents’ home in California with no immediate plans to
return to the house she shared with Appellant in Washington.
Although Ms. ES could not remember the exact date, she testified that one
night in July 2018 she was laying on the couch when Appellant came home at
the end of his typical mid shift—a shift which she said ended at 2200 hours.28
According to her testimony, Appellant took off his uniform jacket and hat and
then walked over to her, got down on his knees in front of the couch so that his
waist was “probably on level with the couch,” and tried to kiss her despite her
saying “no.” She testified, “And he kept trying to kiss me and he was touching
me and I was telling him to stop.” She said Appellant then “grabbed [her] arms
and held them together with one of his hands” while he “was touching [her] all
over” as she was “asking him to stop.” Ms. ES said she was “struggling” with
Appellant, but he was able to “move[ her] leg open so that he can get in between
[her] legs,” while still touching and trying to kiss her. During the struggle, Ms.
ES said she could feel Appellant’s erect penis on her vagina through their re-
spective clothing. Ms. ES kept telling Appellant to stop, at which point Appel-
lant “grabbed both of [her] arms” and said, “[N]o, you stop,” and then “shook”
her, finally “[throwing her] leg to the side.” Ms. ES testified Appellant “shuf-
fle[d] back on his knees . . . to get out.” She “closed [her] legs,” and then Appel-
lant said, “[Y]ou’re my wife so I can take it if I want to.” A photograph of a
bruise on Ms. ES’s right forearm was admitted as evidence of an injury she
sustained during the struggle.
A few days after the assault, Ms. ES called her brother, Mr. AK, and told
him what had occurred. Mr. AK then called Appellant to hear his version of
events. Mr. AK testified that during that call, Appellant admitted grabbing
Ms. ES’s wrists, holding her down and trying to kiss her and said that “[h]e
wanted to have sex with his wife to see if there’s anything still there emotion-
ally.”
Based on these events, Appellant was charged with committing abusive
sexual contact on Ms. ES by touching her vulva with his penis through their
clothing with an intent to gratify his sexual desire, without her consent, and
by causing her bodily harm by so touching her. He was also charged with at-
tempting to sexually assault her with a specification which alleged Appellant
“did . . . attempt to commit a sexual act upon [Ms. ES], to wit: penetrating her
vulva with his penis, by causing bodily harm to her, to wit: penetrating her
vulva with his penis, without her consent.”
28 One of Appellant’s co-workers, as well as his roommate, who was the shift lead, tes-
tified the mid shift ended at 2300 hours, not 2200.
47
United States v. Martinez, No. ACM 39903 (f rev)
Appellant was acquitted of the former and convicted of the latter. As dis-
cussed in Section II.A.1.a., supra, the Defense unsuccessfully sought the pre-
trial dismissal of the attempted sexual assault specification under the theory
that it did not provide Appellant with adequate notice of how he was being
accused of attempting to commit the offense. Essentially, the Defense argued
the Government had failed to allege in the specification what particular act
Appellant had taken in furtherance of the attempt.
Once the Government rested, the Defense moved the military judge to enter
a finding of not guilty for the attempted sexual assault specification. In this
mid-trial motion, trial defense counsel argued the evidence was insufficient to
show Appellant had taken a substantial step towards committing sexual as-
sault, which had been charged as Appellant penetrating Ms. ES’s vulva with
his penis and causing her bodily harm by doing the same without her consent.
The Defense’s first argument was that—even accepting Ms. ES’s testimony
that Appellant had held her arms and kissed her—such conduct did not
amount to a substantial step towards committing the charged conduct of at-
tempting to penetrate Ms. ES’s vulva with his penis, especially in light of the
fact both Ms. ES and Appellant were fully clothed. The Defense’s second argu-
ment was rooted in the notion that Appellant never intended to sexually as-
sault Ms. ES because he did not try to penetrate her vulva with his penis, and
not because he was thwarted by “unexpected intervening circumstances.” The
Defense’s hypothesis seemed to be that the most Appellant intended to do was
touch Ms. ES with his penis, through their respective clothing.
The military judge denied the Defense’s motion, finding that Ms. ES’s tes-
timony established that Appellant “initiated contact by getting on top of her,
forcing her legs apart, kissing her, holding her wrist, touching her body, and
trying to remove her clothing.”29 He concluded this was “at least some evidence
that would amount to more than mere preparation . . . and could be considered
a substantial step towards the commission of the offense of sexual assault.”
The military judge further noted Appellant’s statement that he could “take it,”
along with his comments to Ms. ES’s brother, indicated Appellant’s desire to
engage in “sexual activity” with Ms. ES. Finally, the military judge found that
Ms. ES’s resistance to Appellant’s advances was “at least some evidence of an
intervening cause or circumstance that would prevent completion of the of-
fense.”
29 Ms. ES never testified that Appellant either got on top of her or tried to remove her
clothing during the episode.
48
United States v. Martinez, No. ACM 39903 (f rev)
Although the specification did not allege a particular act committed by Ap-
pellant in furtherance of his attempt, the military judge proposed to instruct
the members:
In order to find the Accused guilty of this offense you must be
convinced by legal and competent evidence beyond a reasonable
doubt, 1) That at or near Spokane, Washington, on or about 18
July 2018, the Accused did a certain act, that is: attempt to com-
mit a sexual act upon [Ms. ES], to wit penetrating her vulva with
his penis, by causing bodily harm to her, to wit: penetrating her
vulva with his penis without her consent; 2) That the act was
done with specific intent to commit the offense of sexual assault;
3) That the act amounted to more than mere preparation, that
is, it was a substantial step and a direct movement toward the
commission of the intended offense; 4) That such act apparently
tended to bring about the commission of the offense of sexual
assault, that is the act apparently would have resulted in the
actual commission of the offense of sexual assault except for an
unexpected intervening circumstance which prevented comple-
tion of that offense.
In defining preparation, the military judge proposed:
To find the Accused guilty of this offense you must find beyond
a reasonable doubt that the Accused went beyond preparatory
steps and his acts amounted to [a] substantial step [and] a direct
movement toward the commission of the intended offense. A
“substantial step” is one that is strongly corroborative of the Ac-
cused[’s] criminal intent and is indicative of his resolve to com-
mit the offense. Proof that the offense of sexual assault actually
occurred or was completed by the Accused is not required, how-
ever it must be proved beyond a reasonable doubt that at the
time of the acts the Accused intended every element of sexual
assault.
