United States v. Floyd ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
HOUTZ, DEERWESTER and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellant
v.
Cheyenne FLOYD
Sonar Technician Seaman (E-3), U.S. Navy
Appellee
No. 202200106
_________________________
Decided: 29 September 2022
Appeal by the United States Pursuant to Article 62, UCMJ
Military Judge:
Ryan J. Stormer
Arraignment 10 January 2022 before a general court-martial convened
at Naval Station San Diego, California, consisting of officer and enlisted
members.
For Appellant:
Lieutenant Ebenezer K. Gyasi, JAGC, USN
Lieutenant Gregory A. Rustico, JAGC, USN
Lieutenant John L. Flynn, JAGC, USN
For Appellee:
Lieutenant Christopher B. Dempsey, JAGC, USN
United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
HOUTZ, Senior Judge:
This case is before us on an interlocutory appeal pursuant to Article
62(a)(1)(A), Uniform Code of Military Justice [UCMJ]. Appellee is charged with
one specification of attempted receipt of child pornography, and five specifica-
tions of sexual abuse of a child, in violation of Articles 80 and 120b, UCMJ. 1
Two of the sexual abuse of a child specifications (Specifications 2 and 4) are
relevant to this appeal.
After referral of charges and shortly before trial was set to begin, the trial
defense counsel for Appellee moved to dismiss two of the five specifications
alleging sexual abuse of a child for defective preferral and discovery violations.
Trial defense counsel argued that, at the time of preferral, Charge II, Specifi-
cation 2 alleged “excessively inflammatory” language that was not supported
by evidence. Trial defense counsel further argued that, at the time of preferral,
Charge II, Specification 4 was not supported by the evidence reviewed by the
accuser. Finally, the trial defense counsel argued that after preferral and dur-
ing the months leading up to trial, the Government violated its discovery obli-
gations.
The Motion to Dismiss was litigated at an Article 39(a) session. At the con-
clusion of the hearing the military judge made an oral ruling dismissing Spec-
ification 2 with prejudice and dismissing Specification 4 without prejudice.
During the hearing the military judge told the parties that he intended to sup-
plement his oral ruling with a written ruling. 2 In his oral ruling, the military
judge determined that with regard to Specification 2, in addition to not being
supported by the evidence, the trial counsel violated discovery obligations un-
der Military Rule of Evidence [Mil. R. Evid.] 304(d) and Rule for Courts-Mar-
tial [R.C.M.] 701 by making late disclosures to the defense. This included the
fact that the trial counsel did not interview the named victim in the specifica-
tion until shortly before trial. The Government filed a timely Notice of Appeal
in response to the oral ruling. Consistent with his representation to the parties,
1 10 U.S.C. §§ 880 and 920b.
2 R. at 334.
2
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Opinion of the Court
four days later the military judge issued a written ruling supplementing his
earlier oral ruling.
On appeal, the Government asserts one assignment of error [AOE]: the mil-
itary judge abused his discretion when he dismissed Specifications 2 and 4 for
improper or defective preferral. The Government further argues that this court
should disregard the military judge’s written ruling because it was issued in
violation of R.C.M. 908(b)(4). We disagree, and take action in our decretal par-
agraph.
I. BACKGROUND
The charges and specifications arise out of incidents that occurred during
New Year’s Eve in December 2020 and New Year’s Day, January 2021. Appel-
lee and several friends were in the barracks when they accessed a website that
initiated a video chat between randomly selected users via webcam. The group
ended up chatting with two girls who were minors – Ms. Grace and Ms. Madi-
son. 3 Using the website’s chat feature, Appellee allegedly asked the young
women to expose themselves and perform lewd acts, and later continued the
conversations using cellphones. In early March 2021, Ms. Grace and Ms. Mad-
ison were interviewed by Naval Criminal Investigative Service [NCIS] agents
regarding the subject allegations against Appellee. Those interviews were rec-
orded, transcribed, summarized in written Reports of Investigation [ROI], and
provided to the trial counsel. NCIS also collected media from the young women
related to the allegations and interviewed Appellee. Based on that information,
the charges and specifications, to include those relevant to this appeal, were
preferred on 20 October 2021.
At the time of preferral, Specification 2 alleged sexual abuse of a child in-
volving indecent communication:
In that [Appellee] . . . did, at or near San Diego, California, on
divers occasions between on or about December 2020 and on or
about January 2021, commit a lewd act upon [Ms. Grace], a child
who had not attained the age of 16 years, by intentionally com-
municating to [Ms. Grace] indecent language, to wit: “You look
fine for someone so young”, “Let me see your t[***]”, “Show me
your a[***]”, “Show me your p[***]”, and “Still the best t[***] I’ve
3All names in this opinion, other than Appellee, counsel, and judges, are pseudo-
nyms.
