United States v. Leach ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39805 (f rev)
________________________
UNITED STATES
Appellee
v.
Brandon M. LEACH
Airman Basic (E-1), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon further review
Decided 3 February 2022
________________________
Military Judge: Jennifer E. Powell; Andrew R. Norton (remand).
Sentence: Sentence adjudged on 12 September 2019 by GCM convened
at Hill Air Force Base, Utah. Sentence entered by military judge on 21
October 2019 and reentered on 2 February 2021: Bad-conduct discharge,
confinement for 10 months, and a reprimand.
For Appellant: Major Ryan S. Crnkovich, USAF; Major David A. Schia-
vone, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Brian
E. Flanagan, USAF; Major John P. Patera, USAF; 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.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Leach, No. ACM 39805 (f rev)
KEY, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a pretrial agreement, of two speci-
fications of assault consummated by a battery in violation of Article 128, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 928.1,2 The military judge
sentenced Appellant to a bad-conduct discharge, confinement for ten months,
and a reprimand.3
This case is before us for a second time. In an earlier opinion, we deter-
mined the convening authority had failed to take action on the 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.)), and we remanded Appellant’s case to the Chief Trial
Judge, Air Force Trial Judiciary, for corrective action. See United States v.
Leach, No. ACM 39805, 2021 CCA LEXIS 3, at *7–8 (A.F. Ct. Crim. App. 8 Jan.
2021) (unpub. op.). The convening authority subsequently approved Appel-
lant’s sentence, resulting in a new entry of judgment. Now that this error has
been corrected, we turn to the assignment of error Appellant raises on appeal:
whether the military judge abused her discretion by admitting in evidence—
over defense objection—recorded phone calls between Appellant and others.4
Finding no error prejudicial to the substantial rights of Appellant in the case
returned to us, we affirm the findings and sentence.
I. BACKGROUND
This appeal arises from Appellant’s second court-martial. His first court-
martial concluded on 8 June 2018 with Appellant sentenced to a dishonorable
discharge, confinement for three years, reduction to the grade of E-1, and a
reprimand after he was found guilty of sexual assault and drug-abuse offenses.
See United States v. Leach, No. ACM 39563, 2020 CCA LEXIS 230 (A.F. Ct.
1 References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise specified, all other references to the UCMJ,
the Rules for Courts-Martial, and the Military Rules of Evidence (Mil. R. Evid.) are to
the Manual for Courts-Martial, United States (2019 ed.).
2 Pursuant to the terms of the pretrial agreement, the convening authority withdrew
and dismissed after arraignment a charge and its specification of sexual assault, an
alleged violation of Article 120, UCMJ, 10 U.S.C. § 920.
3 The pretrial agreement precluded the Government from trying Appellant for various
uncharged offenses but did not constrain the convening authority from approving Ap-
pellant’s adjudged sentence.
4 Appellant personally raises this issue pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
2
United States v. Leach, No. ACM 39805 (f rev)
Crim. App. 8 Jul. 2020) (unpub. op.). Those offenses came to light in July 2017
when Appellant’s girlfriend at the time, Ms. LE, reported to law enforcement
that Appellant was using controlled substances and had assaulted her. Id. at
*6. She made this report after learning that Appellant was seeing another
woman, Ms. BL. Id. at *5–6.
On 22 September 2017, while under investigation for the offenses tried at
his first court-martial, Appellant married Ms. BL, and—at some point in Octo-
ber or November 2017—Appellant struck Ms. BL in her face with his hand
while the two were arguing. Several months later, in early April 2018, Appel-
lant and Ms. BL were again arguing in their apartment, and Appellant pro-
voked Ms. BL to swing at him, which she did. Appellant dodged Ms. BL’s swing
and grabbed her by the neck with one hand and pushed her up against the
kitchen wall. Appellant then struck Ms. BL across her face with his other hand,
leaving a “red mark,” according to his testimony during his providence inquiry.