Trial defense counsel objected to the proposed instructions because they did
not specify what the “certain acts” were that Appellant allegedly committed
which tended to bring about the commission of the offense of sexual assault.
Trial defense counsel further pointed to the instruction in the Military Judge’s
49
United States v. Martinez, No. ACM 39903 (f rev)
Benchbook30 that calls for specifying such acts for the members. In the Bench-
book, the model instruction employs the following template for an attempted
offense:
(1) That . . . the accused did (a) certain act(s), that is: (state the
act(s) alleged or raised by the evidence); (2) That the act(s) (was)
(were) done with the specific intent to commit the offense of
(state the alleged attempted offense); (3) That the act(s)
amounted to more than mere preparation, that is, (it was) (they
were) a substantial step and a direct movement toward the com-
mission of the intended offense; and (4) That such act(s) appar-
ently tended to bring about the commission of the offense of
(state the alleged attempted offense), (that is, the act(s) appar-
ently would have resulted in the actual commission of the of-
fense of (state the alleged attempted offense) except for (a cir-
cumstance unknown to the accused) (an unexpected intervening
circumstance) (__________) which prevented completion of that
offense).
Department of the Army Pamphlet 27-9 at 177, Military Judges’ Benchbook
(10 Sep. 2014) (Benchbook) (emphasis added).
The Government opposed identifying any specific acts which might
amount to a substantial step in the instructions. The military judge said the
Defense’s objection was “definitely noted,” but that he would not modify his
proposed instructions. He explained:
It is for the members to determine after considering all the evi-
dence, whether or not the acts that constitute the attempted of-
fense[,] i.e.[,] the substantial step toward the movement of that
offense. Whether or not those acts actually meet that element or
not is for them to decide and for the [c]ourt to essentially sit
down and plug in all of the evidence that may have come out
during the trial that the [c]ourt anticipates the Government may
argue constitutes evidence of a substantial step. I think would
be[,] number one would be somewhat improper for the [c]ourt to
plug that in there because of the suggestion that the [c]ourt[’]s
dictating to the members the scope of the evidence that they can
consider[ a]s evidence amounting to a substantial step, but again
I do not want to intrude on their ability to decide on their own
based on the evidence presented and how [c]ounsel characterize
30 Department of the Army Pamphlet 27-9, Military Judges’ Benchbook (10 Sep. 2014)
(Benchbook).
50
United States v. Martinez, No. ACM 39903 (f rev)
and argue that evidence[, w]hat actually constitutes more than
a mere preparation or substantial step.
And so therefore, and based on samples and examples that I
have reviewed in the past. [sic] While there may be a circum-
stance depending on the type of offense charged where it is
drafted differently in this particular offense. [sic] I am comfort-
able plugging in the attempt, the actual nature of the offense
that has been attempted. And then leave it to the parties to char-
acterize with regard to elements two and three, excuse me three
really, three and four, whether or not the evidence presented
meets those elements.
The military judge gave the members the instructions as he had originally
proposed. In the Government’s closing argument, trial counsel argued, “You
either believe that the Accused did a certain number of acts, kissing, and touch-
ing, and all that right, a substantial step toward having sex with Ms. [ES] or
you do not. I do not know how much more I can say about it.”
When the members returned their verdict acquitting Appellant of abusive
sexual contact, but convicting him of attempted sexual assault, trial defense
counsel moved the military judge to declare a mistrial, explaining that their
principal concern permeating all of this is that there were no
specific acts pled in the Specification of Charge II. . . . [T]here
was never any specific articulation in the pleading or otherwise
that put [Appellant] on notice of the exact things that he would
have done to contemplate or actually complete the attempt.
In addition to asserting Appellant was prejudiced by a lack of notice and
that the members’ findings were inconsistent, trial defense counsel said the
military judge’s instruction “caused confusion in such a way and did not
properly guide the members on making findings of specific acts.” In discussing
the matter with counsel, the military judge said,
The act and I know it sounds inconsistent but I didn’t see any-
thing—any legal authority to say otherwise. The act is actually
the effort to penetrate the vagina with the penis. That’s the act.
Whether or not he noticed [sic] substantial step towards com-
pleting that act, tried to take off clothes, kissed, held arms, et
cetera, those are—that’s all facts and circumstances that the
members are free to consider when deciding whether or not there
was a substantial step towards completion of the act. There is no
requirement and we’ve been over this in the failure to state an
offense motion. There is no requirement for the [G]overnment to
plead all of that information . . . .
51
United States v. Martinez, No. ACM 39903 (f rev)
In their written motion for a mistrial, trial defense counsel argued that the
military judge’s failure to specify particular acts raised by the evidence in his
instructions amounted to “an abdication of the judicial role in a members find-
ings case,” because doing so “essentially nullified the members having to find
anything” with respect to the first element of the offense. In his ruling, the
military judge indicated he relied upon United States v. Payne, 73 M.J. 19(C.A.A.F. 2014), to assess the sufficiency of his instructions to the members on
the attempt charge, asserting the military judge in that case had instructed
the members on the first element “identically” to how he had.31 He also con-
cluded that—because the Government was not required to allege the specific
overt acts it intended to prove in order to establish an attempt charge—the
Defense had not shown that a mistrial was “manifestly necessary in the inter-
ests of justice.”
2. Law
In charging an attempted offense under the UCMJ, it is not necessary to
allege the overt act or the elements of the underlying predicate, or target, of-
fense, as long as the accused is adequately on notice of the nature of the offense.
United States v. Norwood, 71 M.J. 204, 206–07 (C.A.A.F. 2012) (citations omit-
ted).
Military judges have a duty to provide instructions which deliver “an accu-
rate, complete, and intelligible statement of the law.” Behenna, 71 M.J. at 232
(citations omitted). Instructions must be “clear and correctly conveyed.” United
States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011). We review instructions
given “to determine if they sufficiently cover the issues in the case and focus
on the facts presented by the evidence.” United States v. McDonald, 57 M.J.