3
United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
ever seen”, or words to that effect, with an intent to arouse or
gratify his sexual desire. 4
At the time of preferral, Specification 4 alleged sexual abuse of a child involv-
ing indecent conduct and stated:
In that [Appellee] . . . did, at or near San Diego, California, on or
about 31 December 2020, commit a lewd act upon [Ms. Madison],
a child who had not attained the age of 16 years, by engaging in
indecent conduct, to wit: masturbating himself in front of [Ms.
Madison] over live-stream video and directing her to expose her
breasts and touch her body, intentionally done with [Ms. Madi-
son] . . . . 5
Operations Specialist Second Class [OS2] Romeo was the accuser in this
case. She testified that when she preferred the charges, she considered the
ROIs summarizing the interviews of Ms. Grace and Ms. Madison, the media
which included screenshots from the young women’s phones, and Appellee’s
statements to NCIS. OS2 Romeo did not review the transcripts of the inter-
views or watch the recordings of the interviews of either Ms. Madison or Ms.
Grace. Nor did she review or know the elements of the offenses preferred in
this case.
Appellee was arraigned on 10 January 2022, and thereafter trial defense
counsel made several discovery requests to the Government. In response to
trial defense counsel’s initial discovery request, the Government responded
that all the responsive documentation known to the Government had been pro-
vided to the Defense. A short time later, the trial defense counsel sent another
discovery request to the Government and the Government responded, stating
it did not “intend to provide a synopsis of expected testimony” of any of its
witnesses. 6 There were several Article 39(a) sessions prior to trial and the trial
defense counsel became aware that Appellee had provided another statement
to NCIS that the Government had not turned over to the Defense. The trial
court ordered the Government to turn over this statement and ordered the
Government to comply with the remainder of its discovery obligations by 4
April 2022. On 4 April 2022, Ms. Grace’s mother canceled Ms. Grace’s sched-
uled interview with trial defense counsel. On 5 April 2022, the trial defense
counsel sent a request for a bill of particulars to the Government asking by
4 Charge Sheet at 2 (emphasis added).
5 Id.
6 App. Ex. XXXI.
4
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Opinion of the Court
what means Appellee allegedly said “show me your a[***] [and] show me your
p[***].” On 7 April 2022, the Government responded that,
[T]he specification expressly alleges every element of the
charged offense as is required by R.C.M. 307. The Government
has provided notice of the place, time, substances of the indecent
communications, and to whom the communications were made.
The specification adequately informs the accused of the nature
of the charge with sufficient precision to enable the accused to
prepare for trial, to avoid surprise at the time of trial, and to
enable him to plead the acquittal or conviction in bar of jeopardy.
Additionally, the evidence provided in this case provides suffi-
cient additional notice into the underlying evidence that sup-
ports the allegation. 7
It is important to note that after the initial interviews with NCIS, no mem-
ber of the prosecution team interviewed either Ms. Grace or Ms. Madison be-
fore 16 April 2022, approximately one business day before the trial was to
begin.
Appellee moved to dismiss both specifications for improper or defective pre-
ferral. In the motion, Appellee alleged prosecutorial overreach and discovery
violations. Trial defense counsel argued that Specification 2 contained lan-
guage that was not supported by the evidence the Government provided and
was “excessively inflammatory.” 8 Trial defense counsel alleged the communi-
cations in Specification 2—“Show me your p[***]” and “Show me your a[***]”—
amounted to overcharging without probable cause because the Government
had no evidence to show Appellee said this exact language to Ms. Grace. Trial
defense counsel argued that Specification 4 was also defective because the ev-
idence reviewed by the accuser did not support the allegation that Appellee ask
Ms. Madison to expose her breasts or touch her body.
At the motions hearing the military judge heard testimony from OS2 Ro-
meo. She testified that she understood probable cause to mean that the charge
sheet was correct based on her review of “the ROIs and evidence.” 9 She testified
that at the time of preferral she reviewed Appellee’s interview and spoke with
7 Bill of Particulars, App. Ex. XXX.
8 App. Ex. LXVIII.
9 R. at 231.
5
United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
trial counsel about the meaning of the phrase “words to that effect.” 10 With
regard to Specification 2, OS2 Romeo understood that the phrase “words to
that effect” “means a different word meaning the same thing.” 11 OS2 Romeo,
however, believed the quoted language in Specification 2 to be direct quotes of
Appellee that she saw when she reviewed ROIs, media, and Appellee’s state-
ments. However, the quoted language in Specification 2 did not appear in any
evidence reviewed by OS2 Romeo and, in fact, did not appear in any evidence
provided to the defense prior to 16 April 2022. The following colloquy occurred
between the military judge and trial counsel:
MJ: You believed based on an interview, but in that inter-
view, did [Ms. Grace] ever use these quotes?