Because of all the noise, a neighbor called 911, and when the police arrived,
Ms. BL acknowledged she had taken the first swing at Appellant. Appellant
did not admit to assaulting Ms. BL, and as a result Ms. BL, not Appellant, was
arrested. A few weeks later, Appellant was placed in pretrial confinement
based upon offenses related to his first court-martial. Id. at *7.
Appellant remained in pretrial confinement through his first court-martial
and transitioned into post-trial confinement when he was sentenced on 8 June
2018. Meanwhile, law enforcement investigated Ms. BL’s reports that Appel-
lant had attacked her. Appellant was ultimately charged in February 2019
with two specifications of assault consummated by a battery, specifications
which encompassed the two attacks upon Ms. BL outlined above.
While serving his post-trial confinement at the Naval Consolidated Brig in
Miramar, California, Appellant’s phone calls were recorded. During the Gov-
ernment’s sentencing case in Appellant’s second court-martial in September
2019, trial counsel sought to introduce portions of four recorded phone conver-
sations between Appellant and other people. The military judge admitted por-
tions of three of these conversations over defense objection, giving rise to the
issue Appellant now raises before us.
During the providence inquiry at his second court-martial, Appellant por-
trayed himself as apologetic and remorseful for his conduct, telling the military
judge he was “sorry,” “ashamed of [him]self,” and that he had “failed [Ms. BL]
as a husband.” At one point in the inquiry, Appellant said, “I’m just sorry that
I couldn’t give her more things to laugh about. I love you, [BL], if you can hear
me. I’m sorry.”
3
United States v. Leach, No. ACM 39805 (f rev)
The prison recordings, however, paint Appellant in a different light. In the
first call, Appellant has a conversation with an unidentified woman.5 Referring
to his wife by her name, Appellant asks the woman to pull up Ms. BL’s Face-
book page and to look and see if Ms. BL was “saying anything about [him].”
Following his directions, the woman reads a passage about emotional abuse
and controlling behaviors. For example, one line in the passage is: “If they iso-
late you from friends, family, and determine for you who you can and cannot
speak to, that is abuse,” to which Appellant replies, “What the f[**]k is wrong
with this girl?” The woman goes on to read other entries, including one that
says, “I am standing in the ashes of who I used to be” above a picture of a super
hero. Appellant responds, “I’m glad she feels super-empowered f[**]king trying
to put her husband in prison.” The woman then reads a post pertaining to de-
pression and suicide, and Appellant responds, “[S]he should definitely kill her-
self.” The woman says, “Don’t be harsh.” Appellant responds, “Whew. You shut
up. This woman is trying to f[**]king ruin my life.”
The second call is between Appellant and his father.6 In the recording, Ap-
pellant’s father tells Appellant there is a law that allows men to take their
girlfriends or their wives to the courthouse steps on a particular day of the
month, “and you can beat her ass, and they won’t do nothing. It’s crazy. I mean
nobody does it.” Upon hearing this, Appellant laughs and says, “I’ll be honest,
that law doesn’t sound too bad.”
The third call is from Appellant to an unidentified woman.7 In this call,
Appellant talks about assaulting past girlfriends. Appellant also says to the
woman, “I’ll tell you now that if you ever hit me, I’ll hit you back.” He continues,
My biggest thing is that I’ll—I’ll put in the effort that you put in.
So, like if you try to hurt me, just because you’re—because the
person is too weak to hurt me, or didn’t hurt me very much,
didn’t mean they didn’t try. You know what I mean? . . . So if
someone tries to hurt me, I’m going to try and hurt you back. So
that’s like your warning there.
Each of the three calls begins with an automated message indicating that
the calls are from “Brandon, a prisoner at the Naval Consolidated Brig at
Miramar.” In each case, the message goes on to explain that the calls would be
monitored and recorded.