18, 20 (C.A.A.F. 2002) (quoting United States v. Maxwell, 45 M.J. 406, 424
(C.A.A.F. 1996)). “Whether a panel was properly instructed is a question of law
reviewed de novo.” United States v. Hale, 78 M.J. 268, 274 (C.A.A.F. 2019)
(quoting United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011)). Military
judges are required to instruct members on the elements of charged offenses.
R.C.M. 920(e)(1).
Instructional errors with constitutional dimensions are tested for prejudice
against the standard of “harmless beyond a reasonable doubt.” United States
v. Upshaw, 81 M.J. 71, 74 (C.A.A.F. 2021) (citation omitted). “This standard is
met ‘where a court is confident that there was no reasonable possibility that
31 Contrary to the military judge’s statement, the military judge in Payne did instruct
the members regarding what the “overt act” was in that case, as the overt act was
charged in the pertinent specification. 73 M.J. at 24. The United States Court of Ap-
peals for the Armed Forces concluded other aspects of the military judge’s instructions
on the attempt specification in Payne amounted to plain error. Id. at 25.
52
United States v. Martinez, No. ACM 39903 (f rev)
the error might have contributed to the conviction.’” Id. (citing United States
v. Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020) (quoting United States v. To-
varchavez, 78 M.J. 458, 460 (C.A.A.F. 2019))).
3. Analysis
On appeal, Appellant concedes the Government was not required to allege
any particular overt acts in its charging document, but he argues it was error
for the military judge to not list any overt acts in his instructions. Appellant
largely points to the Benchbook guidance that the military judge should specify
the overt acts for the members to consider. The Government responds that the
Benchbook is merely guidance, and it was within the military judge’s discretion
whether to identify such facts for the members. The Government also notes
that neither of the parties at trial proposed any specific overt acts for the mil-
itary judge to incorporate into his instruction.32
We agree the military judge deviated from the model instruction in the
Benchbook by not identifying any particular “certain acts” that the Appellant
did with the specific intent to commit the offense of sexual assault, but Appel-
lant cites to no authority requiring the military judge to specify these acts for
the members in his instructions, and we are aware of none. The Benchbook
may provide useful guidance to military judges, but military judges are not
required to follow it. See, e.g., United States v. Simpson, 58 M.J. 368, 378
(C.A.A.F. 2003) (noting military judges are “not required to follow literally the
non-binding examples” in the Benchbook). The fact the Government is not re-
quired to allege any specific act in its charging instrument somewhat under-
cuts Appellant’s argument that the military judge was required to identify
such acts for the members. The members, however, were required to find that
Appellant did do a certain act; that the act was done with the specific intent to
commit an offense under the UCMJ; that the act amounted to more than mere
preparation; and that the act tended to effect the commission of the intended
offense. 2016 MCM, pt. IV, ¶ 4.b.
The flaw here is that—contrary to what he said to the parties at the time—
the military judge did instruct the members what “certain act” they had to
find. He told them they had to be convinced Appellant did the certain act of
“attempt[ing] to commit a sexual act upon [Ms. ES], to wit penetrating her
32 Considering the Defense had protested both in pretrial motions and throughout the
duration of Appellant’s court-martial that the Government had failed to explain what
overt acts were being offered to prove the attempted sexual assault offense, it is not
particularly noteworthy that the Defense did not volunteer to fill that perceived void
for the Government.
53
United States v. Martinez, No. ACM 39903 (f rev)
vulva with his penis, by causing bodily harm to her, to wit: penetrating her
vulva with his penis without her consent.” He further told them that in order
to find Appellant guilty, they must be convinced beyond a reasonable doubt
that this act “apparently tended to bring about the commission of the offense
of sexual assault.” Thus, the “certain act” identified by the military judge in
the first element was the same as the “target” offense of sexual assault in the
fourth element.33 As a result, the military told the members they had to con-
clude Appellant committed the act of attempting to sexually assault Ms. ES,
and that this attempted sexual assault tended to bring about the commission
of the offense of sexual assault. In sum, the instructions set up the paradox of
Appellant being convicted of attempting to sexually assault Ms. ES based upon
Appellant taking the substantial step of attempting to sexually assault her.
Although the military judge was not obligated to identify in his instructions
any particular overt act committed by Appellant in furtherance of the attempt,
his decision to do so required him to give an instruction which amounted to “an
accurate, complete, and intelligible statement of the law.” Behenna, 71 M.J. at
232. Here, the military judge’s instruction called for entirely circular reason-
ing, instructing the members to determine whether Appellant attempted to
sexually assault Ms. ES when he carried out the act of attempting to sexually
assault her. Moreover, in light of the requirement to prove Appellant specifi-
cally intended to sexually assault Ms. ES in the manner charged, it is entirely
unclear how the members could follow the military judge’s instruction that
they had to be convinced that Appellant attempted to sexually assault Ms. ES
with the specific intent to commit sexual assault in the exact same manner he
attempted to do so, and that the attempted sexual assault was a substantial
step towards committing the same sexual assault. Compounding this issue, by
defining the “certain act” as the charged offense, the military judge effectively
relieved the members of their obligation to identify a certain act committed by
Appellant in furtherance of his alleged intentional attempt to sexually assault
Ms. ES—essentially reading an element entirely out of the offense.34
33 The military judge himself appeared to acknowledge that he had instructed as such.
When discussing the Defense motion for a mistrial, the military judge stated: “The act
and I know it sounds inconsistent but I didn’t see anything—any legal authority to say
otherwise. The act is actually the effort to penetrate the vagina with the penis. That’s
the act.”
34 To be clear, we do not hold military judges are required to identify particular overt
acts in their instructions in every court-martial involving an offense alleged as an at-
tempt. Rather, we hold that when a military judge elects to do so, he or she must ensure
those instructions amount to an accurate, complete, and intelligible statement of law.