ATC: She did not say the word “p[***],” Your Honor.
MJ: Okay. Did she use these quotes in her interview?
ATC: She used some of these quotes in the specification.
MJ: The specific ones that are at issue here today, did she
ever say he told her, “Show me your a[***],” “Show me
your p[***]”?
ATC: Not those specific quotes, Your Honor.
MJ: Okay. So, you just assumed that maybe she'll [say] that,
but you weren't for sure, right, because you’ve never
talked to her?
ATC: Yes, Your Honor.
MJ: At that point in time, you had never talked to her.
ATC: Yes, Your Honor. 12
With regard to Specification 4, OS2 Romeo also relied on the ROIs, specifi-
cally the ROI pertaining to the interview of Ms. Madison, in making a decision
to prefer. However, the ROI that captured the interview with Ms. Madison does
not support the specification. Ms. Madison’s ROI does not mention Appellee’s
masturbation, Appellee directing Ms. Madison to touch her body, or a separate
FaceTime call with her.
10 R. at 234.
11 R. at 235.
12 R. at 273.
6
United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
Specific to Specification 4, the military judge asked trial counsel to articu-
late the evidence supporting the allegation that Appellee was masturbating
during the second FaceTime call. 13 Trial counsel explained that it came from
the law enforcement interview with Ms. Grace where she said, “I saw them
doing it again,” when she woke up from a nap, referring to what happened on
the first FaceTime call. Nevertheless, the record is clear that OS2 Romeo did
not review the NCIS interview of Ms. Grace.
In his oral ruling, the military judge found that OS2 Romeo was properly
sworn prior to preferral and, once sworn, considered evidence she had in front
of her that supported the allegations. 14 The military judge noted that despite
having the evidence, OS2 Romeo did not review or watch the interviews of the
two young women. 15 The military judge further found that trial counsel pro-
vided no notice to Appellee that the quoted language—“show me your a[**]”
and “show me your p[***]”—appeared in discovery materials provided to the
Defense, nor any evidence that these exact quotes were said to Ms. Grace. In
response to Appellee’s discovery motions and during an R.C.M. 802 conference,
the military judge ordered trial counsel to identify where the quoted language
appeared in the evidence disclosed to the Appellee. 16 After the R.C.M. 802 con-
ference, trial counsel told trial defense counsel the charged language was cho-
sen because the Government believed that the quoted language best reflected
Appellee’s words to Ms. Grace. 17
Ultimately the military judge dismissed Specification 2 with prejudice,
finding both defective preferral and a violation of the Government’s discovery
obligations. The military judge found OS2 Romeo’s “testimony to be credible
with regard to her belief that the quoted language in Specification 2 of Charge
II [was] actual quotes by [Appellee].” 18 The military judge further found the
accuser “to be truthful” when she testified that she reviewed evidence support-
ing the specification’s language of “show me your p[***]” and “show me your
13 R. at 323.
14 R. at 335.
15 R. at 336–37.
16 R. at 341.
17 R. at 341.
18 R. at 346.
7
United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
a[**].” 19 Nonetheless, the military judge found the preferral to be defective be-
cause the accuser’s “assertion about the truthfulness of the specification [was]
flawed.” 20 It was “flawed” because evidence that Appellee said the quoted lan-
guage did not exist at the time of preferral. The military judge found trial coun-
sel’s use of the phrase “words to that effect” did not cure the defective preferral
because “the actual words matter because the indecent nature of the words are,
in fact, an element of the offense.” 21 The military judge found the Government
violated its Mil. R. Evid. 304(d) obligations with respect to Specification 2 be-
cause trial counsel was not “forthright with the defense on the evidence as it
relates to the specification.” 22 Specifically, trial counsel did not directly respond
to trial defense counsel about the state of the evidence, and trial counsel’s de-
cision to wait until the eve of trial to interview Ms. Grace about “what the
[Appellee] said to her, and what she did on FaceTime while [Appellee] watched”
was unacceptable. 23
The military judge also dismissed Specification 4 for defective or improper
preferral but did so without prejudice. He reasoned that dismissal without
prejudice was appropriate because “the defense was given evidence in this case
in regard to this specification.” The military judge stated his analysis regard-
ing the defective or improper preferral would be different had the accuser re-
viewed the statements of Ms. Grace and Ms. Madison. 24
At the conclusion of the hearing, and prior to ruling from the bench, the
military judge stated that he would supplement his oral ruling with a written
ruling. Prior to the military judge supplementing the record, the Government
filed a Notice of Appeal. Shortly after the Notice of Appeal was filed, but before
the record was authenticated, the military judge issued his written ruling. The
Government argues on appeal that this Court should disregard the written
ruling because the military judge was divested of the authority to supplement
the record once the automatic stay went into place and allowing him to do so
is in violation of R.C.M. 908.