5 The first recording is identified in the record of trial as “Disc 39, Track 10.”
6 Identified as “Disc 8, Track 2.”
7 Identified as “Disc 49, Track 1.”
4
United States v. Leach, No. ACM 39805 (f rev)
In order to support the admission of the recordings, the Government pro-
vided the military judge with two documents from the confinement facility ti-
tled “certification statements.”8 Both statements are signed by the same “com-
mand investigator,” who states he is the confinement facility’s evidence custo-
dian. In the first statement, the investigator certifies that the “attached re-
cordings retrieved and provided” pertain to “Leach, Brandon.” The statement
then notes that “[t]he provided documents are true and accurate copies of [EG]
phone calls from the brig between: 08 June 2018–11 February 2019.”9 The
statement further explains, “The records were made at or near the time of the
occurrence of the matters set forth in those records and they were created by a
person with knowledge of the matters set forth therein or from information
transmitted by a person with knowledge of those matters.” Finally, the state-
ment says the records “were kept in the regular course of the regularly con-
ducted activity” of the confinement facility and that they were “made and
maintained by [the facility] as a regular practice.” The second statement is
identical to the first except in two regards: the date range is 3 February 2019
to 22 May 2019, and Appellant’s name appears in the place of “EG.” Neither
statement lists or otherwise identifies what recordings were actually “at-
tached” to the statements.
Trial defense counsel mounted a multi-faceted objection to these calls.
First, they argued the Government had failed to establish the authenticity of
the recordings under Mil. R. Evid. 901 and Mil. R. Evid. 902. Next, trial defense
counsel argued the recordings amounted to inadmissible hearsay and that the
Government had not demonstrated that the calls fell within the “records of a
regularly conducted activity” hearsay exception under Mil. R. Evid. 803(6).
Trial defense counsel further argued the calls were inappropriate sentencing
evidence under Rule for Courts-Martial (R.C.M.) 1001(b)(4) as not directly re-
lating to or resulting from Appellant’s offenses. Finally, the Defense submitted
that even if the foregoing arguments failed, the evidence should be excluded
under Mil. R. Evid. 403.10
In response, trial counsel said that they only sought to introduce Appel-
lant’s own statements in the calls for the truth of the matter asserted therein,
8 The parties referred to these documents as “affidavits,” while the military judge char-
acterized them as “certificates.”
9 We use “EG” in place of the name that appeared on the affidavit. No evidence was
offered to indicate whether EG was another inmate or if EG was an actual person at
all.
10 Although trial defense counsel made reference to Mil. R. Evid. 403, they did not offer
any explanation as to why the evidence, if otherwise relevant and admissible, should
be excluded under that rule.
5
United States v. Leach, No. ACM 39805 (f rev)
and that such would be considered “statements by party opponents.” Trial
counsel said statements by others on the calls would “merely be for the effect
on the listener”—that is, what prompted Appellant’s various responses. Re-
garding the propriety of the military judge considering the calls, trial counsel
argued Appellant’s comments demonstrated his “remorseless attitude about
the offenses,” his attitude towards domestic violence in general, and the need
to protect Ms. BL from him.
The military judge ruled the Government had adequately established the
authenticity of the recordings, pointing not just to the statements from the ev-
idence custodian, but also to the automated identification at the beginning of
each clip identifying the prisoner as “Brandon.” The military judge also cited
the content of the calls themselves which included Appellant’s wife’s name and
details about his courts-martial.11 The military judge dismissed the reference
to EG as a typographical error, likely being the result of the evidence custodian
using an earlier document as a template. The military judge concluded the
Government had “met the requirements” of Mil. R. Evid. 803(6) and 902(11)
via the evidence custodian’s statements. She also ruled that “the content of the
recordings themselves further authenticate” the recordings, citing Mil. R. Evid.
901(b)(4) and 901(b)(6).