54
United States v. Martinez, No. ACM 39903 (f rev)
Finding error, we are confronted with the question of whether the error was
harmless beyond a reasonable doubt. We conclude it was not. Unlike the situ-
ation in which a military judge omits an element which is fairly encompassed
by the remainder of the instructions, the military judge here directed the mem-
bers to an incorrect evidentiary burden. In instructing on the first element, the
military judge identified the “certain act”—the predicate act for the attempt
offense—as the ultimate offense. Significantly, each of the remaining three el-
ements, as instructed by the military judge, related back to that certain act
which the military judge had explicitly identified. For example, for the third
element, the military judge told the members they must be convinced that the
“certain act” amounted to a substantial step towards the commission of the
intended offense. Because the intended offense was the same as the “certain
act” under these instructions, the members were faced with either a tautology
or an impossibility in evaluating this element. That is the case because a pre-
paratory step is, by definition, an intermediate point along a path that termi-
nates at the ultimate destination of the intended offense. Yet the members here
were told the preparatory step was the same as the intended offense, entirely
eliminating the notion of a preparatory step. The same is true of the second
element, in which the certain act must be accomplished with the specific intent
to commit the intended offense, as well as the fourth element, in which the
same certain act must tend to bring about the intended offense.
The Government asserts that the evidence against Appellant was over-
whelming in support of its argument that we should find any instructional er-
ror harmless. We are not so convinced. The evidence was strong in terms of
proving Appellant struggled with Ms. ES while she lay on the couch, but evi-
dence that Appellant specifically intended to penetrate her vulva without her
consent is far from conclusive. We are also mindful of the fact the members
acquitted Appellant of committing abusive sexual contact during this episode.
In any event, we presume the members followed—or at least attempted to fol-
low—the military judge’s instructions. See United States v. Taylor, 53 M.J. 195,
198 (C.A.A.F. 2000). In doing so, if the members concluded Appellant commit-
ted the “certain act” of attempting to sexually assault Ms. ES, as the military
judge explained was required for the first element, then the remainder of the
elements would simply fall by the wayside as a result of their own internally
circular reasoning. This would pave the way for a finding of guilty without
careful analysis of each element.
We conclude the military judge’s instructions amounted to an erroneous
statement of the law, and because we are not privy to what the members made
of the instructions, we cannot be confident their verdict was not a product of
this error. Therefore, we cannot find the error harmless beyond a reasonable
55
United States v. Martinez, No. ACM 39903 (f rev)
doubt. We will accordingly we will set aside Appellant’s conviction on this spec-
ification and set aside his sentence.35
E. Completeness of the Record of Trial
Appellant argues his record of trial is defective and incomplete based on a
variety of alleged deficiencies discussed in greater detail below.
1. Additional Background
The court reporter detailed to Appellant’s court-martial was removed from
his court-reporter duties a few weeks after Appellant was sentenced. Presum-
ably due to the court reporter’s absence, the military judge certified the record
of trial on 20 November 2019. On 7 January 2020, trial counsel certified the
transcript stating he had reviewed the transcript in its entirety and that he
determined “it is an accurate reflection of the proceeding of the court.” The
memorandum also notes what software the originally detailed court reporter
had used.
2. Law
Whether a record of trial is complete is a question of law we review de novo.
United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000).
Appellant’s charges were referred to a general court-martial on 12 April
2019, which is after the 1 January 2019 effective date of the Military Justice
Act of 2016. See Executive Order 13,825, § 5. This act, inter alia, made sub-
stantial changes to the post-trial processing of courts-martial. Prior to 2019, a
verbatim transcript would be prepared in any case with a sentence including
either a punitive discharge or at least 12 months of confinement, and a record
of trial was incomplete without such a transcript. R.C.M. 1103(b)(2)(B),
1103(b)(2)(D) (2016 MCM). In the event a verbatim transcript could not be pre-
pared due to loss of recordings or notes or for some other reason, a convening
authority had the option of either ordering a rehearing or only approving a
sentence which included neither a punitive discharge nor more than six
months of confinement. R.C.M. 1103(f) (2016 MCM). Once the record—to in-
clude the transcript—was prepared, the military judge would authenticate the
35 We recognize that, in at least two other cases reviewed by this court, military judges
gave similar instructions on attempt offenses. See United States v. Brown, No. ACM
39728, 2021 CCA LEXIS 414, at *12 (A.F. Ct. Crim. App. 16 Aug. 2021) (unpub. op.);
United States v. Little, No. ACM 38338, 2014 CCA LEXIS 689, at *10 (A.F. Ct. Crim.
App. 19 Sep. 2014) (unpub. op.). Neither of those unpublished opinions addressed the
propriety of the instructions’ identifying the predicate act as the same as the target
offense. We note that both cases involved convictions for attempt as a lesser-included
offense of a charged offense. For these reasons, those two cases provide little guidance
for our resolution of Appellant’s case.
56
United States v. Martinez, No. ACM 39903 (f rev)
record prior to its service on the accused and transmission to the convening
authority. R.C.M. 1104 (2016 MCM).
Under the rules which went into effect 1 January 2019, the contents of a
record of trial initially compiled at the conclusion of a court-martial no longer
include a transcript of the proceedings—instead, a “substantially verbatim re-
cording” of the proceedings is called for, R.C.M. 1112(b)(1) (emphasis added),
a copy of which the accused is entitled to, R.C.M. 1106(c). In addition to the
recording, a complete record of trial includes such matters as the charge sheet,
exhibits, the statement of trial results, and the judgment entered by the mili-
tary judge. R.C.M. 1112(b), 1112(d)(2). The court reporter certifies the contents
of the record of trial, but the military judge may certify the record if the court
reporter is unable to do so. Art. 54(a), UCMJ, 10 U.S.C. § 854(a); R.C.M.
1112(c). If the record is found to be incomplete or defective prior to certification,
the matter may be raised to the military judge for correction; after certification,
the record may be returned to the military judge for correction. R.C.M.
1112(d)(2). Once the record of trial is certified, a copy is provided to the ac-
cused; however, sealed exhibits and recordings of closed sessions are omitted.
Art. 54(d), UCMJ; R.C.M. 1112(e).
Under the rules now in effect, a certified verbatim transcript of a record of
trial shall be prepared in any court-martial in which a punitive discharge or
confinement for more than six months is adjudged. R.C.M. 1114(a)(1). The
transcript is attached to the record of trial. R.C.M. 1114(d). This transcript,
however, is not part of the original record of trial the court reporter certifies—
instead, the transcript is attached to the record before the record is forwarded
for appellate review. R.C.M. 1112(f)(1)(8). When such a transcript is prepared,
the accused and his or her counsel may be provided a copy upon request.