19 R. at 346.
20 R. at 346.
21 R. at 347.
22 R. at 348.
23 R. 347–49.
24 R. at 345.
8
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Opinion of the Court
II. DISCUSSION
A. The Military Judge’s Written Ruling
The Government asserts that this Court should disregard the military
judge’s written ruling, arguing that R.C.M. 908 divests the military judge of
any jurisdiction over the case, and thus that he had no authority to issue a new
ruling on the same matter after the United States filed its notice of appeal. We
disagree.
We employ ordinary rules of statutory construction to interpret the Rules
for Courts-Martial, to include reading them holistically. 25 We find that the mil-
itary judge may reconsider a ruling or order, including supplementing an oral
ruling with written findings, after notice of an appeal under Article 62, UCMJ,
and prior to the authentication of the record.
In United States v. Catano, the Air Force Court of Criminal Appeals
[AFCCA] considered much the same issue as the one before us now. 26 There,
the government filed an Article 62, UCMJ, interlocutory appeal that chal-
lenged the military judge’s ruling to exclude evidence. 27 Following a motions
hearing, the military judge excluded the evidence offered by the Government
in a written ruling on 22 April 2015. 28 Two days later the Government timely
filed a notice of appeal. 29 On 1 May 2015, the military judge issued a 6-page
supplemental ruling which incorporated her original ruling and added several
findings of fact and conclusions of law – leaving her ultimate conclusion un-
changed. 30 That same day, she then authenticated the record of proceedings. 31
The case was docketed with the AFCCA on 14 May 2015. On 2 June 2015, the
Government filed a motion to strike the supplemental ruling, which the court
25 United States v. Hill, 71 M.J. 678, 685 (Army Ct. Crim. App. 2012).
26 United States v. Catano, 75 M.J. 513 (A.F. Ct. Crim. App. 2015).
27 Id. at 515.
28 Id.29 Id.30 Id.31 Id.9
United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
denied. 32 At oral argument, the Government requested reconsideration of the
court’s ruling, which the AFCCA addressed in its published opinion. 33
There, as here, the Government argued that “the military judge does not
possess [R.C.M. 905(f) ruling] reconsideration authority, as part of her authen-
tication of a record of proceedings prepared for use in a [G]overnment appeal
under Article 62, UCMJ, when that authentication occurs after the Govern-
ment has filed its notice of appeal.” 34 The AFFCA disagreed, citing three pri-
mary rationales, all of which we find persuasive.
First, consideration of a military judge’s written supplementation of a rec-
ord does not violate R.C.M. 908’s automatic stay because the legal effect of the
military judge’s ruling remains intact pending final appellate resolution. 35 Sec-
ond, the AFCCA found the “rationale underlying the authority of military
judges to reconsider and reverse their rulings prior to appellate review applies
equally to rulings the Government elects to appeal under Article 62, UCMJ.” 36
As the Air Force Court explained, “[t]he Supreme Court has noted the wisdom
of allowing trial courts ‘the opportunity to promptly correct their own alleged
errors,’ as opposed to imposing added and unnecessary burdens on appellate
courts.” 37 In the military justice system, such an opportunity is given effect by
R.C.M. 905(f), which confers to the military judge the authority to sua sponte
reconsider any ruling (other than a finding of not guilty) until the record of
trial is authenticated. Third, the AFCCA considered precedents from civilian
federal courts “in light of Congress’ intent that such appeals be conducted un-
der the procedures similar to [G]overnment appeals in federal civilian court
32 Id.33 Id.34 Id. at 516.
35 Id. at 516 (“…the automatic stay provision language was added in 1991 to ‘state
explicitly that, upon timely notice of appeal, the legal effect of an appealable ruling or
order is stayed pending appellate resolution.’ Here, the ‘legal effect’ of the military
judge's initial suppression ruling has been stayed until this court completes its re-
view—Appellee remains subject to the charges and the military judge is precluded
from requiring the Government to proceed to trial without the benefit of the evidence
she suppressed. The issuance of her supplemental ruling does not change the legal
effect.”) (citation omitted).