The military judge further explained that even if the recordings were not
admissible under Mil. R. Evid. 803(6), Appellant’s own statements during the
calls were not hearsay, and neither were the statements of the people he spoke
to insofar as those statements were admitted for their effect on Appellant, not
on the truth of the matter asserted. She then determined Appellant’s state-
ments were appropriate matters in aggravation, largely because they reflected
Appellant’s attitudes toward his offenses and his victim, Ms. BL. She finally
concluded that the probative value of the evidence was not substantially out-
weighed by any of the considerations in Mil. R. Evid. 403, but she did advise
the parties she would not consider any references Appellant made to un-
charged misconduct in the third recording, “specifically assaulting previous
girlfriends.”
After the recordings were admitted, Ms. BL was called as a witness by the
Government.12 She testified about the abuse she suffered at Appellant’s hands
as well as the psychological and physiological effects she endured after the as-
11 The fourth recording, which the military judge did not admit, contained a discussion
about Appellant’s first court-martial.
12 Ms. BL’s divorce from Appellant was finalized just before his second court-martial,
and Ms. BL testified under her maiden name. To avoid confusion, we refer to her as
Ms. BL throughout this opinion.
6
United States v. Leach, No. ACM 39805 (f rev)
saults. She also explained what measures she had taken to protect herself be-
cause of her fear of Appellant, such as moving into a secure apartment, taking
self-defense classes, and carrying pepper spray. In addition, Ms. BL delivered
an unsworn statement to the military judge in which she talked about her dif-
ficulties in recovering from her relationship with Appellant and her efforts at
healing. The Government also introduced evidence of Appellant’s first court-
martial conviction.
II. DISCUSSION
We review “a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion.” United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000)). An abuse of discretion occurs when a military judge’s “find-
ings of fact are clearly erroneous, the court’s decision is influenced by an erro-
neous 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. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013) (internal quo-
tation marks and citation omitted).
On appeal, Appellant asks us to order a rehearing on his sentence. He ar-
gues that the military judge erred by concluding that the Government had es-
tablished the authenticity of the recordings, overruling the Defense’s hearsay
objection, and finding Appellant’s statements in the recordings to be proper
sentencing evidence. We disagree on all three points, and we decline to grant
Appellant his requested relief.
A. Authenticity
Under Mil. R. Evid. 901(a), the proponent of a particular item of evidence
must “produce evidence sufficient to support a finding that the item is what
the proponent claims it is.” As an example, Mil. R. Evid. 901(b)(4) identifies
“distinctive characteristics and the like” of the item as establishing its authen-
ticity, such as the “appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circum-
stances.” Mil. R. Evid. 902 sets out various items of evidence which are “self-
authenticating” and require no additional evidence to establish their authen-
ticity. One category of such self-authenticating evidence is “certified domestic
records of a regularly conducted activity” under Mil. R. Evid. 902(11). This rule
permits the admission of a domestic record which qualifies under the Mil. R.
Evid. 803(6) hearsay exception “as shown by a certification of the custodian or
another qualified person that complies with a federal statute or a rule pre-
scribed by the Supreme Court.” Id. Mil. R. Evid. 803(6) excepts “records of a
regularly conducted activity” from the ordinary prohibition against hearsay
7
United States v. Leach, No. ACM 39805 (f rev)
when such a record meets several of the requirements of that rule, such as the
record being made in the regular practice of the activity in question.
As an initial proposition, we are skeptical that a recording of a phone call
between a prison inmate and a third party unaffiliated with the prison about
matters entirely unrelated to the operation of the prison amounts to a “record
of a regularly conducted activity” simply by virtue of the fact the prison has a
practice of recording all incoming and outgoing phone calls. Considering that
the indicia of reliability justifying the “regularly conducted activity” hearsay
exception is derived from the regularity of documenting a business practice, it
is unclear how conversations between two people who are neither part of that
business practice nor operating under any duty or incentive to further that
practice would support a finding of reliability of the content of those conversa-
tions. See, e.g., United States v. Pazsint, 703 F.2d 420, 424–25 (9th Cir. 1983)
(finding recordings of emergency calls to a police station did not qualify for the
business-record exception), aff’d, 728 F.2d 411 (9th Cir. 1984); United States v.