R.C.M. 1114(b), Discussion. A copy of the entire record and attachments, which
would include the transcript, “shall be forwarded to a civilian counsel provided
by the accused” upon written request of an accused. R.C.M. 1116(b)(1)(B).
Unlike the rules in place prior to 1 January 2019, the current rules have
no provision granting sentence relief in the case of a defective record of trial.
Moreover, these rules contain no provision regarding the correction of inaccu-
rate or incomplete transcripts.
3. Analysis
Appellant points to a number of purported deficiencies with the record of
trial which we will address in turn.
First, Appellant contends the record of trial fails to include a video file
which was never marked as an appellate exhibit or reviewed by the military
judge. This video is discussed in greater detail below in Section II.F., infra. In
short, the Defense sought permission in a Mil. R. Evid. 412 hearing to question
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United States v. Martinez, No. ACM 39903 (f rev)
Ms. KT about the contents of a particular video. Trial defense counsel com-
mented that the military judge did not have a copy of the video, and he asked
the military judge: “Does the [c]ourt require that or is the [c]ourt willing to
take the proffer[?]” The military judge said he did not need to see the video to
rule on the motion and that the video would not be attached to the record as
an appellate exhibit. The military judge then denied the Defense’s motion.
A record of trial includes “any evidence or exhibits considered by the court-
martial in determining the findings or sentence.” R.C.M. 1112(b). Nothing in
this rule requires inclusion of items never viewed or considered by a military
judge on an interlocutory matter. We are aware of no rule, precedent, or other
legal authority requiring the attachment of such items to a record, and Appel-
lant cites none. Appellant’s claim on this point is without merit.
Second, Appellant notes there are several comments in the court reporter
chronology—included in the record—suggesting “various instances of problems
encountered” in the preparation of the record.36 He highlights four particular
entries—two entries indicate trial counsel located missing audio; the third
states the audio and the “Log Notes” did not match; and the fourth says two of
the days of transcript were reviewed “due to significant amounts of missing
transcription.” Appellant, who has access to the original audio recording of his
trial, does not contend the transcript is inaccurate in any way or that the final
transcript omits any portion of the trial. Appellant does not explain the rele-
vance, if any, of the comment about the audio and the notes not matching, and
we see nothing in the record illuminating the matter. Even if Appellant were
to demonstrate the transcript is inaccurate, the current Rules for Courts-Mar-
tial afford him no relief because it is the audio recording that is a component
of the certified record of trial; the transcript is a matter attached for appellate
review under R.C.M. 1112(f). While we can envision a transcript so inaccurate
as to amount to prejudicial error, Appellant has not approached that threshold,
and he is not entitled to relief based upon the four comments he identified in
the chronology.
Third, although the military judge ordered numerous documents to be
sealed during Appellant’s court-martial, many were not in fact sealed when the
36 The Government’s answer and Appellant’s reply brief both reference chronologies
which were included in the record of trial docketed with our court. The parties have
not taken a position as to whether these chronologies are part of the “record” as defined
in R.C.M. 1112(b), “attachments for appellate review” under R.C.M. 1112(f), matters
that we may consider because both parties have referenced them in their briefs, with-
out objection, or something we may not consider on appeal under United States v. Jes-
sie, 79 M.J. 437, 440–41 (C.A.A.F. 2020). We assume without deciding that we may
consider the chronologies, as neither party objected to them at any point. See United
States v. Stanton, 80 M.J. 415, 417 n.2 (C.A.A.F. 2021).
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United States v. Martinez, No. ACM 39903 (f rev)
record of trial was assembled. We are aware of this error, as we ordered the
documents to be sealed once we discovered them in our review. According to
Appellant, he received these documents, unsealed, when he received his record
of trial in January 2020. While this was unquestionably an error denoting a
lack of diligence in the preparation of the record of trial, Appellant has identi-
fied no prejudice he has suffered, and we are aware of none. As such, Appellant
is entitled to no relief. Although we grant no relief, we pause to note that it
was the military judge who certified this record of trial as being “accurate and
complete” on 20 November 2019. The fact that he apparently did not notice the
matters he ordered sealed were not actually sealed indicates his review was
less than thorough.37
Fourth, Appellant states the second page of the Defense’s written motion
for a mistrial is missing, having been replaced with an email. The record filed
with this court, however, suffers no such infirmity—the second page of the mo-
tion in that record is the second page of the Defense’s motion. Without objection
from Appellant, the Government has provided this court with a certificate of
receipt in which Appellant’s military appellate defense counsel signed for re-
ceipt of “disc(s)” containing three items, one of which was the second page of
the motion in question. The receipt is dated 13 April 2021, which was more
than a month after Appellant filed his assignments of error. Appellant, how-
ever, submitted a reply brief on 27 April 2021 and did not revisit this asserted
error, indicating to us a lack of prejudice. Having reviewed the page, we con-
clude Appellant was not prejudiced, especially since he possessed the tran-
script of the on-the-record discussion of the matter and the military judge’s
ruling. Although Appellant’s copy of the record should have included the miss-
ing page, we are not inclined to find prejudicial error from a single errant page
out of a ten-volume record, especially when his counsel had the ready ability
to inspect the record filed with this court that included the correct page.
Fifth, Appellant states the first segment of a video file of Ms. KT’s law en-
forcement interview “does not play.” In response, the Government notes that
in the court-martial transcript, trial defense counsel told the military judge
which particular video program to use to play back the recording. The Govern-
ment also avers it gave Appellant’s appellate counsel a new copy of the first
segment of the interview on 13 April 2021. As with the missing motion page,
Appellant did not readdress or attempt to demonstrate prejudice in his reply
brief. We note that the recording in the record of trial docketed with this court
37 We remind all involved with the preparation and certification of records of trial to
approach these duties with the careful attention to detail which is warranted by the
gravity of military justice proceedings. When matters filed under seal are subsequently
released with no protection, the important policy reasons for sealing them are entirely
compromised.
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United States v. Martinez, No. ACM 39903 (f rev)
was readily viewable using the software trial defense counsel specified at trial.
Based upon the matters before us, we are unable to determine if Appellant
received a corrupted copy of the video file or if his counsel was utilizing incom-
patible software when attempting to view it. In any event, Appellant has not
demonstrated prejudice to his case, and we will not strain to find any.