36 Id. at 516.
37 Id.10
United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
criminal proceedings under 18 U.S.C. § 3731.” 38 In its analysis, the AFCCA
concluded that, generally, such supplementations are permissible where they
reduce confusion and are in aid of the appellate court’s jurisdiction. 39 Ulti-
mately, the AFCCA concluded that “the military judge would have been au-
thorized to reconsider her ruling and, therefore, is permitted to issue a supple-
mental ruling,” thus, the military judge’s supplemental ruling was properly
part of the record before the AFCCA. 40
Here, the military judge issued an oral ruling from the bench dismissing
Specification 2 with prejudice and Specification 4 without prejudice. The mili-
tary judge noted that, while he would rule from the bench, he intended to sup-
plement his oral ruling in writing. 41 On 22 April 2022, the Government timely
filed a Notice of Appeal which stayed the proceedings. Four days later, the mil-
itary judge issued a written ruling which supplemented his oral ruling from
the bench. Then, in accordance with R.C.M. 908(b)(5) and R.C.M. 1112(c), the
court reporter certified the record of trial on 13 May 2022. We find that the
military judge, having had the authority to reconsider his ruling, properly sup-
plemented the record with his written ruling and that the entire record, in-
cluding the supplement, is properly before this Court. 42
Finally we note, as the AFCCA did, that this position lends itself to im-
proved judicial economy. The Court of Appeals for the Armed Forces has rec-
ognized that where an appellate court finds during the course of an Article 62,
UCMJ, appeal that a trial judge’s findings are “incomplete or ambiguous,” 43
the “appropriate remedy is a remand for clarification or additional findings.” 44
It would be nonsensical to preclude military judges from supplementing their
oral rulings prior to certification of the record, only to wait and then have an
38 Id. at 517.
39 Id.40 Id. at 518.
41R. at 334 (“[t]he court will be supplementing this ruling with a further written
ruling that will be filed and put in the record”).
42We note that the judge’s written ruling is very similar to his ruling on the record.
Therefore, even if we were to disregard the written ruling we would still find that the
military judge acted within his discretion, and our findings and holding, below, would
remain unchanged.
43 United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995).
Id. at 320 (quoting United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994)) (internal
44
quotation omitted).
11
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Opinion of the Court
appellate court remand an interlocutory appeal back to the military judge for
further clarifications. As such this Court will consider the military judge’s writ-
ten ruling.
B. Improper Preferral and Discovery Violations
We find that the military judge did not abuse his discretion in dismissing
either specification for improper or defective preferral. Further, we find that
the military judge did not abuse his discretion in dismissing Specification 2
with prejudice.
1. Standard of Review and the Law
We review a military judge’s ruling to dismiss charges and specifications
for an abuse of discretion. 45 Further, military appellate courts review dismissal
“with prejudice” based on discovery violations for an abuse of discretion. 46 A
military judge abuses his discretion when his “findings are clearly erroneous
or if his decision is influenced by an erroneous view of the law.” 47 “The abuse
of discretion standard is a strict one, calling for more than a mere difference of
opinion.” 48 “The challenged action must be ‘arbitrary, fanciful, clearly unrea-
sonable,’ or ‘clearly erroneous.’” 49
Under Article 30(a), UCMJ, charges and specifications “shall be preferred
by presentment in writing, signed under oath before a commissioned officer of
the armed forces who is authorized to administer oaths.” 50 The signer must
state he or she “has personal knowledge of, or has investigated, the matters set
forth in the charges and specifications; and the matters set forth in the charges
and specifications are true, to the best of the knowledge and belief of the
signer.” 51 “[T]he traditional purpose of the military charging provisions is ‘to
ensure the charges were not frivolous, unfounded, or malicious, but’ are
45 United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).
46 United States v. Dooley, 61 M.J. 258, 262 (C.A.A.F. 2005).
47 Gore, 60 M.J. at 187.
48 United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (citation omitted).
49 United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citations omitted).
50 Article 30(a), UCMJ.
51Art. 30(b), UCMJ; R.C.M. 307(b)(2); see United States v. Miller, 33 M.J. 235,
236–37 (C.M.A. 1991).