Plum, 558 F.2d 568, 572 (10th Cir. 1977) (finding entries on forms made by a
person who was not part of the organization which maintained the forms did
not qualify for the exception). Thus, we question the applicability of Mil. R.
Evid. 902(11)—a rule which permits the authentication of documents falling
within the “regularly conducted activity” hearsay exception through a custo-
dian’s certification—to Appellant’s case.
Nevertheless, we need not conclusively determine whether the evidence
here was appropriately authenticated under Mil. R. Evid. 902(11), because the
evidence could be authenticated under Mil. R. Evid. 901(a) by “evidence suffi-
cient to support a finding that the item is what the proponent claims it is.”
Because Mil. R. Evid. 104(a) permitted the military judge to determine the ad-
missibility of the evidence unrestricted by the rules of evidence, she was free
to use the evidence custodian’s statements, along with the distinctive charac-
teristics of the recordings, to determine whether the Government had suffi-
ciently proved the recordings’ authenticity. See, e.g., United States v. Thomas,
33 M.J. 1067, 1069 (A.C.M.R. 1991), aff’d, 36 M.J. 617 (A.C.M.R. 1992).
Considering the evidence custodian’s statements explained the date range
of the recordings and that the recordings were routinely made and kept by the
confinement facility, the military judge had a firm basis for concluding the re-
cordings were, in fact, prison phone calls. It was not clear error for the military
judge to conclude the reference to a person other than Appellant on one of the
statements was simply a scrivener’s error, considering that the same state-
ment also specifically named Appellant and indicated the recordings were of
his calls. Furthermore, as the military judge explained, the calls themselves
refer to Appellant’s cases—even mentioning his then-wife by name—and each
call leads off with Appellant’s first name. We see no reason to conclude the
8
United States v. Leach, No. ACM 39805 (f rev)
military judge abused her discretion in concluding the information she received
was sufficient to support a finding that the recordings were of phone calls made
by Appellant while he was incarcerated at the confinement facility.
B. Hearsay
Unless an exception applies, hearsay statements are inadmissible at
courts-martial. Mil. R. Evid. 802. However, statements made by an opposing
party, when offered against that party, are not hearsay at all. Mil. R. Evid.
801(d)(2). Moreover, out-of-court statements only amount to hearsay when
they are offered to prove the truth of the matter asserted in those statements.
Mil. R. Evid. 801(c)(2). Thus, out-of-court statements offered for other pur-
poses, such as their effect on the listener to provide context, may be admitted
as non-hearsay statements. See, e.g., United States v. Dupree, 706 F.3d 131,
136 (2d Cir. 2013) (interpreting Fed. R. Evid. 801(c)(2), a provision which is
identical to Mil. R. Evid. 801(c)(2)); see also United States v. Merritt, No. ACM
39350, 2019 CCA LEXIS 39, at *8 (A.F. Ct. Crim. App. 1 Feb. 2019) (unpub.
op.) (citing United States v. Barnes, No. ACM 38720, 2016 CCA LEXIS 267, at
*15–17 (A.F. Ct. Crim. App. 27 Apr. 2016) (unpub. op.) (“Statements made not
for their substance but for their ‘effect on the listener’ may be admissible.”).