Sixth, Appellant alleges his copy of the record “does not contain any of the
exhibits that were included in the [record] on disc.” He identifies one exhibit in
particular: Appellate Exhibit XLII. This exhibit, however, is not an electronic
exhibit at all; it is a paper copy of a single page of notes taken from the Air
Force Office of Special Investigation’s report of investigation concerning Ap-
pellant’s charged offenses. The only electronic evidence in the record docketed
with our court is the video recording of Ms. KT’s interview with law enforce-
ment agents, and we know Appellant received that item, as he complained
about his inability to play the first segment of it. Appellant identifies no exhib-
its he has not been provided on a disc or otherwise, and we are aware of none.
To the extent Appellant is asserting he received copies of paper exhibits only
in an electronic format, we would find no prejudice so long as he received the
exhibits in either format.
Seventh, Appellant argues a court reporter was required “to attest to the
accuracy and completeness of the record of trial.” He submits that trial coun-
sel’s certification was insufficient because trial counsel “lacked personal
knowledge of the specific equipment and versions of the software used” either
by the originally detailed court reporter or the other court reporters involved
in the transcription. We note as an initial matter Appellant has failed to
demonstrate that trial counsel did not actually know what equipment or soft-
ware the court reporters used. Appellant bases his argument that a court re-
porter, and not trial counsel, must certify the transcript, on a provision found
in Air Force Manual (AFMAN) 51-203, Records of Trial (4 Sep. 2018, as
amended by Air Force Guidance Memorandum 2019-01, 9 May 2019).38 We as-
sume, even though Appellant argues here that a court reporter must certify
the record of trial, that he is actually referring to the transcript, as the provi-
sion he highlights calls upon the court reporters involved to “certify[ ] the qual-
ity, authenticity of the transcript or portion of the transcript, and method used
to transcribe the proceeding.” AFMAN 51-203, ¶ 14.14. This AFMAN and the
related Guidance Memorandum explain they were issued by order of the Sec-
retary of the Air Force, and compliance with both is mandatory. Given that
neither document purports to authorize trial counsel to certify a transcript of
38 This was the version of the manual in effect at the time of Appellant’s court-martial.
It has since been replaced by Department of the Air Force Manual 51-203, Records of
Trial (21 Apr. 2021).
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United States v. Martinez, No. ACM 39903 (f rev)
court-martial proceedings, trial counsel’s certification here arguably ran afoul
of their requirements. Appellant has identified no prejudice from this error,
and we perceive none—especially because Appellant has access to the record-
ing of his court-martial and he has not identified any transcription errors, let
alone demonstrated how any such errors might have prejudiced him.
Lastly, Appellant argues that because of the foregoing claimed errors, “the
entire record has been called into question,” and we should reassesses his sen-
tence “to a level not exceeding that permissible in a trial reported by a non-
verbatim transcript.” Appellant relies on the rules in place before 1 January
2019 for this proposition, but as explained above, that sentence remedy for a
non-verbatim transcript no longer exists. Our reading of the applicable rules
is that the audio recording is now the primary record of the proceedings, and
the written transcript of those proceedings is created to facilitate appellate re-
view. A record of trial is complete if it includes the required items listed in
R.C.M. 1112(b), and Appellant has not demonstrated any of those items are
actually missing, with the exception of a single page of one motion in Appel-
lant’s copy of the record of trial—as opposed to the original record which con-
tains no such omission—an error from which Appellant asserts no prejudice,
and has, in any event, been remedied. Even if the record was incomplete or
defective, the remedy would not be to grant Appellant sentencing relief, but
rather, to return the record for correction. Because we sua sponte ordered the
Government to seal the unsealed matters in the record, the sole remaining de-
fect is the fact the transcript was certified by trial counsel rather than by the
court reporters, as required by AFMAN 51-203. Finding no prejudice to Appel-
lant flowing from this shortcoming, we grant no relief. See Article 59(a), UCMJ,
10 U.S.C. § 859(a).
F. Military Judge’s Ruling on Explicit Videos
Appellant personally raises the claim that the military judge erred in rul-
ing evidence regarding sexually explicit mobile phone videos was inadmissible
under Mil. R. Evid. 412.39
39 This issue was raised during a closed hearing, the transcript of which was sealed by
the military judge. We limit our discussion of sealed material to that which is neces-
sary for our analysis.
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United States v. Martinez, No. ACM 39903 (f rev)
1. Additional Background
Prior to trial, the Defense sought permission, via written motion, to admit
evidence that Appellant and Ms. KT had recorded their consensual sexual con-
duct the weekend of the charged assault.40 The Defense offered four theories
for the admissibility of the evidence. First, the Defense argued the fact Appel-
lant and Ms. KT recorded their conduct—taken together with all other consen-
sual conduct between the two—was evidence Ms. KT actually consented to the
conduct forming the basis of the alleged assault, or that Appellant was reason-
ably mistaken as to whether she had consented or not. Second, the Defense
postulated that one or more of the videos might be recordings of the alleged
assault itself and would be evidence no assault occurred. However, pointing to
the Government’s denial of the Defense expert computer assistance, trial de-
fense counsel conceded they were unable to specifically determine when the
recordings were made. Third, the Defense argued the videos would “serve two
crucial impeachment functions” by demonstrating possible motives for Ms. KT
to make a false allegation of sexual assault. In essence, the Defense suggested
Ms. KT regretted participating in the recordings, and she might have accused
Appellant of assaulting her in order to persuade Appellant to dispose of the
recordings. The other theory advanced by the Defense was that one of the re-
cordings depicted Ms. KT making a comment which could be interpreted as a
desire to have unprotected sex with Appellant. Thus, the theory continued,
when Ms. KT later came to regret having had unprotected sex with Appellant,
and after she used an emergency contraceptive, she falsely accused him of sex-
ually assaulting her.
Finally, the Defense argued the recordings should be available to Appellant
to confront Ms. KT by challenging her credibility with prior inconsistent state-
ments. The Defense asserted that during the investigation, Ms. KT discussed
the videos with investigators, and she told them she did not agree to or assist
in making the recordings. The Defense further asserted Ms. KT told investiga-
tors she took the phone away from Appellant when she realized he was using
it to record the two of them. The Defense claimed that one video showed Ms.