12
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founded ‘in good faith.’” 52 “[T]o maintain the validity of the purposes of this
oath, an accuser need only generally believe that the allegations contained in
the charges are true at the time they are preferred.” 53
Under Mil. R. Evid. 304(d), the Government has an affirmative duty, prior
to arraignment, “to disclose to the defense the contents of all statements, oral
or written, made by the accused that are relevant to the case, known to trial
counsel and within the control of the Armed Forces.” 54 R.C.M. 701(d) obligates
all parties with a continuing duty to disclose information. Trial Counsel has no
duty to disclose that which is not within the custody or control of the United
States. 55
Discovery in the military justice system is broader than in federal civilian
criminal proceedings. 56 Generally, the parties to a court-martial “shall have
equal opportunity to obtain witnesses and other evidence in accordance with
such regulations as the President may prescribe.” 57 Under the discovery rules
prescribed by the President, the defense must be permitted to inspect any pa-
pers or documents “within the possession, custody, or control of military au-
thorities” that are “relevant to defense preparation.” 58 In addition, the “[t]rial
counsel shall, as soon as practicable, disclose to the defense the existence of
evidence known to the trial counsel which reasonably tends to . . . [a]dversely
affect the credibility of any prosecution witness or evidence.” 59
When fashioning a remedy for a discovery violation, military judges con-
sider the individual facts of the case. 60 Under R.C.M. 701(g)(3), if a party fails
to comply with the discovery rules, the military judge may take one or more of
52 Miller, 33 M.J. at 237 (quoting Winthrop, Military and Precedents 151 (2d ed.
1920 Reprint)).
53United States v. Miller, 31 M.J. 798, 802 (A.F.C.M.R. 1990), aff’d, 33 M.J. 235(C.M.A. 1991).
54 United States v. Farley, 60 M.J. 492, 493 n.2 (C.A.A.F. 2005).
55 United States v. Lofton, 69 M.J. 386, 390 (C.A.A.F. 2011)).
56 United States v. Jackson, 59 M.J. 330, 333 (C.A.A.F. 2004).
57 Art. 46(a), UCMJ.
58 R.C.M. 701(a)(2)(A)(i). Evidence is relevant if it has any tendency to make a fact
of consequence in determining the action more or less probable than it would be with-
out the evidence. Mil. R. Evid. 401.
59 R.C.M. 701(a)(6)(D).
60 See United States v. Dancy, 38 M.J. 1, 6 (C.M.A. 1993).
13
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Opinion of the Court
the following actions: (1) order the party to permit discovery; (2) grant a con-
tinuance; (3) prohibit the party from introducing evidence, calling a witness,
or raising a defense not disclosed; and (4) enter such other order as is just un-
der the circumstances. 61 Dismissal “is a drastic remedy” but may be appropri-
ate when “no lesser sanction will remedy” the prejudicial effects of the discov-
ery violation. 62
2. Charge II, Specification 2
Here, we find no abuse of discretion in the military judge’s determination
that Specification 2 was defectively or improperly preferred. Additionally, we
find that the military judge did not abuse his discretion in dismissing the spec-
ification with prejudice. His determination was predicated on findings of fact
that are supported by the evidence in the record; he used correct legal princi-
ples; he applied those correct legal principles to the facts in a way that was not
clearly unreasonable; and, he considered all of the important facts.
The Government concedes that, at the time of preferral, there was zero ev-
idence before OS2 Romeo that the specifically contested language quoted in
Specification 2 was stated by Appellee. The Government cites United States v.
Arma to support the argument that the military judge erred. 63 Arma held that
the military judge abused her discretion when she found the R.C.M. 307 pre-
ferral requirements were not met because the accuser believed he should have
personally reviewed more evidence and had substantial doubts about the
strength of the evidence, law enforcement methods, and the legal office’s fail-
ure to provide him with some of the evidence. The Arma court found preferral
was not defective because R.C.M. 307 “does not require a final or conclusive
determination of the accused’s guilt prior to court-martial,” and the military
judge erred by “review[ing] the weight and sufficiency of the evidence the ac-
cuser relied upon and apparently came up with her own conclusion about
whether it was convincing or complete.” This case is very different.
Here, the military judge did not review or question the “weight and suffi-
ciency” of the evidence. He based his ruling on the undisputed fact that there
was no evidence in existence at the time of preferral to support the quoted
language. We see that as very different than a military judge substituting his
61 R.C.M. 701(g)(3).
62 United States v. Stellato, 74 M.J. 473, 488 (C.A.A.F. 2015) (internal quotation
marks and citation omitted).
63 United States v. Arma, No. 2014-09, 2014 CCA LEXIS 802 (A.F. Ct. Crim. App.
Oct. 22, 2014).