Although we question the military judge’s conclusion that the recordings
qualified for the “regularly conducted activity” exception to the ordinary hear-
say rule, we agree with the military judge’s alternative conclusion that the re-
cordings do not amount to hearsay at all. Because Appellant’s own statements
in the calls were offered against him by the Government, those statements
were not hearsay under Mil. R. Evid. 801(d)(2). Trial counsel offered the state-
ments made by others on the calls not to establish the truth of the matters
asserted in those statements but to provide context to Appellant’s own state-
ments—that is, to explain why Appellant said what he did and how what he
said related to his attitude toward his offenses. This is the prototypical “effect
on the listener” situation in which Appellant, as the listener, was prompted to
say certain things, and the military judge ruled she would only consider those
statements for such a purpose. We conclude the military judge did not abuse
her discretion in admitting the substance of the calls as non-hearsay.
C. Appropriateness and Relevance of Evidence
Under R.C.M. 1001(b)(4), the Government “may present evidence as to any
aggravating circumstances directly relating to or resulting from the offenses of
which the accused has been found guilty.” Appellant’s attitude with respect to
his crimes and his victims squarely implicates his state of mind regarding not
just his offenses but his rehabilitative potential. As one of our sister courts has
observed, “[e]vidence of the offender’s attitude toward similar offenses, past or
9
United States v. Leach, No. ACM 39805 (f rev)
future, is reliable circumstantial evidence, and often the only available evi-
dence, on this issue.” United States v. Pooler, 18 M.J. 832, 833 (A.C.M.R. 1984);
see also United States v. Scheuerman, 67 M.J. 709, 711 (A. Ct. Crim. App.
2009); United States v. Alis, 47 M.J. 817, 825 (A.F. Ct. Crim. App. 1998).
Appellant was convicted of violently attacking Ms. BL. Yet, when con-
fronted with her social media postings about domestic abuse, Appellant re-
sponded with the quip that “she should definitely kill herself” and complained
that she was trying to have him jailed. Such statements not only show a re-
morseless and callous view of his victim, they squarely demonstrate that Ap-
pellant viewed the problem as Ms. BL reporting the attacks, not that Appellant
had perpetrated them in the first place. This, of course, stood in stark contrast
to the apologetic and remorseful persona Appellant portrayed during his prov-
idence inquiry. Similarly, Appellant’s remark that the law permitting domestic
abuse “doesn’t sound that bad” is telling, considering Appellant was already in
confinement due, in part, to offenses against a former girlfriend, and was fac-
ing trial for allegations of assaulting his then-wife. The comment thus provides
salient commentary on Appellant’s opinion about domestic abuse—namely,
that it is not so much a crime as it is something to joke about. Finally, Appel-
lant’s statement about his willingness to attack anyone who tries to hurt him—
even if they fail in that attempt—takes on particular relevance in this case,
where Appellant baited Ms. BL into trying to punch him. After dodging Ms.
BL’s swing, Appellant grabbed her by the neck and hit her in the face, and then
allowed Ms. BL to be arrested for the fray. In other words, Appellant’s jailhouse
comments effectively communicated not remorse for his offenses, but rather,
his clear willingness to do the exact same thing again. That Appellant was on
notice his calls were being monitored and recorded evidences a notable disre-
gard for the seriousness of his offenses.
Even when relevant, evidence may be excluded under Mil. R. Evid. 403
when its probative value is substantially outweighed by the danger of such
concerns as unfair prejudice, undue delay, or needlessly presenting cumulative
evidence. We see little danger of Appellant being unfairly prejudiced in this
military judge-alone court-martial. Indeed, the military judge stated on the
record that she would not consider any references Appellant made to un-
charged misconduct, and that she was solely considering Appellant’s general
attitude towards his offenses and offenses similar to his. While Appellant’s rec-
orded statements were prejudicial to his case in that they undermined his at-
tempt to portray himself as reflective and remorseful to the military judge, we
do not find their admission to be unfairly prejudicial. To the contrary, his state-
ments provided the best evidence of his true feelings, which the military judge
was justified in considering as she fashioned an appropriate sentence. We con-
clude the military judge did not abuse her discretion in admitting the recorded
conversations, and we do not grant Appellant any relief.
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United States v. Leach, No. ACM 39805 (f rev)
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
11