KT actively participated in the filming and argued that Ms. KT’s purportedly
untruthful statements to the investigators implicated Appellant’s constitu-
tional confrontation rights, insofar as they implicated Ms. KT’s credibility and
the overall veracity of her allegations.
In their written motion, trial defense counsel offered conflicting statements
about whether they wished to admit the videos themselves into evidence or to
40 The parties alternated between referring to multiple videos and referring to just a
single video. For purposes of our analysis, we will assume there was more than one
video.
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United States v. Martinez, No. ACM 39903 (f rev)
simply ask Ms. KT about them. At one point, the motion states, “To be clear
. . . the Defense is not seeking to play this tape for members—but rather cross
examine [Ms. KT] about its existence, content, and her state of mind when
making it.” In the very next paragraph, however, the Defense argued the mem-
bers “would be lost in the dark as to the true nature of the quickly-escalating
sexual relationship between [Ms. KT] and [Appellant] if they do not get to ob-
serve the actual sex between the two.” In the next paragraph, the Defense
stated, “at least cross examination about these videos should be permitted,”
and only “the video of the charged event” should be admitted as substantive
evidence or impeachment. When discussing the admissibility of the recording
with the military judge, trial defense counsel said, “I apologize if I didn’t make
that clear. I do not intend to play the video. We are asking for the [c]ourt’s
permission to be able to ask questions about the video.”
Trial counsel objected to any discussion of the videos, arguing in their writ-
ten response to the Defense’s motion that the fact Ms. KT and Appellant may
have agreed to record sexual contact had “marginal probative value” but “an
exceptionally strong risk of prejudice.”41 The Government did not specifically
address the Defense’s theories of admissibility of the videos.
During the motions hearing on Friday, 23 August 2019, the military judge
expressed skepticism that the Defense should be allowed to impeach Ms. KT
with respect to what she told the investigators about the videos. He told trial
defense counsel,
You can’t just simply ask someone a question about something
that you know they’re going to say something about that—that
opens the door to be able to bring in extrinsic evidence of the
falsity. The purpose about asking about this particular instance
in the first place would have to satisfy, at a minimum, the rele-
vancy standards necessary before you can even ask about this.
If this is independently irrelevant, you don’t necessarily get to
talk about it.
The military judge did not view the videos or have them marked as appel-
late exhibits. Nonetheless, the military judge made findings of fact regarding
the contents of one video in his written ruling on the Defense’s motion. His
description of the video’s contents largely tracked the Defense’s proffer of what
the video depicted, thus indicating Ms. KT may not have been truthful to the
investigators. He did not, however, make any findings of fact regarding Ms.
41 Ms. KT, through her special victims’ counsel, objected to admission of the videos, but
did not object to being questioned about whether she made inconsistent statements
with respect to them.
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United States v. Martinez, No. ACM 39903 (f rev)
KT’s statements to the investigators. The military judge ruled evidence about
the video was inadmissible under Mil. R. Evid. 412(b)(2) as it did not make it
any more or less likely that Appellant had a reasonable mistake of fact as to
Ms. KT’s consent with respect to the charged assault. The military judge also
ruled the evidence was not constitutionally required, but he did not explain his
rationale for that conclusion. The military judge did not discuss at all trial de-
fense counsel’s desire to impeach Ms. KT with the purportedly false statement
she made to the investigators about the recordings. Although the “law” section
of the military judge’s ruling set out the principles of impeachment by contra-
diction and an accused’s constitutional right to confront witnesses, his “discus-
sion” section did not address these matters with respect to the recordings.
2. Law
We review a military judge’s ruling that excludes evidence under Mil. R.
Evid. 412 for an abuse of discretion. United States v. Erikson, 76 M.J. 231, 234
(C.A.A.F. 2017) (citation omitted).
Under Mil. R. Evid. 412, evidence of an alleged victim’s sexual predisposi-
tion and evidence that an alleged victim engaged in other sexual behavior is
generally inadmissible. Mil. R. Evid. 412(a). The intent of the rule is to “shield
victims of sexual assaults from the often embarrassing and degrading cross-
examination and evidence presentations common to sexual offense prosecu-
tions.” United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011) (original
alteration, internal quotation marks, and citations omitted). One exception to
this rule is when evidence is offered to prove consent. Mil. R. Evid. 412(b)(2).
A second exception is when exclusion of the evidence would violate an accused’s
constitutional rights. Mil. R. Evid. 412(b)(3). In order to show that the exclu-
sion of evidence would violate an accused’s constitutional rights, the accused
must show that the evidence is relevant, material, and favorable to his defense,
“and thus whether it is necessary.” United States v. Banker, 60 M.J. 216, 222
(C.A.A.F. 2004) (internal quotation marks and citation omitted). The term “fa-
vorable” means the evidence is “vital.” United States v. Smith, 68 M.J. 445, 448
(C.A.A.F. 2010) (citations omitted). It is the defense’s burden to demonstrate
an exception applies. Banker, 60 M.J. at 223.
Evidence which is relevant under Mil. R. Evid. 412(b)(2) may be admissible
if the military judge determines the probative value of such evidence outweighs
the danger of unfair prejudice to the victim’s privacy and otherwise outweighs
the dangers of unfair prejudice under a Mil. R. Evid. 403 analysis. Mil. R. Evid.
412(c)(3). Evidence falling under the Mil. R. Evid. 412(b)(3) exception is not
weighed against a victim’s privacy and is instead only analyzed under Mil. R.
Evid. 403. Id. Evidence challenging the credibility of key government witnesses
may fall under this exception. See, e.g., United States v. Williams, 37 M.J. 352,
360–61 (C.M.A. 1993).
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United States v. Martinez, No. ACM 39903 (f rev)
Under the Sixth Amendment, an accused has the right to confront the wit-
nesses against him or her. This right necessarily includes the right to cross-
examine those witnesses, which “is the principal means by which the believa-
bility of a witness and the truth of his testimony are tested.” Davis v. Alaska,
415 U.S. 308, 316 (1974). However, judges “retain wide latitude . . . to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’[s]
safety, or interrogation that is repetitive or only marginally relevant.” United
States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011) (alteration in original) (quot-
ing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). The test for determin-
ing whether an accused’s confrontation clause rights have been violated is
whether a “reasonable jury might have received a significantly different im-
pression of [the witness]’s credibility had [defense counsel] been permitted to
pursue his proposed line of cross-examination.” Id. (alterations in original)
(quoting Van Arsdall, 475 U.S. at 680).