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United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
assessment of the evidence for that of the accuser’s. The military judge found
that OS2 Romeo was credible, but mistaken about the quoted language exist-
ing in the media she reviewed. The bottom line is that had OS2 Romeo been
mistaken about the weight and sufficiency of the evidence we would likely
agree with the Government–but here, she was mistaken that there was evi-
dence at all. The issue, as stated by the military judge, was simply that there
was no evidence at the time of preferral. This is very different from the scenario
where evidence exists but a military judge determines that the weight and suf-
ficiency of that evidence does not support preferral. In United States v. Miller,
the Court of Military Appeals articulated that the purpose of preferral is to
ensure the “charges were not frivolous, unfounded, or malicious, but are
founded in good faith.” 64 The question at preferral is not whether the Govern-
ment can “final[ly] or conclusive[ly]” prove “an accused’s guilt prior to his court-
martial,” but rather whether the accusations are “founded ‘in good faith.’” 65
Here, the military judge correctly found the specifications at issue were un-
founded, albeit made in good faith. The Government’s assertion that “good
faith” alone can cure the defective specification is misplaced. 66 In this case,
good faith cannot overcome the undisputed lack of evidence at the time of pre-
ferral with regard to the contested quotes charged in Specification 2.
We also agree with the military judge that that the term “words to that
effect” does not save this preferral. When combined with all of the circum-
stances surrounding this case, it is indeed significant that the Government
made a decision to use quotation marks around the language it alleged Appel-
lee said. This was misleading and, as detailed below, ultimately exacerbated
by the subsequent actions and inactions of the Government. During the many
months before trial, and despite many attempts by trial defense counsel to
seek clarification, there was no evidence (until the eve of trial) that the Gov-
ernment possessed evidence that would support the allegation that Appellee
actually said the contested indecent language charged in Specification 2.
The argument that the Government used these quotations based upon as-
sumptions of what it thought Appellee might have said is concerning. Either
there is probable cause to believe the language was used or there is not. In
this case, it is clear there was not. We agree with the military judge that be-
64 Miller, 33 M.J. at 237 (emphasis added).
65 Id.
66 Gov’t Br. at 15.
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Opinion of the Court
cause this specification alleged specific communications about indecent lan-
guage to a child, the actual words matter because the indecent nature of the
words themselves are, in fact, an element of the offense.
The Government argues that United States v. Pritchard supports the prop-
osition that the language “or words to that effect” can be used to put an accused
on notice that the language was “not to be considered as being alleged verbatim
in the specification.” 67 While we agree with that proposition we do not find it
applicable to this case. Allowing the Government to simply add “or words to
that effect” is improper in this context – which is likely, as the military judge
found, why these words do not appear in the model specification in either the
Bench Book or the Manual for Courts-Martial. 68 Otherwise, the Government
could essentially charge any word and then ask for a variance at trial. Adding
the term, “or words to that effect," and applying it to the terms “a[***]” and
“p[***]” does not save the preferral from being defective. Accordingly, we find
that the military judge did not abuse his discretion in finding that Specification
2 was the product of a defective or improper preferral. The communication of
the words themselves are the gravity of the offense preferred and in this case
Specification 2 of Charge II.
We also find that the military judge did not abuse his discretion when he
dismissed Specification 2 with prejudice. R.C.M 701(g)(3) provides military
judges several authorized remedies for discovery violations. Recognizing that
dismissal is one of the authorized remedies and that it is a “drastic remedy”
appropriate when “no lesser sanction will remedy” the prejudicial effects of the
discovery violation, we find, based on the totality of the circumstances, that
the military judge did not abuse his discretion in dismissing this specification
with prejudice. 69
Similar to the military judge, we conclude that, in relation to Specification
2, the evidence and the law supported finding that the Government violated
Mil. R. Evid. 304(d). Here, the Government charged specific, quoted, indecent
language that purportedly came from Appellee. Yet, no facts were uncovered
67 United States v. Pritchard, 42 M.J. 126, 130 (C.A.A.F. 1991).
68The model specification for sexual abuse of a child involving indecent communi-
cation states, “In that ________ (personal jurisdiction data), did (at/on board—location)
(subject-matter jurisdiction, if required), on or about _______ 20__, commit a lewd act
upon __________, a child who had not attained the age of 16 years, by intentionally
communicating to ________ indecent language to wit: ___________, with an intent to
[(abuse) (humiliate) (degrade)_____] [(arouse) (gratify) the sexual desire of _________].
Manual for Courts-Martial [MCM] pt. IV, para. 62.e.(3)(c).
69 Stellato, 74 M.J. at 488.
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United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
to evidence that quoted language. It is axiomatic that there can be no violation
of Mil. R. Evid. 304(d) if no evidence exists to disclose; however, the Govern-
ment here chose the specified quoted language. That choice then implied that
evidence existed when it in fact did not. The trial defense counsel repeatedly
inquired about the quoted language and the record indicates that the Govern-
ment kept up the façade that the disclosure had already been made. The Gov-
ernment controls the charge sheet and, as a consequence, bears the responsi-
bility of ensuring it accurately reflects the charges and specifications alleged.
Such is the basis for the notice requirement.