Military judges may permit counsel to inquire about specific instances of a
witness’s conduct on cross-examination if they are probative of the witness’s
character for truthfulness or untruthfulness. Mil. R. Evid. 608(b). Extrinsic
evidence of such is generally inadmissible. Id. Military judge’s rulings which
limit cross-examination under Mil. R. Evid. 608(b) are reviewed for an abuse
of discretion. United States v. Stavely, 33 M.J. 92, 94 (C.M.A. 1991). However,
when an error at trial is of constitutional dimensions, we assess de novo
whether the error was harmless beyond a reasonable doubt. United States v.
Prasad, 80 M.J. 23, 29 (C.A.A.F. 2020).
3. Analysis
On appeal, Appellant argues the military judge did “not consider and ana-
lyze the facts presented to him regarding [Ms. KT’s] claim to [investigators]
about the nonconsensual nature of the recording,” and therefore abused his
discretion. The Government contends that Ms. KT’s statement to investigators
was more ambiguous than the Defense claims, that the matter was collateral,
and that, in any event, the military judge’s ruling was correct under Mil. R.
Evid. 412.
As the sole witness to the charged assault, Ms. KT’s credibility was a criti-
cal issue in Appellant’s court-martial. See, e.g., United States v. Jasper, 72 M.J.
276, 281 (C.A.A.F. 2013) (noting, in a child sexual assault case, “[t]here is little
question that . . . the credibility of the putative victim is of paramount im-
portance”). Indeed, we would think it the rare and unusual case where an ac-
cuser’s credibility is not an issue available for defense exploration at trial. We
agree that to the extent Ms. KT made false statements to investigators in the
midst of an interview about the charged offense, and about matters closely re-
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United States v. Martinez, No. ACM 39903 (f rev)
lated to that offense, such would reflect poorly on her character for truthful-
ness. See, e.g., United States v. Montgomery, 56 M.J. 660, 667 (A. Ct. Crim.
App. 2001) (“[W]hether or not an individual lies to a police officer is highly
probative of that individual’s veracity.”). Given the significance of Ms. KT’s
credibility, Appellant’s right to confront her by attacking that credibility was
impaired by the military judge’s prohibition of the Defense’s proposed cross-
examination.
Ordinarily, we would grant military judges deference with respect to rul-
ings on such evidence, but the military judge here did not analyze this proposed
use of the evidence at all; instead, he focused on whether the evidence was
admissible under a theory of consent under Mil. R. Evid. 412(b)(2). Although
he found that the evidence was not “constitutionally required,” this finding was
made almost in passing in the middle of a longer discussion about whether the
evidence related to consent or a mistaken belief of consent. The Defense, how-
ever, articulated that an alternate purpose of the evidence was to undermine
Ms. KT’s credibility by cross-examining her about purportedly false statements
she made about the evidence. As explained above, one of the Defense’s over-
arching theories was that Ms. KT fabricated the assault, and she possibly did
so under the influence of her mother. Thus, the motive and desire to use the
evidence to impeach Ms. KT’s character for truthfulness or to establish a char-
acter of untruthfulness was plainly articulated by the Defense. Because the
military judge’s ruling did not address this theory of admissibility, the military
judge likewise did not conduct a Mil. R. Evid. 403 analysis of the probative
value of allowing the Defense’s proposed cross-examination to undermine Ms.
KT’s credibility. Her credibility was a critical issue at trial, and upon our de
novo review, we find the military judge erred in concluding the exclusion of
apparently false statements made by Ms. KT during her interview with law
enforcement would not violate Appellant’s constitutional rights.
Having found error related to Appellant’s constitutional right to confront
one of the witnesses against him, we turn to our assessment of whether or not
the error was harmless beyond a reasonable doubt. We conclude it was. For
one, Ms. KT’s testimony—while important—was not the sole source of the evi-
dence against Appellant. Post-assault text messages between Appellant and
Ms. KT were admitted in evidence at trial. As discussed in more detail in Sec-
tion II.B.3.d., supra, in those messages, Appellant made significant admis-
sions—such as, “I should have stopped and listened to you.”
We are also convinced that permitting Appellant to question Ms. KT about
her statements to law enforcement regarding the recordings would not have
meaningfully undermined her credibility. Ms. KT did not deny to the investi-
gators that the recordings existed, but rather, denied she actively participated
in their creation. This was a rather fleeting aspect of a lengthy interview and
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United States v. Martinez, No. ACM 39903 (f rev)
was not a subject either dwelled upon or returned to. Moreover, given the em-
barrassing nature of the topic, her apparent minimization of her role in record-
ing sex acts between herself and Appellant does not render the remainder of
her testimony any less believable. Thus, we conclude, a reasonable jury would
not have received a significantly different impression of Ms. KT’s credibility
had the Defense been permitted to cross-examine her on this point. We further
find, beyond a reasonable doubt, that the outcome of Appellant’s trial with re-
spect to the specification in which Ms. KT was a named victim would have been
the same even with this cross-examination.
III. CONCLUSION
The finding of guilty as to Charge II and its Specification is SET ASIDE
and DISMISSED WITHOUT PREJUDICE. The sentence is SET ASIDE. A
rehearing is authorized with regard to the dismissed charge and specification
and the sentence. The remaining findings are correct in law and fact, and are
AFFIRMED. Article 66(d), UCMJ, 10 U.S.C. § 866(d). The record of trial is
returned to The Judge Advocate General. Article 66(f), UCMJ, 10 U.S.C. §
866(f). Thereafter, Article 66(b), UCMJ, 10 U.S.C. § 866(b), will apply. The
court’s earlier opinion of United States v. Martinez, No. ACM 39903 (f rev),
2022 CCA LEXIS 202 (A.F. Ct. Crim. App. 31 Mar. 2022) (unpub. op.), is hereby
withdrawn.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
67