The Government argues that the military judge failed to cite any authority
requiring trial counsel to interview a witness to obtain information beyond
what the witness disclosed in previous interviews. The Government asserts
that while perhaps not a “best practice,” trial counsel was not required to in-
terview the victims months before trial. The Government also asserts that the
military judge’s contention that the trial counsel’s actions were “egregious” be-
cause the victims chose not to speak with the Defense misapprehends the re-
lationship between trial counsel and the victims. 70
We agree with the Government that trial counsel are not required to inter-
view a victim months before trial. We also agree that, in most cases, waiting to
interview a victim until the eve of trial is not a “best practice.” In this case,
once on notice that the quoted language was never represented in evidence,
the Government’s delay until the eve of trial to interview the Ms. Madison and
Ms. Grace and actually obtain the evidence was significant and the military
judge correctly found that when considering the totality of the circumstances
in this case, it was in violation of the Government’s discovery obligations.
On numerous occasions, the Government was not forthright with the trial
defense counsel regarding all of the evidence as it related to Specification 2.
The Defense fairly and properly assumed, as did the trial court, that evidence
existed supporting the allegation that Appellee allegedly made the actual
quotes regarding “a[***]” and “p[***].” The trial defense counsel asked multiple
times about the specific language in the specification, and multiple times the
Government did not directly respond about the state of that evidence. Multiple
times the Government articulated it had provided all known evidence to the
Defense, a notion that the military judge correctly labeled a “fallacy.”71 We
reject any notion that deliberate ignorance changes the calculation and agree
70 See United States v. Carrigan, 804 F.2d 599, 603 (10th Cir. 1986) (witnesses in
criminal prosecution belong to no one).
71 R. at 347.
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United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
with the military judge that the Government was not forthright with the De-
fense on the state of the evidence about these two quotations.
In addition, the Government, in this case, made a strategic decision not to
interview Ms. Grace until 16 April 2022, a day and a half before trial was
scheduled to begin. While it is not for this Court to question the tactics of when
witnesses are interviewed, such matters are squarely within our jurisdiction
insofar as they implicate Mil. R. Evid. 304(d) and principles of notice. We find
these last-minute disclosures to be significant. They were clear, major, eviden-
tiary disclosures and Ms. Grace’s decision not to speak to defense counsel rep-
resenting Appellee exacerbated the issue. While such a decision was well
within her right as a named victim, this, as well as Government’s posture re-
garding its discovery and disclosure obligations, magnified the necessity of
Government candor. The Government's decision not to interview Ms. Grace
between 3 March 2021 and 16 April 2022, as well as to not disclose the evidence
or lack thereof regarding the quoted language in the specification, had a sig-
nificant prejudicial impact on Appellee. Having considered all of these factors,
as well as the circumstances surrounding Specification 2, we find the military
judge did not abuse his discretion when he determined that dismissal with
prejudice was an appropriate remedy.
3. Charge II, Specification 4
We find that the military judge’s dismissal of Specification 4 was also
proper and predicated on findings of fact that are supported by the evidence in
the record.
Specification 4 differs from Specification 2 in that the evidence to support
it did actually exist at the time of preferral. The problem is that the accuser
did not review said evidence – the record clearly establishes that OS2 Romeo
did not review either young woman’s statement to NCIS. Instead, OS2 Romeo
only reviewed the NCIS ROI summary of Ms. Grace’s and Ms. Madison’s state-
ments, as well as media, none of which serve to support the allegation.
The ROIs provide no detail as to what took place between Ms. Madison and
the Appellee when they talked separately. Additionally, the ROIs do not men-
tion Ms. Madison stating that Appellee masturbated, nor that he directed her
to touch herself inappropriately – all things the Government alleged Appellee
to have done in Specification 4. As such, we agree with the military judge that
there was no evidence that OS2 Romeo reviewed which could have reasonably
led her to believe that Appellee committed the lewd acts alleged in Specifica-
tion 4.
We find that the military judge did not abuse his discretion in determining
that the preferral was defective and dismissing Specification 4. The specifica-
tion as preferred was unfounded. We agree with the military judge that this
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United States v. Floyd, NMCCA No. 202200106
Opinion of the Court
analysis would be different had OS2 Romeo actually reviewed the statements
of Ms. Grace and Ms. Madison. Because the evidence actually reviewed could
not have served as a foundation for Specification 4, we find that military judge
did not abuse his discretion in determining that the preferral was defective
and dismissing Specification 4 without prejudice.
III. CONCLUSION
The Government’s appeal is DENIED. The record of trial is returned to the
Judge Advocate General for remand to the convening authority and delivery to
the military judge for further proceedings not inconsistent with this opinion.
FOR THE COURT:
MARK K. JAMISON
Clerk of Court
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